H & S Hoffman & G Korsunski Carmel School Inc v Nagi
[2023] WADC 16
•17 FEBRUARY 2023
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: H & S HOFFMAN & G KORSUNSKI CARMEL SCHOOL INC -v- NAGI [2023] WADC 16
CORAM: REGISTRAR JEYAMOHAN
HEARD: 1 FEBRUARY 2023
DELIVERED : Ex tempore
PUBLISHED : 17 FEBRUARY 2023
FILE NO/S: CIV 2540 of 2022
BETWEEN: H & S HOFFMAN & G KORSUNSKI CARMEL SCHOOL INC
Plaintiff
AND
MICHAEL NAGI
First Defendant
NATANYA NAGI
Second Defendant
Catchwords:
Summary judgment - Leave to bring application for summary judgment out of time
Legislation:
Rules of the Supreme Court 1971 (WA)
Result:
Application dismissed
Representation:
Counsel:
| Plaintiff | : | Mr H Paiker |
| First Defendant | : | No appearance |
| Second Defendant | : | In person |
Solicitors:
| Plaintiff | : | Paiker And Overmeire |
| First Defendant | : | Not applicable |
| Second Defendant | : | Not applicable |
Case(s) referred to in decision(s):
Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Ansearch Ltd v Wavtech Pty Ltd [2006] WASC 184
Bynon v Atma Nominees Pty Ltd as trustee for the Badjyn Investment Trust and the H & B Farm Trust [2017] WASC 30
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Gel Custodians Pty Ltd v Dewar [2014] WASC 177
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109
Webster v Lampard (1993) 177 CLR 598
Westpac Banking Corporation v Anderson [2017] WASC 106
REGISTRAR JEYAMOHAN:
[This decision was delivered extemporaneously on 1 February 2023 and edited from the transcript.]
Introduction
By chamber summons dated 27 October 2022 the plaintiff seeks summary judgment be entered against the second defendant (Application). The plaintiff submitted at the hearing of the Application that the plaintiff has elected to bring the Application against the second defendant alone because of difficulty getting in contact with the first defendant.
The plaintiff's application was supported by the affidavit of Annunziata Romeo sworn 21 October 2022 (Romeo Affidavit). That affidavit appears to have been filed twice with the court first, on 25 October 2022 and then 27 October 2022.
The matter was last before a registrar in chambers on 15 November 2022 where orders were made in the following terms:
(a)The application be adjourned to a special appointment on 1 February 2023 at 11.00 am;
(b)The second defendant file any affidavit in opposition to the application by 12 January 2023;
(c)The plaintiff have leave to file any affidavit in response by 18 January 2023;
(d)The plaintiff file and serve written submissions by 18 January 2023;
(e)The second defendant file and serve written submissions by 25 January 2023; and
(f)Costs reserved.
The second defendant has not filed any affidavit in response and no submissions have been filed by either party in respect of the application before the court today.
Overview
The plaintiff is an association incorporated in accordance with the Associations Incorporations Act 2015 (WA) and conducts Carmel School at Cresswell Road, Dianella (the School). The plaintiff purports that the first and second defendants enrolled their three children at the School. The first and second defendants' children attended the School on various dates from 2003 to 2021.
The plaintiff's claim against the first defendant and second defendant as set out in the writ of summons dated 21 June 2022 is for the sum of $114,115 purportedly being an outstanding deferred debt payable by the defendants to the plaintiff in respect to the defendants' children's school fees (Deferred Amount), which amount despite demand, remains due owing and payable.
A memorandum of appearance was entered on behalf of the first and second defendants on 12 July 2022. The plaintiff filed and served a statement of claim on 3 October 2022 (SoC).
The plaintiff in its SoC purports that by a written acknowledgment dated 5 February 2016 the first and second defendants:
(a)jointly and severally acknowledged their liability to the School in respect to the Deferred Amount; and
(b)agreed to pay the Deferred Amount upon all their children no longer being pupils at the School.
Issues
The preliminary issue to be determined is should the plaintiff have leave to apply for summary judgment?
The issues to be determined in the summary judgment application are, in broad terms:
(a)Has the plaintiff established a prima facie entitlement to judgment?
(b)Does the second defendant have an arguable defence?
(c)Is there some other reason why there should be a trial of the action?
Leave to apply for summary judgement
The plaintiff's application for summary judgement was filed on 27 October 2022, more than 21 days after the second defendant entered her appearance. The second defendant's appearance was entered on 12 July 2022.
Any application for summary judgment without leave was required to have been made by 2 August 2022. This did not occur and there is nothing before the court by way of evidence to provide any explanation for the delay in the bringing of this application. The application for summary judgment itself was brought after a defence had been filed. The first and second defendants' defence was filed 17 October 2022 (Defence).
Counsel for the plaintiff sought leave to apply for summary judgment at the hearing of the Application. No affidavit addressing the issue of delay is before the court. Counsel for the plaintiff submitted at the hearing that the plaintiff had (first) awaited the filing of the Defence to form a view on whether the defence disclosed a defence (as such).
Counsel for the plaintiff submitted that on forming the view that the Defence did not disclose a defence (as such), the plaintiff proceeded with the Application against the second defendant. Counsel for the plaintiff submitted that the Application was brought shortly after the filing of the Defence and no prejudice had been suffered by the second defendant.
Prejudice to the defendant is one consideration the court must consider in its discretion to allow an application to be brought out of time. It is not the only issue that must be considered. There is nothing before me to suggest any prejudice to the second defendant arising from the lateness of the Application by some two or so months.
I am satisfied on the material before me that it is appropriate in the circumstances of this case to exercise my discretion to grant leave to the plaintiff to make its application for summary judgment out of time.
Leave is therefore granted.
The plaintiff's application for summary judgment
Principles applicable to summary judgment
The legal principles governing the power to order summary judgment are uncontroversial. In summary:
(a)summary judgment should be exercised with great care and will not be exercised unless it is clear that there is no real question to be tried: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87, 99;
(b)the onus is on a plaintiff to persuade the court that it is an appropriate case to award summary judgment: Gel Custodians Pty Ltd v Dewar [2014] WASC 177;
(c)once a plaintiff has established a prima facie right to judgment, the onus is on the defendant to satisfy the court why judgment should not be given: Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109, 110;
(d)the defendant does not have to show a defence on the balance of probabilities, only to show cause as to why there is an arguable defence: Westpac Banking Corporation v Anderson [2017] WASC 106;
(e)the court should not dispose of an action summarily where there is a conflict on the facts. Summary judgment must only be granted where the court has a high degree of certainty of the outcome of the proceedings if they went to a trial: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57];
(f)summary judgment is appropriate where the defence is so obviously untenable that it cannot possibly succeed or where it would be manifest that to allow the defence to stand would involve useless expense: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, 129;
(g)in determining whether there is an issue in dispute which ought to be tried, the version of facts put forward by the defendant should be accepted, assuming they are not inherently incredible: Webster v Lampard (1993) 177 CLR 598;
(h)the court is not bound to accept uncritically as raising a dispute of fact calling for further investigation every statement in an affidavit, however equivocal, lacking in precision or inconsistent with contemporary documents: Ansearch Ltd v Wavtech Pty Ltd [2006] WASC 184 [28];
(i)if defending a summary judgment application on the basis of factual issues, the defendant must file an affidavit/s which provide particulars of the facts upon which he asserts that summary judgment should not be given: Westpac Banking Corporation v Anderson [2017] WASC 106; and
(j)summary judgment is not only given where a case is so hopeless as to not require argument. Extensive argument may sometimes be necessary to demonstrate that there is no question which ought to be tried: Bynon v Atma Nominees Pty Ltd as trustee for the Badjyn Investment Trust and the H & B Farm Trust [2017] WASC 30 [16].
The evidence relied upon
The plaintiff relies on the Romeo Affidavit. Ms Romeo deposes in her affidavit sworn on 21 October 2022 that she is the credit controller of the plaintiff with conduct of this matter.[1] Annexed to the Romeo Affidavit are the enrolment forms of the first and second defendant's children at the School.[2]
[1] Romeo Affidavit, par 1.
[2] Romeo Affidavit, par 5; Annexure A.
Ms Romeo in her affidavit deposes to a copy letter dated 5 February 2016 which the plaintiff seeks to rely on in support of their pleaded position that the defendants jointly and severally acknowledged their liability to the School in respect to the Deferred Amount.[3]
Analysis
[3] Romeo Affidavit, par 6; Annexure B.
The plaintiff must first establish a prima facie right to judgment against the second defendant.
It is the plaintiff's case that as at 5 February 2016 the first and second defendants owed the School an amount of $114,115 in respect to arrear school fees being the purported Deferred Amount. No evidence by way of invoices in respect of the any school fees (deferred or otherwise) has been produced by the plaintiff:
There is little else by way of evidence that establishes that the plaintiff has a prima facie right to judgment in the amount claimed apart from the document attached to Ms Romeo's affidavit. The defendants are self-represented. The defendants, in their defence filed 17 October 2022, assert that the school commits and promotes that the offer of fee assistance is available to families in need of support of the philosophy that no Jewish child shall be denied a Jewish education.
The defence assert that in 2012, at the commencement of high school, the defendants' child, was withdrawn from school to avoid the accrual of fees that were not affordable due to financial distress resulting from his father's illness.
From the time of his exit the defence pleads that the school actively solicited [the child's] return, despite knowing financial hardship and lack of affordability, and provided assurances that his education was their primary area of concern and that the defendants didn’t need to worry about the financial side which would be looked after.
The defence also pleads that the written document dated 5 February 2016 that the plaintiff seeks to rely on in respect of the deferred debt was obtained under duress and, in effect, does not reflect the defendants' understanding of the position and is not payable, in any event, until after the youngest child had left school at which time the deferred debt, on the defendants' case, would not have been payable in full, but could be paid over an extended period of many years in line with affordability.
The defendants have elected not to file any affidavit evidence for the purposes of today's application. However, the second defendant, who appeared at today's hearing, has submitted in addition to the matters raised in the defence the defendants intend to rely on witness evidence with respect to various matters, the subject of the defence. Now, there is no evidence to that effect presently before the court.
The second defendant has also submitted and reiterated that between the period 2016 and 2021 which is the date on which the last of the defendants' children graduated from the school, the defendants have been subject to various fee payment arrangements and have, in fact, made some payment over that period of time. Again, there is no formal evidence before this court on those matters but they have been put by way of submission to this court by the second defendant.
Whilst it is not appropriate that I express a view about the merits of these defences, in consideration of the evidence before me, it is my opinion that even at its lowest point there is evidence of a difference of opinion regarding the amount, manner, and timing of the claimed repayments.
I consider therefore that the existence and extent of any agreement in respect of the claimed Deferred Amount, should be a matter for a trial judge.
In order to oppose a summary judgment application, the second defendant need only to have demonstrated that her defence is not so obviously untenable and that her version of the facts is not inherently incredible. It is not a high bar that the second defendant had to overcome.
In summary, I conclude it cannot be said there is no real question to be tried.
In these circumstances leave to bring the application for summary judgment is allowed, but the application itself is dismissed.
I will hear from the parties as to any further orders including with respect to costs.
Orders
The plaintiff do have leave to bring the application for summary judgment out of time.
The plaintiff's application for summary judgment be dismissed.
No order as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
EF
Registrars Associate
17 FEBRUARY 2023
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