National Australia Bank Ltd v SILVEY
[2000] WASC 249
•17 OCTOBER 2000
NATIONAL AUSTRALIA BANK LTD -v- SILVEY & ANOR [2000] WASC 249
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASC 249 | |
| Case No: | CIV:1671/2000 | 26 SEPTEMBER 2000 | |
| Coram: | MASTER SANDERSON | 17/10/00 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Judgment granted | ||
| PDF Version |
| Parties: | NATIONAL AUSTRALIA BANK LTD RODNEY KEITH SILVEY CHRISTINE GAIL SILVEY |
Catchwords: | Practice and procedure Application for summary judgment Turns on its own facts |
Legislation: | Trade Practices Act (Cwth) 1974, s 52, s 52(1) |
Case References: | Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1 Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109 Webster v Lampard (1993) 177 CLR 598 Eng Mee Yong v Letchumanan [1980] AC 331 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 Gillon v Kyle, unreported; FCt SCt of WA; Library No 9123; 16 October 1991 Jacobs v Booths Distillery Co (1901) 85 LT 262 Lewkowski v Bergalin Pty Ltd, unreported; FCt SCt of WA; Library No 7675; 26 May 1989 Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 Taco Co of Australia v Taco Bell Pty Ltd (1982) 40 ALR 153 White v Johnston (1886) 8 ALT 53 Yorke v Lucas (1985) 158 CLR 661 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
RODNEY KEITH SILVEY
CHRISTINE GAIL SILVEY
Defendants
Catchwords:
Practice and procedure - Application for summary judgment - Turns on its own facts
Legislation:
Trade Practices Act (Cwth) 1974, s 52, s 52(1)
Result:
Judgment granted
(Page 2)
Representation:
Counsel:
Plaintiff : Ms J E Bartlett
Defendants : Mr G J Archer
Solicitors:
Plaintiff : Jackson McDonald
Defendants : Eley Palmer Archer
Case(s) referred to in judgment(s):
Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1
Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109
Webster v Lampard (1993) 177 CLR 598
Case(s) also cited:
Eng Mee Yong v Letchumanan [1980] AC 331
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Gillon v Kyle, unreported; FCt SCt of WA; Library No 9123; 16 October 1991
Jacobs v Booths Distillery Co (1901) 85 LT 262
Lewkowski v Bergalin Pty Ltd, unreported; FCt SCt of WA; Library No 7675; 26 May 1989
Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191
Taco Co of Australia v Taco Bell Pty Ltd (1982) 40 ALR 153
White v Johnston (1886) 8 ALT 53
Yorke v Lucas (1985) 158 CLR 661
(Page 3)
1 MASTER SANDERSON: This is the plaintiff's application for summary judgment. By summons dated 18 July 2000 the plaintiff sought vacant possession of certain property fully described in the summons and known as Lot 163 Williams Road, Dwellingup. (I will refer to it as "the Dwellingup Property"). The plaintiff sued on a mortgage dated 7 January 1999. The fact of the mortgage and its terms were not in dispute. A copy of the mortgage appears as an annexure "B" to the affidavit of Michael Gordon Frenken, sworn 26 July 2000, and filed in support of the application. In opposition to the application the defendants relied upon an affidavit of the firstnamed defendant, sworn 4 September 2000.
2 The firstnamed defendant says that at the end of 1998 the defendants were looking to refinance the Dwellingup Property. The plaintiff agreed to provide them with a $400,000 mortgage facility and an overdraft with a limit of $20,000. At the time these facilities were arranged the defendants were indebted to one Paul Ruys ("Ruys") in the sum of $200,000, this being the unpaid part of the purchase price of the Dwellingup Property. Upon refinancing the plaintiff was secured as to $400,000 by way of a first mortgage, Ruys was secured as to $200,000 by way of a second mortgage and the overdraft was unsecured.
3 The firstnamed defendant says that during 1999 he met with one Mike Thompson who was an officer of the plaintiff at its Boddington branch. As a consequence of these meetings the firstnamed defendant says that at all times prior to 10 January 2000 he was of the understanding that the plaintiff would extend the defendant's credit facilities at least "for another year". In December 1999 the plaintiff requested from the defendants certain financial information. This was supplied forthwith. On 10 January 2000 the defendants received a letter from the bank enclosing a deed of priority for execution by Ruys. The effect of this deed of priority was to give the plaintiff priority to Ruys with respect to the overdraft facility. When approached by the defendants Ruys declined to execute the deed of priority.
4 Prior to Ruys' refusal to sign the deed of priority, the defendants had two meetings with officers of the plaintiff in Boddington. The first meeting was with a relieving manager and a general discussion took place. Nothing was resolved as a consequence of this meeting. The second meeting was with an acting manager, one Greg Moss ("Moss"). The firstnamed defendant says that during the course of this discussion the defendants were advised that the only consequence of Ruys not signing the deed of priority was that the defendants would have to pay a higher rate on the overdraft. According to the firstnamed defendant there was no
(Page 4)
- suggestion that the failure of Ruys to sign the deed of priority would result in the plaintiff withdrawing its credit facilities provided to the defendants. In March 2000, after Ruys' refusal to sign, the defendants received a letter from the plaintiff seeking a meeting. This meeting took place in Perth on 8 March 2000 between the defendants and one Steve Lewis ("Lewis"). During the course of the meeting Lewis advised the defendants that the plaintiff would approach Ruys to see if he would reconsider his decision not to sign the deed of priority. Lewis advised the defendants that if Ruys would not sign the deed then the plaintiff would require repayment of the overdraft facility. There was some further discussion with Lewis as to how matters would proceed and what would happen if the overdraft was not paid out. It appears that there were a number of telephone discussions between Lewis and the defendants subsequent to this meeting, but nothing of significance was discussed.
5 On 4 April 2000 the defendants received a letter from the plaintiff advising that the overdraft had been cancelled and requiring payment of the outstanding balance of the overdraft within seven days. When the overdraft was not paid out the plaintiff initiated these proceedings.
6 In fairness to the plaintiff and its officers it must be said that much of what was put by the firstnamed defendant in his affidavit was disputed by the plaintiff. However, counsel for the plaintiff accepted that on a summary judgment application the defendant's version of events must be accepted unless it is inherently incredible: see Webster v Lampard (1993) 177 CLR 598. Clearly there is nothing in the firstnamed defendant's affidavit material which is inherently incredible.
7 It was submitted on behalf of the defendants that the representations made by the plaintiff's officers to the defendants were misleading and deceptive and gave rise to a cause of action under s 52 of the Trade Practices Act (Cwth) 1974. Section 52(1) of the Trade Practices Act is in the following terms:
"A corporation shall not, in trade or commerce, engage in conduct which is misleading or deceptive or likely to mislead or deceive."
8 The defendants' argument runs into a number of difficulties. First, it is not easy to discern what representations are said to be misleading and deceptive. As I understand the submission it was said that discussions with Lewis amounted to a representation that the plaintiff would provide the finance facility without alteration into the future. The evidence as to
(Page 5)
- what representation was made by Moss is thin and it is difficult to ascertain precisely what it is alleged was said by Moss to the defendants. The defendants' case lacks particularity: see Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109 at 113.
9 Secondly, it is not clear how it is alleged that the defendants relied upon what they were told by Moss about the provision of finance facilities. The firstnamed defendant in his affidavit says that had the defendants known finance would be withdrawn, they would have taken steps to obtain alternative finance (see par 27). However, once again there is no detail - there is no indication of which other financial institution might have been approached. There also is no financial information provided which might give some indication that an alternative financer would have been interested in providing the necessary facility.
10 Finally, and perhaps most importantly, there is no evidence to establish that any alternative finance was available. The availability of such an alternative is an essential element of any claim: see Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1. In the absence of any such evidence, the defendants have failed to establish that they have a viable counterclaim.
11 There should be judgment for the plaintiff in terms of the chamber summons.
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