Mary Donald Nominees Pty Ltd as Trustee for DJ MacCormick Family Trust t/as Ground Support Systems (Aust) v Buckby Contracting Pty Ltd - [2023] WADC 25

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   MARY DONALD NOMINEES PTY LTD as Trustee for DJ MACCORMICK FAMILY TRUST t/as GROUND SUPPORT SYSTEMS (AUST) -v- BUCKBY CONTRACTING PTY LTD [2023] WADC 25
CORAM:   REGISTRAR JEYAMOHAN
HEARD:   25 JANUARY 2023
DELIVERED          :   10 MARCH 2023
FILE NO/S:   CIV 1653 of 2022
BETWEEN:   MARY DONALD NOMINEES PTY LTD as Trustee for DJ MACCORMICK FAMILY TRUST t/as GROUND SUPPORT SYSTEMS (AUST)
Plaintiff
AND
BUCKBY CONTRACTING PTY LTD
First Defendant
STUART ANTONY BUCKBY
Second Defendant

Catchwords:

Summary judgment - Debt owed by corporation - Guarantee from director - Continuing obligations - Contractual construction - Entire agreement - Contracts of guarantee - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 14 r 1

Result:

Plaintiff's summary judgment application allowed

Representation:

Counsel:

Plaintiff	:	Mr C J Terren
First Defendant	:	No appearance
Second Defendant	:	Mr N J Draper

Solicitors:

Plaintiff	:	Havilah Legal
First Defendant	:	Mendelawitz Morton
Second Defendant	:	Mendelawitz Morton

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

Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424
Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (1987) 162 CLR 549
Ansearch Ltd v Wavtech Pty Ltd [2006] WASC 184
Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99
Barrymores Pty Ltd v Harris Scarfe Ltd (Administrators Appointed) (Receivers & Managers Appointed) [2001] WASC 210, (2001) 25 WAR 187
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
Black Box Control Pty Ltd v Terravision Pty Ltd [2016] WASCA 219
Bofinger v Kingsway Group Ltd [2009] HCA 44; (2009) 239 CLR 269
Byrnes v Kendle (2011) 243 CLR 253
Chan v Cresdon Pty Ltd (1989) 168 CLR 242
Cherry v Steele-Park [2017] NSWCA 295; (2017) 96 NSWLR 548
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 347
Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18
CSR Ltd v Adecco (Australia) Pty Ltd [2017] NSWCA 121
Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544
EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2010] WASCA 78; (2010) 41 WAR 23
Electricity Generation Corporation t/as Verve Energy v Woodside Energy Ltd (2014) 251 CLR 640
Eng Mee Yong v Letchumanan [1980] AC 331
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
George 218 Pty Ltd v Bank of Queensland Ltd [No 2] [2016] WASCA 182
Gordon v Australia and New Zealand Banking Group Ltd (Unreported, FCAFC, NG 139 of 1997, 24 October 1997)
Knights Capital Group Ltd v Bajada and Associates Pty Ltd [2016] WASC 69
Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104
Pilbara Iron Ore Pty Ltd v Ammon [2020] WASCA 92
Simic v New South Wales Land and Housing Corporation [2016] HCA 47; (2016) 260 CLR 85
Singh v Varinder Kaur (t/a Varinder & Jatinder Corporation) (1985) 61 ALR 720
SMEC Australia Pty Ltd v Valentine Falls Estate Pty Ltd [2011] WASCA 138
Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165
Trenfield v HAG Import Corporation (Australia) Pty Ltd [2018] QDC 107
Victoria v Tatts Group Ltd [2016] HCA 5; (2016) 90 ALJR 392
Webster v Lampard (1993) 177 CLR 598
Wilkie v Gordian Runoff Ltd (formerly known as GIO Insurance Ltd) [2005] HCA 17; (2005) 221 CLR 522

REGISTRAR JEYAMOHAN:

Overview and summary

These reasons concern the plaintiff's application for summary judgment against the second defendant pursuant to O 14 r 1 of the Rules of the Supreme Court 1971 (WA) (RSC) by chamber summons dated 22 July 2022 (Application).
For the reasons that follow the plaintiff's application for summary judgment against the second defendant is allowed, and judgment will be entered for the plaintiff in the amount of $367,282.52 together with interest on that sum at the rate of the current bank overdraft interest plus 2.5% per annum calculated daily from the 31st day after the date of each outstanding invoice until judgment.

Issues

The issues to be determined are as follows:
1.Has the plaintiff established a prima facie entitlement to judgment?
2.Does the defendant have an arguable defence?
3.Is there 'some other reason' for there to be a trial of the action?

Background

The plaintiff, Mary Donald Nominees Pty Ltd as Trustee for DJ Maccormick Family Trust t/as Ground Support Systems (Aust), carries on the business of providing ground support equipment for hire. The plaintiff in its writ of summons dated 22 April 2022 (Writ) claims that pursuant to a written hire contract purportedly between the plaintiff and the first defendant, Buckby Contracting Pty Ltd (in liquidation), dated 15 December 2021 (2021 Credit Agreement), the first defendant owed the plaintiff monies for the hire of equipment between the period 30 November 2021 to 28 February 2022 in the amount of $367,282.52 plus interest calculated at 2.5% per annum from the date each invoice became due until payment in full or judgment. The plaintiff in its Application amended the interest claimed to interest on $367,282.52 at the rate of the current bank overdraft interest rate plus 2.5% per annum calculated daily from the 31st day after the date of each outstanding invoice until judgment.
The plaintiff's claim as against the second defendant is for amounts payable under a guarantee dated 15 December 2021 purportedly given by the second defendant (Mr Buckby) for:
[P]ayment to [the Plaintiff] of all monies and performance of all obligations … by the Customer … arising from any past, present or future dealing with [the Plaintiff] and any GST applicable thereto.
The customer referred to in the guarantee is the first defendant, now in liquidation.
A memorandum of appearance was entered on behalf of the first and second defendants on 13 May 2022. The plaintiff filed and served a statement of claim on 1 June 2022. No defence has been filed on behalf of either defendant.
On 19 October 2022, Jerome Hall Mohen was appointed as liquidator on behalf of the first defendant. By consent of the parties recorded in a memorandum of proposed consent orders filed 7 November 2022, orders were made staying the proceedings against the first defendant pursuant to s 500(2) of the Corporations Act 2001 (Cth) with the plaintiff's summary judgment application against the first defendant being dismissed by consent.Pursuant to those same orders, the plaintiff's application for summary judgment against the second defendant was listed for hearing on 25 January 2023. The second defendant opposes the application for summary judgment on the following basis:
1.that the second defendant has a defence to the claim;
2.that the second defendant has a genuine off-setting claim; and
3.that the Application is fatally defective given the deponent of the plaintiff's supporting affidavit fails to verify the facts upon which the claim is founded.

Legal principles: Summary judgment

The court's power to make an order for summary judgment arises under O 14 of the RSC. Such an application must be supported by an affidavit verifying the facts on which the claim is based: O 14 r 2(1) RSC. Order 14 r 3(1) sets out the circumstances in which the court may grant summary judgment in favour of a plaintiff.
The principles applicable to an application for summary judgment may be summarised as follows. It is well settled that the power to order summary judgment is one that should be exercised with great care and when it is clear that there is no real question to be tried.[1] The court should not decide the issues raised in a proceeding in a summary way except in the clearest of cases, when there is a high degree of certainty about the ultimate outcome of the proceeding if it went to trial.[2]
[1] SMEC Australia Pty Ltd v Valentine Falls Estate Pty Ltd [2011] WASCA 138 [20]; Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87, 99.
[2] Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57]; Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256, 275 [46]; Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 [24], [53] - [55].
Whilst it is for the party seeking summary judgment to establish that there is no real question to be tried, where the requirements of O 14 of the RSC, are met, such that the plaintiff has a prima facie right to an order in the terms sought, the evidentiary onus shifts to the defendant to satisfy the court as to why judgment should not be entered.[3]
[3] Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18, 30 (Murray J); Singh v Varinder Kaur(t/a Varinder & Jatinder Corporation) (1985) 61 ALR 720, 722.
The defendant must then establish that there is some triable issue either of fact or law, or that they have an arguable defence or that there ought for some other reason be a trial of the matter.[4]
[4] RSC O 14, r 3, RSC O 14, r 4; Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109, 110 (Brinsden J); Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd, (24) (Murray J); Knights Capital Group Ltd v Bajada and Associates Pty Ltd [2016] WASC 69 [43] (Pritchard J) and the authorities referred to.
An application for summary judgment is to be determined on the basis that the version of the facts put forward by the party opposing the application, assuming that it is not inherently incredible, would ultimately be accepted at the trial of the action.[5] However, the court is not bound to accept uncritically as raising a dispute of fact calling for further investigation every statement in an affidavit, however equivocal, lacking in precision or inconsistent with contemporary documents or other statements by the deponent. Nor must a court accept a statement in an affidavit that does not have 'sufficient prima facie plausibility to merit further investigation as to its truth'.[6]
[5] Webster v Lampard (1993) 177 CLR 598, 608 (Mason CJ, Deane & Dawson JJ).
[6] Ansearch Ltd v Wavtech Pty Ltd [2006] WASC 184 [28] (Newnes M); Eng Mee Yong v Letchumanan [1980] AC 331, 341.
To demonstrate that they have a bona fide defence, the defendants' affidavit evidence must:[7]
[C]ondescend to particulars, stating clearly and precisely what the defence is and what facts are relied upon as supporting it. Bare allegations unsupported by material facts will not be sufficient.
[7] Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd, (113); Barrymores Pty Ltd v Harris Scarfe Ltd (Administrators Appointed) (Receivers & Managers Appointed) [2001] WASC 210, (2001) 25 WAR 187 [79]; Knights Capital Group Ltd v Bajada and Associates Pty Ltd [43].

The evidence relied upon

The plaintiff relies on the two affidavits in support of its Application. The first affidavit is deposed by Michael James Dunstan, the chief financial officer of the plaintiff, sworn on 15 November 2022 (Dunstan Affidavit). The second affidavit is deposed by Lucy Joy Whitten, a solicitor currently employed at Havilah Legal, the plaintiff's solicitors, sworn 24 January 2023 (Whitten Affidavit).
The second defendant relies on the affidavit deposed by Stuart Antony Buckby, the second defendant, sworn on 15 August 2022 in response to the plaintiff's application for summary judgment (Buckby Affidavit).
I have carefully considered the written submissions filed on behalf of each party, and the submissions made by both counsel for the plaintiff, and counsel for the second defendant, during the hearing of the application on 25 January 2023.

The plaintiffs' claim

The amounts claimed by the plaintiff are set out in the Dunstan Affidavit at pars 21, 27, 29 and 31. The plaintiff's claim is for amounts payable under invoices for the hiring of equipment, pursuant to hiring agreements between the plaintiff and the first defendant, Buckby Contracting Pty Ltd (now in liquidation), entered into in February 2016.[8]
[8] Dunstan Affidavit annexure MJD-2 and MDJ-8.
The plaintiff's claim and the evidence relied upon in support of the Application may be (relevantly) summarised as follows.
The first defendant has been a credit client of the plaintiff since 2007 and had credit arrangements in place with the plaintiff from 2007 according to the plaintiff's MYOB records although the plaintiff does not have a copy of the credit terms for 2007. The plaintiff's credit terms were amended in 2012. The second defendant was the first defendant's sole director and secretary.[9]
[9] Dunstan Affidavit, pars 3 and 4 and Annexure MJD-1.
The plaintiff's accountant emailed the first defendant the plaintiff's updated credit application on 22 February 2016. That agreement was not executed by either the first defendant or second defendant.[10]
[10] Dunstan Affidavit, pars 5 and 6 and Annexure MJD-2.
After February 2016, the first defendant continued to order equipment for hire. Mr Dunstan deposed that the terms of hire the plaintiff continued to trade with the first defendant upon were the terms of the 2016 Credit Agreement (2016 Credit Agreement).[11] The 2016 Credit Agreement terms and conditions were attached to each quote that the plaintiff submitted for each project that the first defendant asked the plaintiff to provide a quote for.[12]
[11] Dunstan Affidavit, pars 7 and 8 and Annexure MJD-3.
[12] Dunstan Affidavit, pars 7 - 8 and Annexure MJD-3.
Mr Dunstan deposed that the fact that equipment was required for a different amount of time than the purchase orders estimated, or that additional equipment was required and ordered by the first defendant, did require day by day variations when the works were outside the purchase order estimates.[13]
[13] Dunstan Affidavit, pars 11 - 13 and Annexure MJD-4.
By mid-2021 the invoices that the plaintiff sent to the first defendant were not being paid within the payment terms. Mr Dunstan and the plaintiff's other accounts staff were in constant communication with the second defendant regarding the overdue invoices.[14]
[14] Dunstan Affidavit, pars 14 and Annexure MJD-5.
On 9 December 2021, Mr Dunstan instructed Sharon Lorejo of the plaintiff's credit department, to email the plaintiff's updated credit application containing the plaintiff's updated credit agreement for immediate execution by the first defendant as customer, and the second defendant, as guarantor.[15]
[15] Dunstan Affidavit, par 17 and Annexure MJD-7.
On 14 December 2021, Mr Dunstan issued a notice of termination to the first defendant via an email sent to the second defendant as a result of the first defendant's default in payment of the outstanding invoices.[16]
[16] Dunstan Affidavit, pars 15 - 16 and Annexure MJD-6.
On 15 December 2021, the completed credit application (being the 2021 Credit Agreement), executed by the first defendant, and which included the guarantee executed by the second defendant, was returned to the plaintiff. Mr Dunstan wrote to the second defendant that day acknowledging receipt of the 2021 Credit Agreement with the second defendant signing as the guarantor of the first defendant. In that same communication, Mr Dunstan conditionally agreed that the plaintiff would withdraw the notice of termination if the first defendant would make an immediate payment of $30,000 and weekly payments of $30,000 payable each Wednesday to discharge the outstanding debt.[17] The second defendant responded to that email communication that same day and confirmed in that email that 'We will implement this accordingly'.[18]
[17] Dunstan Affidavit, pars 18 - 19 and Annexures MJD-8 and MJD-9.
[18] Dunstan Affidavit annexure MJD-9.
For the month of November 2021, the plaintiff claims the amount of $27,568.12 for the equipment delivered to the first defendant in the month of November 2021 under the terms of the 2016 Credit Agreement pursuant to invoice numbers 50268, 50271, 50272, 50274. Of these invoices, invoice number 50274 was paid in part by the first defendant over three instalments and otherwise credited against invoice number 959. A follow-up communication was sent (in respect of the amounts owing) from the plaintiff to the first defendant setting out a payment plan.[19]
[19] Dunstan Affidavit, pars 20 - 24 and Annexures MJD-10 to MJD-13 (inclusive).
For the month of December 2021, the plaintiff claims the amount of $96,235.64 being for the hire equipment delivered by the plaintiff to the first defendant between 1 December 2021 - 20 December 2021.[20]
[20] Dunstan Affidavit, pars 26 - 27 and Annexure MJD-14.
For the month of January 2022, the plaintiff claims the amount of $154,503.95 for unpaid invoices for equipment delivered by the plaintiff to the first defendant and follow up communications from the plaintiff to the second defendant in respect of those matters.[21]
[21] Dunstan Affidavit, pars 28 - 30 and Annexures MJD-15 and MJD-16.
For the month of February 2022, the plaintiff claims the amount of $88,974.81 for the period 10 February 2022 - 28 February 2022.[22]
[22] Dunstan Affidavit, par 32 and Annexure MJD-17.
By letter of demand dated 14 March 2021, the plaintiff demanded payment from the first defendant in the amount of $278,307.71 being the total amount outstanding in relation to the November 2021, December 2021 and January 2022 invoices.[23]
[23] Dunstan Affidavit, par 33 and Annexure MJD-18.
By exchange of correspondence between the solicitors of the parties, the second defendant acknowledged the first defendant's liability to pay the sum of $278,307.70.[24]
[24] Dunstan Affidavit, par 34 and Annexure MJD-19.
On 22 April 2022 Mr Dunstan instructed Havilah Legal on behalf of the plaintiff to lodge the writ of summons in these proceedings.[25]
[25] Dunstan Affidavit, par 35.
Mr Dunstan deposed that he was provided with the affidavit of the second defendant sworn 15 August 2022.[26] Mr Dunstan at pars 37 - 57 of this affidavit deposes to matters in response to the Buckby Affidavit.
[26] Dunstan Affidavit, par 36.
Mr Dunstan deposed that having searched the communication records of the plaintiff with the first defendant and the second defendant, it is untrue to say that the plaintiff was ever aware that the first defendant experienced multiple (hire equipment) failures between 9 and 18 November 2021 and that (relevantly) the plaintiff's records do not record any issue with the plaintiff's equipment (in question), including record of any equipment breakdown or a swap being made.[27]
[27] Dunstan Affidavit, pars 37 - 41.
In respect of invoice number 50268, the plaintiff elected not to charge the first defendant for the dates identified (being from the period 6 November 2021 to 28 November 2021) because those dates were days over the weekends. Mr Dunstan deposed that it was never the case that the plaintiff (had) credited the first defendant for compensation for a breakdown or for any defect of the plaintiff's (hire) equipment.[28]
[28] Dunstan Affidavit, pars 42 - 44.
In respect of invoice number 51455, Mr Dunstan the plaintiff did not charge the first defendant for the dates identified (being from the period 23 December 2021 to 30 January 2022) where it was agreed as between the plaintiff and the first defendant that hire charges for the equipment were suspended over the weekends up to the end of January 2022 and during the Christmas shutdown.[29]
[29] Dunstan Affidavit, pars 45 - 46.
Mr Dunstan deposed that the circumstance where the plaintiff quoted based on a weekly hire agreement and were later queried by the first defendant certainly happened on more than one occasion and were accommodated (by the plaintiff) on more than one occasion. In respect of invoice number 51455, Mr Dunstan deposed that having examined the plaintiff's invoices, he verily believes that there was nothing wrong with the pump (in question) (contrary) to the second defendant's position that the plaintiff did not charge the first defendant for hire on the identified dates (being for the period from 3 December 2021 to 9 December 2021) as the equipment was faulty. Mr Dunstan deposed that as the plaintiff did not have another customer to hire the equipment over that short period, the plaintiff left the equipment on site as a contingency before later removing it because it was not needed.[30]
[30] Dunstan Affidavit, pars 47 - 48.

Mr Dunstan deposed that it is a term of the unsigned February 2016 Credit Agreement and the 2021 Credit Agreement that the responsibility for the security of the plaintiff's equipment rests with the customer and (on this basis) the first defendant as billed by the plaintiff for (the cost of) repairing (vandalised) Gen 28 (equipment).[31] Mr Dunstan deposed that the daily servicing of the hire equipment is the responsibility of the customer.[32]
[31] Dunstan Affidavit, pars 49 - 50.
[32] Dunstan Affidavit, par 51.
Mr Dunstan deposed that the 2021 Credit Agreement is identical to the 2016 Credit Agreement and includes a responsibility clause for security and for maintenance of the plaintiff equipment hired.[33] Mr Dunstan deposed that despite the demand for payment from the plaintiff to the first defendant, the first defendant has not paid the invoices to the plaintiff leaving the outstanding debt owing by the first defendant to the plaintiff in the sum of $367,282.52 and contractual interest on the outstanding debt pursuant to the credit agreement.[34]
[33] Dunstan Affidavit, par 56.
[34] Dunstan Affidavit, par 57.
Mr Dunstan deposed that he verily believes that the second defendant has no defence to the claim or part thereof.[35]
[35] Dunstan, Affidavit, par 58.
The plaintiff's bank is the Commonwealth Bank of Australia. The Commonwealth Bank of Australia's overdraft index rate as at the date of the hearing of the Application was 10.68%.[36]

The second defendant's response

[36] Whitten Affidavit, pars 5 - 6 and Annexure LJW-1.

The second defendant's position and the evidence relied upon in opposition support of the application for summary judgment is set out in the Buckby Affidavit and may be (relevantly) summarised as follows.
The first defendant operated a construction business for which the first defendant was required to hire equipment that it does not own itself to enable the first defendant to complete works being undertaken.[37]
[37] Buckby Affidavit, par 5.
The plaintiff hired various equipment to the first defendant during the period 1 November 2021 - 28 February 2022, including approximately 15 dewatering pumps.[38] The first defendant experienced multiple failures of the dewatering pumps hired which prevented the first defendant from carrying out its contract for the re-laying of sewer lines at Forrestdale WA.[39] The cost of the delays and additional costs for the period 9 November 2021 - 18 November 2021 as a result of this amounted to $55,855.86.[40]
[38] Buckby Affidavit, par 6.
[39] Buckby Affidavit, par 8.
[40] Buckby Affidavit, par 9.
The second defendant deposed that the first defendant was not charged for equipment hire due to equipment not being in use on various days in between the period November 2021 - February 2022.[41] The first defendant suffered average daily losses amounting to $5,500 for the 33 days detailed.[42] The second defendant deposed that the plaintiff acted in breach in charging the first defendant for items for which it was not liable to pay.[43] The second defendant deposed that he is unaware of any agreement for which the first defendant accepted liability for the delivery and collection costs of dewatering pumps. Any pumps collected or returned to the plaintiff were done at the first defendant's expense.[44]
[41] Buckby Affidavit, pars 11 - 12.
[42] Buckby Affidavit, par 13.
[43] Buckby Affidavit, par 14.
[44] Buckby Affidavit, par 17.
The submission put by counsel for the second defendant is that the invoices relied on by the plaintiff in verification of the plaintiff's claim each disclose a further separate contract entered into (the Further Contracts), which in turn have not been disclosed or verified. Using the example of invoice 50268, counsel for the second defendant submitted that:
So if we look at invoice 50268 at paragraph 7 of the statement of claim, it's the first invoice listed. So on 30 November 2021, the plaintiff charged the 1st defendant the sum of $7,314.12. Now, what gave rise to that? It's not the agreement as referred to in the statement of claim. It's not the agreement that's referred to in the statement of claim, it can't be.
The agreement referred to in the statement of claim does not identify what was hired, it does not identify the terms of the agreement; for example, the number of days it was to be hired, and the terms and conditions referred to in the agreement are supposedly generic, if you will, to all agreements that are entered into between the plaintiff and anyone who hires its equipment.
The submission put by counsel for the second defendant is that the second defendant has a defence to the plaintiff's claim as 'There is no promise in the Credit Agreement to do, or not to do, anything' and that 'The Agreement does not contain an Agreement for the hire of equipment'.
The submission put by counsel for the second defendant is that to succeed, the plaintiff would need to prove the contractual agreements which support the provision of the tax invoices relied upon to constitute the claimed sum and that there is no such evidence. Further, that:
The defendants dispute the alleged liability of the principal contracting party Buckby Contracting (being the first defendant). The plaintiff bears the onus of proving the principal's alleged liability.
As to the matter of the indemnity, the submission put by counsel for the second defendant is that that whilst the second defendant did sign the indemnity:
But this is a large corporation involved in large scale civil works. It's not for Mr Buckby to have known each term and condition of each piece of equipment that was hired. How could he possibly know that. And although he was aware they were being hired, of course, I mean his duties as director would be breached otherwise.
The submission put by counsel for the second defendant is that the omission of a credit limit amount from the box at the bottom of the credit application form[45] means either that the guarantee never came into operation, or that the amount guaranteed was zero.
[45] Dunstan Affidavit, page 99.
The second defendant advances by way of its intended counterclaim, loss and damage it claims it has suffered as a result of the plaintiff supplying it with defective equipment that was inoperable and not fit for purpose the subject of invoices 50268, 51455 and 51408.

Contract construction

It is the second defendant's position that there is no promise in the 2021 Credit Agreement to do, or not to do, anything. The second defendant rejects that that agreement itself provides for the hire of equipment and on this basis dispute the alleged liability of the principal contracting party, the first defendant, to the plaintiff.
The second defendant relies on Trenfield v HAG Import Corporation (Australia) Pty Ltd[46] in support of its position of the proper analysis of a contract in the nature of a credit application wherein, at [24], the credit application was deemed to be:
… simply an evidentiary document, an admission that the applicant knows of those terms and knows that those are the only terms on which the [plaintiff] will supply goods to the [defendant].
[46] Trenfield v HAG Import Corporation (Australia) Pty Ltd [2018] QDC 107.
The plaintiff relies on the principles stated and applied by the High Court in recent cases[47] and submits that the proper construction of a provision in a contract is to be determined by reference to the text, context and purpose of the contract. Context, according to the plaintiff's counsel, as referred to by the High Court in the Mount Bruce case,[48] means 'the entire text of the contract as well as any contract, document or statutory provision referred to in the text of the contract'. The High Court plurality said in Mount Bruce at [49]:
… sometimes, recourse to events, circumstances and things external to the contract is necessary. It may be necessary in identifying the commercial purpose or objects of the contract where that task is facilitated by an understanding 'of the genesis of the transaction, the background, the context [and] the market in which the parties are operating'. It may be necessary in determining the proper construction where there is a constructional choice.
[47] Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104 [46]; Victoria v Tatts Group Ltd [2016] HCA 5; (2016) 90 ALJR 392 [51]; Simic v New South Wales Land and Housing Corporation [2016] HCA 47; (2016) 260 CLR 85 [18], [78].
[48] Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [46].
The plaintiff submits that applying this principle in construing the guarantee, regard must be had to the 2021 Credit Application and the hire contract terms and conditions.
The general principles of contractual interpretation were summarised by the Court of Appeal in Pilbara Iron Ore Pty Ltd v Ammon:[49]
85The construction of a contract involves a determination of the meaning of the words of the contract by reference to its text, context and purpose. Ascertaining the meaning of terms in an instrument requires a determination of what a reasonable person would have understood those terms to mean. That inquiry will require consideration of the language used by the parties in the contract, the circumstances addressed by the contract, and the commercial purpose or objects to be secured by the contract. The instrument must be read as a whole.
86The general principle applicable to the construction of commercial contracts is that they should be given a businesslike interpretation. Absent a contrary intention, the court approaches such contracts on the basis that the parties intended to produce a result which makes commercial sense. This requires that the construction placed on the term or terms in question is consistent with the commercial object of the agreement. However, it must also be borne in mind that business commonsense may be a topic on which minds may differ.
(footnotes omitted)
[49] Pilbara Iron Ore Pty Ltd v Ammon [2020] WASCA 92 [85] - [86].
Where a contract contains defined terms, the court will give effect to them. A definition is not to be construed in isolation from the operative provision or provisions in which the defined term is used.[50]
[50] George 218 Pty Ltd v Bank of Queensland Ltd [No 2] [2016] WASCA 182 [82].
Where a commercial transaction is implemented by several contracts or documents, all of the contracts or documents may be read together for the purpose of ascertaining their proper construction and legal effect, at least where the contracts or documents are executed contemporaneously or within a short period.[51] Further, each of the contracts has to be construed in context, considering its terms as a whole, giving consistent meaning to all of its terms, and avoiding any apparent inconsistency.[52] Preference is to be given to a construction that gives 'a congruent operation to the various components of the whole'.[53]
[51] EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2010] WASCA 78; (2010) 41 WAR 23 [104].
[52] Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99, 109 (Gibbs J).
[53] Wilkie v Gordian Runoff Ltd (formerly known as GIO Insurance Ltd) [2005] HCA 17; (2005) 221 CLR 522 [16].
It is not permissible to consider extrinsic evidence to subtract from, add to, vary or contradict the language of a written contract.[54] However, resort to extrinsic circumstances and things external to the contract may be necessary to identify its purpose and in determining the proper construction where there is a constructional choice.[55]
[54] Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 347, 348, 352; see also Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 [35] - [36].
[55] Black Box Control Pty Ltd v Terravision Pty Ltd [2016] WASCA 219 [42(4)]; Simic v New South Wales Housing Corp [18].
In Black Box Control Pty Ltd v TerraVision Pty Ltd,[56] the Court of Appeal set out the principles that must be applied in respect of extrinsic evidence:[57]
(1)If an expression in a contract is unambiguous and susceptible of only one meaning, evidence of surrounding circumstances cannot be adduced to contradict its plain meaning.
(2)To the extent that a contract, document or statutory provision is referred to, expressly or impliedly, in an instrument, that contract, document or statutory provision can be considered in construing the instrument, without any need for ambiguity or uncertainty of meaning.
(3)There are important limits on the extent to which evidence of surrounding circumstances (when admissible) can influence the proper construction of an instrument. Reliance on surrounding circumstances must be tempered by loyalty to the text of the instrument. Reference to background facts is not a licence to ignore or rewrite the text. The search is for the meaning of what the parties said in the instrument, not what the parties meant to say.
(4)There are also limits on the kind of evidence which is admissible as background to the construction of a contract, and the purposes for which it is admissible. Insofar as such evidence establishes objective background facts known to the parties or the genesis, purpose or objective of the relevant transaction, it is admissible. Insofar as it consists of statements and actions of the parties reflecting their actual intentions and expectations it is inadmissible. Such statements reveal the terms of the contract which the parties intended or hoped to make, and which are superseded by, or merged into, the contract.

Contracts of guarantee - absence of a credit limit

[56] Black Box Control Pty Ltd v Terravision Pty Ltd [42].

[57] Black Box Control Pty Ltd [42].

It is the second defendant's position that the omission of a credit limit amount from the box at the bottom of the credit application form[58] means either that the guarantee never came into operation, or that the amount guaranteed was zero.
[58] Dunstan Affidavit, page 99.
Counsel for the second defendant submits that it is settled principle governing the interpretation of contracts of guarantee that the liability of the surety is strictissimi juris and that ambiguous contractual provisions should be construed in favour of the surety.[59] The second defendant submits that the documents entitled 'Agreement' must be read together with the instrument entitled 'Credit Application Form' and meaning should be given to all of the terms of the agreement in a manner which renders the instruments harmonious as a whole'.
[59] Chan v Cresdon Pty Ltd (1989) 168 CLR 242, 256.
The plaintiff submits that in the present matter, consideration of the genesis of the guarantee and the background makes it clear beyond argument that the commercial purpose of the guarantee was to mitigate the credit risk to the plaintiff of continuing to make its equipment available on hire to the first defendant. On this basis, a construction which deprives the guarantee of any operation is so incompatible with that commercial purpose that it cannot reasonably be argued. Against the commercial background as known to both parties, the only commercially sensible construction of the guarantee is that it was a guarantee which operated in accordance with its terms, without limit. That is why no limiting figure was included in the application form.
The plaintiff submits that this construction is consistent with the approach taken by Australian courts in cases where a 'limit' clause is contained in the guarantee itself, but has been left blank. The legal effect is the same as if the limit clause had been deleted.[60]
[60] Caltex Oil (Aust) Pty Ltd v Alderton [1964-5] NSWR 456; Gordon v Australia and New Zealand Banking Group Ltd (Unreported, FCAFC, NG 139 of 1997, 24 October 1997).
The construction of a contract involves a determination of the meaning of the words of the contract by reference to its text, context and purpose. Ascertaining the meaning of terms in an instrument requires a determination of what a reasonable person would have understood those terms to mean. The instrument must be read as a whole.[61] The authority is well established that if there is a doubt as to the proper construction of a provision in a guarantee it should be resolved in favour of the guarantor and that in a contract of guarantee, the liability of the guarantor is to be construed in the strictest possible way.[62] A doubt may arise not only from the uncertain meaning of a particular expression, but from its apparent width of possible application.[63] However, it remains necessary for the contractual language to present a constructional choice that is fairly open by reason of the application of the other rules of construction.[64] Similarly, general words may be read down in light of the balance of the contract of guarantee.[65]
[61] See generally Mount Bruce Mining Pty Ltd [46] - [51], [59]; Victoria v Tatts Group Ltd [51]; Black Box Control Pty Ltd [42].
[62] See generally Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424 [17] - [23]; Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (1987) 162 CLR 549.
[63] Andar Transport Pty Ltd v Brambles Ltd [17] - [23]; Bofinger v Kingsway Group Ltd [2009] HCA 44; (2009) 239 CLR 269 [53], [65].
[64] CSR Ltd v Adecco (Australia) Pty Ltd [2017] NSWCA 121 [163]; Cherry v Steele-Park [2017] NSWCA 295; (2017) 96 NSWLR 548 [112].
[65] Cherry v Steele-Park [114].

Analysis

The evidence before this court is that the second defendant was a director of the first defendant (now in liquidation). The first defendant operated a construction business for which the first defendant was required to hire equipment that it does not own itself to enable the first defendant to complete works being undertaken.[66] The plaintiff hired various equipment to the first defendant during the period 1 November 2021 - 28 February 2022.[67] The evidence of Mr Dunstan is that the first defendant has been a credit client of the plaintiff since 2007 and had credit arrangements in place with the plaintiff from 2007.
[66] Buckby Affidavit, par 5.
[67] Buckby Affidavit, par 6.
The plaintiff's claim can be neatly summarised as follows: the plaintiff hired equipment to the first defendant; the first defendant became obligated to pay the hiring charges as invoiced; the first defendant failed to meet payment; the first defendant continued to seek to hire equipment from the plaintiff; in order for the plaintiff to continue making equipment available to the first defendant, the plaintiff required the second defendant to provide a personal guarantee. As a result of the first defendant not meeting its payment obligations, the plaintiff now relies on the terms of the personal guarantee.
The plaintiff relies on the 2021 Credit Agreement. Having considered the materials before this court, the documents relied on by the plaintiff said to comprise this agreement comprise of the following: document entitled 'Credit Application for a Business Account which includes an Acknowledgement and Authorisation'; document entitled 'Guarantee and Indemnity'; and document entitled 'Hire Contract Terms and Conditions'. The pages of the documents said to comprise the 2021 Credit Agreement are numbered sequentially.
The plaintiff relies on the affidavit of Mr Dunstan who is the chief financial officer of the plaintiff. The evidence of Mr Dunstan is that the first defendant has been a credit client of the plaintiff since 2007; and that the terms of the arrangements in place since at least 22 February 2016 has been in identical terms to that set out in the 2021 Credit Agreement executed by the first defendant as customer, and the second defendant, as guarantor on 15 December 2021.
The reason why there are two hiring agreements is explained at pars 14 ‑ 19 of the Dunstan Affidavit. Mr Dunstan has deposed that the 2021 Credit Agreement was entered into after the first defendant had repeatedly defaulted in payment of invoices issued under the 2016 Credit Agreement. The significance of the second defendant's guarantee in persuading the plaintiff to allow the hiring arrangement to continue was acknowledged by the second defendant himself, in his email to Mr Dunstan dated 28 January 2022.[68]
[68] Dunstan Affidavit, page 174.

The amounts claimed by the plaintiff are set out in the Dunstan Affidavit at pars 21, 27, 29 and 31 and are for amounts payable under invoices for the hiring of equipment, pursuant to hiring agreements between the plaintiff and the first defendant entered into in February 2016[69] and December 2021.[70] The total sum claimed by the plaintiff is $367,282.52 plus interest at the current bank overdraft interest rate plus 2.5% per annum.
[69] Dunstan Affidavit, Annexure MJD-2.
[70] Dunstan Affidavit, Annexure MJD-8.

The contractual arrangement

The credit application the plaintiff is relying on, being the 2021 Credit Agreement, is annexed to the Dunstan Affidavit at MJD-8 and MJD-9.
I have considered in some detail the 2021 Credit Agreement. In particular, the section headed 'Acknowledgement and Authorisation' which (relevantly) records as follows:
At 1, By signing this application below I/We agree to be bound by the Hire Agreement Terms and Conditions as received with this document and all future amendments. At 5, I/We agree to be bound by your credit term, where accounts are due and payable within thirty (30) days of the end of month of invoice. Credit may be cancelled/ suspended without notice. If accounts are not paid by the due date. Interest at the rate of the current bank overdraft interest rate plus 2.5% per annum calculated daily will be charged on overdue accounts.
The 2021 Credit Agreement is executed by the first defendant and includes the guarantee executed by the second defendant. The second defendant does not dispute that the credit application and guarantee were signed. The fact that these documents were signed are evidenced by the attachments to the Dunstan Affidavit at MJD-8 and MJD-9. The second defendant does not say that he did not sign these documents.
Rather, it is the second defendant's position that the invoices relied on by the plaintiff in verification of the plaintiff's claim each disclose a further separate contract entered into (the Further Contracts), which in turn have not been disclosed or verified. It is submitted by counsel for the second defendant that there is (in effect) no promise in the Credit Agreement(s) that can be said to attach to the second defendant and that the agreement itself (which the plaintiff is relying on) does not contain an agreement for the hire of equipment.
The second defendant submits (in effect) that whilst the 2021 Credit Agreement does contain an agreement for the hire of equipment, to succeed, the plaintiff would need to prove the contractual agreements which support the provision of the tax invoices relied upon to constitute the claimed sum. That is, the 2021 Credit Agreement does not provide for the hire of equipment.
This reasoning is difficult to understand when considered against the history of the commercial dealings between the parties as deposed to by each of Mr Dunstan, and the second defendant, Mr Buckby.
Relevantly, the second defendant, in his affidavit, deposes to the first defendant having 'operated a construction business for which the first defendant was required to hire equipment that it does not own itself to enable the first defendant to complete works being undertaken'.[71] That the second defendant was a director of the first defendant which on the second defendant's submission, is a 'large corporation involved in large scale civil works' is not controversial or disputed.
[71] Buckby Affidavit, par 5.
At all relevant times, the plaintiff carried on the business of providing ground support equipment for hire. The matters deposed to by Mr Dunstan in his affidavit speak to the nature and terms of the hiring of certain equipment by the plaintiff to the first defendant, and the circumstances giving rise to the personal guarantee provided by the second defendant.
The suggestion by the second defendant therefore, put by way of submission, that it is not for the second defendant 'to have known each term and condition of each piece of equipment that was hired' is not an answer to why it can be said that the first defendant is not liable for the charges rendered by the plaintiff to the first defendant in respect of hire equipment.
Relevantly, as evidenced by the documents attached to the Dunstan Affidavit, Mr Dunstan wrote to the second defendant on 15 December 2021 confirming receipt of the 2021 Credit Agreement and the total outstanding amounts owing to the plaintiff. The second defendant responded to that email and did not, on the face of the evidence before this court, otherwise challenge or dispute Mr Dunstan's statement that [the plaintiff] had 'received the new Credit Application with the signed Directors' Guarantee'.
That the plaintiff hired equipment to the first defendant is accepted. That the plaintiff issued invoices to the first defendant for payment is established by materials attached to the Dunstan Affidavit which Mr Dunstan has deposed to. There is no evidence before this court that the second defendant did not understand the terms of the contractual arrangement the plaintiff is relying on. The second defendant does not for example depose to these matters in his affidavit.
To the extent it is the second defendant's position that the credit application and guarantee signed by the second defendant was for some purpose other than that deposed to by Mr Dunstan in his affidavit, then that evidence has not put before this court for consideration.

The terms of the guarantee and general observations

The guarantee the plaintiff relies on is contained in the document entitled 'Guarantee and Indemnity' at page 3 of the 2021 Credit Agreement. The evidence before this court, as Mr Dunstan has deposed to in his affidavit, is that the plaintiff continued to make equipment available to the first defendant as a result of the second defendant providing a personal guarantee for payment of the first defendant's obligations. Mr Dunstan in his affidavit deposed to the fact that all hire of equipment from the plaintiff to the first defendant was subject to the 'Hire Contract Terms and Conditions'.
I have considered in detail the terms of the document entitled 'Guarantee and Indemnity' at page 3 of the 2021 Credit Agreement. I relevantly note that under the terms of that guarantee, the guarantor named, being the second defendant, who has duly executed the guarantee, (relevantly) guarantees amongst other things to pay:
[T]o you [the plaintiff] of all monies and performance of all obligations including any past, present and future indebtedness or obligations by the Customer [being the first defendant] … or any of us arising from any past, present or future dealing with you [the plaintiff] and any GST applicable thereto,
…
4That our [the guarantor's] liability under this guarantee … will not be affected, waived or discharged by the Customer [being the first defendant] becoming insolvent or entering into a Deed of Company Agreement (DOCA).
…
6That GSS [being the plaintiff] is entitled to recover against a Guarantor without having first taken steps to recover against the Customer or any other Guarantor.
…
8That any payment which is subsequently avoided by any law relating to Insolvency shall be deemed not to have been paid …
I have further considered the document entitled 'Hire Terms and Conditions' at page 5 of the 2021 Credit Agreement. I note the definition of Agreement in that document as well as the definition of Guarantor and Insolvency Event. The first defendant being in liquidation satisfies the definition of an Insolvency Event. I also note that an Event of Default in that document is defined (at page 12) to include 'if the Customer (being the first defendant), suffers and Insolvency Event'. Page 15 of that document expressly provides that:
The Customer [being the first defendant] does not have any right to set‑off against the Hire Charges any amounts due or claimed to be due from GSS [being the plaintiff].
In this case, the guarantee is clear in its terms. That is, the guarantee is expressly an 'all moneys' 'continuing' guarantee that is triggered by virtue of non-payment of the first defendant, including of:
any past, present and future indebtedness or obligations by the Customer (being the first defendant) or any of us arising from any past, present or future dealing with the plaintiff and any GST applicable thereto.
That obligation is not 'affected, waived or discharged' by virtue of the first defendant becoming insolvent. Importantly, the terms of the guarantee expressly recognises that the plaintiff is 'entitled to recover against a Guarantor without having first taken steps to recover against the Customer or any other Guarantor'.
There is no credit limit amount nominated in the box at the bottom of the credit application form. The second defendant submits that on this basis, either the guarantee never came into operation, or that the amount guaranteed was zero. However, there is no evidence before this court that the credit limit amount was subject to any other condition or that it was otherwise to be subject to agreement being reached on the applicable credit limit. Rather, no credit limit had been nominated and the terms of the guarantee otherwise provides for payment to the plaintiff by the second defendant of all monies and performance of all obligations by the first defendant arising from any past, present or future dealing with the plaintiff and any GST applicable thereto.
The plaintiff submits that the commercial purpose of the guarantee was to mitigate the credit risk to the plaintiff of continuing to make its equipment on hire to the first defendant and that the guarantee operated in accordance with its terms without limit, hence why no limiting figure was included in the application form.
To adopt the second defendant's reasoning would have the effect of rendering the purpose of the guarantee redundant. A guarantee that fails to mitigate the credit risk to the plaintiff of continuing to make its equipment available on hire to the first defendant is so incompatible with the commercial purpose of the guarantee itself. There is no evidence to suggest that the second defendant was unsure of the effect of the guarantee being provided or that the second defendant was unaware of what was being signed.
The general principles in relation to the construction of commercial contracts are not contentious and have been set out in these reasons for decision. As Electricity Generation Corporation t/as Verve Energy v Woodside Energy Ltd[72] confirmed, the meaning of the terms of a commercial contract is to be determined by what a reasonable businessperson would have understood those terms to mean. This is, of course, an objective exercise, which 'depends on finding the meaning of the language of the contract'[73] and 'what each party by words and conduct would have led a reasonable person in the position of the other party to believe'.[74]
[72] Electricity Generation Corporation t/as Verve Energy v Woodside Energy Ltd (2014) 251 CLR 640 [35] (French CJ, Hayne, Crennan & Kiefel JJ).
[73] Byrnes v Kendle [98] (Heydon & Crennan JJ).
[74] Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 [40] (Gleeson CJ, Gummow, Hayne, Callinan & Heydon JJ). See also Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544 [16] (Kiefel, Bell & Gordon JJ).
The terms of the 2021 Credit Agreement, being referred to in the guarantee, form part of the context for interpreting the provisions of the guarantee.
Moreover, being a contract of guarantee, the construction of the guarantee is also governed by the settled principle that a doubt as to the construction of a provision in such a contract should be resolved in favour of the surety or indemnifier. Such a doubt may arise not only from the uncertain meaning of a particular expression but from 'its apparent width of possible operation'.[75]
[75] Bofinger v Kingsway Group Ltd [53] (Gummow, Hayne, Heydon, Kiefel & Bell JJ).
In all of the circumstances therefore, I am satisfied that the sensible commercial interpretation of the empty 'credit limit' box is simply that the first defendant was applying for credit in whatever amount the plaintiff was prepared to extend - with the support of the guarantee by the second defendant.

The second defendant's 'off-setting' claim

The second defendant makes reference to the first defendant's 'off‑setting claim' in the second defendant's submissions and the Buckby Affidavit. That claim is said to arise from the purported defective performance of the hired dewatering pumps and that the first defendant incurred costs as a result of its inability and/or delayed ability to perform certain works.
To the extent it is the first defendant's position that no such liability arises because of the first defendant's purported 'off-setting claim', that position does not address or otherwise take into account the terms of the 2021 Credit Agreement itself which precludes the right to set-off. Relevantly, the document entitled 'Hire Terms and Conditions' at page 15 of the 2021 Credit Agreement expressly provides that:
The Customer [being the first defendant] does not have any right of set‑off against the hire Charges any amounts due or claimed to be due from GSS [being the plaintiff].
Even if the second defendant were able to overcome this limitation, nothing is adduced by the second defendant by way of invoices, progress claims or some other evidence to demonstrate the off-setting amount claimed. Further, no evidence of any claim having been made (presumably by the first defendant or the second defendant to the plaintiff) for the purported defective performance of the hired equipment has been produced by the second defendant.

Interest

The plaintiff in its application amended the interest claimed to interest on $367,282.52 at the rate of the current bank overdraft interest rate plus 2.5% per annum calculated daily from the 31st day after the date of each outstanding invoice until judgment.
Both the interest and legal costs claimed by the plaintiff are the amounts claimed under the guarantee. The plaintiff in support of its interest claim relies on the 2021 Credit Application Hire Contract Terms and Conditions, which states as follows in respect of 'Interest':
The Customer must pay interest on all monies due but unpaid under this Agreement at the current bank overdraft interest rate plus 2.5% per annum, calculated daily from the date on which the payment became due until the date on which the payment is made.
The plaintiff's bank is the Commonwealth Bank of Australia. Ms Whitten at pars 5 and 6 of the Whitten Affidavit deposed to the Commonwealth Bank of Australia's overdraft index rate as at the date of the hearing of the Application being 10.68%, and attached to her affidavit an interest schedule prepared by Ms Whitten and the relevant bank overdraft interest rate of 10.68% (as at the date of the hearing).[76] This is the only evidence before this court on matters of interest pursuant to the terms of the guarantee.
[76] Whitten Affidavit, pars 5 - 6 and Annexure LJW-1.

Conclusion and orders: summary judgment

It is O 14 r 3(1) of the RSC which allows judgment to be given for a plaintiff. That rule does allow a court to decline to enter judgment if it is satisfied 'that there ought for some other reason to be a trial of that claim'.
I have given careful consideration to refusing the plaintiff's application in reliance upon that provision of the rule. However, having carefully considered the evidence and the submissions before this court, I am of the view that there is no basis upon which I could do so.
In all of the circumstances therefore, I have determined that the second defendant has not satisfied the court of an arguable defence, triable issue or question in dispute which ought to be tried.
On all the material before the Court, I am satisfied the plaintiff has established a prima facie entitlement to judgment in relation to the invoices set out in the Dunstan Affidavit at pars 21, 27, 29 and 31 in the amount of $367,282.52 plus interest at the current bank overdraft interest rate plus 2.5% per annum calculated daily.[77]
[77] Dunstan Affidavit, par 57; Whitten Affidavit, pars 5 and 6 and Annexure LJW-1.
The plaintiff's claim in the sum of $367,282.52 plus interest at the current bank overdraft interest rate plus 2.5% per annum calculated daily therefore succeeds.
I will hear from the parties as to final orders.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MB
Associate to Registrar
10 MARCH 2023