Jasper v Riley
[2024] WADC 38
•31 MAY 2024
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: JASPER -v- RILEY [2024] WADC 38
CORAM: PRINCIPAL REGISTRAR MCGIVERN
HEARD: 18 APRIL 2024
DELIVERED : 31 MAY 2024
FILE NO/S: CIV 2651 of 2022
BETWEEN: MARIAN LILIAN JASPER
Plaintiff
AND
DAVID MICHAEL RILEY
Defendant
Catchwords:
Practice and procedure - Application for summary judgment - Where defence struck out - Plaintiff's onus under Rules of the Supreme Court 1971 (WA) O 14 - Whether there is a question to be tried - Exercise of discretion
Legislation:
Limitation Act 2005 (WA), s 4, s 59
Rules of the Supreme Court 1971 (WA), O 1 r 4A, O 1 r 4B, O 14
Result:
Application allowed in part
Representation:
Counsel:
| Plaintiff | : | Mr P R MacMillan |
| Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Peel Legal Barristers & Solicitors |
| Defendant | : | Not applicable |
Case(s) referred to in decision(s):
Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Ashton v Pratt [2015] NSWCA 12
Australia and New Zealand Banking Group Ltd v Coutts [2003] FCA 968
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
Central City Pty Ltd v Montevento Holdings Pty Ltd [2011] WASCA 5
Cohen v Cohen (1929) 42 CLR 91
Darmanin v Cowan [2010] NSWSC 1118
Deputy Commissioner of Taxation v Howley [2021] WASC 82
Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87
Joseph Terry Pty Ltd v T & G Fire & General Insurance Co Ltd [1973] VR 458
Netglory Pty Ltd v Caratti [2013] WASC 364
Smith v McCusker QC [2005] WASCA 226
Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118
Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14
Westpac Banking Corporation v Anderson [2017] WASC 106
Young v Queensland Trustees Ltd (1956) 99 CLR 560
PRINCIPAL REGISTRAR MCGIVERN:
Introduction
This is an application by the plaintiff for summary judgment, made pursuant to O 14 r 1 of the Rules of the Supreme Court 1971 (WA) (RSC), and for leave to bring that application out of time.
For the reasons that follow, the application is allowed.
Relevant procedural history
The action was commenced by a writ of summons, indorsed with a statement of claim, filed on 15 March 2022. An amended statement of claim was filed on 7 November 2022 (SOC).
The defendant, who was then represented:
(a)entered an appearance on 1 April 2022; and
(b)filed a defence on 6 December 2022, which was amended on 4 April 2023.
In these reasons, except as otherwise indicated, a reference to the statement of claim is a reference to the statement of claim as amended on 7 November 2022, and a reference to the defence is a reference to the amended defence filed 4 April 2023.
On 13 April 2023, the parties attended a directions hearing at which orders were made (April Order), relevantly (at par 4 thereof) in terms that, by 19 May 2023, each party file and serve an affidavit verifying their list of discoverable documents.
On 28 April 2023, the plaintiff filed a reply to the defence.
On 25 May 2023, the plaintiff gave discovery on affidavit.
From that point, there have been a number of procedural difficulties and delays which appear to have arisen from an inability to contact (and therefore also to serve) the defendant.
On 27 June 2023, the defendant's solicitors filed an application to be removed from the record, with the affidavit filed in support of that application:
(a)citing repeated unsuccessful attempts to receive instructions from the defendant by way of email, telephone and writing; and
(b)annexing a Landgate extract for the defendant's last known residential address in Western Australia, which indicates that the property was transferred to third parties on 22 February 2023.
By chamber summons filed the following day, 28 June 2023, the plaintiff applied for a self-executing order relevantly in terms that, unless the defendant complied with its discovery obligations under the April Order within three business days, the defendant's defence be struck out.
Those applications were heard together on 13 July 2023 and the presiding registrar:
(a)ordered that the defendant's solicitors could serve a copy of their application on the defendant by email and could come off the record; and
(b)made a self-executing order that, unless the defendant complied with his discovery obligations under the April Order within 21 days (that is, by 3 August 2023), the defendant's defence be struck out (Springing Order).
The defendant did not give discovery on affidavit within the time allowed (or at all) and so, by operation of the Springing Order, the defence was struck out.
The plaintiff brought the present application by chamber summons filed on 2 October 2023.
Difficulties in serving the application on the defendant ensued, with various unsuccessful attempts resulting in applications for substituted service, which culminated in orders for substituted service being made on 7 February 2024 (Service Order).
At a directions hearing on 13 March 2024, the registrar who made the Service Order determined that she was satisfied as to service,[1] and programmed the application to be heard.
[1] Paragraph 2 of the Service Order required the plaintiff to send specified documents relating to the application to various email, social media and physical addresses. Notwithstanding that attempted service via each of one email address and one social media account was unsuccessful, the registrar determined that service via the other means in the Service Order constituted good and sufficient service.
The application was heard at a special appointment on 18 April 2024, at which:
(a)the defendant did not appear;
(b)the plaintiff, by its legal representatives, appeared and made submissions[2] in relation to its application for summary judgment; and
(c)I made orders allowing further time to file materials in support of the application for leave to make the summary judgment application out of time, and reserving my decision from 26 April 2024.
[2] Both orally and in writing, the latter by the Plaintiff's Amended Outline of Submissions filed 17 April 2024 (plaintiff's written submissions).
In support of the application, the plaintiff relies upon the following:
(a)affidavit of Janine Margaret Montgomery sworn 20 October 2023;
(b)affidavit of Rebecca Anne Bassett-Scarfe sworn 6 December 2023;
(c)affidavits of Marian Lilian Jasper sworn 19 September 2023, 17 October 2023, 23 January 2024 and 23 April 2024 (respectively, the first, second third and fourth Jasper affidavit); and
(d)affidavits of Jamie William Sloan sworn 3 November 2023, 7 December 2023, 1 March 2024 and 16 April 2024 (respectively, the first, second third and fourth Sloan affidavit).
The defendant has not filed any evidence or made any submissions in relation to the application.
Rules and issues
RSC O 14 r 1 relevantly provides that an application for summary judgment may be made:
(a)within 21 days after the defendant has entered an appearance or at a later time by leave of the court; and
(b)on the ground that the defendant has no defence to a claim in the writ or to a part thereof, or no defence except as to the amount claimed.
Any such application must be supported by an affidavit verifying the facts on which the claim (or part of the claim) to which the application relates is based, and deposing to a belief that there is no defence to it: RSC O 14 r 2.
Pursuant to RSC O 14 r 3:
(a)unless the court dismisses the application; or
(b)unless the defendant satisfies the court that there is an issue or question in dispute which ought to be tied, or that there ought for some other reason be a trial of the claim,
the court may give such judgment for the plaintiff as may be just, having regard to the nature of the remedy or relief claimed.
RSC O 14 r 4 is to the effect that:
(a)a defendant may show cause against a summary judgment application by affidavit or otherwise to the satisfaction of the court; and
(b)the court may give a defendant leave to defend either unconditionally or on such terms as it thinks fit.
It follows that the issues to be determined are:
(a)whether the court should grant the plaintiff leave to make the application for summary judgement out of time;
(b)if so, whether the plaintiff has established, on the balance of probabilities, a prima facie entitlement to judgment under RSC O 14 r 1; and
(c)if so:
(i)whether the defendant has shown cause against summary judgment such that, in the exercise of the court's discretion, the defendant should have leave to defend and, if so, on what terms; and/or
(ii)whether, in the exercise of the court's discretion, summary judgment ought to be given and, if so, in what terms, having regard to the nature of the remedy or relief claims and to what 'may be just'.
Leave to make application out of time
I commence by noting that, apart from the question time, I am satisfied that RSC O 14 is engaged because:
(a)the action was begun by writ;
(b)the plaintiff's statement of claim has been served on the defendant; and
(c)the defendant has entered an appearance.
The application is made by chamber summons filed on 2 October 2023, some 18 months after the defendant's appearance and leave to apply is therefore clearly required.
The onus is on the plaintiff to justify any delay, noting that the policy rationale for the time limit is to ensure that summary judgment applications are brought at an early stage of proceedings to avoid wasting costs.[3]
[3] Westpac Banking Corporation v Anderson [2017] WASC 106 (Westpac) [38].
The court exercises a broad discretion to as to whether to grant leave to apply out of time, such discretion to be exercised taking account of the objectives contemporary case management and of any prejudice to the defendant occasioned by the delay.[4]
[4] Westpac [38].
I am satisfied that there should be leave to bring the application out of time (specifically, at the time it was made) because:
(a)it is clear that, until July 2023, the defendant was represented and had, through his lawyers, been engaging in the litigation process including by filing a defence;
(b)since July 2023, the defendant has not filed any documents in the action and appears to have disengaged from the litigation process;
(c)in my view, it was reasonable for the plaintiff to await the defendant's discovery (due on 3 August 2023) before deciding whether to bring the application; and
(d)in that context, making the application on 2 October 2023 did not constitute unreasonable delay on the plaintiff's part and did not result in prejudice to the defendant.
Accordingly, the first issue is answered in the affirmative and the substance of the application may be dealt with.
In approaching the remaining issues, I note that there is no affidavit (or other) evidence of the defendant before me. Accordingly, the plaintiff's evidence is uncontested and should be accepted unless it is inherently improbable or inconsistent with undisputed contemporary documents.[5]
[5] See, for example, Central City Pty Ltd v Montevento Holdings Pty Ltd [2011] WASCA 5 (Montevento) [49].
The 'ground' in RSC O 14 r 1
The principles that apply to an application for summary judgment are well established and have been summarised as follows:[6]
Summary judgment will be granted only when there is no real question to be tried. The power to order summary judgment is one that should be exercised with great care: ... It is only in the clearest of cases, when there is a high degree of certainty about the ultimate outcome of the proceedings if it went to trial, that summary judgment ought properly be granted.
[6] Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14 (Sutton) [24], citing Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99; Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57]; Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [46]; Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 [24], [53] - [55].
The plaintiff bears the onus in relation to enlivening the court's discretion to grant summary judgment under RSC O 14 r 1, on 'the ground' that the defendant has no defence to the relevant claim. That requirement, read together with RSC O 14 r 2, makes it necessary for the plaintiff to establish, by affidavit:
(a)the facts necessary to make out the cause of action (that is, the essential elements of the claim); and
(b)a belief that there is no defence to that claim.
Is there a prima facie cause of action?
The plaintiff's claim as articulated in the SOC is, on the face of it, fairly simple.[7] It is for repayment of a principal sum plus interest on that amount, an entitlement to which is said to arise from a loan agreement entered into between the plaintiff and defendant on 20 March 2010 (Deed).
[7] The whole of the SOC comprising just five numbered paragraphs (plus the prayer for relief).
Accordingly, the plaintiff needs to establish:
(a)the existence of the Deed;
(b)that the Deed is prima facie enforceable; and
(c)that the defendant is prima facie liable under the Deed to pay to the plaintiff the amounts claimed.
The first Jasper affidavit:
(a)annexes and verifies the Deed the subject of the claim;
(b)attests to the accuracy of the statements of fact in the SOC; and
(c)contains a statement that, to the 'best of [the plaintiff's] knowledge, information and belief, the [d]efendant does not have any defence to this claim'.
The Deed relevantly:
(a)comprises eleven clauses and a schedule (Schedule) comprising six numbered paragraphs;
(b)recites that the defendant borrowed $112,000 (Principal Sum) from the plaintiff, drawn down on 1 December 2009, and that the parties agreed to enter into the Deed to set out the terms and conditions of the loan facility and an associated grant of security[8];
[8] By way of a mortgage over the defendant's property: cl 10 of the Deed, read with par 2 of the Schedule thereto.
(c)provides, in cl 6, for repayment of the 'loan'[9] as specified in the Schedule, which in turn provides (at par 5):
[9] Defined as 'the principal amount of the advance outstanding at the time'.
5.The loan together with all interest, fees and costs in respect of the loan shall be repaid on demand provided that the Borrower may in its absolute discretion make payments of not less than [$1,000] at any time before the repayment date.
(d)provides, in cl 4, for the payment of interest, as follows:
4.1 Interest
The Borrower must pay the interest on the loan calculated at the interest rate [of 4% per annum above the Reserve Bank of Australia's official cash rate].[10] The interest calculated on the loan shall not be added to the loan amount except where there has been a default under the loan, in which case clause 4.2 shall apply.
[10] Clause 6 of the Deed, read with par 4 of the Schedule.
4.2 Default Interest
(1)Where any sum … payable by the Borrower under this agreement is not paid to, or as directed by, the Lender on or before its due date for payment, default interest will accrue on the outstanding amount, whether or not the Lender has given notice of the same to the Borrower.
(2)Accrued default interest must be paid by the borrower to the Lender upon demand by the Lender.
(3)Default interest will be calculated at the default rate for the period for which the outstanding amount is overdue. Accordingly, default interest will accrue on and from the due date for payment of the outstanding amount up to but excluding its date of payment. It will be computed on a daily basis for actual days elapsed and will be compounded on the last day of each month.
The plaintiff pleads:
(a)at par 3 of the SOC, that the plaintiff has demanded repayment of the Principal Sum plus interest, that demand being particularised as comprising a notice of demand dated 25 February 2022; and
(b)at par 4 of the SOC, that the defendant has failed to the plaintiff any part of the monies demanded.
Relying on the terms of the Deed, the plaintiff's claim in the SOC[11] is for:
(a)the sum of $112,000; plus
(b)interest, calculated at the rate of 4% per annum above the Reserve Bank of Australia's official cash rate from 1 December 2009 to 23 February 2022, in the sum of $84,747; plus
(c)default interest, calculated at a rate of 8% above the Reserve Bank of Australia's official cash rate from 24 February 2022 to date of payment or judgment.
[11] Paragraph 5 of the SOC, read with the prayer for relief.
The plaintiff's application, articulated in the chamber summons filed 2 October 2023, is for summary judgment in those terms.
However, the plaintiff's amended minute of proposed final orders filed on 17 April 2024 seeks orders for judgment for:
(a)the Principal Sum; plus
(b)interest in the sum of $164,369.39. This latter sum is said to be supported by the fourth Sloan affidavit, which attests that that sum is calculated on a daily basis at the rate of 4% per annum above the Reserve Bank of Australia's official cash rate from 1 December 2009 to 16 April 2024.
It is apparent, therefore, that the plaintiff resiles (at least for the purposes of the summary judgment application) from her claim for default interest calculated at a rate of 8% above the Reserve Bank of Australia's official cash rate from 24 February 2022 to the date of any judgment.[12]
[12] That position was confirmed in the plaintiff's oral submissions at the hearing: ts 2 (18 April 2024).
For these purposes, therefore, it is only necessary to consider whether the plaintiff has satisfied the requisite onus in relation to her claim for:
(a)the Principal Sum; and
(b)interest on that sum:
(i)at the rate of 4% per annum above the Reserve Bank of Australia's official cash rate; and
(ii)from 1 December 2009.
Enforceable contract
The plaintiff submits that there is an enforceable contractual claim because, despite the defendant being the plaintiff's son, any presumption against an intention to create legal relations in a family context[13] is rebutted by the parties' execution of the Deed.[14] Putting aside any issues of defence (as to which, see discussion below), I accept that submission.
[13] Citing Cohen v Cohen (1929) 42 CLR 91; Darmanin v Cowan [2010] NSWSC 1118 (Darmanin) [204] ‑ [215]; Ashton v Pratt [2015] NSWCA 12 [69] - [72].
[14] Citing Darmanin [215]. See also Darmanin [219] (and the authority cited therein).
I find that the Deed is proved and is prima facie enforceable.
Liability to pay under the Deed
As to the defendant's liability under the Deed to make repayment, the plaintiff, despite pleading that demand for repayment has been made:
(a)did not annex the notice of demand particularised in the SOC to any of the affidavits relied upon in support of the application;
(b)contends that such demand is unnecessary because '[w]here money is lent, repayable on demand, liability exists as soon as the loan is made [and a] promise to pay on demand adds nothing to it';[15] and
(c)submitted that, in any event, if demand were needed then the writ would fulfil that requirement.[16]
[15] Paragraph 18 of the plaintiff's written submissions, citing Australia and New Zealand Banking Group Ltd v Coutts [2003] FCA 968 [28] in support (Coutts).
[16] ts 6 (18 April 2024).
A central plank of the plaintiff's argument is that the liability of the defendant to repay the loan was immediate, by reason of it being 'on demand' (Demand Contention).
The only authority cited by the plaintiff in support of the Demand Contention is Coutts.[17] That case does not, in my view, assist the plaintiff. It stands for the proposition that a demand is a condition precedent to the crystallisation of liability to pay moneys the subject of a collateral debt.[18]
[17] Paragraph 18 of the plaintiff's written submissions.
[18] That is, a debt that arises by way of a surety or guarantee in the event of default of a primary debtor's liability.
While I note that there is authority that supports the Demand Contention,[19] that line of cases gives rise to some complexity, which requires some consideration.
[19] See, for example: Young v Queensland Trustees Ltd (1956) 99 CLR 560; Montevento; Netglory Pty Ltd v Caratti [2013] WASC 364 (Netglory).
The common law position in relation to the Demand Contention has usefully been summarised[20] as follows:
[36]At common law, a loan made where no time for repayment is specified, or where the loan is stated to be payable 'on demand', creates an immediate debt by which the money is repayable immediately without the creditor first making a demand for payment.
[37]Also at common law, a loan payable 'on demand' in the above sense is to be distinguished from a loan only repayable on condition that a demand is first made. In the latter case, but not the former, the making of the demand is a condition precedent to liability to repay, and the cause of action does not arise until the demand has been made.
[38]Where the parties do not expressly fix a time for repayment, or agree that the repayment is to be conditional upon the making of a demand, implications as to such matters may be made or inferred in appropriate circumstances.
[20] Montevento [36] - [38], citations excluded.
On the face of it, that common law position presents something of a double-edged sword for the plaintiff because:
(a)on the one hand, it is relied upon as crystallising the liability of the defendant to repay the Principal Sum; and
(b)on the other hand, the common law position is that, for a debt repayable on demand, the cause of action accrues at the date that money was advanced. In this case that date is 1 December 2009, giving rise to the possibility that a limitation defence may be open to the defendant. (I note that that possibility would arise on the plaintiff's own version of events, and by operation of the Demand Contention advanced by the plaintiff herself,[21] rather than depending on any evidence being led or any contention being made by the defendant).
[21] See, for example, Netglory [274] - [287].
On the common law position advanced by the plaintiff, therefore, it would be difficult to accept that the plaintiff had discharged her onus under RSC O 14 r 1, or that there was so high a degree of certainty about the ultimate outcome of the case as to warrant giving summary judgment.
I note, however, that the common law position is modified in this State[22] by s 59 of the Limitation Act 2005 (WA), pursuant to which '[a] cause of action for the repayment of a debt repayable on demand accrues when there is a failure to comply with a demand for repayment'.[23] Although the plaintiff does not contend with this position, it is the position at law and it is appropriate that I take account of it.
[22] This modification is unique in Australia: Handford P, Limitation of Actions: The Laws of Australia (5th ed 2023) 31 [4.30].
[23] This provision relevantly applies to causes of action that accrue on or after the commencement day of the Act (being 15 November 2005): Limitation Act 2005 (WA) s 4.
I note that:
(a)by reason of the above, demand is fundamental to the accrual of the plaintiff's cause of action;
(b)there is case law to the effect that, where a claim is founded on a document, the plaintiff should annex that document to the affidavit in support; [24] and
(c)the plaintiff has not annexed the notice of demand particularised in the SOC to her affidavit evidence.
[24] Joseph Terry Pty Ltd v T & G Fire & General Insurance Co Ltd [1973] VR 458, 460 (Terry Joseph).
Nevertheless, I do not consider that omission to be wholly fatal. Unlike Terry Joseph, this is not a case where the fundamental source of the debt is omitted from the plaintiff's evidence. Rather:
(a)although the particularised notice of demand is omitted, there are other bases on which the court can be comfortably satisfied that demand has (at some time) in fact been made;
(b)the plaintiff's uncontested affidavit evidence is that demand for repayment has been made and that, despite demand, the defendant has failed to repay any part of the Principal Sum (or any interest thereon); and
(c)that evidence is neither inherently implausible nor contrary to the contemporaneous documents and should be accepted.[25]
[25] Montevento [49].
I find that the plaintiff has established a prima facie case in relation to the defendant's liability to repay monies under the Deed because:
(a)insofar as the Principal Sum is concerned, I accept that demand has been made and therefore a cause of action in debt has accrued; and
(b)insofar as the claim for interest:
(i)by reason of cl 4.1 of the Deed[26] the defendant's liability to pay any interest was contingent upon some 'default' under the loan; and
(ii)the plaintiff's uncontested evidence is that the defendant has, despite demand, failed to repay any part of the Principal Sum and is therefore in default.
[26] Which provides that the interest calculated on the loan 'shall not be added to the loan amount except where there has been default under the loan' [emphasis added].
A more difficult aspect of the plaintiff's claim, however, is as to the quantity of interest claimed because:
(a)the relevant provisions of the Deed do not in my view make plain (as opposed to arguable) the date of accrual or the relevant rate, because:
(i)cl 4.1 provides that interest may be added to the loan only upon default, and in which case cl 4.2 will apply;
(ii)cl 4.2 provides that default interest will accrue 'on and from the due date for payment of the outstanding amount up to but excluding its date of payment'; and
(iii)although clause 4.1 refers to the 'interest rate' and clause 4.2 refers to the 'default rate', the Schedule only provides for one rate of interest;
(a)the 'ultimate outcome' on the construction of those provisions is not so plain as to give rise to a 'clear entitlement' to interest from the draw down date (as opposed to the date of any default); and
(b)to the extent that any entitlement arises from the date of default, the absence of the relevant notice of demand, coupled with the plaintiff's submission that, if demand were needed then the writ would fulfil that requirement, renders the date of any default uncertain.
Accordingly, I find that:
(a)the plaintiff has established a prima facie cause of action against the defendant; but
(b)there remains a triable issue as to the quantum of the interest claimed.
Belief as to there being no defence
The circumstances of this application are unusual. Typically, applications for summary judgment are brought either:
(a)before any defence is filed, with the plaintiff's requisite stated belief going to the unavailability of a defence given the facts supported by the plaintiff's affidavit; or
(b)after a defence is filed, where the defence does not respond (in whole or in part) to the plaintiff's claim.
This case does not fit comfortably in either of the above categories. Rather, a defence has been filed and has been struck out other than on the merits (because of procedural non-compliance by the defendant).
The plaintiff has the ultimate onus of satisfying the court that there is no defence to the claim.
As noted above, the plaintiff relies on her affidavit evidence which includes a statement that, to the 'best of [the plaintiff's] knowledge, information and belief, the [d]efendant does not have any defence to this claim' (Defence Statement).
Neither the plaintiff's affidavit evidence, nor her submissions, address the contentions of fact contained in the (now inoperative) defence.
The plaintiff submitted that any defence raised in the pleading that was filed is 'entirely hypothetical' because the defendant has filed no evidence in support of it.[27] I accept that submission.
[27] ts 5 (18 April 2024).
Upon the plaintiff discharging the onus to establish her own prima facie claim, an evidentiary onus rests on the defendant to answer that claim.[28] Until he has put on evidence to support his own contentions of fact, I do not consider that the plaintiff is called upon to refute them because:
(a)the language of RSC O 14 r 1 does not clearly place such a requirement on the plaintiff; and
(b)to construe RSC O 14 r 1 as giving rise to such a requirement would, in my view, be inconsistent with the objectives of contemporary case management,[29] contrary to RSC O 1 r 4B(2). The evidentiary burden on a party applying for summary judgment is already high. It would be disproportionate to the aims of RSC O 14 to increase it further by requiring the plaintiff to 'shadow box' against unsupported contentions, where the defendant has not sufficiently engaged in the process to raise any serious question of fact to be tried.
[28] Deputy Commissioner of Taxation v Howley [2021] WASC 82 [13].
[29] Which include promoting the just determination of litigation, disposing efficiently of the business of the court, and ensuring that the applicable procedures are proportionate to the value, importance and complexity of the subject matter in dispute: RSC O 1 r 4A, O 1 r 4B.
I find that, save as to the quantum of interest, the plaintiff has satisfied the requirements of RSC O 14.
The defendant has not shown cause against the application
The defendant has not engaged in the application and has not shown cause against it.
Exercise of discretion
Even where the plaintiff has satisfied the requirements of RSC O 14, the court retains a discretion in relation to giving summary judgment.[30]
[30] Smith v McCusker QC [2005] WASCA 226 [88].
RSC O 14 r 3 expressly provides that, upon being satisfied that it is appropriate to do so, the court 'may give judgment for the plaintiff' on 'that claim or part thereof as may be just, having regard to the nature of the remedy or relief claimed' (emphasis added).
I am mindful that the defendant is unrepresented and, although unverified by affidavit, has previously put on a defence to the claim. Those are considerations that may, without more, disincline me to exercise my discretion to give summary judgment.
However, countervailing considerations include that the defendant has effectively disengaged from the litigation process. This is evident on the court record from his lawyers' inability to obtain instructions, the defendant's failure to comply with orders relating to discovery (with the consequence that his defence was struck out), the plaintiff's successful application for substituted service of the application, and the defendant's failure to respond to the application.
On balance, taking account of the objectives of contemporary case management, I am satisfied that:
(a)in the exercise of my discretion, summary judgment should be given for the plaintiff against the defendant in relation to the Principal Sum;
(b)because I have found that there remains a triable issue as to the quantum of interest claimed:
(i)the defendant should have leave to defend that part of the plaintiff's claim; but
(ii)that leave should be conditional upon a defence being filed in a timely manner, being 28 days from the date of service on him of the order;
and
(c)further, in light of the matters outlined in [71] above, and to avoid the delay and costs associated with the plaintiff needing to make further interlocutory applications, it is appropriate to:
(i)make a self-executing order to the effect that, if the defendant does file a defence within the time allowed then the plaintiff shall have judgment for interest in the amount of $164,369.39; and
(ii)make an order allowing for substituted service of the order on the defendant.
Costs
Costs ordinarily follow the event, and I am inclined to follow that usual course in relation to the application.
Conclusion
I will hear submissions as to the precise terms of the order that should be made.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
ER
Customer Service Officer
19 JULY 2024
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