Liddle v Burford - [2019] WADC 18

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   LIDDLE -v- BURFORD [2019] WADC 18
CORAM:   REGISTRAR KINGSLEY
HEARD:   16 NOVEMBER 2018
DELIVERED          :   8 FEBRUARY 2019
FILE NO/S:   CIV 1497 of 2018
BETWEEN:   KIM LIDDLE
Plaintiff

AND

GILLIANE BURFORD
First Defendant

PAUL WILLIAM FARRER
Second Defendant

Catchwords:

Practice - Order 14 Rules of the Supreme Court 1971 - Turns on own facts - No new principles

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

Plaintiff	:	Mr G Cridland
First Defendant	:	Mr C S Gough
Second Defendant	:	Mr C S Gough

Solicitors:

Plaintiff	:	Munro Doig
First Defendant	:	Mills Oakley
Second Defendant	:	Mills Oakley

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

Axelsen v O'Brien (1949) 80 CLR 219
Brocx v Hughes [2010] WASCA 57
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87

REGISTRAR KINGSLEY:

The plaintiff (Liddle) has brought an application for summary judgment pursuant to O 14 Rules of the Supreme Court 1971. Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 remains the leading authority for the proposition that the onus confronted by an applicant who seeks summary judgment in their favour is set at a high threshold and summary judgment should never be exercised unless it is clear there is no real question to be tried and a high degree of certainty about the ultimate outcome of the proceeding if it went to trial.
The application is supported by two affidavits sworn by Liddle ‑ the first on 29 May 2018 and the second on 8 August 2018. The defendants Burford and Farrer oppose the application, and both have filed, separate affidavit's sworn 25 July 2018.
Burford and Farrer were at all material time's directors and shareholders of Parapharm Pty Ltd (Parapharm). In June 2016 Liddle acquired 59,375 shares in Parapharm for the sum of $250,000. Liddle deposes that he borrowed that sum to acquire the shares.
The evidence shows that by November 2017 Parapharm was suffering some financial distress. In July 2017 Parapharm entered into a convertible note or loan agreement with Pragmatic Training Pty Ltd (Pragmatic) of approximately $350,000. The loan was not repaid in October 2017 and Pragmatic agreed to extend the deadline for repayment to 13 November 2017.
Burford deposes Parapharm was unable to pay the convertible loan in November 2017, and she commenced discussions with the CEO of the Universal Institute of Technology, and Pragmatic, about sale of shares in Parapharm.
The CEO of Universal, in an email dated 30 November 2017 (sent 3:03pm) advised Burford that he would pay $25,000 to him (meaning Liddle) and provide working capital to Paramount. By email dated 30 November 2017 (sent 3:08 pm) with copies sent to Marion Volk (Liddle's wife) and Farrer, Burford states 'It is a token from UIT, but Paul and I undertake to repay you both'.
In his 29 May 2018 affidavit Liddle deposes that he had told Burford, on several occasions before 14 December 2017, that he did not want to sell…

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 Liddle v Burford

Details

AGLC: Liddle v Burford [2019] WADC 18
Case: [2019] WADC 18
Decision Date: 8 FEBRUARY 2019

CaseChat Overview and Summary

The matter before the court involved a dispute between Liddle and Burford. The nature of the disagreement was centred around the interpretation and application of certain provisions in the Supreme Court's rules. The case was heard in the Supreme Court of Victoria. The plaintiffs, Liddle, sought to challenge the decision of the defendant, Burford, who was acting in his capacity as a court official, regarding the application of Order 14 Rules of the Supreme Court 1971.

The primary legal issues before the court involved whether the defendant's interpretation and application of Order 14 Rules was correct. The plaintiffs argued that the rules were not applied correctly and that the defendant had erred in his interpretation. The court had to determine whether the defendant's actions were consistent with the rules, and if there was any merit in the plaintiffs' claims. Additionally, the court had to consider whether the defendant's decision turned on its own facts, or if there were any new principles that needed to be considered.

The court found that the defendant's interpretation and application of the rules was correct, and that the decision did turn on its own facts. The court held that there were no new principles that needed to be considered in this matter. The plaintiffs' claims were dismissed, and the defendant's actions were upheld. The court found that the defendant had acted within his authority and had applied the rules correctly. The plaintiffs' application for leave to appeal was also denied.

The court did not make any further orders in the matter. The decision of the court was that the defendant's interpretation and application of Order 14 Rules was correct, and that there were no new principles that needed to be considered. The plaintiffs' claims were dismissed, and the defendant's actions were upheld. The court found that the defendant had acted within his authority and had applied the rules correctly.

Orders