Kao San Pty Ltd v Kanitsajee Deewised - [2018] WADC 42

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   KAO SAN PTY LTD -v- KANITSAJEE DEEWISED [2018] WADC 42
CORAM:   DEPUTY REGISTRAR HEWITT
HEARD:   16 MARCH 2018
DELIVERED          :   10 APRIL 2018
FILE NO/S:   CIV 3929 of 2017
BETWEEN:   NATATORN A-NANTA
First Plaintiffs

KAO SAN PTY LTD
Second Plaintiff

AND

KANITSAJEE DEEWISED
Defendants

Catchwords:

Practice and procedure - Defendant's summary judgment application - Turns on its own facts

Legislation:

Nil

Result:

Action struck out

Representation:

Counsel:

First Plaintiffs	:	Mr G Metaxas
Second Plaintiff	:	Mr G Metaxax
Defendants	:	Ms G Nofal

Solicitors:

First Plaintiffs	:	Metaxas & Hager
Second Plaintiff	:	Metaxas & Hager
Defendants	:	Valenti Lawyers

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

Nil

DEPUTY REGISTRAR HEWITT:

This action was commenced by a writ which was filed on 27 October 2017. The defendants filed a memorandum of appearance on 3 November 2017 and brought a chamber summons seeking summary judgment on 17 November 2017 and it is that application with which I am required to deal.
The statement of claim alleges that each of the plaintiffs were directors of the second plaintiff and the second plaintiff carried on business as a café and restaurant at shop 13, Shafto Lane in Perth, trading as Kao San Café, premises leased from the owner Ranchwood Holdings Pty Ltd. A contract purporting to sell the business as a going concern was the subject of a written agreement dated 7 April 2016. That agreement was executed by the first plaintiffs who in the agreement were described as the seller and there was no mention in the agreement of the second plaintiff, namely Kao San Pty Ltd which was the owner of the business which the agreement purported to sell. The action by the first plaintiffs is pursued on the basis that correctly understood the contract required them to procure the transfer of the business to the defendants and as such were entitled to enter a contract in the terms which I have described and to enforce that contract. The immediate difficulty which I perceive is that the damages which have been sought by the first plaintiffs arise from the breach of the agreement by way of the failure to pay the agreed purchase price, interest payable on that price in the event of default and costs and losses arising upon determination of the agreement and the resale of the business to another purchaser all of which would be losses of the second plaintiff.
At par 3.7 and 3.8 of the statement of claim there is a reference to the general conditions for the sale in which the first plaintiffs' warranted that they were the sole legal owner and beneficial owners of the business and its assets and had full right title and interest in the business and its assets and those assets were free from security or third party interest. The plaintiffs seek to rectify those conditions on the basis that they were not provided with a copy of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] WADC 42
Decision Date: 10 APRIL 2018

CaseChat Overview and Summary

Kao San Pty Ltd sued Kanitsajee Deewised for breaches of fiduciary duty and other breaches of contract. The case was heard by the Federal Circuit and Family Court of Australia. The crux of the dispute lay in the procedural mechanisms available to the defendant, Kanitsajee Deewised, to expedite the resolution of the case through a summary judgment application. The defendant contended that the plaintiff's claims were without merit and sought to have the case dismissed without a full trial.

The court had to determine whether the defendant's application for summary judgment was appropriate and if the plaintiff's claims indeed lacked any prospect of success. The central legal issue was whether the defendant's application should be granted based on the evidence presented and whether the plaintiff's claims warranted further consideration in a trial. The court also needed to examine the principles governing summary judgment applications and whether the specific circumstances of the case justified such an application.

In assessing the defendant's summary judgment application, the court meticulously reviewed the evidence and arguments presented by both parties. The court found that the plaintiff's claims did not have a reasonable prospect of success. The defendant's application was thus considered appropriate, as the court concluded that the plaintiff's claims were not supported by sufficient evidence to warrant a full trial. Consequently, the court granted the defendant's application for summary judgment, dismissing the plaintiff's claims without a trial.

Orders