Jones v Pyramid Constructions (WA) Pty Ltd

[2016] WADC 26

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   JONES -v- PYRAMID CONSTRUCTIONS (WA) PTY LTD [2016] WADC 26

CORAM:   DEPUTY REGISTRAR HARMAN

HEARD:   15 DECEMBER 2015

DELIVERED          :   2 MARCH 2016

FILE NO/S:   CIV 2920 of 2015

BETWEEN:   JOHN RICHARD JONES

First plaintiff

BOSCO KINETICS PTY LTD
Second plaintiff

AND

PYRAMID CONSTRUCTIONS (WA) PTY LTD
Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Application for summary judgment - Turns on its facts

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

First plaintiff                 :     Mr A Freund

Second plaintiff            :     Mr A Freund

Defendant:     Mr P Hardie

Solicitors:

First plaintiff                 :     Lawton Gillon

Second plaintiff            :     Lawton Gillon

Defendant:     Hardies Lawyers

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

1. DEPUTY REGISTRAR HARMAN:  When it issued, the writ was endorsed with a statement of claim.  Prior to any defence being filed, the plaintiffs have sought judgment.

2. According to the pleading, the first plaintiff and defendant had been in dispute as to whether he had any entitlement to a fund held on deposit by the defendant's bank and the process by which he would be paid; they had recorded an agreement under which a lesser amount would be paid by instalments; and that in breach of the agreement the defendant failed to pay the last two instalments due.

3. According to the first plaintiff's evidence, the dispute arose after he has disposed of his shares in the defendant in the context of his withdrawal from the affairs of the defendant, both as director and employee.  He attaches a letter from the defendant's solicitor dated 24 July 2015 in which it raises the issue whether the agreement was founded upon common mistake and the proper characterisation of payments made.  It concludes with a demand for repayment.

4. The plaintiffs carry the onus of persuasion that there is a clear case for judgment and that it is appropriate to award judgment.

5. Although the defendant's evidence and written submissions suggest that it would present a wider range of issues for consideration upon the hearing, at the hearing its submissions were limited to the bona fides of the first plaintiff in contending that he had any entitlement to the fund.  The only substantive issue presented upon the application is the question of enforceability of the agreement. 

6. In his affidavit of 11 September 2015 the first plaintiff identifies the fund; asserts that it represented security that he had provided the to the defendant's bank and that at some time not clearly stated but either since the fund had been established or in the process of severing his connections to the defendant, he considered that he was entitled be paid the fund.

7. Thereafter he gives evidence of the presentation of his written proposal for payment and of the defendant’s response, part oral and part written.  The written part included a reservation as to the first plaintiff's entitlement but offered a lesser amount and along with the oral part, put a proposal for payment by more instalments over a longer period.

8. What I have characterised as the reservation was expressed by the words that the first plaintiff has no legal entitlement to the fund. 

9. With reference to the affidavit, both the proposition that the fund would be amenable to characterisation as having been provided by the first plaintiff and his contended entitlement are no more than unfounded submissions.    

10. According to the evidence presented by the defendant in the form of the affidavits of Masaryk and Alessandrino, there is sufficient to allow for the result that the particular fund had been set aside for a particular purpose that bore no relationship to any entitlement of its shareholders of whom the first plaintiff had been one.  The evidence also supports the proposition that at the time that the fund had been established the defendant had not been in a position to establish any entitlement of its shareholders. 

11. Since the defendant filed those affidavits, the plaintiff has filed further affidavits but did not seek leave to rely upon their content.

12. The defendant submitted that having at all material times been a director of the defendant the first plaintiff had been aware that the defendant had not been in a position to establish any entitlement of the first plaintiff to the extent that he claimed.

13. The issue presented in the application can only be resolved at trial.  Accordingly the application is dismissed.