Lopez v Pilmer
[2014] WASC 220
•25 JUNE 2014
LOPEZ -v- PILMER [2014] WASC 220
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 220 | |
| Case No: | CIV:1642/2014 | 19 JUNE 2014 | |
| Coram: | BEECH J | 25/06/14 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Summary judgment granted | ||
| B | |||
| PDF Version |
| Parties: | GEORGE AUBREY LOPEZ (in his capacity as liquidator of 150 HAY STREET PTY LTD (in liq)) ROBERT CLAYMORE PILMER NATIONAL AUSTRALIA BANK LTD |
Catchwords: | Practice and procedure Application for summary judgment Affidavit verifying facts in statement of claim No contradictory evidence No question to be tried |
Legislation: | Rules of the Supreme Court 1971 (WA), O 14 r 2, O 14 r 3 |
Case References: | Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
ROBERT CLAYMORE PILMER
First Defendant
NATIONAL AUSTRALIA BANK LTD
Second Defendant
Catchwords:
Practice and procedure - Application for summary judgment - Affidavit verifying facts in statement of claim - No contradictory evidence - No question to be tried
Legislation:
Rules of the Supreme Court 1971 (WA), O 14 r 2, O 14 r 3
Result:
Summary judgment granted
Category: B
Representation:
Counsel:
Plaintiff : Mr P T Arns
First Defendant : In person
Second Defendant : No appearance
Solicitors:
Plaintiff : Arns & Associates
First Defendant : In person
Second Defendant : No appearance
Case(s) referred to in judgment(s):
Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18
- BEECH J:
Introduction
1 The plaintiff applies for summary judgment on his claim to be entitled to monies held in a bank account with the second defendant (the Bank) in the name of the first defendant. For the reasons that follow, I would grant summary judgment in favour of the plaintiff.
The Liquidator's claim
2 The plaintiff pleads as follows:
(a) the plaintiff (the Liquidator) was appointed liquidator of the affairs of 150 Hay Street Pty Ltd (150 Hay Street) on 29 June 2010;
(b) 150 Hay Street was the registered owner of a 2008 Mercedes sedan motor vehicle with identified registration (the Mercedes);
(c) the Mercedes was insured against loss and damage with Allianz Australia Insurance (Allianz), pursuant to an identified policy (the Insurance Policy);
(d) the Mercedes was damaged in an accident on or about 23 December 2011 and deemed a total loss by Allianz;
(e) Allianz agreed to pay out under the Insurance Policy the insured value of $104,325.00 (the Insurance Proceeds);
(f) the named holder of the Insurance Policy was Westbury Management Services Pty Ltd (Westbury), but 150 Hay Street was beneficially entitled to the Insurance Proceeds as the owner of the Mercedes and thus the owner of the insurable risk;
(g) on or about 17 July 2013 the Insurance Proceeds were deposited at the direction of Angus Pilmer, father of the first defendant, into a bank account with the Bank held by the first defendant;
(h) Angus Pilmer was declared bankrupt on 22 June 2010, and the plaintiff is the trustee of the bankrupt state of Angus Pilmer;
(i) in directing the payment of the Insurance Proceeds into the bank account of the first defendant, Angus Pilmer acted without the authority or consent of Mr Lopez in his capacity as liquidator of 150 Hay Street and in his capacity as trustee in the bankrupt estate of Angus Pilmer;
(j) Westbury has disclaimed an entitlement to or interest in the Insurance Proceeds.
The Liquidator's application
3 The Liquidator applies for summary judgment. He seeks orders that:
(1) there be judgment for the Liquidator against the first defendant in the sum of $104,325.00;
(2) the Bank forthwith pay to the Liquidator out of the named account the sum of $104,325.00, or such less a sum as remains in the account;
(3) the first defendant pay to the Liquidator interest on the sum of $104,325.00 at the rate prescribed from 17 July 2013 until payment;
(4) the first defendant pay the Liquidator's costs of the action to be taxed if not agreed.
4 Initially, the Liquidator's application was brought by way of motion for judgment in default under O 13 r 8. In fact, by the time the motion was filed (on 4 June 2014) the first defendant had filed an appearance, although he did not serve the plaintiff's solicitors with the appearance. In light of that, at the hearing of the application the Liquidator in effect applied to amend the application so as to be an application for summary judgment under O 14. The first defendant did not object to that amendment. As I am satisfied that the first defendant was not embarrassed or prejudiced by the refinement of the basis of the application, I allow that amendment.
5 The Liquidator has filed an affidavit verifying the facts on which the claim is based, and stating that in his belief there is no defence to the claim.1
The position of the Bank
6 The Bank advised in writing that it did not wish to be heard, and would abide by the decision of the court.2
The position of the first defendant
7 The first defendant, who appeared in person, accepted that the money deposited in his account at the Bank was not his.3 He also accepted that the money came from an insurance company as a result of a car being involved in a crash.4 He emphasised that he was not a party to the insurance contract, or to dealings in relation to the Mercedes. He described the case as 'none of my business'.5 However, he did not consent to the Liquidator's application.
Summary judgment - general principles
8 The caution with which the power to grant summary judgment is to be exercised is well known. There is no need to repeat the principles.6
9 The effect of O 14 r 2 and O 14 r 3 is that once an applicant has sworn an affidavit verifying the facts on which the statement of claim is based, the respondent to the application has an evidentiary burden to adduce evidence to the contrary. However, the overall legal burden of persuasion that summary judgment is appropriate, in that there is no question to be tried, remains on the applicant.7
The disposition of the application
10 In my opinion, for the reasons that follow, summary judgment should be granted in favour of the Liquidator.
11 I am satisfied that there is no issue or question that should be tried, and there is no other reason that there ought to be a trial of the Liquidator's claim.
12 In my view, the first defendant has not adduced any evidence which contradicts or undermines the facts pleaded in the statement of claim, the truth of which has been verified by the Liquidator.
13 Nothing in the first defendant's affidavit of 13 June 2014 contradicts or undermines the matters pleaded in the statement of claim and outlined above, as verified by the Liquidator. The first defendant's affidavit appears to raise a question as to the ownership of the Mercedes. The evidence is that the Mercedes was registered in the name of 150 Hay Street. Of course, the name in which the vehicle is registered is not conclusive, but it has some evidentiary value. In any event, Mr Lopez has verified the facts on which the statement of claim is based, including that the Mercedes was owned by 150 Hay Street, and there is no evidence to the contrary.
14 Indeed, the first defendant has expressly stated that he acknowledges that the money paid into his account is not his money. This was said both on the first occasion the matter came before the court8, and at the hearing of the Liquidator's application for summary judgment.9
15 The evidence reveals that the liquidator made attempts to serve Mr Angus Pilmer, but was unsuccessful in doing so. In my view, it is not necessary that Mr Angus Pilmer be served, and a failure to serve him does not constitute an 'other reason' to decline to give summary judgment.10 In circumstances where Mr Angus Pilmer is an undischarged bankrupt, any claim for the Mercedes could not be asserted by him, but only by his trustee in bankruptcy. The Liquidator is Mr Pilmer's trustee in bankruptcy.
16 The named holder of the Insurance Policy, Westbury, does not claim any entitlement to the Insurance Proceeds.11
Conclusion
17 For these reasons, I would grant judgment in the terms sought by the Liquidator.
1 Affidavit of George Aubrey Lopez sworn 3 June 2014.
2 Affidavit of Paul Arns sworn 17 June 2014, annexure PTA 7.
3 ts 14 May 2014, 3 - 4, ts 22.
4 ts 14 May 2014, 4.
5 ts 22.
6 See, for example Kendall & Curthoys Civil Procedure Western Australia [14.3.2, 14.3.3].
7Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18.
8 ts 14 May 2014, 3 - 4.
9 ts 22.
10 O 14 r 3.
11 Affidavit of Paul Arns sworn 4 June 2014, annexure PTA 4.
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