| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : NEWMAN -v- SCOOK & ANOR [2003] WADC 73 CORAM : MARTINO DCJ HEARD : 7 & 14 MARCH 2003 DELIVERED : 27 MARCH 2003 FILE NO/S : CIV 2695 of 2002 BETWEEN : WALLY NEWMAN Plaintiff
AND
DEAN GEORGE SCOOK
First Defendant
CAROL NORMA HARDIE
Second Defendant
Catchwords: Practice - Appeal from decision of Registrar - Plaintiff's application for summary judgment
Legislation: Nil
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Result:
Appeal allowed
Second defendant given leave to defend Representation:
Counsel:
Plaintiff : Mr S V Forbes
First Defendant : No appearance
Second Defendant : Mr H R Robinson
Solicitors:
Plaintiff : Paiker & Overmeire
First Defendant : No appearance
Second Defendant : Haydn Robinson
Case(s) referred to in judgment(s):
Fancourt & Anor v Mercantile Credits Limited (1983) 154 CLR 87
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Phillips Fox (a firm) v Westgold Resources NL & Ors [2000] WASCA 85
Case(s) also cited:
Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (1987) 162 CLR 549
Heppingstone v Stewart (1910) 12 CLR 126
Re Morris Catering (Australia) Pty Ltd (1993) 11 ACLC 919
Re Quatrovision Pty Ltd (In Liq) (1982) 1 ACLC 105
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1 MARTINO DCJ: This is an appeal by the second defendant against a decision of Registrar Kingsley delivered on 14 January 2003 granting the plaintiff's application for summary judgment against the second defendant in the sum of $69,000 plus interest. The Registrar's reasons referred to the plaintiff's application being against both defendants, that was an error.
2 The hearing before me was a re-hearing of the plaintiff's application for summary judgment. On the hearing of the appeal the second defendant filed an affidavit containing matters of evidence that were not before the Registrar. Because the appeal is a re-hearing the parties are permitted to adduce further evidence: Hazart Pty Ltd v Rademaker (1993) 11 WAR 26. 3 Summary judgment may only be granted if it is clear that there is no real question to be tried: Fancourt & Anor v Mercantile Credits Limited (1983) 154 CLR 87. 4 The claim made by the plaintiff is pleaded in the statement of claim as follows: "3. On 10 April 2001, the plaintiff, the Principal Debtor and the first and second defendant's (sic) entered into a written Put and Call Option Agreement in terms whereof the Principal Debtor agreed to purchase ordinary fully paid shares in Tuart Resources Limited ('the shares') from the plaintiff for a consideration of $69,000 ('the Agreement'). … 5. Pursuant to the Agreement, and on or about 10 April 2001, the plaintiff forwarded to the Principal Debtor notice at its facsimile number calling upon the Principal Debtor to purchase the shares for an amount of $69,000 calculated at 0.115c per share, being a price per share in excess of the closing price per share as quoted on the Australian Stock Exchange at 14h00 Western Standard time on 31 August 2001. 6. In compliance with its obligations under the Agreement, the plaintiff transferred the shares to the Principal Debtor. …
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7. In breach of the Put an Option agreement (sic), the Principal Debtor has failed to pay to the plaintiff the sum of $69,000 or any part thereof. … 9. Under the provisions of the Agreement, and on the 10 April 2001, the first and second defendant, as guarantors, jointly and severally guaranteed to the plaintiff the payment of all moneys payable by the Principal Debtor to the plaintiff and performance of all of the Principal Debtor's obligations in terms of the Agreement. 10. In the premises, the first and second defendants are jointly and severally indebted to the plaintiff in the sum of $69,000 together with interest and costs. 11. Despite demand, the first and second defendant have failed and/or refused and/ or neglected to pay the said sum or any part thereof to the plaintiff." 5 The principal debtor referred to in the statement of claim is Challiston Pty Ltd. 6 The plaintiff's application for summary judgment was supported by an affidavit by him verifying the claim. Annexed to the affidavit is a copy of the agreement pleaded in par 3 of the statement of claim. It is expressed to be a deed. It has not been executed by the plaintiff. There is no explanation for this absence in his affidavit. 7 Also annexed to the affidavit is a copy of an undated notice from the plaintiff to Challiston Pty Ltd calling on Challiston to purchase shares in Tuart Resources Ltd for $69,000. The plaintiff deposes that he sent that notice by facsimile to Challiston on or about 10 April 2001. A third annexure to the affidavit is a letter from Challiston to the plaintiff dated 20 September 2001 acknowledging that the agreement requires Challiston to pay the plaintiff the agreed sum within 28 days of the transfer of the shares and requesting an extension of time for one month. 8 The second defendant's submissions in opposition to the plaintiff's application for summary judgment raised three grounds in opposition to the application:
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1. there was no agreement between the plaintiff and the defendants; 2. the claim against the second defendant could not be pursued because Challiston Pty Ltd had been placed into administration; and 3. exercise of the option which must be exercised strictly in accordance with the agreement: Phillips Fox (a firm) v Westgold Resources NL & Ors [2000] WASCA 85. 9 Counsel for the second defendant withdrew the second ground and relied only upon the first and third. In relation to the first ground the second defendant filed an affidavit sworn on 13 March 2003. In that affidavit the second defendant deposes that the plaintiff did not sign or return the form of agreement to either Challiston, the first defendant or to her and at no time did the plaintiff give written or oral notice to Challiston, the first defendant or her that he accepted the agreement. 10 By the affidavit the second defendant also deposes that the facsimile from the plaintiff calling on Challiston Pty Ltd to purchase shares from the plaintiff was not received by Challiston, the first defendant or the second defendant. That may not be correct as it would appear from an affidavit of the first defendant sworn in Supreme Court proceeding that the notice had been received. The first defendant is a director of Challiston. 11 Counsel for the plaintiff submitted that the notice effectively communicated the plaintiff's acceptance of the offer to enter to the original agreement. However, that may not be correct because the option could only be exercised if the agreement had already been entered into. 12 It is my view that the fact that the deed which constitutes the agreement appears not to have been executed by the plaintiff and the fact that he may not have communicated to the other proposed parties to the agreement that he had accepted the agreement may mean that there is no agreement upon which the plaintiff can sue. It is adequate in my view for my reasons to be expressed in such tentative terms because of the onus that a plaintiff has in establishing his entitlement to summary judgment. I conclude that this issue warrants examination at a trial and for that reason leave to defend should be given to the second defendant. 13 Having reached that conclusion it is in my view preferable for me to express no view on whether the option has been exercised in accordance with the agreement. This matter would better be dealt with at a trial on oral and documentary evidence. |