Legal Research
Cases
Morgan v Pallister

Morgan v Pallister

Case [2004] WASC 188 27 August 2004

Contract Formation

Breach of Contract

Total Failure of Consideration

Summary Judgment

Compensatory Damages

Contract Law

No judgment structure available for this case.

Type to search within this case.

MORGAN -v- PALLISTER [2004] WASC 188

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASC 188
Case No:	CIV:1344/2004	Heard:	5 & 19 AUGUST 2004
Coram:	PULLIN J	Delivered:	27/08/04
No of pages:	12	Judgment Part:	1 of 1
Result:	Summary judgment for the plaintiff
Category:	B
PDF Version

Parties:	DAVID MANSTON MORGAN VANESSA PALLISTER
Catchwords:	Contract Total failure of consideration Summary judgment application Turns on own facts
Legislation:	Nil
Case References:	David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 Roxborough v Rothmans of Pall Mall (Australia) Ltd (2001) 208 CLR 516 Australian Securities Commission v MacLeod, unreported; FCA; 23 November 1994 Baltic Shipping Co v Dillon (The Ship Mikhail Lermontov) (Ticket Case) (1993) 176 CLR 344 Foran v Wight (1989) 168 CLR 385 Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 Young v Jackman (1986) 7 NSWLR 97

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : MORGAN -v- PALLISTER [2004] WASC 188 CORAM : PULLIN J HEARD : 5 & 19 AUGUST 2004 DELIVERED : 27 AUGUST 2004 FILE NO/S : CIV 1344 of 2004 BETWEEN : DAVID MANSTON MORGAN

Plaintiff

AND

VANESSA PALLISTER

Defendant

Catchwords:

Contract - Total failure of consideration - Summary judgment application - Turns on own facts

Legislation:

Nil

Result:

Summary judgment for the plaintiff

(Page 2)

Category: B

Representation:

Counsel:

Plaintiff : Mr G D Cobby

Defendant : Mr L A Tsaknis

Solicitors:

Plaintiff : Christensen Vaughan

Defendant : Holborn Lenhoff Massey

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

David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353
Roxborough v Rothmans of Pall Mall (Australia) Ltd (2001) 208 CLR 516

Case(s) also cited:

Australian Securities Commission v MacLeod, unreported; FCA; 23 November 1994
Baltic Shipping Co v Dillon (The Ship Mikhail Lermontov) (Ticket Case) (1993) 176 CLR 344
Foran v Wight (1989) 168 CLR 385
Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221
Young v Jackman (1986) 7 NSWLR 97

(Page 3)

1 PULLIN J: This is the plaintiff's application for summary judgment.

2 The plaintiff sues for recovery of $340,000 which, he claims in his statement of claim, was advanced to the defendant by way of loan in the period 25 July 2003 to 5 August 2003. The sum was repayable on demand and despite demand the defendant has refused to repay the amount due. The payments were three in number, consisting of a cheque dated 25 July 2003 for the sum of $200.000, a cheque for $10,000 given to the defendant on or about 1 August 2003, and an internet banking transfer of $130,000 on 5 August 2003.

3 The plaintiff has complied with the formalities for a summary judgment application which are set out in O 14. The defendant admits receiving the money, admits it has not been repaid and admits it was repayable in certain circumstances.

4 The plaintiff carries the burden of persuading the court that the claim is a good…

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 Morgan v Pallister

Details

AGLC: Morgan v Pallister [2004] WASC 188
Case: [2004] WASC 188
Decision Date

CaseChat Overview and Summary

The Supreme Court of Western Australia was asked to decide whether the plaintiff, David Manston Morgan, was entitled to summary judgment for the sum of $340,000 which he claimed was loaned to the defendant, Vanessa Pallister. The loan was alleged to be repayable on demand, which demand had been made but not met. The defendant admitted receiving the money, admitted it had not been repaid, and admitted it was repayable in certain circumstances. The central issue was whether there was a total failure of consideration, as the technology for which the loan was intended to be used, the "Mobilert technology," was claimed to be unregistrable and of no value. The court considered whether the plaintiff had received any part of the benefit bargained for under the contract. The court found that the purpose of the transaction had failed because the Mobilert technology was never transferred to the company intended to hold it, and the technology was of no value. The court granted summary judgment to the plaintiff but conditioned it on the plaintiff taking certain steps, such as procuring the transfer of shares in the company to the defendant and obtaining an undertaking from the company and others that they would not claim any rights to the technology. The court also directed the parties to confer on whether the plaintiff was entitled to interest on the judgment sum.

Orders