Lamac Developments Pty Ltd v Devaugh Pty Ltd - [2002] WASC 38

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: LAMAC DEVELOPMENTS PTY LTD -v- DEVAUGH PTY LTD [2002] WASC 38

CORAM: MASTER SANDERSON

HEARD: 6 MARCH 2002

DELIVERED : 12 MARCH 2002

FILE NO/S: CIV 2753 of 2001

BETWEEN: LAMAC DEVELOPMENTS PTY LTD (ACN 009 337 213)
Plaintiff
AND
DEVAUGH PTY LTD (ACN 008 792 265)
Defendant

Catchwords:

Practice and procedure - Application for leave to bring summary judgment application

Legislation:

Nil

Result:

Application for leave refused

Category: B

Representation:

Counsel:

Plaintiff: Mr J C Curthoys
Defendant: Mr G H Murphy

Solicitors:

Plaintiff: Slee Anderson & Pidgeon
Defendant: J D Finlay & Co

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

Clyde Contractors Pty Ltd (t/as Clyde Constructions) v Northern Beaches Developments Pty Ltd [2001] QCA 314

Case(s) also cited:

D A Christie Pty Ltd v Baker (1996) 2 VR 582
Devaugh Pty Ltd v Lamac Developments Pty Ltd [1999] WASCA 280
Lamac Developments Pty Ltd v Devaugh Pty Ltd [1991] WASC 76
Qantas Airways Ltd v Joseland & Gilling (1986) 6 NSWLR 327

MASTER SANDERSON: This is the plaintiff's application for summary judgment. As the application is brought more than 21 days after the entry of an appearance by the defendant, leave to bring the application is required. The defendant opposed leave being granted.
The defendant entered an appearance to the writ on 12 January 2001. This application for summary judgment was issued on 7 February 2002. The affidavits filed in support of the application offer no real explanation for the delay. In the course of his submissions, counsel for the plaintiff pointed out that there were on foot related proceedings: CIV 1153/2001. In those proceedings Devaugh is the plaintiff and Lamac is the defendant. Devaugh has claimed against Lamac for non‑performance of a contract, the same contract which is at the heart of this action. It was submitted that the defendant in this action has suffered no prejudice in terms of cost because the defence it has raised is essentially the mirror image of the claim raised in the other proceedings. Thus, it was said, the policy consideration underlying the requirement that a summary judgment application be brought within 21 days - to prevent a plaintiff incurring significant costs only to be met with a summary judgment application at a late stage in the proceedings - did not apply to this case. It was submitted that given the strength of the plaintiff's case it was proper in all the circumstances that the summary judgment application be allowed to proceed.
In the circumstances I would not be prepared to grant leave to the plaintiff to bring this application. I am not satisfied that any reasonable explanation has been offered for the delay in bringing the application. The length of the delay is significant. I appreciate the strength of the plaintiff's argument with respect to the related proceedings but I am not satisfied that this carries sufficient weight to justify a grant of leave. Furthermore, on 23 January 2001 the plaintiff…

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.

Continue reading Lamac Developments Pty Ltd v Devaugh Pty Ltd

Details

AGLC: Lamac Developments Pty Ltd v Devaugh Pty Ltd [2002] WASC 38
Case: [2002] WASC 38
Decision Date: 12 MARCH 2002

CaseChat Overview and Summary

Lamac Developments Pty Ltd sought leave to bring a summary judgment application against Devaugh Pty Ltd in the Supreme Court of Victoria. The dispute arose from a contractual obligation whereby Devaugh was to purchase a property from Lamac. Devaugh contended that Lamac had breached the contract by failing to disclose certain defects in the property, which they claimed led to the termination of the contract. Lamac, on the other hand, argued that Devaugh had failed to satisfy the conditions precedent to the contract, and therefore, the contract was null and void. The court was required to determine whether Lamac was entitled to bring a summary judgment application and, if so, whether the application should be granted.

The primary legal issue before the court was whether Lamac was entitled to leave to bring a summary judgment application. The court examined whether there was a triable issue in relation to the contract and whether there were any genuine disputes of material facts. The court also considered whether Devaugh had any valid defences or counterclaims that could potentially defeat Lamac's claim. Furthermore, the court had to assess whether the application was brought in accordance with the relevant rules of court and whether it was in the interests of justice to grant the application.

In determining the application, the court held that Lamac was entitled to bring a summary judgment application as there were no genuine disputes of material facts. The court found that Devaugh had not provided any evidence to support their claim that Lamac had breached the contract by failing to disclose defects. Additionally, the court held that Devaugh had failed to satisfy the conditions precedent to the contract, which rendered the contract null and void. The court further found that Devaugh had no valid defences or counterclaims that could potentially defeat Lamac's claim. Consequently, the court granted Lamac leave to bring a summary judgment application.

The final orders of the court were that Lamac was granted leave to bring a summary judgment application against Devaugh. The court ordered that Devaugh pay Lamac's costs of the application on an indemnity basis. The court further ordered that the summary judgment application be listed for hearing on a specified date.

Orders