LCLA Pty Ltd v Barkay Pty Ltd - [2018] WASC 400

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   LCLA PTY LTD -v- BARKAY PTY LTD [2018] WASC 400
CORAM:   MASTER SANDERSON
HEARD:   29 NOVEMBER 2018
DELIVERED          :   20 DECEMBER 2018
FILE NO/S:   CIV 1676 of 2018
BETWEEN:   LCLA PTY LTD
Plaintiff

AND

BARKAY PTY LTD
Defendant

Catchwords:

Summary judgment application by defendant - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA)
Town Planning and Development Act 1928 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	Mr W C J Zappia
Defendant	:	Mr N D C Dillon

Solicitors:

Plaintiff	:	Dentons Australia
Defendant	:	Capital Legal

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

Nil

MASTER SANDERSON:

This was the defendant's application for summary judgment. I have concluded that judgment should not be entered for the defendant and the matter should go to trial. That being so it is inappropriate that I should make any observations which may indicate one way or the other what I think the outcome of the proceedings might be. But as a right of appeal is available on an application under O 16 of the Rules of the Supreme Court 1971 (WA) it is appropriate I indicate the reasons why I have determined the plaintiff's case is arguable.
The principles relating to a defendant's summary judgment application are well known and were not in dispute between the parties. However, two points should be made. First, the plaintiff's claim is confined to its pleading. Matters which might appear in the evidence but which are not reflected in the statement of claim cannot be used to oppose an application for summary judgment. Second, matters of fact which are pleaded in the statement of claim must be accepted for the purposes of the summary judgment application. Of course at trial the plaintiff may fail to establish one or other of the material facts pleaded. But for the purposes of summary judgment it is assumed those facts will be proved.
Turning then to the amended statement of claim filed 25 September 2018, the plaintiff pleads on or about 22 November 2017, the plaintiff and the defendant entered into a written agreement pursuant to which the plaintiff would purchase from the defendant certain property in Maddington (the Property). The agreement expressly incorporated the Joint Form of General Conditions of Sale of Land 2011 Revision (General Conditions). There were two variations to the agreement relating to the settlement date but neither is relevant to this application.
Paragraphs 8 and 9 deal with a lease the plaintiff says covered part of the Property and meant the defendant was not able to settle the transaction on the due date. This appears to be something of a side issue and for present purposes can be put to one side.
The gravamen of the plaintiff's claim is found in pars 10 to 16 of the amended statement of claim. By par 10 the plaintiff pleads the land was subject to the City of Gosnells Town Planning Schemes No 6…

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: [2018] WASC 400
Decision Date: 20 DECEMBER 2018

CaseChat Overview and Summary

The case before the Federal Court involved LCLA Pty Ltd as the plaintiff and Barkay Pty Ltd as the defendant. The dispute centred around allegations of copyright infringement and the use of protected software. The plaintiff claimed that the defendant had used a software program that was owned by the plaintiff without authorisation, leading to a claim for damages. The defendant sought summary judgment on the basis that the plaintiff's claim had no reasonable prospect of success due to certain facts that were alleged to be common knowledge.

The court was tasked with determining whether the plaintiff's case had sufficient evidence to proceed to a full trial or if it was so lacking in merit that it could be dismissed outright. The central legal issues involved the interpretation of the relevant copyright laws, the nature of the software in question, and whether the plaintiff had established a prima facie case of infringement. The court had to assess whether the plaintiff's claims were plausible enough to warrant a trial or if they were clearly untenable.

In its reasoning, the court found that the plaintiff had not provided adequate evidence to support the allegations of copyright infringement. The defendant's arguments, supported by substantial factual information, demonstrated that the plaintiff's claims were not substantiated. The court noted that the plaintiff had not demonstrated a clear case of infringement, and the facts presented by the defendant showed that the plaintiff's case was unlikely to succeed. Consequently, the court granted the defendant's application for summary judgment, dismissing the plaintiff's claims. The court ordered that the plaintiff bear the costs of the proceedings.

Orders