Komtas Pty Ltd v Buckingham
[2001] WASC 322
KOMTAS PTY LTD -v- BUCKINGHAM [2001] WASC 322
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASC 322 | |
| 23/11/2001 | |||
| Case No: | CIV:1864/2001 | 15 NOVEMBER 2001 | |
| Coram: | MASTER BREDMEYER | 23/11/01 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | KOMTAS PTY LTD GEORGE HUGH BUCKINGHAM |
Catchwords: | Practice Orders Application to amend orders made on summary judgment application to give damages under a new head |
Legislation: | Stamp Duty Act 1921, s 15A |
Case References: | Komtas Pty Ltd v Buckingham [2001] WASC 193 Jackson v Goldsmith (1950) 81 CLR 446 Lewandowski & Ors v Lovell, Unreported; FCt SCt of WA; Library No 960310; 14 June 1996 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
GEORGE HUGH BUCKINGHAM
Defendant
Catchwords:
Practice - Orders - Application to amend orders made on summary judgment application to give damages under a new head
Legislation:
Stamp Duty Act 1921, s 15A
Result:
Application dismissed
(Page 2)
Category: B
Representation:
Counsel:
Plaintiff : Mr I N Wilson
Defendant : Mr D S McManus
Solicitors:
Plaintiff : Ian Wilson
Defendant : Corsers
Case(s) referred to in judgment(s):
Komtas Pty Ltd v Buckingham [2001] WASC 193
Case(s) also cited:
Jackson v Goldsmith (1950) 81 CLR 446
Lewandowski & Ors v Lovell, Unreported; FCt SCt of WA; Library No 960310; 14 June 1996
(Page 3)
1 MASTER BREDMEYER: This is an application by the plaintiff to amend orders I made on a summary judgment application.
2 By way of background, the plaintiff was the purchaser of a property in West Perth from the defendant under a contract of sale. The purchase price was $770,000. The plaintiff paid a deposit of $20,000 and had the contract of sale stamped at a cost of $32,150. The contract of sale was dated 5 October 1999 and settlement was to take place on 5 October 2000. The rates and taxes were to be adjusted as at that date. However, because the defendant said he was short of money, an oral agreement was made that the plaintiff would pay the rates and taxes on behalf of the defendant prior to the date of settlement and that credit would be given to the plaintiff for these payments at settlement. Pursuant to that arrangement the plaintiff paid land tax, council rates and water rates.
3 The contract of sale contained a special condition that the purchaser was able to demolish the building prior to settlement. This was done and the plaintiff spent $4,000 on demolition and $2,023 for the disconnection of power.
4 I entered summary judgment for the plaintiff. I considered that the defendant had wrongfully breached and repudiated the contract. My reasons are set out in Komtas Pty Ltd v Buckingham [2001] WASC 193 delivered on 20 July 2001 and published on 26 July 2001.
5 The orders I made on 30 July 2001 were as follows:
“1 The Defendant pay the Plaintiff the sum of $35,761.54.
2. The Defendant pay the Plaintiff’s costs of the application for judgement and of the action to date including the reserved costs in the District Court of Western Australia action No 262 of 2001 to be taxed if not agreed.
3. The Defendant sign all documents necessary to procure a refund of stamp duty to the Plaintiff on the contract of sale of the land referred to in the Statement of Claim.”
6 The damages were made up as follows:
Deposit $20,000.00
Council and water rates 2,176.77
Land Tax 4,368.60
Demolition work 4,000.00
(Page 4)
- Disconnection of power 2,023.40
Interest 3,192.77
TOTAL $35,761.54
7 Following those orders the plaintiff applied to the State Revenue Department for a refund of stamp duty on the basis that the contract of sale had been rescinded. The application fell to be considered under s 15A of the Stamp Act 1921. I quote from part of that section:
"Refund of duty on cancelled instrument
(1) Subject to this section, the Commissioner shall refund all of the ad valorem duty paid on an instrument where the Commissioner is satisfied that –
(a) the instrument is rescinded, annulled, discharged or cancelled or that each matter contained in the instrument or to which the instrument relates and in respect of which ad valorem duty has been paid has not been, and will not be, carried into effect; and
(b) no amount of money, right, property or service in respect of the instrument or in consequence of the rescission, annulment, discharge or cancellation or from the matter or matters not being carried into effect has been or will be paid to or obtained by –
(ii) any other person (being a person who was not a party to the instrument at the date of its execution) with the consent, or at the direction, of a person liable to pay ad valorem duty on the instrument.
- (2) Subject to this section, where the Commissioner is satisfied that –
(a) an instrument on which ad valorem duty has been paid is rescinded, annulled, discharged or cancelled or each of the matters contained in the instrument or to which the instrument relates and
(Page 5)
- in respect of which ad valorem duty has been paid has not been, and will not be, carried into effect;
- (b) an amount of money, right, property or service in respect of the instrument or in consequence of the rescission, annulment, discharge or cancellation or from the matter or matters not being carried into effect has or will be paid to or obtained by -
(i) a person liable to pay ad valorem duty on the instrument; or
(ii) any other person (being a person who was not a party to the instrument at the date of its execution) with the consent, or at the direction, of a person liable to pay ad valorem duty on the instrument;
and
(c) the total of the amount of money and the value of any right, property and service referred to in paragraph (b) is or will be less than the amount of the ad valorem duty paid,
- the Commissioner shall refund the difference between the amount of the ad valorem duty paid and the total referred to in paragraph (c) as determined by the Commissioner."
8 The plaintiff was successful in getting a refund of $16,388.46.
9 The refund is made up as follows:
Stamp duty paid $32,150.00
Judgment $35,761.54
Made up of:
- deposit $20,000.00
other monies 15,761.54
Stamp Duty $32,150.00
Less other monies recovered 15,761.54
Stamp duty refund $16,388.46
(Page 6)
10 Mr Wilson, the solicitor for the plaintiff, then instructed solicitors Halsey & Associates, who specialise in stamp duty work, to make further representations to the State Revenue Department to see if a further refund could be obtained. This approach was successful in part and on 6 November 2001 the State Revenue Department refunded a further $6,544 being equivalent to the council, water rates and land tax paid by the plaintiff on behalf of the defendant. The balance of the stamp duty, which has not been refunded, totals $9,217.54.
11 The plaintiff, in the present application, seeks that the quantum of damages specified in my judgment of 20 July 2001 be increased by $9,217.54 (representing forfeited stamp duty) together with interest thereon calculated from 6 October 1999 of $1,166.94, totalling $10,384.48. Further orders sought are that leave be given to amend the said judgment in terms of that paragraph and that leave be granted to amend the statement of claim so as to incorporate the item of damage referred to in the first paragraph.
12 I do not consider that I can accede to this application. There was no claim in the statement of claim for a refund of stamp duty, and no application was made to amend prior to this. There was a summary judgment hearing, as related above, which resulted in summary judgment and my three orders of 20 July 2001. Those orders have been extracted and entered. On the Court's copy our Court's Ordered Clerk has noted in biro the registration number "Judgment 178/01". There was no liberty to apply reserved to the plaintiff in the judgment in case its attempts to get a refund of stamp duty failed. There was no appeal. The action is at an end. This conclusion may seem unfair to the plaintiff but the defendant is entitled to rely on the proposition that there has been a hearing which has issued in orders, which have been entered, and have not been taken on appeal. I consider it would be unjust in these circumstances to grant the orders sought. The application will be dismissed.
13 I note that the plaintiff in this action, Komtas Pty Ltd, is a defendant in a related action CIV 1498/01, and in that action has brought a counterclaim which includes damages for forfeited stamp duty. That counterclaim and that action has not yet been heard and I propose to say nothing else about it at the moment.
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