Oceaneer Marine Brokers Pty Ltd v Sundown Cruiser Sales Pty Ltd
[2018] WADC 161
•4 DECEMBER 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: OCEANEER MARINE BROKERS PTY LTD -v- SUNDOWN CRUISER SALES PTY LTD [2018] WADC 161
CORAM: REGISTRAR KUBACZ
HEARD: 23 NOVEMBER 2018
DELIVERED : 4 DECEMBER 2018
FILE NO/S: CIV 4666 of 2017
BETWEEN: OCEANEER MARINE BROKERS PTY LTD
Plaintiff
AND
SUNDOWN CRUISER SALES PTY LTD
First Defendant
HORIZON BOATS (QLD) PTY LTD
Second Defendant
GARY WAHLSTEDT
Third Defendant
Catchwords:
Practice and procedure - Order 16 and 20 Rules of the Supreme Court 1971 (WA) - Defendant's application for summary judgment and strike out - Leave to bring summary judgment out of time - Turns on own facts
Legislation:
Nil
Result:
Leave refused
First Defendant's application dismissed
Representation:
Counsel:
| Plaintiff | : | Mr N D C Dillon |
| First Defendant | : | Mr G J Carter |
| Second Defendant | : | No appearance |
| Third Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Hager Grubb & Partners Lawyers |
| First Defendant | : | Greg Carter Barrister & Solicitor |
| Second Defendant | : | Not applicable |
| Third Defendant | : | Not applicable |
Case(s) referred to in decision(s):
Barrick Gold of Australia Ltd v FL Smidth Inc [No 2] [2007] WASC 186
Knights Capital Group Ltd v Bajada and Associates Pty Ltd [2016] WASC 69
Marcon Pty Ltd v Kerman Contracting Pty Ltd [2015] WASCA 7
Michael v Nicolson (Unreported, WASC; Library No 950660S, 1 December 1995)
Newmont Power Pty Ltd v Barrick Gold of Australia Ltd [2008] WASCA 74
Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd (2006) 33 WAR 1
REGISTRAR KUBACZ:
This is the first defendant's application for the plaintiff's re‑amended statement of claim to be struck out as against it pursuant to O 20 r 19(1)(a) and (c) of the Rules of the Supreme Court 1971 (RSC) and for summary judgement pursuant to O 16 r 1 RSC.
Both applications have been bought well out of the 21 day period allowed to bring each application under the RSC, however leave to bring an application out of time has only been sought in relation to the summary judgment application.
Application to strike out - delay
Order 20 r 19(3) RSC states that any application to strike out pleadings must be made within 21 days of the service of any pleading or amended pleading to which the application refers. There is no provision in the rule to allow for an extension of time to be given or application to be made out of time with leave of the court.
Any application to bring such an application out of time therefore is reliant on the court's inherent discretion to allow such an application of an extension of time to make the application can only be justified if it is established that the interest of justice require it: Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd (2006) 33 WAR 1, 19.
There has been no application by the first defendant seeking leave to bring an application under O 20 r 19(3) of the RSC out of time. Counsel for the first defendant did not address this matter in either written or oral submissions.
In the absence of any application or evidence as to justify the delay and given that the first defendant is nearly three months out of time to make this application I dismiss the first defendant's application to strike out the plaintiff's re‑amended statement of claim against the first defendant.
Defendant's summary judgement
Order 16 r 1 RSC provides that:
A defendant to any action may within 21 days after appearance or at any later time by leave of the Court, apply to the Court for summary judgment, and the Court, if satisfied that the action is frivolous or vexatious, that the defendant has a good defence on its merits or that the action should be disposed of summarily or without pleadings may order that judgment be entered for the defendant with or without costs.
The principles in relation to a defendant's summary judgment application are well settled and the jurisdiction to grant summary judgment should be reserved for the clearest of cases where there is a high degree of certainty about the ultimate outcome of the action if it were allowed to go to trial: Knights Capital Group Ltd v Bajada and Associates Pty Ltd [2016] WASC 69, 40 (Pritchard J); Marcon Pty Ltd v Kerman Contracting Pty Ltd [2015] WASCA 7.
Delay in bringing the application
The plaintiff filed a writ with a statement of claim on 20 December 2017 naming the first defendant as Sundown Cruiser Sales Pty Ltd (ACN 086 013 596) Horizon Boats (QLD) Pty Ltd (CAN 600 152 869). This writ was served on the first named first defendant on 8 January 2018 and on the second named first defendant on 10 January 2018.
On 25 January 2018, the plaintiff filed an amended writ and statement of claim separating the first defendants so that Sundown Cruiser Sales Pty Ltd (ACN 086 013 596) became the first defendant and Horizon Boats (QLD) Pty Ltd (ACN 600 152 869) became the second defendant.
Memorandum of appearances were filed on 31 January 2018 by the second defendant and on 19 February 2018 by the first defendant.
The plaintiff filed and served its re‑amended statement of claim on 6 July 2018.
The first defendant filed its summary judgement application on 7 September 2018, some seven months after its appearance was filed. In the application filed on 7 September 2018, the first defendant failed to seek leave to bring the application out of time as required by O 16 r 1. It therefore filed an amended chamber summons on 1 October 2018 seeking the leave. This is therefore some eight months after its appearance was filed.
In making an application outside the 21 day period the onus is on the defendant to justify the delay by affidavit evidence. The absence of such is fatal to an application under this order: Michael v Nicolson (Unreported, WASC; Library No 950660S, 1 December 1995); Barrick Gold of Australia Ltd v FL Smidth Inc [No 2] [2007] WASC 186 [10]. If there is a delay, which in this case is significant, it must be explained: Barrick Gold of Australia Ltd v FL Smidth Inc [No 2] [16]; Newmont Power Pty Ltd vBarrick Gold of Australia Ltd [2008] WASCA 74.
In order to justify and or explain the delay, the first defendant filed an affidavit of Gregory James Carter dated 1 October 2018. No submissions were made by the first defendant's counsel either in writing or orally before me and I find the absence of such quite perplexing given the lengthy delay in bring the application and given that seeking leave to proceed is pivotal in opening the door for the first defendant to proceed with its application for summary judgment.
The affidavit of Gregory James Carter dated 1 October 2018 provides little if any evidence explaining or justifying the delay in bringing the application. The substance of the affidavit is limited to five paragraphs referring to nine pieces of correspondence passing between the plaintiff and first defendant allegedly asking the plaintiff to discontinue the proceedings against the first defendant and two difference stages of the proceedings. Unfortunately, the letters referred to were not annexed to the affidavit providing me with no insight or evidence as to the content of that correspondence and its relevance to the application for leave or to determine whether or not they went to the subject of a proposed summary judgment application.
The remainder of the affidavit attests to a request being made to the plaintiff to discontinue the proceedings against the first defendant in par 5, an statement that the plaintiff did not agree to discontinue proceedings in par 9 and an assertion that the deponent has therefore been instructed to make the application for summary judgment at par 10.
I am at a loss to see how this affidavit evidence fulfils the criteria enunciated in Barrick Gold of Australia Ltd v FL Smidth Inc [No2] and it does little, if anything, to explain the seven month delay in bringing this application. I am therefore not satisfied that the first defendant has discharged the onus of justifying the delay by affidavit evidence and the absence of this is therefore fatal to this application and leave to bring the application out of time is refused.
The substantive application
Given that leave has been refused, I do not need to deal with the substantive application for summary judgement pursuant to O 16 r 1 RSC in any great detail.
However, if I had decided to grant leave to the first defendant, I would have refused summary judgement for the first defendant.
The affidavit evidence before me makes it clear that there is a fundamental dispute of fact, which in turn will influence the legal interpretation as to how the various agreements between the plaintiff and first defendant should be construed. This can only be determined by hearing the evidence of the witnesses, which I am not able to do and must be done by a Judge. I am not satisfied that there is a high degree of certainty about the ultimate course of the action or that the first defendant has an uncontroverted defence supported by the evidence to allow this matter to be disposed of summarily.
These issues need to be determined by a judge during the trial process and this does therefore does not fulfil the criteria required to be successful in a summary judgement application.
The first defendant's application is therefore dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AC
COURT OFFICER4 DECEMBER 2018
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