Osborne v Landpower Developments Pty Ltd (in Liq)
[2003] WASC 7
OSBORNE -v- LANDPOWER DEVELOPMENTS PTY LTD (IN LIQ) [2003] WASC 7
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASC 7 | |
| Case No: | CIV:1994/2002 | 22 NOVEMBER 2002 | |
| Coram: | ACTING MASTER CHAPMAN | 16/01/03 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Extension of time granted Leave to appeal granted Stay of execution refused | ||
| B | |||
| PDF Version |
| Parties: | RAMON RONALD THEODORE OSBORNE LANDPOWER DEVELOPMENTS PTY LTD (IN LIQ) (ACN 064 989 073) |
Catchwords: | Extension of time in which to appeal Leave to appeal Stay of execution |
Legislation: | Supreme Court Rules, O 3 r 5, O 63A r 3 |
Case References: | Hoyt's Proprietary Ltd v Spencer (1919) 27 CLR 133 Avery v World Wide Testing Services Pty Ltd (1990) 2 ACSR 834 Commissioner of Taxation v Myer Emporium Ltd (No 1) (1986) 160 CLR 220 Gallo v Dawson (No 2) (1992) 66 ALJR 859 Girando v Girando (1997) 18 WAR 450 Hope v RCA Photophone of Australia Pty Ltd (1937) 59 CLR 348 Powers & Ors v Hayes & Anor, unreported; SCt of WA (Templeman J); Library No 980324; 4 June 1998 PS Holdings v Verheggen [2000] WASC 31 Raeside Pty Ltd v Jymcroe Valley Pty Ltd, unreported; FCt SCt of WA; Library No 7196; 18 July 1988 Re Juson Pty Ltd; (1992) 8 WAR 13 Savings and Investment Bank Ltd v Gasco Investments (Netherlands) BV [1984] 1 All ER 296 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
LANDPOWER DEVELOPMENTS PTY LTD (IN LIQ) (ACN 064 989 073)
Respondent
Catchwords:
Extension of time in which to appeal - Leave to appeal - Stay of execution
Legislation:
Supreme Court Rules, O 3 r 5, O 63A r 3
Result:
Extension of time granted
Leave to appeal granted
Stay of execution refused
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Mr C P Stokes
Respondent : Mr T H Brickhill
Solicitors:
Applicant : Chris Stokes & Associates
Respondent : Brickhills
Case(s) referred to in judgment(s):
Hoyt's Proprietary Ltd v Spencer (1919) 27 CLR 133
Case(s) also cited:
Avery v World Wide Testing Services Pty Ltd (1990) 2 ACSR 834
Commissioner of Taxation v Myer Emporium Ltd (No 1) (1986) 160 CLR 220
Gallo v Dawson (No 2) (1992) 66 ALJR 859
Girando v Girando (1997) 18 WAR 450
Hope v RCA Photophone of Australia Pty Ltd (1937) 59 CLR 348
Powers & Ors v Hayes & Anor, unreported; SCt of WA (Templeman J); Library No 980324; 4 June 1998
PS Holdings v Verheggen [2000] WASC 31
Raeside Pty Ltd v Jymcroe Valley Pty Ltd, unreported; FCt SCt of WA; Library No 7196; 18 July 1988
Re Juson Pty Ltd; (1992) 8 WAR 13
Savings and Investment Bank Ltd v Gasco Investments (Netherlands) BV [1984] 1 All ER 296
(Page 3)
- ACTING MASTER CHAPMAN:
Application
1 The applicant in an application filed on 15 July 2002 seeks an extension of time in which to appeal and leave to appeal a decision of Master Bredmeyer made on 28 March 2002. Counsel for the applicant argues that the learned Master did not turn his mind to the question of whether or not an oral collateral agreement gave rise either to a defence or a set-off because he concluded there was no admissible evidence before him.
2 On the day upon which the learned Master delivered his reasons, the applicant sought to rely upon an affidavit which was sworn the day before annexing a number of documents which it is said were not available to the applicant at the time the special appointment was heard. The learned Master declined to allow the evidence in. The refusal is the basis upon which the applicant wishes to rely on appeal.
3 I must say, the way in which this matter has been dealt with by the applicant leaves much to be desired and should be taken into account when the question of costs is considered.
Affidavits
4 A number of objections were raised by the respondent as to the admissibility of the affidavit material filed by the applicant. The standard of the affidavits of the applicant was poor and counsel for the applicant made a number of concessions. In considering the objections, I am mindful of the fact that the affidavits have not been drawn by a legal practitioner and have not taken an overly technical approach.
5 In relation to the affidavit of the applicant sworn on 10 July 2002 (the first affidavit), it was rightly conceded that:
(1) the whole of par 5 be struck out;
(2) the words in par 6 beginning with the last word "as" on page two to the end of that sentence be struck out;
(3) the first and the last sentences of par 7 be struck out;
(4) in par 8, the words starting with "but" in line 4 to the end of the paragraph be struck out;
(5) pars 9 and 10 be struck out;
(Page 4)
- (6) subpars (b) and (c) of par 11 be struck out; in subpar (d)(i) the words beginning with "a" in line 3 to the end; the third sentence in subpar (d)(ii) be struck out and subpar (d)(v) be struck out;
(7) par 12(a) be struck out.
6 In relation to the affidavit sworn on 18 July 2002 (the second affidavit):
(1) Paragraphs 3 to 6 be struck out;
(2) the third sentence of par 7 be struck out;
(3) pars 8, 9 and 10 be struck out;
(4) the second par 11 be struck out;
(5) pars 12, 13 and 14 be struck out;
(6) par 15 from the word "but" at the end of the first line on page 6 to the end of the paragraph be struck out;
(7) par 16 be struck out with the exception of the second sentence;
(8) pars 17 and 18 be struck out;
(9) par 19(a) be struck out;
(10) pars 19 and 20 be struck out;
(11) par 22 be struck out;
(12) par 24 be struck out;
(13) par 25(a) be struck out.
7 As to the applicant's affidavit of 27 March 2002 (the third affidavit), which is annexure RRT-2.2 of the first affidavit, it is conceded that par 4 should be struck out.
8 These concessions came very late in the day, but the concessions should have been obvious. This is another matter which should properly be taken into account when considering the question of costs. Notwithstanding those concessions, counsel for the respondent objects to par 2 of the first affidavit on a number of grounds. The first is on the basis that it seeks to introduce the third affidavit, which affidavit was sought to be relied on, on 28 March 2002 before Master Bredmeyer. It was argued that it is not stated in the grounds of appeal why it is said the learned Master erred in not allowing the affidavit in.
(Page 5)
9 I accept that the grounds of appeal set out in the Minute of Notice of Motion of Appeal Summary Judgment Entered by Master Bredmeyer 28 March 2002 (the Minute) are not elegantly worded. It is apparent the document was not prepared by a legal practitioner, but when it is read as a whole, one can glean why it is said the learned Master erred. For example, it is apparent from pars (a) and (c) that the applicant is alleging the learned Master erred by denying the applicant natural justice. Given the nature of the application being dealt with by the learned Master, it is my view that it is open to the applicant to argue on appeal that the learned Master should have considered the contents of this affidavit. Whether or not he will succeed on that point is a matter for the Full Court. I consider there is sufficient there to consider this application and not to strike out this paragraph on that ground.
10 The respondent also complains of the content of the third affidavit. It has been conceded that par 4 should be struck out, but I would not strike out the remainder of the affidavit, albeit I agree there may be some difficulty as to the weight which will be given to some of it.
11 Many of the objections to the remaining paragraphs of the affidavits are made on the ground of relevance. I agree that the way in which the applicant has presented the material, the issues he wishes to agitate are not entirely clear. The position became somewhat clearer from the submissions of counsel for the applicant. I was referred to Hoyt's Proprietary Ltd v Spencer (1919) 27 CLR 133, where Knox CJ said, at pages 138 to 139:
"From the authorities referred to during the argument the following propositions may be deduced, viz: - (a) When parties negotiate an agreement by parol and subsequently reduce it to writing, the writing constitutes the contract (Knight v Barber (1)), or at any rate is conclusive evidence of its terms (Wake v Harrop (2)) subject, of course, to the right of either party to proceed for its rectification or rescission on sufficient grounds. (b) A distinct collateral agreement, whether oral or in writing, and whether prior to or contemporaneous with the main agreement be in writing, provided the two may consistently stand together so that the provisions of the main agreement remain in full force and effect notwithstanding the collateral agreement. This proposition is illustrated by the decisions in Lindley v Lacey (3), Erskine v Adeane (4), De Lassalle v Guildford (5) and other cases. (c) There may be a contract the consideration for which is the making of some other contract
(Page 6)
- (Heilbut, Symons & Co v Buckleton (6)). This proposition, properly understood, in no way conflicts with the other propositions set out above."
12 Counsel submitted that the affidavit material of 27 March is seeking to bring to the attention of the Court there was other material supporting the allegation of the contract in relation to Lot 24 that was made at the time and was the consideration for the entering into of the commercial leases of Lots 22, 23 and 25. It was submitted that, had the learned Master had before him the material set out in that affidavit, he may well have come to a different conclusion in relation to whether there was a collateral agreement which gave rise to either a defence or an equitable set-off.
13 As to par 3 of the first affidavit, I consider it is relevant and would not strike it out. It is apparent in par 4 the deponent could not have heard all of the conversation, but he obviously heard some. I would not strike this paragraph out.
14 When one has some understanding of the significance the applicant says should be placed on the collateral agreement, I consider pars 6, 7 and 8 are relevant. I do not consider par 11 is of sufficient relevance and would strike it out.
15 I am not sure how far the remainder of par 12 takes it. I agree with the submission of counsel for the respondent and would strike the remainder of that paragraph out. Whilst I have some difficulty with par 13, it does seem to have some relevance to the question of delay and I would not strike it out.
16 I turn now to consider the second affidavit. The first paragraph objected to is par 2. I consider this relevant and would not strike it out. As to the remaining portion of par 7, I consider this is relevant, particularly to the question of delay.
17 I consider the first par 11 to be relevant and would not strike this out. The relevance of the remainder of par 15 is not entirely clear, but I would not be inclined to strike it out.
18 I accept that par 19(b) does no more than annex a number of documents, but I do not consider it should be struck out. I consider pars 21 and 22 are relevant and would not strike them out.
(Page 7)
19 It is open on the wording or par 25 that the belief is based upon legal advice given and I would not strike it out.
20 The respondent sought to rely upon an affidavit of Gregory Bruce Dudley sworn 10 October 2002. Objection was taken to those parts of the affidavit which it is said refers to a without prejudice discussion. There is a clear conflict on the evidence contained in that affidavit and the affidavit of Bryan Francis Stokes sworn 18 October 2002, both as to the nature of the meeting and what was discussed at the meeting. I am not in a position to resolve such conflicts on this application.
Extension of time in which to appeal
21 Pursuant to O 63A r 3 of the Supreme Court Rules, the appeal is to be commenced within 21 days of the decision. The applicant filed papers for an extension of time and leave to appeal on 15 July 2002, some three months after the appeal should have been commenced. Pursuant to O 3 r 5 of the Rules, the Court has power to extend the time. The Court has a wide discretion to grant an extension of time, with the purpose to enable the Court to do justice between the parties.
22 A delay of three months is substantial. Having said that, when one examines the affidavit material remaining, at least two reasons for the delay emerge; namely, (1) the applicant is an accountant and May, June and July are busy months; (2) ongoing attempts were being made to settle the whole action, including the amount for which the learned Master had granted summary judgment.
23 In addition to that, the applicant was not legally represented at the time. Admittedly, he does not depose to the fact as to whether or not he was aware of the time limit which existed as one would normally expect. It is apparent he has struggled with the practice and procedure of the court. On what is before me, I am satisfied he has used his best endeavours to bring this matter on expeditiously and that justice will be best served by granting an extension of time.
Leave to appeal
24 On 15 July 2002, the applicant filed the Minute. I have already expressed my views as to its clarity. What the applicant should have filed was a draft notice of appeal stating (1) the order or judgment appealed against; (2) briefly but specifically the grounds of appeal and (3) the orders to be sought at the appeal.
(Page 8)
25 The Minute deals with the first and last matters, but the grounds of appeal are not as clear. The essence of the complaint of the applicant is that the learned Master declined to allow the applicant to rely upon the third affidavit and, thus, fell into error as he did not have all of the available evidence before him.
26 There was some dispute as to the reasons the learned Master declined to allow the material in and that is a matter which will need to be clarified, but it is not I think a determinative factor in considering this application.
27 In this case, the rights of the applicant have been substantially changed as the learned Master granted summary judgment against him for part of the sum claimed by the respondent. In those circumstances, leave will be more readily granted. Given the particular circumstances of this case, I am satisfied that the issues which the applicant sought to be brought before the learned Master were arguably relevant to the issues upon which he was called to determine. Should the learned Master be found in error in not allowing the affidavit to be relied upon, a substantial injustice would rest upon the applicant.
28 Given the circumstances of this case, I would grant the leave sought, but note the papers will need to be put in some order.
Stay of execution pending appeal
29 The Court has an unfettered discretion to stay execution pending an appeal, with the applicant carrying the onus of showing the circumstances are appropriate for the stay to be granted. It would appear that if a stay is not granted, the applicant is likely to be declared bankrupt. That in and of itself is not decisive. There is no evidence before me that bankruptcy would render the appeal nugatory, nor prevent the applicant proceeding with the appeal. In the circumstances, I would decline to grant the stay.
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