| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : HINGSTON -v- CHALLISTON PTY LTD & ORS [2003] WADC 178 CORAM : MARTINO DCJ HEARD : 4 AUGUST 2003 DELIVERED : 15 AUGUST 2003 FILE NO/S : CIV 295 of 2003 BETWEEN : BRADLEY HINGSTON Plaintiff
AND
CHALLISTON PTY LTD
First Defendant
DEAN GEORGE SCOOK
CAROL NORMA HARDIE
Second Defendants
Catchwords: Practice - Application for summary judgment - Appeal against directions given by Registrar - Appeal against dismissal of application for summary judgment
Legislation: Property Law Act 1969, s 9(1)(b)
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Result:
Both appeals dismissed Representation:
Counsel:
Plaintiff : Mr A P Hershowitz
First Defendant : No appearance
Second Defendants : Mr H R Robinson
Solicitors:
Plaintiff : Paiker & Overmeire
First Defendant : Haydn Robinson
Second Defendants : Haydn Robinson
Case(s) referred to in judgment(s):
Esplanade Hotel Busselton Pty Ltd v Graywinter Properties Pty Ltd & Ors, unreported; SCt of WA; Library No 970683; 8 December 1997
Fancourt & Anor v Mercantile Credits Ltd (1983) 154 CLR 87
FCA Finance Pty Ltd v Spartan Holdings Pty Ltd [1989] 1 Qd R 280
Case(s) also cited:
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Hunt v Knabe (No 2) (1992) 8 WAR 96
Moldex Ltd v Recon Pty Ltd [1948] VLR 59
Newman v Scook & Anor [2003] WADC 46
Newman v Scook & Anor [2003] WADC 73
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Introduction 1 On 11 February 2003 the plaintiff filed a writ endorsed with a statement of claim. The defendants entered an appearance on 17 February 2003. A defence was filed on 26 February 2003. It purports to be filed on behalf of all defendants but in the body of the defence only the second defendants plead to the statement of claim. On 12 March 2003 the plaintiff filed a notice of appointment of new solicitors. The defendants filed a substituted defence on 19 March 2003. Again only the second defendants pleaded to the statement of claim. 2 On 30 April 2003 the plaintiff filed a summons for summary judgment against the second defendants in which he sought leave to bring the application out of time. That summons was listed in Deputy Registrar's chambers on 13 May 2003. The appointment was noted in the diary of the solicitor who has the conduct of the action on behalf of the plaintiff but he overlooked it and did not attend on the return of the chamber summons. A Deputy Registrar dismissed the application. 3 On 16 May 2003 the plaintiff filed a second application for summary judgment against the second defendants, again seeking leave to bring the application out of time. That application was listed in Registrar's chambers on 20 May 2003 which was less than the seven days provided for by O 59 r 5 of the Rules of the Supreme Court. At that directions hearing Deputy Registrar Hewitt made the following orders: 4 The second defendants appeal against those orders. By their notice of appeal they seek to have the orders made by Deputy Registrar Hewitt set aside and in their place an order listing the application for summary judgment in general chambers and an order for stay of the action pending the hearing of the appeal and costs. 5 On 20 June 2003 the plaintiff's application for summary judgment was heard by Deputy Registrar Harman who dismissed the application. The plaintiff appeals against that decision. At the hearing on
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20 June 2003 the solicitor for the plaintiff handed to Deputy Registrar Harman an amended chamber summons for summary judgment seeking leave to make the application if it were necessary to do so by reason of the application being a second application for summary judgment. 6 Both the second defendants' appeal against the orders made by Deputy Registrar Hewitt on 20 May 2003 and the plaintiff's appeal against the dismissal of his application for summary judgment on 20 June 2003 were heard by me on 4 August 2003.
The pleadings 7 In his statement of claim the plaintiff claims that on 10 April 2001 the plaintiff, the first defendant and the second defendants agreed in writing that the first defendant would purchase 1,004,000 shares held by the plaintiff in Tuart Resources Ltd within 28 days of 31 August 2001 at the price of $0.085 per share and the plaintiff would simultaneously transfer all his rights, title and interest in the shares to the first defendant provided: 8 The plaintiff pleads that the agreement also provided that the second defendants jointly and severally guaranteed to the plaintiff the payment of all moneys payable to the plaintiff by the first defendant and performance of all the first defendant's obligations in terms of the agreement as principals and that the second defendants were deemed to be debtors of the plaintiff in relation to such moneys and obligations. 9 The plaintiff pleads that he sent the appropriate facsimile to the first defendant on 5 July 2001, that the listed selling price of the shares on the ASX on 31 August 2001 was less than $0.085 per share and that neither the first defendant nor the second defendants have paid to the plaintiff the purchase price of the shares. The plaintiff claims orders that the
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defendants do all things necessary to transfer the shares to the first defendant and payment to the plaintiff of the sum of $85,340 plus interest and costs. 10 By their substituted defence the second defendants deny the agreement pleaded in the statement of claim. They also plead that if there was an agreement as pleaded the plaintiff could only send a notice requiring the first defendant to purchase the shares not before 31 August 2001 and before 3 September 2001, that on proper construction of the agreement the second defendants did not guarantee the payment of moneys payable by the first defendant and that there is no consideration passing from the plaintiff to the second defendants for the purported guarantees.
The applications for summary judgment 11 The first application for summary judgment was supported by an affidavit of the plaintiff sworn on 17 April 2003. At the hearing of the second application for summary judgment the plaintiff relied upon that affidavit. At the hearing before me the plaintiff relied upon his affidavit sworn 14 July 2003 which had only minor changes from the first affidavit, to correct a clear typographical error and to explain why the applications for summary judgment were late. Annexed to the plaintiff's affidavit is a copy of the agreement which is described as being a deed and having been executed as a deed. By cl 2 of the agreement the first defendant agrees to purchase the shares from the plaintiff if certain conditions are satisfied and by cl 3 of the agreement the plaintiff grants to the first defendant an option to purchase the shares. Clause 14 of the agreement contains a guarantee by the second defendants. 12 Although the agreement is expressed as having been executed as a deed, it appears that the signature of the plaintiff has not been attested by a witness as required by s 9(1)(b) of the Property Law Act 1969. Counsel for the second defendants submitted that the agreement was therefore not a deed. 13 Clause 2 of the agreement is in the following terms: "[The first defendant] agrees to purchase the Shares and the [plaintiff] agrees to sell the Shares for the Purchase Price per Share specified in the Schedule ('the Purchase Price per Share') conditional upon the following terms:
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2.1 The listed selling price per Share on the Australian Stock Exchange ('the ASX') as at 1400 Western Standard Time ('WST') on 31 August 2001 is below the Purchase Price per Share or the Shares for any reason have not traded on the ASX on 31 August 2001; and 2.2 The [plaintiff] by facsimile in the form annexed to this Deed ('the [plaintiff's] Notice') sent to [the first defendant] at [the first defendant's] facsimile number specified in the Schedule advises [the first defendant] by no later than 1700 WST on 3 September 2001 that it requires [the first defendant] to purchase the Shares at the Purchase Price per Share specified in the Schedule. 2.3 In the event that the conditions for the purchase of the Shares are satisfied [the first defendant] shall within twenty-eight (28) days of the [plaintiff's] Notice pay the [plaintiff] the Purchase Price per Share upon which the [plaintiff] shall simultaneously transfer all their right title and interest in the Shares to [the first defendant]." 14 Counsel for the second defendants submitted that as it could not be known before 2 pm on 31 August 2001 whether cl 2.1 had been satisfied and that on a proper construction of the clause it was not possible to issue the notice provided for in cl 2.2 until after that time. Counsel for the second defendants also submitted that the effect of the option was an irrevocable offer by the first defendant which, when accepted by the plaintiff, constituted a second agreement which second agreement was not guaranteed by the second defendants. 15 After the hearing on 4 August 2003 the plaintiff filed supplementary submissions on 6 August 2003 dealing with the second defendants' submission that the agreement was not a deed. Those submissions were in the following terms: "4. The approach to be adopted in considering whether or not a document is a deed was considered by the Full Court of the Supreme Court of Western Australia in Dean & Westham Holdings Pty Ltd v Lloyd (1990) 3 WAR 235. In dealing with the question of what evidence might be admissible in determining whether or not a document is a deed, the court held that the intention of a party when executing a document remained of
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primary importance. Intention could be discerned from extrinsic evidence such as the words or acts of the parties or from an examination of the words contained in the document itself. 5. The modern approach to the formal requirements for the execution of a deed is that if a person signs a document bearing wax or any other indication of a seal, with the intention of executing the document as a deed, that is sufficient adoption or recognition of the seal to constitute to execution as a deed. In a case in which the formalities are not met, however, the guarantor may nevertheless be estopped from denying that the document was executed. 6. In TCB Ltd v Gray [1986] 1 All ER 587 an estoppel was held to operate when the document stated specifically that it was 'signed, sealed and delivered' by the party executing it, although the document was not in fact sealed. The creditor had relied on this representation of fact by making advances in reliance upon it. 7. Section 9 of the Property Law Act refers to 'the party to be bound thereby'. That party's signature is required to be witnessed. 8. Any words or conduct which shows that it was intended that the deed be finally executed and the maker of the deed bound by it is enough: Xenos v Wickham [1867] LR2 HL 296 at 392. 9. Notwithstanding the provisions of s.9(3) of the Property Law Act as to the formalities of deeds, delivery still is a requirement. This section has been interpreted as going to 'formal' delivery and as do no more than 'to confirm the rule that no particular technical form of words or acts is necessary to render an instrument the deed of the party sealing it': Monarch Petroleum NL v Sitco Australia Petroleum Ltd [1986] WAR 310 at 353-364."
The second defendants' appeal 16 Although on 20 May 2003 the second defendants had not had seven days notice of the application the directions made by
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Deputy Registrar Hewitt gave the second defendants adequate time to ensure that they were properly prepared for the hearing of the summary judgment application. In my view it was entirely appropriate for him to allow a shorter period of service, as he was empowered to do by O 59 r 5. The decision of Deputy Registrar Hewitt was the correct one and the appeal by the second defendants should be dismissed.
Appeal by the plaintiff 17 Order 14 r 1 does not preclude more than one application for summary judgment being made although the general rule is that multiple applications are not allowed. The Court has a general discretion to entertain second and subsequent applications for summary judgment: FCA Finance Pty Ltd v Spartan Holdings Pty Ltd [1989] 1 Qd R 280; Esplanade Hotel Busselton Pty Ltd v Graywinter Properties Pty Ltd & Ors, unreported; SCt of WA; Library No 970683; 8 December 1997. 18 The first application for summary judgment was dismissed because of an oversight on the part of the plaintiff's solicitor in failing to attend on the first return day of the summons for judgment and I am satisfied that it is appropriate to exercise my discretion to permit the second application for summary judgment. 19 The time limited to make application for summary judgment is 21 days after appearance or at a later time by leave of the Court. The reason for the first application being made outside the 21-day period was that the plaintiff's previous solicitors did not discuss with him the possibility of applying for summary judgment and he was not aware that any such procedure was available. I have explained the reason for the second application. I am satisfied that it is appropriate to extend the time to make this application. 20 An application for summary judgment will only be granted if it is clear that there is no real question to be tried: Fancourt & Anor v Mercantile Credits Ltd (1983) 154 CLR 87. 21 In answer to the submission made on behalf of the second defendants that the agreement was not a deed by reason of the failure to comply with s 9(1)(b) of the Property Law Act 1969, the plaintiff's submissions are to the effect that whether or not the document is a deed is to be determined by the intention of the parties which can be discerned from evidence and that estoppel may apply. Those matters would need to be determined therefore on evidence. It could not be said that there is no real question to
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be tried. Further I note that the statement of claim does not plead that the agreement is a deed. In my view there is a real question to be tried on this issue and the application for summary judgment should not succeed. Having reached that conclusion it is preferable that I express no view on the other arguments raised by the second defendants.
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