Lathwell v Stabil Pty Ltd (in Liq)
[2001] WASCA 295
•25 SEPTEMBER 2001
LATHWELL & ANOR -v- STABIL PTY LTD (IN LIQ) [2001] WASCA 295
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 295 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:32/2001 | 18 AUGUST 2001 | |
| Coram: | WALLWORK J WHEELER J BURCHETT AUJ | 25/09/01 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Judgment set aside | ||
| B | |||
| PDF Version |
| Parties: | RONALD JOHN LATHWELL COLLEEN ISABEL LATHWELL STABIL PTY LTD (IN LIQ) |
Catchwords: | Practice and procedure Summary judgment Family company running shearing business Company's bank accounts frozen Family farming partnership continued to run business Whether respondent's accounts correctly represented its position Credibility questions arising Whether appropriate case for summary judgment |
Legislation: | Nil |
Case References: | Eng Mee Yong v Letchumanan [1980] AC 331 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 Jacob v Booth's Distillery Co (1901) 85 LT 262 Contract Discount Corporation Ltd v Furlong [1948] 1 All ER 274 Ex parte Simmonds (1885) 16 QBD 308 Hancock Family Memorial Foundation Ltd v Porteous (2000) 156 FLR 249 Hartogen Energy Ltd v Australian Gas Light Co (1992) 36 FCR 557 Langdale v Danby [1982] 1 WLR 1123 Lill v Merchant Capital (WA) Ltd (1996) 15 WAR 536 Re Tyler [1907] 1 KBB 865 Whitehall Holdings Pty Ltd v Custom Credit Corporation Ltd, unreported; FCt SCt of WA; Library No 9189; 13 December 1991 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : LATHWELL & ANOR -v- STABIL PTY LTD (IN LIQ) [2001] WASCA 295 CORAM : WALLWORK J
- WHEELER J
BURCHETT AUJ
- COLLEEN ISABEL LATHWELL
Appellants (Defendants)
AND
STABIL PTY LTD (IN LIQ)
Respondent (Plaintiff)
Catchwords:
Practice and procedure - Summary judgment - Family company running shearing business - Company's bank accounts frozen - Family farming partnership continued to run business - Whether respondent's accounts correctly represented its position - Credibility questions arising - Whether appropriate case for summary judgment
Legislation:
Nil
(Page 2)
Result:
Appeal allowed
Judgment set aside
Category: B
Representation:
Counsel:
Appellants (Defendants) : Mr R H B Pringle QC
Respondent (Plaintiff) : Mr M H Zilko
Solicitors:
Appellants (Defendants) : Murfett & Co
Respondent (Plaintiff) : Durack & Zilko
Case(s) referred to in judgment(s):
Eng Mee Yong v Letchumanan [1980] AC 331
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Jacob v Booth's Distillery Co (1901) 85 LT 262
Case(s) also cited:
Contract Discount Corporation Ltd v Furlong [1948] 1 All ER 274
Ex parte Simmonds (1885) 16 QBD 308
Hancock Family Memorial Foundation Ltd v Porteous (2000) 156 FLR 249
Hartogen Energy Ltd v Australian Gas Light Co (1992) 36 FCR 557
Langdale v Danby [1982] 1 WLR 1123
Lill v Merchant Capital (WA) Ltd (1996) 15 WAR 536
Re Tyler [1907] 1 KBB 865
Whitehall Holdings Pty Ltd v Custom Credit Corporation Ltd, unreported; FCt SCt of WA; Library No 9189; 13 December 1991
(Page 3)
1 WALLWORK J: On 1 March 2001, the respondent was successful in an application for summary judgment against the appellants. Judgment was given for the respondent in the sum of $207,148.92. The appellants appealed against the granting of the summary judgment and, on 15 August, this Court allowed the appeal. The following are my reasons for agreeing in that decision.
2 The respondent was a family company which ran a shearing business. The directors of the respondent were the appellants, who also farmed in partnership using the business name Bill Lathwell & Co. The original application for summary judgment was for the sum of $453,565.00. That was a sum shown as owing by the appellants to the respondent in the respondent's accounts to 30 June 1999.
3 The matter became complicated when the male appellant, Mr Lathwell, deposed in an affidavit sworn 5 February 2001 that the ANZ Bank had frozen the respondent's current and loan accounts with effect from 30 June 1998 and had required payment of the amounts owing. Mr Lathwell deposed that as the respondent had then been unable to conduct the shearing business without funds, Mr Lathwell's farming partnership had carried on the shearing business. Further, that after 30 June 1998, the farming partnership had received income from the shearing business and had paid the expenses. He deposed that he had not considered the implications of the change at the time and was uncertain of the consequences of it. However, he deposed that the respondent had made no loans to the appellants after 30 June 1998 and he did not know how the sum claimed from the appellants, being $453,565.00, had been calculated.
4 Mr Lathwell deposed that he had not given instructions to prepare financial statements for 1998/1999 on the basis that the respondent had carried on the shearing business and that he and his wife had not signed or adopted the draft accounts upon which the respondent had relied in its application for summary judgment. He further deposed that when he had sworn previous affidavits in this matter, he had been unaware that management fees had been included in the respondent's accounts between 1994 and 1998, and he did not recall ever having had that explained to him. He deposed that the appellants had never received, or spent for their benefit, management fees as such, and he believed that the figures for management fees in the profit and loss accounts of the respondent had only been in effect book entries. He also deposed that two utility vehicles owned by the appellants had been used almost exclusively for the shearing business and that the appellants had purchased fuel in bulk for use both in
(Page 4)
- their farming venture and for the shearing business. He deposed that he believed the respondent should have been debited with about $56,000.00 a year for the cost of running the two vehicles. He said that he doubted the correctness of the respondent's books generally.
5 Having related in his reasons for judgment the history of the appellants' farming operations and the shearing business which had been conducted by the respondent, the learned Master said that in 1999 the respondent had paid management fees to the appellants of $45,000,00. The Master said that the 1999 company accounts showed the debt owed by the appellants to the respondent was $453,565.00. He said that those accounts were consistent with the respondent's 1999 tax return, which showed that the respondent had had a gross income of $1,192,767.00 from shearing contracts less expenses, producing a small loss of $6,574.00, and that the expenses had included the $45,000.00 management fees paid to the appellants.
6 If the 1999 company accounts did not reflect the true position, there is an immediate problem because if the appellants paid the expenses of the shearing business, which the Master thought the respondent had conducted in that year, the accounts will need to be revisited. That may be the position.
7 The appellants applied for leave to introduce on the hearing of the appeal an affidavit of Mr Linsday Sandford, sworn 4 April 2001. It appears from that affidavit that Mr Sandford's company, which trades as Corporate Accounts and Financial Consultants in West Perth, had provided accounting services for the appellants and their related entities, including the preparation and lodgment of end of year financial statements and taxation returns from 1990 to 1993. Thereafter, the returns were prepared by other accountants and tax agents.
8 Mr Sandford has deposed that it is apparent from the documents relating to the year ended 30 June 1999 that the respondent did not invoice accounts or bank proceeds for the shearing contracting business in that year, and neither did it pay the expenses of that business. He further deposed that the appellants had invoiced and banked the income of the shearing business and paid the expenses of that business; further, that the respondent's largest expenses in 1999 were shearers' and shed hands' wages, and that they were paid by the appellants from the partnership bank account.
(Page 5)
9 The partnership bank deposit books reveal that $1,184,366.56 had been banked by the appellants during the financial year ended 30 June 1999 in relation to the shearing business; also that the draft financial statements for the respondent, for the same time, had shown a revenue of $1,168,154.00.
10 It is apparent from Mr Sandford's affidavit that there are problems with the 1999 accounts of the respondent upon which the learned Master relied in his reasons for judgment. However, its reception on the appeal was objected to, and difficulties would arise if the appellants could not succeed without it.
11 A difficulty in the opposite direction is that counsel for the respondent accepted at the hearing of the application for summary judgment that there was an arguable set-off against the claim, of $246,416.08, which was a sum which the appellants said they had paid to the ANZ Bank in satisfaction of a debt owed by the respondent. That left the sum of $207,148.92 allegedly owing by the appellants to the respondent.
12 The learned Master, having examined the papers concerning the appellants' claim for remuneration and reimbursement for expenses in connection with the shearing business concluded:
"I do not believe the defendants. Their evidence is not credible. It is clearly contradicted by those accounts which were prepared before the company was put in liquidation in the normal course of the company's business."
13 The Master examined the papers concerning the appellants' claim for motor vehicle expenses and concluded:
"This arrangement to hire vehicles or loan vehicles to the company was not recorded in any agreement or in any company or partnership minutes. I consider the defendants have dreamt up this arrangement to manufacture a defence in this action. I consider Mr Lathwell's credibility very poor. His evidence of four vehicles loaned to the company was later changed to two. He should know how many vehicles were used in the shearing business. It is not an accounting matter. It is a matter of simple fact."
(Page 6)
14 A little further on in his reasons, the Master said:
"Then he [Mr Lathwell] also said the company did not trade in the financial year 1999. He said the ANZ Bank froze the bank account, so the partnership ran the shearing business. This is contradicted by the 1999 company accounts and tax return. These were prepared after liquidation but as I have said, by the defendants' oral account without input or instructions from the liquidator. I do not consider that the accountant would compile completely false accounts for both company and partnership for 1999 on his own initiative. The defendants say the plaintiff did not trade. I cannot believe that."
15 As I have stated above, if Mr Sandford's evidence is admissible, it now appears that the respondent quite possibly did not conduct the shearing business in the financial year 1999. It also appears that the ANZ Bank quite possibly did freeze the bank account in effect. It follows from that that the learned Master has approached the evidence of the appellants on a basis that may have been wrong in reality.
16 The Master concluded that he was satisfied to the requisite standard for summary judgment that the appellants had not raised any real question to be tried, except in relation to the sale of the house.
17 In my view, the Master erred when he concluded, as stated above, that he did not believe the appellants and that their evidence was not credible with respect to the claimed remuneration and reimbursement for expenses of the shearing business. They had not been cross-examined on their affidavits. There was also an error when the Master said that the appellants had dreamed up an arrangement to manufacture a defence to the action with respect to their claim in connection with the motor vehicle expenses and that he considered Mr Lathwell's credibility very poor. Mr Lathwell had not been cross-examined and, in coming to his conclusions, the learned Master was acting on the basis that the respondent had traded in the financial year of 1999 and that the partnership had not run the shearing business when there was evidence to the contrary.
18 The Master had before him an affidavit sworn by Mr John Blaxill in which Mr Blaxill deposed that he had inspected the respondent's records at the office of Bird Cameron and that there were no records at all evidencing the carrying on of any business by the respondent from 1 July 1998 to the date it was ordered to be wound up, except for the financial
(Page 7)
- statements as of 30 June 1999 which were exhibited to Mr Cribbs' affidavit sworn 7 December 2000. Mr Blaxill deposed that there were no documents showing how the sum of $453,565.00 in the respondent's balance sheet was arrived at, or evidencing any loans to the appellants after 30 June 1998. He also deposed that he had inspected the records of the appellants, which had revealed that after 30 June 1998 the shearing business which had formerly been conducted by the respondent had been conducted by the appellants. The income from 1 July 1998 had been received by the appellants and the expenses of the shearing business from that date had been paid by the appellants. Yet the learned Master said he could not believe the appellants when they had said that the respondent did not trade in the year ending June 1999.
19 It was submitted to this Court on the appellants' behalf that the expenses for the vehicles used in the shearing business had been calculated at $56,000.00 a year. Counsel submitted that for the years 1996 to 1997 and 1997 to 1998 the appellants had only been allowed $50,000.00 and $56,000.00 for their contribution to the shearing business; that those sums pay for "either the vehicles or the … personal endeavour but not both, so we're $94,000.00 short". It was submitted that after the appellants had been credited with $100,000.00 a year from the shearing business for approximately four years, their entitlement had suddenly dropped down to $50,000.00. It was claimed that they were entitled to $50,000.00 to be credited to them for each year.
20 In my view, it was apparent from the affidavits which were before the Master, even without the support of the affidavits of Mr Sandford and Mr Yeo which have been prepared since the judgment, that there are serious problems arising in connection with the accounts of the shearing business which had been run by the respondent. Allied with that are the conclusions of the learned Master concerning the credibility of the appellants which, in part, seem to have been arrived at without sufficient reliable evidence and without any cross-examination of the appellants and, in particular, the male appellant. Further, the information which had been used in the respondent's application for summary judgment was so deficient that it had to be conceded before the learned Master that there was an arguable defence for the sum of $246,416.08. This reduced the original claim by more than half. The unsatisfactory state of the accounts for the year ending 30 June 1999 and the sworn evidence of the appellants should be judged against properly established facts.
21 In Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87, at 99, five Justices of the High Court stated a principle which must be applied
(Page 8)
- even when defences of confused or unsophisticated defendants appear vulnerable to adverse comment. Natural justice, involving the right to be fully heard, is relevant in a case like this. The principle is:
"The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried. … In our view, it is not possible to say without doubt, on the whole of the material, that there is no question to be tried concerning the payment of the deposits by the appellants. The facts which are established are inconclusive, but the respondent, as well as the appellants, was in a position to establish conclusively the payment of the deposits if that fact could be established and, given the opportunity, it did not do so. That leaves, we think, a question to be tried and, although the appellants have not succeeded in positively establishing a defence, they should not in the circumstances be debarred from defending the action."
23 It was submitted for the respondent that even if the appeal succeeded, there were "some very, very major question marks hanging over the bona fides of the defence" and that therefore the appeal should be allowed only on a condition as to security for the amount in issue. Alternatively, it was submitted that this question could be remitted back to a Master of the Court, otherwise the respondent would have lost the opportunity to ask for security. Further, that to judge the claimed set-offs of the appellants was an accounting exercise, but there were some very strong documents against the appellants. It was submitted that the defence was "shadowy", that there was a lack of bona fides and there were serious question marks concerning the claimed set-offs.
24 The general rule is that a defendant should have unconditional leave to defend if there is a fair issue to be tried: Jacob v Booth's Distillery Co (1901) 85 LT 262, at 263. I can see no reason at this time to conclude that the defence is "shadowy" or to doubt the appellants' bona fides. In my view, the only way to assess the claimed set-offs is to hear all the relevant evidence and then make a judgment. I would refuse the request for security.
(Page 9)
25 With respect to the respondent's notice of contention, it was conceded that the matters raised in that were not conclusive. In my view, they do not displace the conclusions I have reached.
26 WHEELER J: I have had the advantage of reading in draft the reasons for decision of Wallwork J. I am generally in agreement with those reasons and I wish only to add a brief comment of my own.
27 It seems to me that when regard is had to inconsistencies with contemporaneous documents and to alterations in the position of the appellants in progressive affidavits produced by them, the learned Master could not be criticised for being sceptical of the account given by the appellants. Although an application of this kind must be approached with care, the court is entitled to make adverse findings of fact and give summary judgment, even where there is a conflict of affidavits, where a defendant's affidavits are inherently improbable: Eng Mee Yong v Letchumanan [1980] AC 331. However, any decision that a defendant's affidavits are inherently improbable must be made by reference to the particular defendant and to any evidence which may exist in relation to that defendant's circumstances.
28 A defendant may be considered to be inherently improbable if the explanation proffered involves simply disowning many previous statements made by him or on his authority (including accounts or taxation returns) without explanation. However, in this case there was a detailed explanation of his circumstances by the male appellant, Mr Lathwell, to which the learned Master did not refer. His evidence was that he was 66 years of age and had started his working life as a shearer at 15 years of age, with his formal education finishing at the age of 14. His work history had been that of an employed shearer, a farmer and shearing contractor. He gave details of the work involved in the shearing contracting business, and those details suggest that it would have occupied a very substantial portion of his time. He deposed that he had never had a good understanding of accounting and financial documents and had relied heavily on advice from accountants and bank managers. Although his wife, the female appellant, attended high school, she had never been involved in the accounting and financial aspects of the shearing and farming businesses. She had relied upon him in that respect. Some details of the advice given to the appellants by their financial advisers was set out in the affidavit in which Mr Lathwell deposed to these matters.
(Page 10)
29 In my view, that explanation of the background and understanding of financial matters of the appellants would have been capable of displacing inferences which might otherwise have been drawn from the various financial records referred to by the respondent and may have been capable of explaining inconsistencies between some of Mr Lathwell's affidavits. In those circumstances, it was my view that in this case it was not open to the Master to make the adverse findings of credibility which he did in the absence of cross-examination of Mr Lathwell.
30 BURCHETT AUJ: I have read in draft the reasons for judgment of Wallwork J. I agree with them and the orders he proposes.
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