MONTIEN Resources Pty Ltd and Ors v Link Contracting Pty Ltd

[2000] WASCA 402

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE FULL COURT (WA)

CITATION:   MONTIEN RESOURCES PTY LTD & ORS -v- LINK CONTRACTING PTY LTD [2000] WASCA 402

CORAM:   PIDGEON J

IPP J
OWEN J

HEARD:   5 DECEMBER 2000

DELIVERED          :   5 DECEMBER 2000

FILE NO/S:   FUL 187 of 2000

BETWEEN:   MONTIEN RESOURCES PTY LTD

First Applicant

DUNEDIN RESOURCES PTY LTD
Second Applicant

MICHAEL LAURENCE JAMES KIERNAN
Third Applicant

AND

LINK CONTRACTING PTY LTD
Respondent

Catchwords:

Procedure - Summary judgment founded on grounds not pleaded - Set aside - Turns on own facts

Legislation:

Nil

Result:

Application allowed

Representation:

Counsel:

First Applicant               :     Mr S Penglis

Second Applicant          :     Mr S Penglis

Third Applicant             :     Mr S Penglis

Respondent:     Mr A W Fairweather

Solicitors:

First Applicant               :     Freehill Hollingdale & Page

Second Applicant          :     Freehill Hollingdale & Page

Third Applicant             :     Freehill Hollingdale & Page

Respondent:     Bennett & Co

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

Nil

Case(s) also cited:

Nil

1. PIDGEON J:  I agree with the reasons of Ipp J.

2. IPP J:  I intend to give only brief reasons in this renewal of an application for a stay of execution.  The application relates to a grant of summary judgment by the learned Master.  The summary judgment concerned the rights to certain shares and options in Consolidated Minerals Limited.  These shares and options were held by the first applicant who had received them from the second applicant and were claimed by the respondent [plaintiff].  The first applicant asserted that it was entitled to the shares (and to transfer them to the second applicant) pursuant to an oral agreement with the respondent.  The respondent denied the oral agreement.  This was the main issue on the pleadings.  The learned Master held that summary judgment should granted and ordered that the shares and options should be delivered to the respondent.

3. Significantly, the learned Master held (and, plainly, correctly) that there  was a triable issue as to whether there was an oral agreement as alleged.  He proceeded, nevertheless, to grant summary judgment on different grounds.  The basis of the Master's decision is not entirely clear, but I am satisfied that the matters on which he relied for his decision were not pleaded and were not argued.  That is to say, the applicants did not have the opportunity of putting their case either by way of evidence or argument in an attempt to refute those matters on which the learned Master based his judgment.

4. In my opinion, the applicants have very strong grounds for succeeding on appeal, but more importantly with regard to this application, as I have attempted to indicate, underlying those grounds is the proposition that they were not afforded natural justice at the hearing.  I would uphold that argument.  In my opinion, that being so, special circumstances have been established for the purposes of ordering a stay of execution.

5. It would be quite unjust to allow property that is arguably that of a party to pass to another on the basis of a case which the first-mentioned party was never called upon to answer.  I would add that the learned Master also found that the respondent was financially struggling and on that basis there would be all the more reason to grant the stay as, should the applicants succeed on the appeal, it might be very difficult for the status quo to be restored. 

6. For those reasons I would grant the stay.

7. OWEN J:  I too agree.