| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : BUNBURY CITATION : HARBECK & ORS -v- VASSE DOZER HIRE PTY LTD [2009] WADC 48 CORAM : PRINCIPAL REGISTRAR GETHING HEARD : 19 MARCH 2009 DELIVERED : 2 APRIL 2009 FILE NO/S : BUS CIV 2 of 2008 BETWEEN : CHRISTOPHER IAN HARBECK GILBERT ARTHUR HARBECK
MAUREEN LESLIE HARBECK
Plaintiffs
AND
VASSE DOZER HIRE PTY LTD (ACN 009 362 501)
Defendant
Catchwords: Practice and procedure - Summary judgment application - Set-off at law Legislation: Interpretation Act 1984 (WA)
Property Law Act 1969
Rules of the Supreme Court 1971
Statutes of Set-off
Supreme Court Rules 1970 (NSW)
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Result: Application dismissed Representation: Counsel:
Plaintiffs : Mr A M Haughton
Defendant : Mr D F Beere
Solicitors:
Plaintiffs : Arns & Associates
Defendant : D F Beere
Case(s) referred to in judgment(s):
Alexander v Ajax Insurance Co Ltd [1956] VLR 436
Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation (1988) 164 CLR 662
Bank of Western Australia v Stein [2005] WASC 43
Barclays Bank Ltd v W J Simms Son & Cooke (Southern) Ltd [1980] QB 677
Bayview Quarries Pty Ltd v Castley Development Pty Ltd [1963] VR 445
Casella v Costin Pty Ltd, unreported; FCt SCt of WA; Library No 5416; 22 June 1984
David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Hazcor Pty Ltd v Kirwanon Pty Ltd (1995) 12 WAR 62
Jacka Nominees Pty Ltd (in Liq) v Edwards Karwacki Smith & C Pty Ltd unreported, Supreme Court of Western Australia; Library No BC9200989; 12 October 1992
Lagos v Grunwaldt [1910] KB 41
Maersk Australia Pty Ltd v Rebelo Nominees Pty Ltd [2008] WADC 81
Morgan v Pallister [2004] WASC 188
South Australian Cold Stores Ltd v Electricity Trust (SA) (1957) 98 CLR 65
Spain v Union Steamship Co. of New Zealand Ltd (1923) 32 CLR 138
Stehar Knitting Mills Pty Ltd v Southern Textile Converters Pty Ltd [1980] 2 NSWLR 514
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W Pope & Co Pty Ltd v Edward Souery & Co Pty Ltd [1983] WAR 117
Webster v Lampard (1993) 177 CLR 598
Westwind Air Charter Pty Ltd v Hawker de Havilland Ltd (1990) 3 WAR 71
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1 PRINCIPAL REGISTRAR GETHING: The present application is an application by the plaintiffs for summary judgment in the amount of $17,160. This money is alleged to be due and owing in relation to a contract pursuant to which the plaintiffs supplied and delivered soil at the defendant's request.
2 The plaintiffs rely on an affidavit sworn by Gilbert Arthur Harbeck on 21 November 2008 and affidavit of their solicitor, Andrew Murray Haughton, sworn 3 December 2008. At the hearing of the application I granted the plaintiff leave to file a further affidavit to cure a formal defect in the application, which I will refer to subsequently in the decision. The defendant relies on an affidavit of Brian Frederick Harbeck sworn 4 March 2009. 3 The application was filed on 3 December 2008. This is more than 21 days after the defendant filed its appearance on 7 May 2008. Accordingly, pursuant to Rules of the Supreme Court 1971 O 14, r 1(1), the plaintiff is required to seek, and has sought, leave to make the application. The defendant did not oppose the grant of leave. As the grant of leave is consistent with the principles laid down in authorities like Jacka Nominees Pty Ltd (in Liq) v Edwards Karwacki Smith & C Pty Ltd unreported, Supreme Court of Western Australia; Library No BC9200989; 12 October 1992 and Bank of Western Australia v Stein [2005] WASC 43, I am prepared to grant the plaintiff leave to bring the application.
Relevant law 4 The basic legal principles regarding summary judgment applications are summarised in the judgment of Pullin J in Morgan v Pallister [2004] WASC 188 at [4] in the following terms: "The plaintiff carries the burden of persuading the court that the claim is a good one, that there is no defence to it, that leave to defend should not be granted, and that judgment should be given for the plaintiff. The party showing cause against the application assumes an evidentiary burden but the overall burden of persuasion remains on the applicant. The power to order summary judgment should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried. It is clear however, that the procedure is not confined to cases which are immediately plain and obvious and the fact that a transaction is intricate does not disentitle the plaintiff to relief in a clear case. It was never (Page 5)
intended that when the facts are in dispute, an action should be disposed of summarily. If a defendant's affidavit reveals inconsistencies which might in a trial persuade a court not to believe the defendant's evidence, this will not necessarily lead to judgment for the plaintiff. It is not necessary to cite authority for these propositions." 5 Where there are disputed facts, and in the absence of cross-examination, the application is to be determined on the basis that the defendant's version of the facts, assuming that it is not inherently incredible, would ultimately be accepted at the trial of the action: Webster v Lampard (1993) 177 CLR 598 at 608. In the same case, the members of the High Court had previously commented that the "issue before the learned Master on the application for summary judgment was … whether the material before the Master demonstrated that the action should not be permitted to go to trial in the ordinary way because it was apparent that it must fail" [at 602].
Plaintiffs' claim 6 Rules of the Supreme Court O 14, r 2(1) provide that an application for summary judgment is to be supported by an affidavit verifying the facts on which the claim is based. The following relevant facts are taken from Mr G A Harbeck's affidavit. In or around February 2006, the plaintiffs entered into an agreement with the defendant by which the plaintiffs agreed to supply and deliver soil to the defendant at Settler's Estate, Layman Road, Busselton ("Layman Road Agreement"). The agreed price was $10.45 per loose cubic metre of soil delivered, inclusive of GST. Pursuant to the Layman Road Agreement the plaintiffs supplied and delivered 42,012 loose cubic metres of soil. The plaintiffs invoiced the defendant $439,025.40 for the soil delivered. Mr G A Harbeck annexes a quote and itemised invoices in relation to this supply. 7 The plaintiffs received payment of $150,000 from the defendant, leaving a balance of $289,025.40. This was the amount initially claimed in the writ. 8 The application for summary judgment was initially in the amount of $95,577.65. Mr J A Harbeck deposes as to the reasoning behind this figure in the following terms: (a) on the defendant's version of events as set out in the amended defence, the defendant concedes that the plaintiffs delivered 25,757 cubic metres of soil; (Page 6)
(b) the defendant alleges that the difference between what the plaintiffs said they delivered and what the defendant said it received resulted in an overcharge of $169,864.75; (c) by implication from par (a) and par (b), the defendant concedes that the sum of $269,160.65 is owed to the plaintiffs for soil delivered pursuant to the Layman Road Agreement (this figure being arrived at by subtracting the amount of the alleged overcharge from the amount actually charged). (d) the defendant admits it has made payments of $150,000, resulting in an outstanding balance of $119,160.65; and (e) the defendant alleges that as a result a breach of the Layman Road Agreement by the plaintiffs, it is entitled to damages of $23,583, which if set-off against the plaintiffs' claim would result in an outstanding balance of $95,577.65 (the plaintiffs concedes that this set-off is arguable). 9 The defendant has also sought to set-off the amount of $17,160 which it says it was overcharged in relation to a separate agreement for the supply of soil to a property at Spur Road, Capel ("the Spur Road Agreement"). It is this amount which was the subject of the hearing before me. 10 The difference between the amount initially claimed in the summary judgment application and the amount claimed in relation to the Spur Road Agreement, a sum of $78,417.65, was the subject of a consent judgment. The remaining issue in dispute is whether the plaintiffs are entitled to summary judgment in the amount of $17,160. 11 The plaintiffs deny the overcharging in relation to the Spur Road Agreement. From the materials before me there is a clear triable issue in relation to the amount of the soil delivered pursuant to the Spur Road Agreement, which is the basis for the overcharging claim. The plaintiffs did not seek to argue that there ought to be summary judgment on the merits of the Spur Road Agreement claim. Rather, the plaintiff asserted that the alleged overpayment pursuant to the Spur Road Agreement could not be the subject of a set-off. 12 In relation to the plaintiffs' claim, I am satisfied that it has been sufficiently verified in the affidavit of Mr G A Harbeck. Rules of the Supreme Court O 14 r 2(1) provides that the affidavits in support of an application for summary judgment must also state "that in the deponent's belief there is no defence to [the] claim or part thereof, as the case may be, (Page 7)
or no defence except as to the amount of any damages claimed". In neither Mr G A Harbeck's affidavit nor Mr Haughton's affidavit is there a statement to this effect. Mr G A Harbeck deposes that the matters alleged in the statement of claim are true and states that the "defendant has no defence". However, he does not state that in his "belief there is no defence". Although somewhat technical in its context, the requirements of O 14 r 2(1) need to be strictly complied with in order to enliven the court's jurisdiction to grant summary judgment. Accordingly, and without serious objection from the defendant, I gave the plaintiff leave to file and serve a further affidavit correcting this defect. This affidavit was filed on 22 March 2009. 13 Where a plaintiff has satisfied all the requirements of O 14 to give it prima facie the right to an order in the terms asked, the burden shifts to the defendant to satisfy the court why judgment should not be given against it: Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109 per Brinston J at 110; Westwind Air Charter Pty Ltd v Hawker De Havilland Ltd (1990) 3 WAR 71 per Murray J at 74. The defendant must satisfy the Court "with respect to the claim … that there is an issue or question in dispute which ought to be tried, or that there ought for some other reason to be a trial of that claim": Rules of the Supreme Court O 14 r 3(1). As noted in the quote above from Pullin J in Morgan v Pallister (supra), this is an evidentiary burden, the overall legal burden of persuasion remaining on the applicant.
Defendant's set-off 14 The key issue for determination is whether or not the alleged overcharging pursuant to the Spur Road Agreement can pleaded as a set-off. 15 The defendant in its amended defence filed 7 October 2008 alleges that prior to the Layman Road Agreement being made, the plaintiffs and the defendant entered into a separate agreement in relation to the supply of soil to a property located at Spur Road, Capel, which I have referred to as the Spur Road Agreement. Pursuant to that agreement the plaintiffs charged the defendant for supplying 109,038 cubic metres of soil at a cost of $8.80 per cubic metre inclusive of GST. The defendant paid the amount charged by the plaintiffs in full. The defendant alleges that the actual amount of soil delivered to the Spur Road site by the plaintiffs only amounted to 107,088 cubic metres. This is said to result in an overcharge by the plaintiffs to the defendant of $17,160, inclusive of GST. The allegations in the amended defence are verified by Mr B F Harbeck in (Page 8)
his affidavit. Mr B F Harbeck annexes a report of a quantity surveyor which is said to be how the defendant determined that only 107,088 cubic metres was actually delivered. 16 On 5 March 2009, the defendant filed further and better particulars of the amended defence. In par 5(a) of these particulars, the defendant particularised that the Spur Road Agreement was entered into on about October or November 2005. 17 The plaintiffs' defence to the Spur Road Agreement overcharging is that they actually delivered 109,038 loose cubic metres of soil to the Spur Road property. 18 As noted above, where there are disputed facts, the application is to be determined on the basis that the defendant's version of facts, assuming that it is not inherently incredible, would ultimately be accepted at the trial of the action. I do not find the defendant's version of the facts to be inherently incredible. 19 The critical question is whether or not the defendant's version of the facts gives rise to a set-off.
Submissions 20 The plaintiffs characterise the Spur Road Agreement set-off as an equitable set-off for unliquidated damages. They submit that an equitable set-off may only be raised where the claim impeaches the claim of the plaintiff or has otherwise been brought about or contributed to or is so bound up with the rights which are relied upon by the plaintiff that it would be unconscionable for the plaintiff to success without allowing the set-off. In support of this proposition they cite Hazart Pty Ltd v Rademaker (1993) 11 WAR 26, at 38 and Casella v Costin Pty Ltd, unreported; FCt SCt of WA; Library No 5416; 22 June 1984, per Wallace J (with whom Burt CJ agreed). 21 In general terms the case law supports a finding that a defendant cannot set-off against a plaintiff’s claim for payment a prior unliquidated claim for defective supply: see generally Westwind Air Charter Pty Ltd v Hawker de Havilland Ltd (1990) 3 WAR 71, at 85-86; W Pope & Co Pty Ltd v Edward Souery & Co Pty Ltd [1983] WAR 117 at 120-121; Bayview Quarries Pty Ltd v Castley Development Pty Ltd [1963] VR 445 at 449; Maersk Australia Pty Ltd v Rebelo Nominees Pty Ltd [2008] WADC 81. (Page 9)
22 The defendant's submission is that this case is not one in which a defendant seeks to set-off against a plaintiff's claim for payment for goods and services delivered, a prior unliquidated claim for defective supply. Rather, the set-off is for an amount that was overcharged, that is, an amount received by the plaintiff which it was not entitled to receive. The overcharging is said to arise out of a contract of the same type (supply sand or soil) between the same parties reasonably contemporaneously. Moreover it is said to be a claim for liquidated damages. This is distinct to a number of authorities relied on by the plaintiffs. It is this context which the defendant contends makes it unconscionable for the plaintiff to proceed to judgment on this claim without being required to set-off the amount of the overcharging.
Analysis 23 In order to analyse the submission it is necessary to begin with the precise nature of the claims sought to be set-off. This is set out in par 8.1 to par 8.4 of the amended defence in the following terms: "8.1 Prior to the agreement being made the Plaintiffs and the Defendant entered into a separate agreement in relation to the supply of sand to a property located at Spur Road, Capel ('the Spur Road Agreement') and pursuant to that agreement the plaintiff's charged the defendant for supplying 109,038 cubic metres at a cost of $8.80 per cubic metre inclusive of GST. 8.2 The Defendant paid the amount charged by the Plaintiffs in full. 8.3 The actual sand delivered to the Spurr (sic) Road site by the Plaintiffs only amounted to 107,088 cubic metres resulting in an overcharge by the Plaintiffs to the Defendant of $17,160 inclusive of GST. 8.4 The defendant seeks a set-off and counter claim in respect to the aforementioned amount against any amount found owing to the Plaintiff." 24 The starting point in the analysis is to determine whether the claim is liquidated or unliquidated. A liquidated claim is one which can be ascertained by calculation or fixed by a scale of charges or other positive data: Spain v Union Steamship Co. of New Zealand Ltd(1923) 32 CLR 138, at 142. In the present case, the amount of the alleged overpayment is (Page 10)
calculated by ascertaining the difference in cubic metres of the amount of soil for which the plaintiff invoiced the defendant (109,038 cubic metres) and the actual amount of soil the defendant says was delivered (107,088 cubic metres), being 1,950 cubic metres. This amount is then multiplied by the agreed contract rate - $8.80 inclusive of GST - giving the amount of the alleged overpayment, being $17,160. The claim is thus a liquidated claim. 25 Having determined that the claim is liquidated, it is then necessary to determine whether the set-off is a legal set-off or an equitable set-off. This is best done by considering by what cause of action the claim for overpayment set out in [23] above could be pursued if it were pursued as a stand alone cause of action. 26 The current pleading does not specifically identify the specific cause of action pursuant to which the overpayment is sought to be recovered. However, for the purposes of a summary judgment application, it is appropriate that I assume that this issue would be attended to prior to trial. It is sufficient for present purposes the pleaded facts disclose a cause of action pursuant to which the overpayment could be recovered. 27 Perhaps the most simple cause of action to recover an overpayment is an action in unjust enrichment to recover a payment made by mistake. The traditional formulation of this cause of action was that "[i]f a person pays money to another under a mistake of fact which causes him to make the payment, he is prima facie entitled to recover is as money paid under a mistake of fact": Barclays Bank Ltd v W J Simms Son & Cooke (Southern) Ltd[1980] QB 677, at 695. See also: David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353, at 378-380; Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation(1988) 164 CLR 662, at 671-672. Pursuant to Property Law Act 1969 (WA) s 124, a mistake of law is treated in the same manner as a mistake of fact. In any event, the High Court has determined that the rule precluding recovery of monies paid under a mistake of law does form part of the law in Australia: David Securities (supra). 28 A "mistake" in this context at least includes a 'belief as to the existence or non-existence of facts which turned out to be mistaken': South Australian Cold Stores Ltd v Electricity Trust (SA)(1957) 98 CLR 65 at 74. The concept of a 'mistake' is much broader: see generally, J Edelman & E Bant, Unjust Enrichment in Australia (2006, Oxford University Press), 171ff. The mistake may arise in the context of a (Page 11)
contractual relationship: K Mason & J W Carter, Restitution Law In Australia (1995, Butterworths), [410]-[411]. Indeed, the learned authors' comment that the "commonest category of mistake of fact… is mistake as to a fact giving rise to a legal liability": [410]. The relevant mistake here is the number of cubic metres of soil delivered. It may be a mistake of fact: that 107,088 cubic metres of soil was in fact delivered, and not 109,038. It may be a mistake of law: that the plaintiff calculated the amount of soil delivered based on truck loads, whereas on the proper construction of the contract, this was to be determined by survey. 29 The modern cause of action in unjust enrichment to recover money paid under a mistake is a common law claim, not an equitable one. It has its heritage in the old common law forms of action, in particular the count for money had and received: see generally, Mason & Carter, Restitution Law In Australia, [107]-[114]. This heritage reinforces the conclusion that it is a claim for a liquidated amount: Alexander v Ajax Insurance Co Ltd[1956] VLR 436 at 445; Lagos v Grunwaldt [1910] KB 41 at 48. 30 Having determined the nature of the cause of action, it then remains to determine whether it can be set-off against the plaintiffs' claim. In this regard, Rules of the Supreme Court, O 20 r 17 provides: "Where a claim by a defendant to a sum of money (whether of an ascertained amount or not) is relied on as a defence to the whole or part of a claim made by the plaintiff, it may be included in the defence and set-off against the plaintiff’s claim, whether or not it is also added as a counterclaim." 31 In Stehar Knitting MillsPty Ltd v Southern Textile Converters Pty Ltd[1980] 2 NSWLR 514, the New South Wales Court of Appeal considered the substantially identical equivalent provision of the Supreme Court Rules 1970 (NSW) ("SCR NSW"), being Pt 15, r 25. In that case, plaintiff (respondent) incurred a debt to the defendant (appellant) for goods sold and delivered in the period April to May 1976. The defendant incurred a debt to the plaintiff for the same amount for goods sold and delivered in the period February to June 1977. The plaintiff sued the defendant. The defendant sought to set-off the amount of its claim against the plaintiff's claim. No issue of equitable set-off arose. At first instance, the defendant was unsuccessful as the Judge held that there was no right at law in New South Wales to set-off one indebtedness against another. This was due to the fact that the legislation creating the right to set-off – the Statutes of Set-off (2 Geo II (Page 12)
c 22 (1729) and 8 Geo II c 24 (1735)) - had been repealed in New South Wales. The Court disagreed, holding that Pt 15, r 25 was procedural and "should… be given full effect according to its literal terms" (at 520, also 523-524). However, the defendant was ultimately precluded from raising its claim as a set-off as it was bound by a scheme of arrangement made between the plaintiff and its unsecured creditors (including the defendant). As the defendant was prevented from prosecuting its claim as a separate action, it was precluded from raising it as a set-off. 32 With one caveat, the factual situation in Stehar (supra) is apposite to the facts of the present case. In the present case, the plaintiffs sue the defendant for a debt for goods sold and delivered. The defendant raises a set-off in the nature of an overpayment which could be the subject of separate proceedings against the plaintiffs, being an action in unjust enrichment to recover money paid under a mistake. The facts out of which both claims arose occurred with months of each other (though it is not apparent that there is a requirement that both claims arise contemporaneously in either SCR NSW Pt 15 r 25 or Rules of the Supreme Court O 20 r 17). 33 The caveat is that the Statutes of Set-off have not been repealed in Western Australia. The Statutes of Set-off apply to Western Australia as they were part of the law of England as at 1 June 1829 which was received as the law of Western Australia see generally: J A Riordan (Ed), The Laws of Australia, vol 19.1 Constitutional Law, par [7] (Thompson/Law Book); Interpretation Act 1984 (WA), s 73). 34 In this regard, Kennedy J in Hazcor Pty Ltd v Kirwanon Pty Ltd(1995) 12 WAR 62 states (at 67): "By the first of the Statutes of Set-off, Insolvent Debtors Relief 1728 (UK) (2 Geo II c22 s13), it was provided that, where there are mutual debts between a plaintiff and a defendant, one debt may be set-off again the other, and such matter may be given in evidence upon the general issue, or pleaded in bar, as the nature of the case shall require. To constitute “mutual” debts, the debts must be between the same parties and held in the same right. The first statute, which would have lapsed in 1735, was made perpetual, so far as s13 was concerned, by the statute Statute of Set-off 1734-5 (UK) (8 Geo II c 24, s4). Those statutes have not been repealed in this State." (Page 13)
35 Kennedy J then discussed the principles of set-off developed in equity. His Honour held that Rules of the Supreme Court O 20 r 17 was procedural did not displace the principles relating to equitable set-off. 36 I have not been able to find any legislation subsequent to 1995 in which the Statutes of Set-off have been repealed in Western Australia. 37 The additional element added by the Statutes of Set-off to the procedure in Rules of the Supreme Court O 20 r 17 is the requirement that the debts between the plaintiff and the defendant be "mutual". The law relating to set-offs under the Statutes of Set-off is conveniently summarised in B C Cairns, Australian Civil Procedure (2007, Lawbook Co) in the following terms (at 199): "A set-off does not operate as a denial of the debt. It tacitly assumes the existence of the debt, and then alleges reasons why the plaintiff is not entitled to payment. Pleas of payment or of accord and satisfaction assert that the claim no longer exists. This is not the case with a set-off, the claim continues until judgment is given: Re KL Tractors [1954] VLR 505 at 507. The Statutes of Set-off permitted mutual debts to be set-off against each other. Only liquidated sums can be a set-off against each other: McDonnell and East Ltd v McGregor (1936) 56 CLR 50. Mutuality refers to the relationship between the parties, not the nature of the debt. A debt is mutual if the plaintiff and the defendant owe each other a debt: West Street Properties Pty Ltd v Jamison [1974] 2 NSWLR 435. The debts need not arise at the same time: Day and Dent Constructions Pty Ltd v North Australian Properties Pty Ltd (1982) 40 ALR 399. Nor need they relate to each other: Re Daintrey [1900] QB 546. For a set-off to avail the defendant in a proceeding at law, the set–off must also be capable of standing as a separate proceeding: Rawley v Rawley (1876) 1 QBD 460. A set-off is a defence to the plaintiff's claim, whether or not it exceeds the amount of the plaintiff's claim. Once established, a set-off annihilates the plaintiff's claim, at least to the extent of the set-off. For a right of set-off to be used as ground to recover money, the set-off should also to be pleaded as a counter-claim. A further limitation on the common law set-off is that the competing debts have to exist between the same parties in the same right. It the plaintiff sues in a representative capacity, the (Page 14)
defendant could not set-off a debt due from the plaintiff personally: Stunmore v Campbell & Co [1892] 1 QB 314. Similarly a separate debt could not be set-off against a joint debt: Re Pennington and Owen Ltd [1925] Ch 825. 38 In the present case, the alleged set-off is between the plaintiffs and the defendant in the same right. 39 It is well established that the power to order summary judgment should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99. Or put slightly differently, a case must be very clear to justify the summary intervention of the Court to prevent a party submitting his case for determination in the appointed manner by the Court. Once it appears that there is a real question to be determined, whether of fact or law, and that the rights of parties depend upon it, it is not competent for the Court to dismiss the action as frivolous or vexatious and an abuse of process: Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91. Consequently, in the present case, it is sufficient for me to conclude that there is a real question to be tried in relation to the set-off. The set-off is capable in law of being set-off against the plaintiffs' claim. The application for summary judgment as regards the set-off must fail. 40 I will hear from counsel as to the appropriate orders to finalise the application.
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