Kununurra Panel Beating Works (Holdings) Pty Ltd (ACN 083 463 969) (In Liquidation) v Horsman
[2024] WASC 385
•22 OCTOBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: KUNUNURRA PANEL BEATING WORKS (HOLDINGS) PTY LTD (ACN 083 463 969) (IN LIQUIDATION) -v- HORSMAN [2024] WASC 385
CORAM: MASTER RUSSELL
HEARD: 8 OCTOBER 2024
DELIVERED : 22 OCTOBER 2024
FILE NO/S: CIV 1821 of 2023
BETWEEN: KUNUNURRA PANEL BEATING WORKS (HOLDINGS) PTY LTD (ACN 083 463 969) (IN LIQUIDATION)
Plaintiff
AND
BARRY HORSMAN
First Defendant
DEVERAUX NO 1 PTY LTD (ACN 147 444 068)
Second Defendant
Catchwords:
Practice and procedure - Summary judgment - Application for summary judgment pursuant to O 14 r 1 of the Rules of the Supreme Court 1971 (WA) - Application for leave to apply for summary judgment - Orders for possession of property -Turns on own facts
Legislation:
Corporations Act 2001 (Cth) s 568(1)(f), s 568(1A), s 568A(1)(a) and (b), s 568D(1)
Rules of the Supreme Court 1971 (WA) O 14 r 1, O 14 r 1(1), O 14 r 2(1), O 14 r 3
Result:
Application granted
Leave to apply for summary judgment granted
Summary judgment entered
Orders made for possession of property
Representation:
Counsel:
| Plaintiff | : | Mr C Williams |
| First Defendant | : | Mr M Fernando |
| Second Defendant | : | Mr M Fernando |
Solicitors:
| Plaintiff | : | Solomon Brothers |
| First Defendant | : | Taylor Rose |
| Second Defendant | : | Taylor Rose |
Case(s) referred to in decision(s):
Deputy Commissioner of Taxation v Lafferty [2017] WASC 257
Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458
Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109
Petkov & Ors v Lucerne Nominees Pty Ltd & Ors (1992) 7 WAR 163
Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14
Wallingford v Mutual Society (1880) 5 App Cas 685
Westpac Banking Corporation v Anderson [2017] WASC 106
Wilmott Growers Group Inc v Willmott Forests (Receivers and Managers Appointed) (In Liquidation) (2013) 251 CLR 592
MASTER RUSSELL:
Introduction
The plaintiff, Kununurra Panel Beating Works (Holdings) Pty Ltd (In Liquidation), is the registered proprietor of 9 Salacca Loop, Kununurra, Western Australia, being the land more particularly described as Lot 120 on Deposited Plan 62475 (Property).
The plaintiff commenced these proceedings by writ of summons indorsed with a statement of claim on 27 July 2023 against the defendants, Barry Horsman and Deveraux No 1 Pty Ltd.
The plaintiff claims possession of the Property, which it says the first defendant, alternatively the second defendant, has been in unlawful occupation or possession of since at least 28 October 2022.
Orders were made for substituted service of the writ of summons on the first defendant on 15 March 2024. A memorandum of appearance was filed on behalf of both defendants on 9 April 2024 and a defence filed on 23 April 2024.
By chamber summons filed on 5 June 2024, the plaintiff applies for summary judgment pursuant to O 14 r 1 of the Rules of the Supreme Court 1971 (WA) (RSC) and seeks orders requiring the defendants to give and deliver up possession of the Property.
In support of the application, the plaintiff relies on an affidavit of Louis Lut‑Yiu Lee sworn on 5 June 2024 and an outline of submissions filed on 28 August 2024.
I made orders on 23 July 2024 for the defendants to file and serve any affidavits in opposition to the application by 13 August 2024 and an outline of submissions by 3 September 2024. The defendants have not filed either and no application has been made to vary the orders made.
The plaintiff requires and has applied for leave to bring the application as it was not made within 21 days of the appearance being entered, as required by O 14 r 1 RSC.
For the reasons that follow, the plaintiff's application for leave to apply for summary judgment and for summary judgment is granted and orders will be made that the defendants deliver up possession of the Property to the plaintiff.
Application for adjournment
At the commencement of the hearing of the plaintiff’s application, the solicitors on record for the defendants sought leave to cease acting on their behalf. No valid notice of change of representation had been filed on behalf of the defendants and no application had been made by the defendants' solicitors pursuant to O 8 r 7 RSC.
The defendants' solicitor stated they were without instructions and made no submissions on behalf of the defendants. I gave leave for the first defendant, Barry Horsman, to speak on his own behalf and on behalf of the second defendant.
Mr Horsman sought an adjournment of the plaintiff's application. That application was opposed by the plaintiff. For the reasons I gave at the hearing, I refused the application for the adjournment.
After hearing the plaintiff's submissions, Mr Horsman said he would 'move on' and vacate the Property but said he needed some time to make arrangements to do so.
Applicable legal principles
The legal principles that apply to an application for summary judgment are well settled.
An application under O 14 RSC must be supported by an affidavit verifying the facts upon which the claim is based and stating that, in the deponent's belief, there is no defence to the claim.[1]
[1] RSC O 14 r 2(1).
The power to grant summary judgment should be exercised with great care. Summary judgment should only be granted in the clearest of cases, where there is no real issue to be tried. If it is not possible to say, on the whole of the material, that there is no question to be tried, the defendant should have the opportunity to defend the action.[2]
[2] Westpac Banking Corporation v Anderson [2017] WASC 106 [104] (Pritchard J) and the authorities referred to.
As the Court of Appeal said in Sutton Investments Pty Ltd v Realistic Investments Pty Ltd:[3]
Summary judgment will be granted only when there is no real question to be tried. The power to order summary judgment is one that should be exercised with great care: Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99. It is only in the clearest of cases, when there is a high degree of certainty about the ultimate outcome of the proceedings if it went to trial, that summary judgment ought properly be granted: Agar v Hyde[2000] HCA 41; (2000) 201 CLR 552 [57]; Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [46]; Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 [24], [53] - [55].
[3] Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14 [24].
The plaintiff bears the legal burden of persuading the court that the claim is a good one and there is no defence to it. If the plaintiff's affidavit in support of an application makes out a prima facie case on these two matters, the evidentiary burden passes to the defendant to show there is an arguable defence or another reason there ought to be a trial of the action.[4]
[4] Westpac Banking Corporation v Anderson [53] - [54], [103]. See also Deputy Commissioner of Taxation v Lafferty [2017] WASC 257 [54] (Tottle J) and the authorities referred to.
A defendant seeking to demonstrate an arguable defence or some other reason why there ought to be a trial must condescend to particulars and provide sufficient details of their defence.[5]
[5]Deputy Commissioner of Taxation v Lafferty [54], citing Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109, 113 (Brinsden J); Wallingford v Mutual Society (1880) 5 App Cas 685, 704 (Lord Blackburn).
The plaintiff's claim and the pleaded defence
As outlined, the plaintiff pleads that it is the registered proprietor of the Property and that the first defendant, alternatively the second defendant, has been in occupation or possession of the Property unlawfully since at least 22 October 2022.
The plaintiff claims possession of the Property and seeks orders that the defendants give and deliver up possession of it.
In the defence filed on 29 April 2024, the defendants admit that the plaintiff is the registered proprietor of the Property and that the first defendant, alternatively the second defendant, has been in occupation or possession of the Property since about 22 October 2022.
The defendants say that they are lawfully entitled to occupy or possess the Property as the second defendant has a lease agreement with the plaintiff entitling the defendants to remain in the Property. The defendants stated they are unable to provide particulars of the term of the lease agreement as it is located on the 'Defendant's laptop that is currently being repaired.'
Determination
Application for leave to bring the application for summary judgment
Order 14 r 1(1) RSC requires an application for summary judgment to be made within 21 days after an appearance has been filed, or any later time with leave of the court.
The 21-day limit to bring an application for summary judgment reflects the view that such applications should be brought promptly and at an early stage of the proceeding, before unnecessary expense is incurred. Where there is a delay, the onus is on the applicant to demonstrate that the delay is justifiable in all of the circumstances. Any prejudice to the other party caused by the delay and the prospects of the application are also relevant factors.[6]
[6] See Westpac Banking Corporation v Anderson [38] and the authorities referred to.
I am satisfied on the evidence before me that, although there was a delay in bringing the application, it is not an undue delay and was justifiable in the circumstances. The application was brought at an early stage of the proceeding within approximately five weeks of the defence being filed. There is no evidence of any prejudice to the defendants caused by the delay in bringing the application.
The merits of the application are also a relevant consideration.[7] For the reasons that follow, I am satisfied that there is no defence to the plaintiff's claim. To require strict compliance with the rules would work an injustice upon the plaintiff and to allow the matter to proceed to trial would not be in the interests of justice.
Summary judgment application
[7] See Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458, 459.
The plaintiff has complied with the procedural requirements. Mr Lee deposes in his affidavit to his belief on behalf of the plaintiff that there is no defence to the claim and attaches documents verifying the plaintiff’s claim.[8] I am satisfied the plaintiff has made out a prima face case.
[8] Affidavit of Louis Lut-Yiu Lee sworn on 5 June 2024 (Lee Affidavit).
No evidence has been filed in opposition to the application. The defendants admit they are in possession of the Property. No evidence has been produced and no particulars given of any lease, licence or other basis upon which the defendants are entitled to be in possession of the Property.
In his affidavit sworn in support of the application, Mr Lee deposes to and attaches, amongst other things, a copy of a letter dated 13 March 2023[9] to the first defendant from solicitors acting on behalf of the liquidator of the plaintiff, stating that:
(a)Stuart George Reid of Rodgers Reidy was appointed as liquidator of the plaintiff on 28 October 2022;
(b)since that time, the first defendant had been occupying the Property without any legal basis;
(c)a deed of licence to occupy the Property had been provided to the first defendant on 13 February 2023, receipt of which he acknowledged by telephone on 14 February 2023; and
(d)the first defendant had not responded to several attempts to contact him, had not executed the deed of licence or paid the licence fee for occupation of the Property.
[9] Lee Affidavit [9], 'LLL-6’.
The letter concludes with a demand on behalf of the liquidator of the plaintiff requiring execution of the deed of licence, payment of unpaid licence fees and evidence of insurance by 21 March 2023, failing which instructions would be sought for the commencement of proceedings to recover possession of the Property without further notice.
A copy of the deed of licence referred to is attached to Mr Lee's affidavit.[10] The date of commencement is stated as 28 October 2022 and the date of expiry as 27 April 2023.
[10] Lee Affidavit 'LLL-6', pages 24 - 35.
Also attached to Mr Lee's affidavit is a copy of a notice of termination and disclaimer addressed to the first and second defendants, sent to them on that date by registered post and to Mr Horsman by email on 21 April 2023.[11] A copy of the notice was also sent by email to the defendants' solicitors at their request on 19 May 2023.[12]
[11] Lee Affidavit [11] - [12], 'LLL-8', 'LLL-9'
[12] Lee Affidavit [13], 'LLL-10'.
The notice of termination and disclaimer gives notice to the defendants that:
(a)with effect from one month after service of the notice, any lease, licence or other entitlement they have to occupy the Property is terminated;
(b)the liquidator disclaims any lease, licence or other entitlement to occupy the Property which is not effectively terminated pursuant to the notice in (a) above; and
(c)they are required to vacate the Property by 6 June 2023.
It is not disputed that the plaintiff is the registered proprietor of the Property. As such, the plaintiff has a prima facie right to possession of the Property.[13]
[13] Petkov & Ors v Lucerne Nominees Pty Ltd & Ors (1992) 7 WAR 163, 167 (Murray J).
The defendants admit that one or other of them have been in occupation, alternatively possession of the Property since at least 22 October 2022.
No evidence has been adduced or any particulars given of any entitlement of the defendants to occupy or to be in possession of the Property. The defendants have not adduced any evidence to support their claim of a lease of the Property between the defendants and the plaintiff, the evidence of which was stated to be located on the 'defendant's' laptop, which was being repaired in April 2024.[14]
[14] Particulars to Defence [2]; Letter from defendant’s solicitors to plaintiff’s solicitors 19 April 2024 and attached letter from Dr Laptop dated 16 April 2024: Lee Affidavit [18], 'LLL-15'.
The defendants were given one month's notice of termination of any lease, licence, or other entitlement to occupy or possess the Property on 21 April 2023. In the same notice, the liquidator gave notice of disclaimer of any such lease, licence or entitlement to occupy or possess the Property on that date.
In the circumstances, any lease that the defendants or either of them may have had to occupy or possess the Property has been disclaimed under s 568(1)(f) of the Corporations Act 2001 (Cth). The liquidator has given notice of the disclaimer as required by s 568A(1) of the Corporations Act, any right of the defendants to occupy has ceased, and the plaintiff is entitled to possession.[15]
[15] Corporations Act 2001 (Cth) s 568(1)(f), s 568(1A), s 568A(1)(a) and (b), s 568D(1). Wilmott Growers Group Inc v Willmott Forests (Receivers and Managers Appointed) (In Liquidation) (2013) 251 CLR 592 595 - 597, 604 - 605, 608 - 609.
The defendants have failed to deliver up possession of the Property despite demand having been made of them to vacate the Property by 6 June 2023.
Neither the first defendant or the second defendant have filed any affidavits or submissions in response to the application that indicate there is any defence to the plaintiff's claim, despite orders made requiring them to do so and having been on notice of the hearing of the summary judgment application since 1 August 2024.
After hearing the submissions made in support of the application for summary judgment, Mr Horsman made no submissions in opposition to the application. He conceded that he would ‘move on’ and vacate the Property.
I recognise that summary judgment should only be awarded in the clearest of cases. I am satisfied on the evidence before me, exercising the proper degree of care, that this is such a case, and it is appropriate to grant summary judgment in favour of the plaintiff and to make an order that the defendants give and deliver up possession of the Property.
Conclusion and orders
For these reasons, the plaintiff has leave to bring its application for summary judgment, judgment will be entered for the plaintiff and an order made that the defendants give and deliver up possession of the Property to the plaintiff.
The plaintiff also seeks judgment for damages to be assessed in relation to any damage to the Property. However, no plea is made in the statement of claim in relation to damages. Though there is a claim for interest on damages in the prayer for relief, there is no claim for damages.
It was submitted on behalf of the plaintiff, that it is not necessary to specifically plead a claim for damages provided the material facts pleaded support such a claim. However, the pleaded case does not include any material facts relating to any damage to ground such a claim or the additional relief sought.
I am not persuaded there is a proper basis upon which judgment may be entered for damages to be assessed, or to enter judgment for part of the claim and to give the defendants leave to defend in relation to any claim for damages, as submitted on behalf of the plaintiff. No such claim arises on the plaintiff’s claim, as pleaded.
As to the time by which the defendants are to deliver possession of the Property to the plaintiff, the plaintiff sought an order that the defendants do so within 21 days. Mr Horsman on behalf of himself and the second defendant sought 60 days.
The defendants have been on notice of the plaintiff’s claim for possession of the Property since at least April 2023 and of the application for summary judgment since June 2024. The defendants have also had the time since the hearing of the application, two weeks ago, within which to make arrangements to vacate the Property. In the circumstances, in my view, 21 days from the date of the orders is a reasonable time.
I will hear from the parties as to the final form of orders and in relation to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AM
Associate to Master Russell
22 OCTOBER 2024
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