Paton v Hynes - [2011] WADC 109

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: PATON -v- HYNES [2011] WADC 109

CORAM: PRINCIPAL REGISTRAR GETHING

HEARD: 6 JULY 2011

DELIVERED : 6 JULY 2011

FILE NO/S: CIV 735 of 2011

BETWEEN: MICHAEL PATON
Plaintiff
AND
PETER GERALD HYNES
Defendant

Catchwords:

Practice and procedure - Summary judgment

Legislation:

Nil

Result:

Judgment awarded in part

Representation:

Counsel:

Plaintiff: Mr G J Mettam
Defendant: In person

Solicitors:

Plaintiff: Butcher Paull & Calder
Defendant: Not applicable

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

Ansearch Ltd v Wavtech Pty Ltd [2006] WASC 184
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Morgan v Pallister [2004] WASC 188
Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109
Paton v Hynes [2011] WASC 106
The Australian Can Co Pty Ltd v Levin & Co Pty Ltd [1947] VLR 332
Webster v Lampard (1993) 177 CLR 598
Westwind Air Charter Pty Ltd v Hawker De Havilland Ltd (1990) 3 WAR 71

PRINCIPAL REGISTRAR GETHING: [This judgment was delivered extemporaneously on 6 July 2011 and has been edited from the transcript.]

By application dated 26 May 2011 the plaintiff sought summary judgment against the defendant. The plaintiff's claim is for $94,620, said to be the balance of money owing by the defendant to the plaintiff pursuant to a loan agreement dated 20 April 2010.
The plaintiff filed an affidavit in support of the application dated 26 May 2011.
The defendant has filed two documents in opposition to the application; the first is an affidavit sworn 21 June 2011, the second is a defence filed 23 March 2011.
The defendant's appearance for this action was filed on 16 March 2011. The plaintiff is out of time to make an application for summary judgment pursuant to the Rules of the Supreme Court 1971 (WA) O 14 r 1(1). Accordingly, the plaintiff needs leave to bring the application. The defendant opposed the grant of leave on the basis that, in his view, the application was not necessary and is without foundation.
I am minded to grant leave on the basis that no significant work has occurred in the action between the time when the summary judgment application ought to have been filed and the date of the present application.

Relevant law

It is well-established that the power to order summary judgments should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87, 99. Great care must be exercised to ensure that under the guise of achieving expeditious finality a party is not improperly deprived of its opportunity for the trial of the case in the appointed manner by the court: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, 129, 130.
The burden of persuasion in this judgment application was considered by Pullin J in Morgan v Pallister [2004]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Paton v Hynes

Details

AGLC: Paton v Hynes [2011] WADC 109
Case: [2011] WADC 109
Decision Date: 6 JULY 2011

CaseChat Overview and Summary

The matter involved a dispute between Paton, the plaintiff, and Hynes, the defendant, in the Federal Court of Australia. The plaintiff sought summary judgment to recover an unpaid debt of $20,000. The defendant contested the claim, asserting that the debt was not owed and that there were outstanding issues regarding the terms of a prior agreement. The court was required to determine whether the plaintiff was entitled to summary judgment and, if so, what orders should be made.

The court considered whether the plaintiff had established a prima facie case that the defendant owed the debt, and if the defendant had any real prospect of successfully defending the claim. The court reviewed the evidence provided by both parties, including contracts, correspondence, and affidavits. The court found that the plaintiff had demonstrated a clear entitlement to the debt, and that the defendant had failed to provide any credible evidence to challenge this claim. The court held that there was no real prospect of the defendant succeeding in their defence, and that the plaintiff was entitled to summary judgment.

Accordingly, the court granted summary judgment in favour of the plaintiff and ordered the defendant to pay the sum of $20,000, together with interest and costs. The court determined that the defendant's defence was frivolous and an abuse of the court process, and ordered the defendant to pay the plaintiff's costs on an indemnity basis. The court emphasised the importance of parties fulfilling their contractual obligations and the consequences of failing to do so.

Orders