| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : KANDOO ENTERPRISES PTY LTD As Trustee For THE SYLVIA TRUST -v- DRAY [2005] WADC 39 CORAM : COMMISSIONER STAVRIANOU HEARD : 2 MARCH 2005 DELIVERED : 4 MARCH 2005 FILE NO/S : CIV 1296 of 2004 BETWEEN : KANDOO ENTERPRISES PTY LTD As Trustee For THE SYLVIA TRUST (ACN 082 719 828) Plaintiff
AND
LUCIEN DRAY
Defendant
ON APPEAL FROM:
For File No : CIV 1296 of 2004 Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA Coram : DEPUTY REGISTRAR HARMAN File No : CIV 1296 of 2004 Result : Application dismissed
(Page 2)
Catchwords:
Practice and procedure - Application for summary judgment - Appeal against dismissal application for summary judgment - Turns on its own facts
Legislation: Rules of the Supreme Court 1971, O 14, r 1
Supreme Court Act 1935
Result: Appeal dismissed Representation:
Counsel:
Plaintiff : Mr D P Bristol
Defendant : Mr A J Lloyd
Solicitors:
Plaintiff : Murcia Pestell Hillard
Defendant : A J Lloyd
Case(s) referred to in judgment(s):
Fancourt & Anor v Mercantile Credit Ltd (1983) 154 CLR 87
Morgan v Pallister [2004] WASC 188
Case(s) also cited:
Australian Can Co Pty Ltd v Levin & Co Pty Ltd [1947] VLR 332
Country Estates Pty Ltd v Leyton Contractors Pty Ltd (1975) 49 ALJR 173
Deputy Commissioner of Taxation v Heaton (1997) 35 ATR 450
DMS Shipping & Trading Co Ltd v Lionheart Asia Ltd [1996] 2 QDR 20
Eng Mee Yong v Letchumanan [1980] AC 331
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Moscow Narodny Bank Ltd v Mosbert Financial (Australia) Pty Ltd (1976) WAR 109
(Page 3)
Smith v Town & Country Bank, unreported; FCt SCt of WA; Library No 970716; 18 December 1997
Sun Candies v Polites [1939] VLR 132
(Page 4)
Introduction 1 This is an appeal against a judgment of Deputy Registrar Harman delivered 22 September 2004 by which the learned Deputy ordered that the plaintiff's application by chamber summons dated 30 July 2004 for summary judgment be dismissed. 2 By this appeal the plaintiff seeks an order that the order of the Deputy Registrar be set-aside and in lieu thereof there be an order for judgment for the plaintiff for $35,000 plus interest pursuant to s 32 of the Supreme Court Act1935 and costs. 3 The plaintiff's claim is made pursuant to a written agreement dated 20 January 2000 ("the agreement") whereby the defendant agreed to purchase from Stephen Balfour as Trustee of the Sylvia Trust ("the trust") shares in a company Domex Pty Ltd and a loan account for the sum of $35,000.
The pleaded case 4 The relevant paragraphs of the statement of claim are as follows: "1. The Plaintiff: 1.1 is a company incorporated in the State of Western Australia; 1.2 has since 28 June 2001 been the trustee of the Sylvia Trust ("the Trust"), which was established by Deed of Trust dated 2 September 1994 between Charles Roborg-Sondergaard as settlor and Stephen Balfour ("Balfour") as trustee. 2. By a written agreement ("the Agreement") dated 20 January 2000, executed by Balfour as trustee for the Trust, and the defendant, the defendant purchased from the Trust: 2.1 10 ordinary shares in Domex for the sum of $20,907.00; and 2.2 the balance of a loan account in respect of monies owed by Domex to the Trust for the sum of $14,093.00;
(Page 5)
3. The Agreement provided that the following sums where due and payable by the defendant to the Trust on the Following dates: 3.1 $15,000.00 on or before 15 July 2000; and 3.2 $20,000.00 on or before 15 October 2000. 4. Pursuant to the Agreement, in or about January or February 2000 Balfour, as trustee for the Trust, transferred to the defendant 10 ordinary shares in Domex. 5. On or about 28 June 2001, Balfour ceased to be the trustee of the Trust and the plaintiff was appointed in his stead. 6. In breach of the Agreement and despite written demand made to the defendant on or about 15 December 2003, the defendant has failed and/or refused to pay the sum of $35,000.00 which it owes to the plaintiff pursuant to the Agreement.
Issues raised on summary judgment application 5 The defendant conceded that the plaintiff had made out its claim on a prima facie basis and accordingly the sole issue for determination upon the appeal was whether there was an arguable defence. 6 The defendant swore affidavits on 21 September 2004 and 3 November 2004 in opposition to the application for summary judgment deposing to the circumstances leading up to execution of the agreement. Essentially the contentions made by the defendant in opposition to the application for judgment were that:
(Page 6)
He deposed that he signed the agreement in reliance upon the assurance given to him by the plaintiff. In par 4(c) of his affidavit sworn 3 November 2004 the defendant deposes: "Referring to the document I said to Stephen words to the effect: 'Does it make clear that I am buying the shares only if we find a new shareholder' and he replied 'Yes'. " In that circumstance the defendant contends that the agreement is not binding upon him. 3. The execution of the agreement was induced in part by the plaintiff's threat to make a false allegation namely insolvent trading by Domex Pty Ltd to the Australian Securities and Investment Commission. 4. There was a collateral oral contract by which the plaintiff promised to have the original oral contract reduced to writing. It is alleged that the plaintiff breached the collateral contract by not having the written agreement drawn in the terms agreed. It is contended that the breach gives rise to an entitlement to damages. 7 The defendant's contention is that the effect of the matters referred to in par 1-3 above is to lead to an entitlement to rescind the agreement. 8 The plaintiff contends that no issue is raised on the materials adduced on behalf of the defendant. The plaintiff through its director Stephen Balfour denies the assertions made by the defendant in his affidavits as to the representations alleged to have been made and as to the circumstances of entering into the agreement. Mr Balfour expressly denies that the agreement was conditional.
Principles on summary judgment application 9 Order 14, r 1 of the Rules of the Supreme Court provides that where a statement of claim has been served on a defendant and the defendant has entered an appearance, the plaintiff may, on the ground that the defendant has no defence to a claim included in the writ or has no defence to such claim or part except as to the amount of any damages claimed, within 21 days after appearance or at any later time by leave of the Court, apply to the Court for judgment against the defendant.
(Page 7)
10 The power to order summary judgment should be exercised with great care and should never be exercised unless it is clear there is no real question to be tried: Fancourt & Anor v Mercantile Credit Ltd (1983) 154 CLR 87 at 99.
11 The plaintiff carries the burden of persuading the Court that the claim is a good one, that there is no defence to it, that leave to defend should not be granted, and that judgment should be given for the plaintiff. The party showing cause against the application assumes an overall evidentiary burden but the overall legal burden of persuasion remains on the applicant: Morgan v Pallister [2004] WASC 188 at par 4.
Disposition of appeal 12 The defendant has raised issues as to the representations made to him prior to execution of the agreement upon which the cause of action is based. The defendant's case is that misrepresentations were made which were relied upon by him in entering into the agreement. 13 The issues raised by the defendant are ones which can only be determined at trial and after a comprehensive investigation of all the facts and circumstances. In my view there are real questions to be tried on the issues raised. This is not a case where it is appropriate to order conditional leave to defend. There is a conflict on the evidence which can only be resolved after trial. Accordingly, the application for summary judgment should be dismissed.
Conclusion 14 The appeal should be dismissed.
|