NES Holding Company Pty Ltd as trustee for the Johnson Property Trust v Marshall

[2019] WADC 13

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   NES HOLDING COMPANY PTY LTD as trustee for THE JOHNSON PROPERTY TRUST -v- MARSHALL [2019] WADC 13

CORAM:   DEPUTY REGISTRAR HEWITT

HEARD:   22 JANUARY 2019

DELIVERED          :   5 FEBRUARY 2019

FILE NO/S:   CIV 1442 of 2018

BETWEEN:   NES HOLDING COMPANY PTY LTD as trustee for THE JOHNSON PROPERTY TRUST

First Plaintiff

CAMERON ASHLEY JOHNSON in its own capacity and as trustee for THE CAJ PHYSIOTHERAPY TRUST

Second Plaintiff

AND

ROBERT JOHN MARSHALL

HELEN VERONICA MARSHALL

First Defendants

ANDREW VAUGHAN  BLAKE

Second Defendant

Catchwords:

Practice and procedure - Summary judgement application - Turns on its own facts

Legislation:

Nil

Result:

Summary judgement ordered

Representation:

Counsel:

First Plaintiff	:	Mr A P Hershowitz
Second Plaintiff	:	Mr A P Hershowitz
First Defendants	:	In person
Second Defendant	:	In person

Solicitors:

First Plaintiff	:	K&L GATES
Second Plaintiff	:	K&L GATES
First Defendants	:	In Person & In person
Second Defendant	:	In person

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

Nil

DEPUTY REGISTRAR HEWITT:

1. This action was commenced by a writ of summons filed on 23 April 2018.  In due course a statement of claim was filed which established that the cause of action pursued by the plaintiffs against the defendant arose under the terms of a deed of settlement dated on or about 27 October 2017.

2. Thereafter the plaintiff filed an application for summary judgment.  The effect of the deed was to settle a dispute which had arisen between the various parties concerning a trust called 'The 29 Wellington Street Unit Trust'.  In essence the relevant terms of the deed were the sale by the plaintiffs of one of the units in the unit trust and the payment by the defendants of monies made due by that sale comprising $128,571 being an amount defined as the balance owing and a further $29,867.40 by way of repayment of a loan. 

3. Additionally, the deed provided that an audit would be taken of the trust fund and any further monies found to be due by the defendants to the plaintiffs would be paid by them.

4. It is common ground that the deed existed and was signed by all relevant parties.  It is also common ground that the sums which were required by the terms of the deed to be paid have not been paid.  There is also no dispute that the deed provided that in the event of non‑payment interest at various rates would be payable, those rates began at 10% per annum accruing daily calculated from 27 October 2017 but excluding the date of payment and thereafter at the rate of 20% per annum.  Likewise there is no dispute that such interest has not been paid.

5. I do not propose to recite the cases here, save to say that it is a well‑established principle that summary judgment in an action should only be granted in the clearest of cases and the court is satisfied that there is no defence to the claim nor any other reason to require the matter to go to trial.

6. The case brought by the plaintiffs is a powerful one and the fact that the document upon which it relies is a deed, strengthens that position.  Prima facie I consider that the plaintiffs have made out a case for judgment and the onus therefore falls upon the defendants to establish that they have a defence or alternatively there is some other reason why the plaintiff should be held out of a judgment.

7. The defence advanced by the defendants is set out in the affidavit of Andrew Warne Blake sworn 26 July 2018 and filed on that day.  The relevant portion of that affidavit is par 5, which is in the following terms:

   The defendant signed the deed, prepared by the plaintiffs, on the understanding that the deed was open to variations, claims and other adjustments as stated in the deed agreed terms including the deed background (1.1), liabilities (1.1), settlement payment (2.2 - 2C) 6.

8. Paragraph 1.1 of the deed is a definitions clause which occupies approximately one page of the document and contains a great number of definitions.  I am unable to see anything in any of those matters which supports the proposition advanced by the deponent of the affidavit that the deed was open to variations.  Particular reference is made to the item concerning liabilities.  There is in fact no item called liabilities but there is an item called liability which is defined as follows:

   Liability includes all liabilities, losses, expenses, costs (including legal costs on a full indemnity basis) and fees of whatever description. 

9. I am unable to see how that definition in any way advances the proposition advanced by the deponent and upon which the defendants rely.

10. The next identified portion of the deed which is said to support the defendants' position is 2.2C.  Clause 2.2C refers to the audit which is required to be undertaken of the trust fund.  That clause and previous clauses provide that the defendants pay to the plaintiffs:

    Any other amounts owing to NES and C Johnson as determined by the audit or as otherwise agreed by the parties.

11. In my opinion that clause does not support a contention the deed was open to variation claims and other adjustments.  What it says is that if as a result of the audit further sums are shown to be owing by the defendants to the plaintiffs they are required to be paid by the defendants to the plaintiffs.  The clause is simply a mechanism by which a further sum of money may be identified, quantified and made payable by the defendants to the plaintiffs.  It is not a vehicle for adjustment, other than by agreement, of the sums which are expressed in liquidated terms and are referred to in the clause concerning settlement.

12. In an earlier judgment on another issue which was of concern in this action I described the attitude of the defendants to the execution of the deed as a step in the negotiation of an outcome.  The deed is not a step in a negotiation, the deed is an outcome of the negotiation.  It was signed with due formality by the parties to be charged and there is no basis which has been advanced which would deny the plaintiffs the right to the performance of the terms which are contained in it.  As a consequence I am of the view that the plaintiffs' summary judgment application should be allowed and the defendants should be ordered to pay the plaintiffs the sum of $165,239.10 together with interest on that sum at 20% per annum from 5 April 2018.

13. Additionally, costs are sought on an indemnity basis.  Awarding of costs on such a basis is supported by par 2.6 of the deed which provides such costs may be recovered as a direct or indirect result of any breach or non‑performance of the deed by the defendants.  Accordingly there is a contractual basis for awarding indemnity costs but some aspects of the way in which this action has been conducted and in particular the need to join a further plaintiff may require attention.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

LF
Court Officer

4 FEBRUARY 2019