KOMTAS PTY LTD -v- BUCKINGHAM [2001] WASC 322

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASC 322
Published:	23/11/2001
Case No:	CIV:1864/2001	Heard:	15 NOVEMBER 2001
Coram:	MASTER BREDMEYER	Delivered:	23/11/01
No of pages:	6	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	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

CITATION : KOMTAS PTY LTD -v- BUCKINGHAM [2001] WASC 322 CORAM : MASTER BREDMEYER HEARD : 15 NOVEMBER 2001 DELIVERED : 23 NOVEMBER 2001 PUBLISHED : 23 NOVEMBER 2001 FILE NO/S : CIV 1864 of 2001 BETWEEN : KOMTAS PTY LTD

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…

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: [2001] WASC 322
Decision Date

CaseChat Overview and Summary

The case of Komtas Pty Ltd v Buckingham was heard by Master Bredmeyer of the Supreme Court of Western Australia. The plaintiff, Komtas Pty Ltd, was the purchaser of a property from the defendant, George Hugh Buckingham. The plaintiff sought to amend the orders made on a summary judgment application to include damages under a new head, specifically for forfeited stamp duty. The application was dismissed by the Court.

The legal issues before the Court were whether the plaintiff could amend the orders made on a summary judgment application to include damages for forfeited stamp duty, and whether the plaintiff could amend the statement of claim to incorporate the item of damage. The Court considered whether there was any liberty reserved in the original judgment for the plaintiff to apply to amend the orders, and whether the defendant was prejudiced by the application.

The Court held that it could not accede to the plaintiff's application to amend the orders. The Court noted that there was no claim in the statement of claim for a refund of stamp duty, and no application was made to amend prior to the summary judgment hearing. The Court held that there was a hearing which had issued in orders, which had been entered, and had not been taken on appeal. The Court considered it would be unjust in these circumstances to grant the orders sought. The application was dismissed.

No further orders were made by the Court. The Court noted that the plaintiff was a defendant in a related action, and in that action had brought a counterclaim which included damages for forfeited stamp duty. The Court proposed to say nothing else about that action at the moment.

Orders