Parkridge Group Pty Ltd v Shorescape Holdings Pty Ltd t/as Summit Realty South West
[2011] WADC 153
•22 SEPTEMBER 2011
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: PARKRIDGE GROUP PTY LTD -v- SHORESCAPE HOLDINGS PTY LTD t/as SUMMIT REALTY SOUTH WEST [2011] WADC 153
CORAM: DEPUTY REGISTRAR HARMAN
HEARD: 5 SEPTEMBER 2011
DELIVERED : 22 SEPTEMBER 2011
FILE NO/S: CIV 1990 of 2010
BETWEEN: PARKRIDGE GROUP PTY LTD
Plaintiff
AND
SHORESCAPE HOLDINGS PTY LTD t/as SUMMIT REALTY SOUTH WEST
Defendant
Catchwords:
Practice - Practice under the Rules of the Supreme Court of Western Australia 1971 - Application to strike out defence - Turns on its facts
Legislation:
Nil
Result:
Application dismissed
Representation:
Counsel:
Plaintiff: Mr N F Manucheri
Defendant: Mr A J Musikanth
Solicitors:
Plaintiff: Civic Legal
Defendant: Jackson McDonald
Case(s) referred to in judgment(s):
Nil
DEPUTY REGISTRAR HARMAN: The plaintiff applied to strike out the defence and for summary judgment.
By s 60(4) of the Real Estate and Business Agents Act 1978 a commission received in contravention of subsections (1) and (2) may be recovered summarily as a debt.
By par 10 of the statement of claim the plaintiff pleads the relationship between the parties as follows:
At all material times the defendant acted as the plaintiff's real estate agent, as defined in the Act, for the sale of land in Parkridge Estate.
Thereafter it gives particulars of the land that comprised Parkridge Estate and of commissions paid to the defendant upon the sale of specified lots. At par 13 it pleads:
Contrary to the provisions of Section 60 of the Act the Defendant failed to obtain a valid appointment in writing and signed by the Plaintiff or a person lawfully authorised to sign on behalf of the Plaintiff, to act in the capacity of the Plaintiff's real estate agent in relation to the sale of each and every block comprising the Land.
The defendant responds to par 10 as follows:
Save to say that at material times the Defendant acted as a real estate agent for the Plaintiff for the sale of the land in Parkridge Estate, the defendant does not admit the allegations in paragraph 10 of the statement of claim.
As to par 13, it pleads as follows:
The defendant denies that the allegations contained in paragraph 13 of the statement of claim.
I have dismissed the application for judgment, founding my decision on the fact that evidence to the effect that the defendant had failed to comply with the requirements of s 60 of the Real Estate and Business Agents Act was insufficient to discharge the onus.
In the application to strike out the defence the plaintiff also carries the onus. In essence the plaintiff's submissions were that the defences raised could not withstand the case put by the plaintiff on the summary judgment application. To that extent I consider that the defendant's counsel was accurate in portraying the plaintiff's submissions as relating to each application. Be that as it may there is scope to consider that disposal of the summary judgment application for the reason that I gave leaves the plaintiff's case in relation to the defence unanswered.
The defendant characterised features of its defence as being that it had complied with s 60 of the Act; that the plaintiff had either waived its right to rely upon s 60 or is now estopped from so doing; that it would be contrary to public policy to permit recovery of the commissions; and that recovery of some debts would be time barred.
The first defence rests on the proposition that there is sufficient documentary evidence generated by the transactions between the parties associated with the sale of each block to meet the requirements of s 60. In the event that at trial the defendant was put to the task of establishing its case there was nothing to suggest that its pleading was insufficient to raise the issue of statutory interpretation and the impact of particular features of the context in which the relationship between the parties was established. In particular that the guiding mind of the plaintiff and its project manager were each real estate agents.
The last point has a bearing upon other features of the defence: waiver, estoppel and whether in paying the commissions the plaintiff was in pari delicto with the defendant. There was no submission that as allegations of material fact the defendant's pleadings were insufficient. Ultimately the plaintiff's case was no more than that the statute or the evidence presented on the application for judgment would not permit the defendant to succeed.
The limitation defence is straightforward: that selected either operates on the plaintiff's case or does not.
In my opinion there is no merit in the application and it ought to be dismissed.
Because upon the conclusion of the hearing of the summary judgment application I indicated that I would receive written submissions in relation to costs, I will simply publish the reasons at this point without reconvening the hearing and will await the submissions of the parties. As I recall the discussion with counsel at the conclusion of the hearing, in the event that neither party sought a relisting of the application I would simply make a determination in relation to costs without the need for the parties to further attend. It was only at that point that I was alerted to the fact that the strike out application had not been determined. In my opinion the fact that I have now determined the strike out application need not change what I had proposed. If neither party seeks to have the application relisted I will simply record that that application too was dismissed. I would add that in my opinion there is nothing to preclude a court from making different orders for costs on different parts of an application. I will now await those submissions and in the absence of a request for a relisting, if I consider that I am able to make a determination in relation to costs upon the written submissions; all questions raised by the application will have been answered.
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