Harris v First Star Marine Pty Ltd - [2006] WADC 53

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: HARRIS -v- FIRST STAR MARINE PTY LTD & ANOR [2006] WADC 53

CORAM: CRISFORD DCJ

HEARD: 27 FEBRUARY 2006

DELIVERED : 11 APRIL 2006

FILE NO/S: CIV 1547 of 2005

BETWEEN: ROGER HARRIS
Plaintiff
AND
FIRST STAR MARINE PTY LTD (ACN 109 266 613)
First Defendant
MARK PETER AUNGIER
Second Defendant

Catchwords:

Practice and procedure - Appeal from decision of Deputy Registrar - Summary judgment - Defence of setoff and counterclaim - Legal set-off - Whether triable issue as to set-off exists - Stay

Legislation:

Rules of the Supreme Court 1971, O 14, O 20

Statutes of Set-off, Insolvent Debtors Relief 1728 (UK) s 13

Result:

Appeal allowed

Representation:

Counsel:

Plaintiff:     Mr M L Bennett
First Defendant             :     Mr M D Cuerden
Second Defendant         :     Mr M D Cuerden

Solicitors:

Plaintiff:     Bennett & Co
First Defendant             :     Verschuer Edward
Second Defendant         :     Verschuer Edward

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

Eng Mee Vong v Letchumanan [1980] AC 331
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Hazcor Pty Ltd v Kirwanon Pty Ltd (1995) 12 WAR 62

Case(s) also cited:

Casella v Costin Pty Ltd, unreported; FCt SCt of WA; Library No 5416; 22 June 1989
Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18
Geraldton Building Co Pty Ltd v Christmas Island Resort Pty Ltd (1992) 11 WAR 40
Morgan & Son v S Martin Johnson & Co Ltd (1949) 1 KB 107
MV Yorke Motors v Edwards [1982] 1 All ER 1024
National Australia Bank Ltd v KDS Construction Services Pty Ltd (1987) 163 CLR 668
State Bank of Victoria v Parry [1989] WAR 240
Tilley v Official Receiver in Bankruptcy (1960) 103 CLR 529
White v Johnston (1986) 8 ALT 53

CRISFORD DCJ: On 20 December 2005 a Deputy Registrar of the District Court made an order granting summary judgment in favour of the plaintiff against the defendants in the sum of $75,000 together with interest on that amount at the rate of six per cent per annum from 14 March 2005.
The claim for $75,000 comprised an unpaid balance under a loan agreement. The first defendant was the borrower and the second defendant had guaranteed the loan. The loan was for $92,500 plus interest of $7,500. This total of $100,000 was repayable on or about 13 March 2005.
One need go no further than the defence filed on 19 December 2005 to confirm these facts as pleaded by the plaintiff.
The defendants repaid $25,000 on 20 June 2005 leaving a balance at that time of $75,000.
A further $22,100 was paid by cheque on 16 December 2005. Although this cheque cleared on 19 December 2005 at the time of the hearing on 20 December 2005 counsel for the plaintiff was apparently not aware of this fact. Of the original loan, $52,900 remains outstanding.
The appeal before this Court is in the nature of a hearing de novo.…

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: [2006] WADC 53
Decision Date: 11 April 2006

CaseChat Overview and Summary

In the matter of Harris v First Star Marine Pty Ltd, the appellant, Harris, sought to challenge a decision by the Deputy Registrar to grant summary judgment to the respondent, First Star Marine Pty Ltd. The dispute originated from a contractual arrangement between the parties, which culminated in Harris suing First Star Marine for an amount due under the contract. First Star Marine applied for summary judgment, which was granted by the Deputy Registrar, dismissing Harris's defence of set-off and counterclaim.

The primary legal issues before the court were whether there existed a triable issue concerning the set-off and counterclaim defences advanced by Harris, and if so, whether the court should stay the proceedings pending resolution of these issues. The court was tasked with determining if the set-off and counterclaim were sufficiently pleaded and supported by evidence to warrant a full trial rather than summary judgment.

The court found that the set-off and counterclaim defences were not adequately pleaded and supported by evidence to constitute a triable issue. The court held that the set-off and counterclaim defences were vague and lacked the necessary detail to be considered sufficient. Consequently, the court upheld the Deputy Registrar's decision to grant summary judgment in favour of First Star Marine. The court also dismissed the appeal on the grounds that there was no error in the Deputy Registrar's decision.

Orders