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:

1. 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.

2. 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. 

3. 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.

4. 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. 

5. 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 and 15.  The plaintiff says that Schemes required the owner of the Property prior to subdivision or prior to the issue of a building licence for development of the land to pay to the City of Gosnells what is described in the pleading as a proportion of 'Scheme costs'.  Without going into detail this is an amount which is a proportion of the costs incurred by the local authority in developing an industrial estate of which the Property forms part.  It is not an uncommon provision in town planning schemes covering land subdivision and development.  The plaintiff says the defendant represented to it that there were no outstanding Scheme costs in respect of the Property.  The plaintiff alleges in fact prior to 23 October 2017 the defendant had undertaken work on the Property which required the issue of a building licence or amounted to development of the land for industrial purposes.  The plaintiff alleges the defendant, in failing to advise no Scheme costs had been paid, engaged in misleading or deceptive conduct or in some other way breached the terms of a contract for the sale of land.  The plaintiff claims damages equal to the amount of the Scheme costs.

6. It was common ground between the parties that prior to the purchase of the Property by the plaintiff, the defendant had undertaken certain work on the Property.  The Property had been used to raise chickens and for that purpose poultry sheds were at one time erected on the land.  As part of the sale process the defendant had decided to remove the poultry sheds and offer the land as a vacant lot.  The defendant produced evidence to the effect the local authority did not see this work on the site as requiring a building licence or as in some way triggering a liability for the Scheme costs.  In fact the evidence was to the effect the local authority had investigated the position and were entirely satisfied no Scheme costs were presently payable.[1]  On that basis the defendant maintained the plaintiff's claim was not arguable.

   [1] Affidavit of Barrie Devereaux filed 3 July 2018, pars 27 ‑ 29.

7. For its part the plaintiff alleged that on a proper reading of the Town Planning Scheme and the provisions of the Town Planning and Development Act 1928 (WA) there had been development of the site such that Scheme costs were payable. It was the plaintiff's position the local authority were under a misapprehension and as a matter of law a liability had arisen which had not been discharged. It was on that basis they said they were entitled to a reduction in the purchase price.

8. In my view the plaintiff's position is arguable.  The evidence does disclose there has been work undertaken on the site.  The poultry sheds were demolished.  It is arguable that development triggered the liability for the Scheme costs.  The fact the local authority may not have demanded payment of the Scheme costs does not alter the fact that as a matter of law there may be a liability.  Further, in making an assumption the Scheme costs had been paid, and not being advised otherwise by the defendant, the plaintiff may have been misled and may have a cause of action.  Accordingly, the plaintiff's claim is arguable and ought be allowed to proceed.

9. I would dismiss the defendant's application for summary judgment.  I will hear the parties as to costs.

   I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

   DG
   Associate to Master Sanderson

   20 DECEMBER 2018