KETCH Nominees Pty Ltd v Spooner - [2001] WADC 53

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: KETCH NOMINEES PTY LTD -v- SPOONER & ANOR [2001] WADC 53

CORAM: REGISTRAR KINGSLEY

HEARD: 9 AUGUST, 20 SEPTEMBER & 7 DECEMBER 2000

DELIVERED : 6 MARCH 2001

FILE NO/S: CIV 46 of 2000

BETWEEN: KETCH NOMINEES PTY LTD
Plaintiff
AND
GREGORY ALAN SPOONER
First Defendant
LYNDA MARY SPOONER
Second Defendant

Catchwords:

Practice - Application pursuant to O 14 Rules of the Supreme Court - Turns on own facts

Legislation:

Rules of the Supreme Court

Result:

Application dismissed

Representation:

Counsel:

Plaintiff:     Mr S Hicks
First Defendant             :     Ms Y D Henderson
Second Defendant         :     Ms Y D Henderson

Solicitors:

Plaintiff:     Richard Huston & Associates
First Defendant             :     Gibson & Gibson
Second Defendant         :     Gibson & Gibson

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

Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd (1976) WAR 109
Scaffidi Nominees Pty Ltd & Anor v Buswell unreported; FCt SCt of WA; Library No 960588; 10 November 1996
Whitehall Holdings Pty Ltd & Ors v Custom Credit Corporation Ltd, unreported; FCt SCt of WA; Library No 9189; 13 December 1991

Case(s) also cited:

About Holdings Pty Ltd v Bellbird Enterprises Pty Ltd (1997) 17 WAR 309
Australian Can Co Pty Ltd v Levin & Co Pty Ltd [1947] VLR 332
Cordinup Resorts Pty Ltd & Ors v Terana Holdings Pty Ltd (1997) 143 FLR 18
Deputy Commissioner of Taxation v Heaton (1997) 35 ATR 450
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Jacka Nominees Pty Ltd (in Liq) & Anor v Edwards Karawacki Smith & Co Pty Ltd & Ors, unreported; SCt of WA; Library No 920512; 12 October 1992
Miles v Bull (1968) 3 All ER 632
Muntz v Elkington (1891) VLR 23
Smith v Town & Country Bank, unreported; FCt SCt of WA; Library No 970716; 18 December 1997

REGISTRAR KINGSLEY: This is the plaintiff’s application pursuant to O 14 Rules of the Supreme Court. The plaintiff pleads that by a lease dated 7 September 1995 the plaintiff leased the Crossman Roadhouse to the defendants. The various terms of the lease included provisions relating to the payment of the rental and variable outgoings (including costs of administration and management of the premises), the payment of interest, the keeping of the premises in good order and condition, and replacement of fixtures, fittings and chattels which have become worn out lost or destroyed. The lease included a provision that upon vacating the premises without first there being an assignment or subletting of the premises, the lessor may, at the cost of the lessee, clear out furniture chattels and other properties.
The plaintiff pleads that on 1 January 1998 the defendants abandoned the Crossman Roadhouse which the plaintiff says was a repudiation of the lease. This repudiation is pleaded to have been accepted by the plaintiff by letter dated 2 January 1998. The plaintiff goes on to plead in cl 7, cl 8, cl 9, cl 10, cl 11 and cl 12 various heads of damage totalling $102 392.06. Par 7, par 8, par 9, par 10, par 11, and par 12 have been separately particularised.
In an affidavit sworn 17 April 2000 the plaintiff through its director Heather Oliver (Oliver) deposes that the plaintiff was informed on 1 January 1998 that the defendants were moving out of the premises and that the premises were abandoned and empty on 2 January.
Oliver deposes that the defendant left the premises in an appalling condition. She then refers to par 10 of the statement of claim and at par 9 of her affidavit, in 62 sub-paragraphs verifies, with documentary evidence, the various items claimed. In par 12 of her affidavit Oliver in 13 sub-paragraphs particularises the various items making up the claim for damages in par 12. Similarly par 7 is particularised in par 14 of her affidavit comprising of some 7 sub-paragraphs. At par 10 of her affidavit, Oliver details the claim by Sommaco on the plaintiff. Oliver deposes that the plaintiff engaged Sommaco Pty Ltd to act as a property manager in relation to the management of the Crossman Roadhouse. Oliver, as well as her husband Kevin Oliver, are directors of Sommaco and worked for Sommaco in attending to various administrative and other duties as property manager.
Under O 14 an applicant for summary judgement assumes the burden to persuade the Court that the claim is a good one to which there is no defence and in respect of which leave to defend ought not be granted. The plaintiff has the initial onus to satisfy the Court that in respect of its claim it would be entitled to judgement. Thus unless there is some other reason to dismiss the application, such judgement as may be just would be given unless the defendant is able to discharge an evidentiary onus to show to the Court that there is a triable issue or dispute between the parties or that for some other reason there ought to be a trial (O 14 r 3; Scaffidi Nominees Pty Ltd & Anor v Buswell unreported; FCt SCt of WA; Library No 960588; 10 November 1996). An application pursuant to O 14 may be dealt with upon chamber summons and the supporting affidavit material may contain hearsay. However, the affidavit must be in a form which cogently satisfies the basic requirement that the plaintiff show to the Court its claim may be established in circumstances which negate the availability of any defence, except as to quantum of damages (Scaffidi Nominees Pty Ltd & Anor v Buswell (page 8)). Thus the burden lies on the plaintiff seeking summary judgement of persuading the Court that there is no real question to be tried. The defendant has an evidentiary onus but the legal burden of persuasion remains with the plaintiff for the relief sought under O 14.
In resisting an application pursuant to O 14 a defendant affidavit must condescend to particulars if it is to be of assistance to the Court (Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd (1976) WAR 109. Where the affidavit material upon each side is in sharp conflict, it is timely to remember that a Court will not, in these interlocutory proceedings, have the capacity to resolve upon that affidavit material conflicts of fact which depend to any degree upon the resolution of issues of the credibility of witnesses. It has been said that the Court will studiously avoid seeking to determine the relevant facts by weighing the paper in the form of the affidavits on either side. Leave to defend would be given if there is a real question or issue in dispute which ought to be tried (Whitehall Holdings Pty Ltd & Ors v Custom Credit Corporation Ltd, unreported; FCt SCt of WA; Library No 9189; 13 December 1991).
The principal affidavit in support of the plaintiff’s application is that of Oliver sworn 17 April 2000. It is this affidavit which verifies this statement of claim and sets out the documentary evidence in support of the various particulars of the statement of claims. Conveniently, and plaintiffs counsel must be commended for providing such document, the plaintiffs counsel has provided what is described as the fourth cross-reference schedule. This document cross-references the allegations made in the statement of claim to the affidavit of Oliver and to the paragraphs of Spooner's affidavits in reply. There are three affidavits of Spooner in reply. Plaintiff’s counsel has used a code to indicate the plaintiff’s assessment of the quality of the response by Spooner to the plaintiffs claim. Plaintiff’s counsel submits that it is proper to enter judgement in relation to items to which there is no clear dispute. To those items which are clearly disputed then plaintiffs counsel concedes these may go on to trial.
It is the defendant’s counsel contention that the affidavit of Oliver has a whiff of fraud. Defendants' counsel points to discrepancies in statements and documentary material evidenced by Oliver. Further defendants counsel refers to the affidavits of Peter Harman sworn 20 September 2000 and Bruce Linto sworn 17 September 2000 to support the contention there is a suggestion of fraud. I accept that there are discrepancies but am not satisfied there has been sufficient particularisation of the allegations to warrant a finding that the affidavit of Oliver goes beyond differences of fact and ventures into fraudulent conduct.
The first question to be dealt with is the question of leave. The issue between the parties was, in 1998, before the Commercial Tribunal. In January 2000 a hearing was held in the Commercial Tribunal on the question of the Commercial Tribunal’s jurisdiction. On 31 March 2000 the Commercial Tribunal handed down its decision in relation to the question of jurisdiction. On 18 April 2000 the defendant applied to the Commercial Tribunal for and extension of time within which to lodge an appeal and was granted an extension of time by the Tribunal until 21 May 2000. The plaintiffs application for summary judgement was filed 19 April 2000. In the circumstances I am of the opinion that any delay has been explained and that leave to bring the application is warranted.
At par 7 of the statement of claim, particularised by Oliver at par 14 of her affidavit, claims are made in relation to administration charges payable by the defendant to Sommaco Pty Ltd for property management duties performed by Sommaco Pty Ltd. The invoice rendered refers to administration charges commencing from 8 September 1995 thereafter continuing monthly until 10 December 1997. The defendant contends that the invoice claiming management fees is a contrived account and is a direct result of the action commenced by the defendant in the Commercial Tribunal. The defendant contends that Kevin Oliver, one of the directors of the plaintiff, gave a verbal undertaking that no management fees would be charged in relation to the lease. The extreme delay in forwarding the invoice for the management fees adds cogency to Spooner's complaint that no charges would be levied or that the account has now been contrived.
At par 9(60) the plaintiff claims in the sum of $29,000 being extensive repairs to underground wiring at the premises. Oliver deposes that the wiring had been cut and pulled out of the ground in a number of places. It is Oliver's belief that the underground wiring had been deliberately sabotaged by the defendants. Spooner, in his affidavit sworn 4 August 2000 denies that both defendants deliberately damaged the wiring. Harman is an electrical contractor. In his affidavit sworn 20 September 2000 Harman deposes that in or about 1998 Kevin Oliver contacted him and requested he provide a quotation to perform the electrical work on areas Kevin Oliver intended to develop as caravan park. Harman recalls attending at the Crossman Roadhouse on two occasions to perform an inspection in order to provide a report on any damage or repairs that were necessary to be performed. On one of the occasion Harman met with Kevin Oliver, Heather Oliver and an architect to discuss the completion and upgrading of electrical work on the Caravan Park. At this site meeting what was necessary to bring the electrical work and proposed caravan park area up to required standards was discussed. An officer of Western Power also attended the site meeting. Following this meeting Harman provided a verbal quote to the Kevin Oliver of $22,500. Harman deposes that in approximately April 2000 Kevin Oliver rang him and asked if he would provide a new quotation as he was considering doing the necessary work on the Caravan Park to upgrade it. Harman deposes that he did not attend at the proposed caravan site but simply reworked the figures to allow for GST and other price increases. Harman deposes that the quotation relates solely to the electrical work required to be done to bring the caravan park area up to the required standard to become operational.
Linto is a plumbing contractor. At par 9(61) Heather Oliver deposes that the quotation from Linto Plumbing dated 11 April 2000 is in relation to work required because there was damage to reticulation and underground plumbing at the premises. Oliver deposes that the underground plumbing and reticulation was severed in a number of places, pulled up or ripped off walls or out of the ground. Oliver believes that the plumbing had been deliberately sabotaged by the defendants. Linto's estimate of the costs of repairs was estimated at $23,700 at the time that the defendant left the premises but has since risen to $29,950 due to increases in labour and material. As to this Spooner in his affidavit sworn on the 4^th August deposes that the quotation was to upgrade the plumbing to Caravan Park in accordance to the relevant health requirements. Spooner denies any deliberate sabotage to the plumbing. In his affidavit sworn 17 September 2000, Linto deposes that he was engaged by the Oliver’s for at least 10 years to perform annual inspections of the plumbing at the Crossman Roadhouse. In 1996 Linto, together with the Oliver’s and Spooner, inspected an area in the proposed Caravan Park where after digging a hole it was evident that tree roots entered a main sewer pipe. This was because a gully trap, which should have been attached to the pipe, had not been installed. At that site inspection in 1996 Linto deposes that Kevin Oliver said words to the effect that repairs and upgrading of the plumbing in the area would be sorted out when he decided to go ahead with the Caravan Park. Linto deposes that in approximately April 2000 Kevin Oliver approached him to provide a quotation for completing the plumbing necessary to bring the proposed Caravan Park up to required standard for completion. After providing the quotation Linto deposes that his wife received a telephone call from Kevin Oliver requesting the following words be inserted into the quotation “caravan park so badly damage that the whole plumbing installation has to completely redone”. Without reference to Linto his wife inserted those words into the quotation and returned the amended quotation to Kevin Oliver. The quotation annexed to Linto's affidavit (which is the same quotation on p 124 of Heather Oliver’s affidavit) is stated to include the installation of hot water heater and some plumbing work to complete a new ablution block located adjacent to the Crossman Roadhouse. Linto deposes that when he drafted the quotation Kevin Oliver advised him that the quotation was for future work to be performed in upgrading and completing the Caravan Park and the new ablution block.
Thus Spooner contends that the electrical and plumbing quotations bear no relationship to the termination of the tenancy but, as Oliver well knows, relate to separate issues. Thus it is the submission of counsel for the defendants that Oliver has deposed to matters not caring as to their truth accuracy. These three matters set the tone for the application for summary judgement as a whole. In the detailed itemisation of the plaintiffs claim with its close analysis by the defendants counsel, I am left with the strong impression that Oliver was prepared to depose that matters related to the tenancy not caring whether in fact those items did in fact relate to the tenancy. I have the clear impression that the plaintiff was not concerned about the accuracy of matters being put before the Court and was seeking to cause as much difficulty to the defendants as possible. Some further examples are illustrative of my concern.
At H0, 77, 78 and 79, being the annexures to Oliver's affidavit, are accounts from Optus and Telstra. An amount less than the total of the account is claimed. Those amounts are said to be telephone calls made to prospective lessees and other persons in relation to re-leasing of the premises. There is no factual substantiation of the amounts claimed - merely a guess as to the amount. H0 59 at pages 115 and 116 of Oliver’s affidavit relate to statements of account from George Grayston, an architect. These relate to site visits to the Crossman Roadhouse. No report from Grayston is annexed to Oliver’s affidavit to support that contention. In fact there is some evidence from Harman to indicate that the claim by the architect may not relate to any matter relevant to the termination of the lease.
By way of further illustration a number of receipts are exhibited in Oliver’s affidavit which she deposes to have been for the purchases on behalf of caretakers and tradesmen at the Crossman Roadhouse. However contained within those receipts are items, which arguably do not relate to the lease; for example men’s briefs. Further, expenses related to entertaining prospective lessees exhibited at pages 150 and 151 of Oliver’s affidavit would appear to include expenses after new tenants went into possession.
At p 149 and marked HO 82 is a claim for $54.70 being the costs related to the use of a motor vehicle said to have arisen by an agreement between Sommaco Pty Ltd and a Mr Bower dated 1 March 1998. The costs supposedly relate to fuel for use of Mr Bower’s vehicle. Contained within the purchase is an item marked "other" for the sum of $31.76. This sum appears to relate to the purchase of LP gas. Again I have difficulty understanding how this relates to cost arising on termination.
I accept that taken individually it would appear that I am adopting a pedantic and almost nit-picking approach. However the material in evidence and the arguments addressed to be by Counsel add weight to my concern that the plaintiffs have made claims that bear no legal relationship to the termination. There is sufficient in the material to lead to the inference that at the trial of the action the defendants will be be able to establish a defence (Ray v Barker 4Ex.D.279 at 283). Accordingly I am of the opinion that the matters raised by the plaintiff and the defendant fall into the category “for any other cause” and I decline to enter judgement pursuant to O 14. Whilst I accept that the defendant has conceded approximately $3,000 in the end having regard to the overall claim I am not satisfied that judgement ought to be entered for that sum.