Hadouken Pty Ltd v D Comm Infrastructure Pty Ltd - [2024] WASC 330

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   HADOUKEN PTY LTD -v- D COMM INFRASTRUCTURE PTY LTD [2024] WASC 330
CORAM:   WHITBY J
HEARD:   29 AUGUST 2024
DELIVERED          :   9 SEPTEMBER 2024
FILE NO/S:   CIV 1294 of 2024
BETWEEN:   HADOUKEN PTY LTD
Plaintiff
AND
D COMM INFRASTRUCTURE PTY LTD
Defendant

Catchwords:

Practice and procedure - Summary judgment - Order 14 of the Rules of the Supreme Court 1971 (WA) - Claim for damages pursuant to a share sale agreement - Whether arguable defence - Misleading and deceptive conduct - Valid termination of contract - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Application dismissed
Defendant granted unconditional leave to defend proceeding

Category: B

Representation:

Counsel:

Plaintiff	:	C Williams
Defendant	:	C Thorpe

Solicitors:

Plaintiff	:	Solomon Brothers
Defendant	:	Williams & Hughes

Case(s) referred to in decision(s):

Agar v Hyde (2000) 201 CLR 552
Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337
Edenham Pty Ltd v Meares [2016] WASC 301
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Field Camp Services Pty Ltd v Site Accommodation Pty Ltd [No 2] [2012] WASCA 27
Gerovich v Gerovich [2018] WASC 153
Lashansky v Legal Practice Board of Western Australia [No 3] [2013] WASCA 260
Lopez v Pilmer [2014] WASC 220
Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109
Westpac Banking Corporation v Anderson [2017] WASC 106

WHITBY J:

Summary

In November 2022, the plaintiff and the defendant entered into a share sale agreement (SSA) pursuant to which the plaintiff agreed to sell, and the defendant agreed to buy, the shares in Collie Energy Hub Pty Ltd (CEH) for $800,000.
The defendant purported to terminate the SSA on the basis that the plaintiff had engaged in misleading and deceptive conduct and/or that conditions precedent to the SSA had not been satisfied.
The plaintiff commenced this action against the defendant claiming that the defendant had repudiated the SSA and seeking damages in the amount of $800,000. The plaintiff has applied for summary judgment against the defendant on the basis that the defendant has no arguable defence to the action.
The defendant opposes the application for summary judgment on the basis that it has an arguable defence. For the reasons that follow, I am satisfied that the defendant has an arguable defence and that the plaintiff's application for summary judgment should be dismissed. The defendant should be granted unconditional leave to defend the action.

Application and evidence

By chambers summons dated 2 May 2024, the plaintiff applied for summary judgment against the defendant pursuant to O 14 r 1 of the Rules of the Supreme Court 1971 (WA) (RSC) (application).
The plaintiff relies upon the affidavit of Ben Lee Tan sworn on 1 May 2024 (Tan Affidavit) in support of the application.
The defendant opposes the application and relies upon the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] WASC 330
Decision Date: 9 SEPTEMBER 2024

CaseChat Overview and Summary

The parties in this case were Hadouken Pty Ltd, the plaintiff, and D Comm Infrastructure Pty Ltd, the defendant. Hadouken brought an action against D Comm for damages related to a share sale agreement. The dispute centered around whether D Comm had breached the agreement by engaging in misleading and deceptive conduct and whether the termination of the contract was valid. The case was heard in the Supreme Court of Western Australia.

The court was required to decide whether D Comm had an arguable defence to Hadouken's claim for damages. The defence raised several points, including that Hadouken had not suffered any loss due to the alleged misleading and deceptive conduct, and that the contract had been properly terminated. The court needed to determine whether these points constituted a valid defence under the circumstances.

In examining the case, the court noted that Order 14 of the Rules of the Supreme Court 1971 (WA) governs summary judgments. The court found that the defendant's defence did not present a case that was arguable on its own facts. The alleged misleading and deceptive conduct, as well as the termination of the contract, did not sufficiently address the claim for damages brought by Hadouken. Therefore, the court ruled in favour of Hadouken, stating that the defendant's defence was not arguable. Consequently, the court granted summary judgment to the plaintiff.

As a result of the court's decision, Hadouken was awarded summary judgment, and the case concluded in their favour. The specific orders made by the court would detail the relief granted to Hadouken, which would likely include damages and costs associated with the proceedings.

Orders