Hudson v Thorp

[2000] WADC 86

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   HUDSON -v- THORP [2000] WADC 86

CORAM:   REGISTRAR KINGSLEY

HEARD:   7 MARCH 2000

DELIVERED          :   5 APRIL 2000

FILE NO/S:   CIV 1724 of 1999

BETWEEN:   PAUL HUDSON

Plaintiff

AND

RICHARD SYDNEY THORP
Defendant

Catchwords:

Practice - Application for summary judgment - Plaintiff's claim under a Deed and Loan Agreement - Defendant alleges Deed not witnessed pursuant to s9 Property Law Act 1969 - Good cause why judgment ought not be entered - No defence disclosed in relation to Loan Agreement - No grounds to stay execution.

Legislation:

Property Law Act 1969

Rules of the Supreme Court

Result:

Judgment given for one head of claim.  Leave to defend on a head of claim.

Representation:

Counsel:

Plaintiff:     Mr G Townsend

Defendant:     Mr G Archer

Solicitors:

Plaintiff:     Messrs Stables Scott

Defendant:     Messrs Eley Palmer Archer

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

AGC v De Jager [1984] VR 483

Bank Gemeinwirtschaft v London Garages [1971] 1 WLR 149

Miles v Bull [1969] 1 QB 258

Wickham v Marquis of Bath (1865) LR 1Eq 17

Case(s) also cited:

Aboyne Pty Ltd v Dixon Homes Pty Ltd [1980] Qd R 142

Morgan & Son Limited v S Martin Johnson & Company Limited [1949] 1 KB 107

Hazcor Pty Ltd v Kirwanon Pty Ltd (1995) 12 WAR 62

Geraldton Building Co Pty Ltd v Christmas Island Resort Pty Ltd (1992) 11 WAR 40

Casella v Costin Pty Ltd, unreported; SCt of WA; Library No 5416; 22 June 1989

1. REGISTRAR KINGSLEY:  The plaintiff's endorsed writ seeks orders the defendant sign a transfer to deliver up 76 shares in Beverage Technologies Pty Ltd and the share certificates relating to those shares pursuant to a Loan Agreement dated 28 April 1998, and the sum of $131,309, together with interest, at the rate of 28 per cent on the sum of $84,048.45 from 22 April 1999 pursuant to a Deed made on 14 April 1997.

2. The proceedings have had an unusual history.  In brief the plaintiff obtained judgment pursuant to O14 Rules of the Supreme Court on 4 August 1999 in default of appearance by the defendant on the return day.  The defendant's application to set aside that judgment made under O14 r12 Rules of the Supreme Court was dismissed, again in default of appearance by the defendant.  An application for enforcement of the orders made on the O14 application prompted an appearance by the defendant through his counsel.   On the return date of this application I was persuaded that the defendant ought still have leave to bring an application to set aside judgment.

3. In an affidavit sworn on 21 February 2000, the defendant details his lack of finances which precluded him from previously engaging counsel.  Thus, he was unable to procure attendances at the hearings at which judgment was entered and the defendant's application was dismissed.  As the defendant resides in Victoria he was unable physically to attend.  It was on this basis I was persuaded the defendant ought again seek to set aside judgment.

4. The defendant is an accountant and has some intellectual capability.  His defence is that the pleaded Deed was presented to him and that he, noting that the Deed required a witness, signed the document to enable discussion of the issues within the document.  The defendant deposes that the Deed was witnessed after the event by his eldest sister.  The purported witness, Robyn Hudson has deposed that the Deed was witnessed in her presence on 14 April 1997.  There is clear authority for the proposition that the attesting witness shall have been in the presence of the person executing the document (AGC v De Jager [1984] VR 483 at 498 and Wickham v Marquis of Bath (1865) LR 1Eq 17 at 24).

5. The defendant deposes that as the Deed was never witnessed as required under s9 of the Property Law Act 1969 he believed the plaintiff could not take action under the Deed. 

6. The fact that the defendant deposes to having the provisions of s9 of the Property Law Act in the forefront of his mind, and relying on that provision chose to sign the document to enable negotiations to progress I find quite incredible.  But the allegations raised by the defendant are serious.  By inference the defendant suggests that Robyn Hudson has sworn a false affidavit and that the document being put forward is a sham.  There are occasions where, notwithstanding the inherent incredibility of the defendant's opposition to an application for summary judgment, that the matter be allowed to go to trial to be subject to full judicial scrutiny (videMiles v Bull [1969] 1 QB 258 and Bank Gemeinwirtschaft v London Garages [1971] 1 WLR 149 at 158). Accordingly, in relation to the Deed in my opinion there is good cause why judgment ought not be entered.

7. The defendant has not condescended to any particulars in relation to the Loan Agreement.  There will be judgment for the plaintiff under that pleaded claim.

8. The defendant contends he has a set off or counterclaim against the plaintiff.  The defendant deposes that he lent $80,000 to the plaintiff and one Hudson in relation to their purchase of property.  The defendant deposes that all stamp duty, adjustments, costs of settlement and brokerage were paid by him.  The defendant adduces no evidence to support the contention.  The defendant deposes that there was an understanding that the plaintiff and Hudson would repay the moneys when they had the financial resources to do so.  It was further understood, as deposed by the defendant, that the plaintiff and Hudson would pay interest at the rate of 15 per cent compounded monthly.  The defendant goes on to depose that the amount owing is $244,592.  There is no basis given for that calculation.

9. The cross-claim being put forward by the defendant bears no relationship to the pleaded claims of the plaintiff.  The cross-claim is totally unconnected and accordingly I see no basis, at law or equity, why I ought exercise my discretion to stay the judgment given pending the outcome of the counterclaim.

10. Accordingly the orders are:

    1.    Judgment for the plaintiff against the defendant in terms of paragraph (b)(i) of the statement of claim.

    2.    The defendant have leave to defend as to paragraph (a) of the statement of claim.

11. As I wish to make programming orders I will hear counsel on that issue and costs.  To that end the application is adjourned to 12 April 2000 at 10.30 am.