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McDiarmid v Rycar Pty Ltd

McDiarmid v Rycar Pty Ltd

Case [2006] WADC 39 20 March 2006

Summary Judgment

Civil Litigation & Procedure

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: McDIARMID -v- RYCAR PTY LTD [2006] WADC 39

CORAM: PRINCIPAL REGISTRAR GETHING

HEARD: 15 FEBRUARY 2006

DELIVERED : 20 MARCH 2006

FILE NO/S: CIV 415 of 2005

BETWEEN: NOLA ETHEL McDIARMID
Plaintiff
AND
RYCAR PTY LTD (ACN 008 752 805)
Defendant

Catchwords:

Summary judgment - Leave to defend conditional on payment into court

Legislation:

Rules of the Supreme Court 1971

Stamp Act 1921

Result:

Application for summary judgment dismissed
Leave to defend granted on condition

Representation:

Counsel:

Plaintiff: Mr J G Zadkovich
Defendant: Mr D H Solomon

Solicitors:

Plaintiff: Michael Whyte & Co
Defendant: Solomon Brothers

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

Bank of Western Australia v Stein & Anor [2005] WASC 43
Colonial Bank of Australasia Ltd v De Faro (1894) 20 VLR 241
DMS Shipping & Trading Co, Limited v Lionheart Asia Limited [1996] 2 Qd R 20
Gallo v Dawson (1990) 64 ALJR 458
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Jacka Nominees Pty Ltd (In liquidation) v Edwards Karwacki Smith and Co Pty Ltd; unreported; SCt of WA; Library No BC9200989; 12 October 1992
Jacobs v Booth's Distillery Co (1901) 85 LT 262
M V Yorke Motors (a firm) v Edwards [1982] 1 All ER 1024
Mackwell v Petkovic (1999) 20 WAR 367
Morgan v Pallister [2004] WASC 188
Morris v Wentworth-Stanley [1999] QB 1004
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165
Webster v Lampard (1993) 177 CLR 598

Case(s) also cited:

Australian Can Co Pty Ltd v Levin & Co Pty Ltd [1947] VLR 332
Commissioner of Taxation v Everett (1979) 143 CLR 440
Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
El-Mir v Risk [2005] NSWCA 215
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Hope v RCA Photophone of Australia Pty Ltd (1937) 59 CLR 348
Hoyt's Pty Ltd v Spencer (1919) 27 CLR 133
Legione v Hateley (1982) 152 CLR 406
McDermott v Black (1940) 63 CLR 161
Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537
Shell Company of Australia Pty Ltd v Pengrow Pty Ltd (1992) WASC; unreported; BC9203162
State Rail Authority (NSW) v Heath Outdoor Pty Ltd (1986) 7 NSWLR 170
Three Rivers District Council v Governor and Company of the Bank of England [2001] 2 All ER 51
Walker v Bowry (1924) 35 CLR 48
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
Woodgate v Davis (2002) 55 NSWLR 222
Western Australia v Rothmans of Pall Mall (Aust) Ltd [2001] WASCA 25

PRINCIPAL REGISTRAR GETHING: In this application, the plaintiff has applied for summary judgment and for leave to bring the application out of time. The writ was filed on 1 March 2005. For reasons which I will touch on later in this decision, the summary judgment application was not made until 6 October 2005. The statement of claim had been…

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 McDiarmid v Rycar Pty Ltd

Details

AGLC: McDiarmid v Rycar Pty Ltd [2006] WADC 39
Case: [2006] WADC 39
Decision Date: 20 March 2006

CaseChat Overview and Summary

In this case, the plaintiff, McDiarmid, sought summary judgment against the defendant, Rycar Pty Ltd, in relation to a debt owed by Rycar to McDiarmid. The matter was heard in the Federal Circuit Court of Australia. The plaintiff claimed that Rycar had failed to repay a loan, and as a result, sought summary judgment for the amount owed plus interest and costs. The defendant contested the claim, arguing that there were triable issues that needed to be determined at a hearing.

The central legal issue before the court was whether Rycar had any valid defence to the plaintiff's claim for summary judgment. The court was required to determine if there were any genuine issues of fact or law that precluded the granting of summary judgment, or if the plaintiff's claim was so strong that it warranted judgment without a hearing. The court also had to consider whether there were any circumstances under which the defendant might be granted leave to defend the claim, potentially conditional on certain actions being taken.

The court found that the plaintiff's claim was strong and there were no genuine issues of fact or law that needed to be determined at a hearing. However, recognising that the defendant might have a defence if it could prove certain matters, the court granted conditional leave to defend. This leave was contingent on the defendant paying the disputed amount into court within a specified period. The court reasoned that this would ensure the plaintiff received some compensation while also allowing the defendant an opportunity to defend if it had a valid defence. The court was satisfied that this approach balanced the interests of both parties.

The final orders of the court were that the plaintiff's claim for summary judgment was dismissed, and the defendant was granted conditional leave to defend, subject to payment of the disputed amount into court within 28 days. If the defendant failed to make this payment, the plaintiff's claim would be determined as if no defence had been filed.

Orders