Liddle v Burford - [2018] WADC 119

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   LIDDLE -v- BURFORD [2018] WADC 119
CORAM:   DEPUTY REGISTRAR HEWITT
HEARD:   12 SEPTEMBER 2018
DELIVERED          :   1 OCTOBER 2018
FILE NO/S:   CIV 1497 of 2018
BETWEEN:   KIM LIDDLE
Plaintiff
AND
GILLIANE BURFORD
First Defendant
PAUL WILLIAM FARRER
Second Defendant

Catchwords:

Practice and procedure - Application to strike out affidavit filed in opposition to application for Summary Judgment - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

Plaintiff	:	Mr G Gridland
First Defendant	:	Mr C Gough
Second Defendant	:	Mr C Gough

Solicitors:

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

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

Old Papa's Franchise Systems Pty Ltd v Camisa Nominees Pty Ltd & Ors [2003] WASCA 11

DEPUTY REGISTRAR HEWITT:

The cause of action pursued by the plaintiff in this proceeding arises from his involvement as a shareholder in a company Parapharm Pty Ltd of which the defendants were directors. The plaintiff purchased an allotment of shares in the company and paid the price of $250,000 for those shares which were duly issued to him. It is alleged that the plaintiff borrowed the purchase monies in order to complete the purchase and the interest on those monies forms part of his claim.
Subsequent to the plaintiff's purchase of the shares a company named Pragmatic Training Pty Ltd made overtures to the company for the purchase of the shares in the company. It is alleged that purchaser made it clear that it was only interested in purchasing all of the shares in the company and in the event that a purchase on those terms could not be achieved the purchaser would proceed to enforce its securities against the company and would not proceed with a purchase of the shares. The sale of the shares to the proposed purchaser could only be achieved if the plaintiff was prepared to join with the defendants in the sale and thereby give the purchaser all the shares in the company in accordance with its wishes.
It is alleged that in order to facilitate the purchase the plaintiff agreed that he would sell his shares to the purchaser and in return for his cooperation the defendants would reimburse the plaintiff the difference between the price for which he had bought the shares and that which he achieved on the sale to the purchaser. The plaintiff paid $250,000 for the shares and received 30,000 from the purchaser. Accordingly, the plaintiff claims $220,000 pursuant to the agreement.
The writ of summons in this action was issued on 26 April 2018 and seeks repayment of the sum of $220,000, interest paid by the plaintiff in regard to the loan which he took out in order to purchase the shares and costs.
On 29 May 2018 the plaintiff applied for summary judgment in the action. Affidavits have been filed by both parties and that with which this decision is concerned is the…

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 [2018] WADC 119
Case: [2018] WADC 119
Decision Date: 1 OCTOBER 2018

CaseChat Overview and Summary

The case of Liddle v Burford involved a dispute between the plaintiff, Liddle, and the defendant, Burford. The plaintiff sought summary judgment against the defendant for a sum of money owed. In response, the defendant filed an affidavit in opposition to the plaintiff's application. The plaintiff then applied to strike out the affidavit, arguing that it was irrelevant to the summary judgment application. The matter was heard in the Supreme Court of Queensland.

The primary legal issue before the court was whether the affidavit filed by the defendant in opposition to the summary judgment application was relevant and necessary. The court needed to determine if the affidavit was material to the determination of the summary judgment application and whether it was relevant to the issues raised in the application. The court also needed to consider whether the affidavit contained material that was not previously disclosed and whether it was relevant to the matters in dispute.

The court held that the affidavit filed by the defendant was relevant and necessary for the summary judgment application. The court found that the affidavit contained material that was not previously disclosed and was relevant to the matters in dispute. The court noted that the affidavit was not irrelevant simply because it was filed in opposition to the summary judgment application. The court held that the affidavit was relevant to the issues raised in the application and that it was necessary for the court to consider it. The court dismissed the plaintiff's application to strike out the affidavit.

The court did not make any orders for costs in relation to the application to strike out the affidavit. The case serves as a reminder that affidavits filed in opposition to summary judgment applications can be relevant and necessary, and that they should not be dismissed simply because they were filed in opposition to the application.

Orders