Peh v KBRG Australia Pty Ltd - [2024] WASC 253

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   PEH v KBRG AUSTRALIA PTY LTD & ORS [2024] WASC 253
CORAM:   MASTER RUSSELL
HEARD:   20 FEBRUARY 2024
DELIVERED          :   15 JULY 2024
FILE NO/S:   CIV 1764 of 2023
BETWEEN:   SOON LI PEH
First Plaintiff
HAN EE VAL PEH
Second Plaintiff
AND
KBRG AUSTRALIA PTY LTD (ACN 167 395 066)
First Defendant
GLOBAL SKE-R AUSTRALIA PTY LTD (ACN 159 170 751)
Second Defendant
AMERALD MELVILLE AUST PTY LTD (ACN 165 553 364)
Third Defendant

Catchwords:

Practice and procedure - Summary judgment - Enforcement of settlement agreement executed at mediation - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 14, O 14 r 1, O 14 r 2(1), O 14 r 3, O 59 r 9(1), O 59 r 9(2)

Result:

Application granted
Judgment entered for the plaintiffs

Category: B

Representation:

Counsel:

First Plaintiff	:	Mr A P Hershowitz
Second Plaintiff	:	Mr A P Hershowitz
First Defendant	:	Mr J Ling
Second Defendant	:	Mr J Ling
Third Defendant	:	Mr J Ling

Solicitors:

First Plaintiff	:	Robertson Hayles Lawyers
Second Plaintiff	:	Robertson Hayles Lawyers
First Defendant	:	Spyker Legal
Second Defendant	:	Spyker Legal
Third Defendant	:	Spyker Legal

Cases referred to in decision(s):

Bialosowski Administrator of Est of P Bialosowski v Bialosowski [2023] WASC 173
Deputy Commissioner of Taxation v Lafferty [2017] WASC 257
Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109
Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14
Wallingford v Mutual Society (1880) 5 App Cas 685
Westpac Banking Corporation v Anderson [2017] WASC 106

MASTER RUSSELL:

Overview

In 2018, the plaintiffs, Soon Li Peh and Han Ee Val Peh, entered into share sale agreements and shareholder agreements with each of the defendants, KBRG Australia Pty Ltd (KBRG), Global Ske-R Australia Pty Ltd (formerly known as Amerald Shepperton Australia Pty Ltd) (Global) and Amerald Melville Aust Pty Ltd (Amerald) and Foo Kuan David Lian (David Lian).
The plaintiffs, defendants and David Lian were involved in a property development venture involving a number of properties owned by each of the defendants. Disputes arose between the plaintiffs, the defendants and David Lian and, in April 2020, the plaintiffs commenced proceedings against each of the defendants and David Lian in the High Court of Singapore (Singapore Proceedings).
David Lian was declared bankrupt in the High Court of Singapore on 29 April 2021.
On 21 November 2022, the plaintiffs, their solicitors, and each of the defendants represented by their solicitors attended a mediation in the Singapore Mediation Centre of the Supreme Court of Singapore. During the mediation, and after various drafts had been exchanged, a settlement agreement was executed by or on behalf of each of the parties by which they agreed to settle the Singapore Proceedings (Settlement Agreement).
The relevant terms of the Settlement Agreement are set out in more detail…

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.

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Details

Case: [2024] WASC 253
Decision Date: 15 JULY 2024

CaseChat Overview and Summary

In the case of Peh v KBRG Australia Pty Ltd, the plaintiff, Ms Peh, sought to enforce a settlement agreement executed during a mediation process. The dispute arose out of a previous mediation held in Singapore, where a settlement agreement was reached between Ms Peh and the defendants, KBRG Australia Pty Ltd and others. The defendants, however, refused to honour the terms of the settlement agreement, prompting Ms Peh to seek enforcement through the Australian court system. The primary legal issue before the court was whether the settlement agreement was binding and enforceable under Australian law. This involved determining whether the procedural requirements for enforcing the agreement were met and whether the defendants had a valid defence to the enforcement application.

The court considered the burden of proof in the context of an application for summary judgment. It was established that the plaintiff must demonstrate a prima facie case that the claim is valid and there is no defence. If the plaintiff's affidavit substantiates these points, the burden shifts to the defendant to provide sufficient details of any arguable defence or reason why a trial should proceed. The court noted that Ms Peh had fulfilled the procedural requirements under RSC O 14 and that there was no dispute about the mediation or the execution of the settlement agreement by the defendants' representative, Seng Fai Chan. The defendants' argument that Chan did not have authority to execute the agreement was rejected as unsupported by the evidence.

The court ultimately concluded that Ms Peh had established a prima facie case for the enforcement of the settlement agreement. The defendants failed to provide any arguable defence or reason for a trial. Consequently, the court granted Ms Peh's application for summary judgment, enforcing the settlement agreement as executed at the mediation. The final orders included the enforcement of the settlement agreement, with costs awarded to the plaintiff.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The plaintiff bears the burden of persuading the court that the claim is a good one and there is no defence. If the plaintiff's affidavit in support of an application makes out a prima facie case on these two matters, the evidentiary burden passes to the defendant to show there is an arguable defence or another reason there ought to be a trial.[39][39] Westpac Banking Corporation v Anderson [2017] WASC 106 (Pritchard J) [53] - [54], [103]. See also Deputy Commissioner of Taxation v Lafferty [2017] WASC 257 (Tottle J) [54] and the authorities referred to. A defendant seeking to demonstrate an arguable defence or some other reason why there ought to be a trial must condescend to particulars and provide sufficient details of their defence.[40][40]Deputy Commissioner of Taxation v Lafferty [54], citing Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109 (Brinsden J), 113; Wallingford v Mutual Society (1880) 5 App Cas 685, 704 (Lord Blackburn). The plaintiffs have complied with the procedural requirements under RSC O 14. Ms Peh deposes to the facts verifying the claim and to her belief on behalf of the plaintiffs that there is no defence to the claim. It is not disputed that there was a mediation in respect of the dispute the subject of the Singapore Proceedings on 21 November 2022. Nor is it disputed that Mr Seng Fai Chan appeared at the mediation as the defendants' representative,[41] and executed the Settlement Agreement for the defendants on that date. [41] ts 31. The defendants' submissions to the effect that Seng Fai Chan attended the mediation as the defendants' solicitor and did not have authority to execute the Settlement Agreement on their behalf[42] are not supported and are directly contradicted by the evidence. [42] ts 33 - 42. In the lead up to the mediation, emails were exchanged between the case officer from the Singapore Mediation Centre and the parties' lawyers to make arrangements for the mediation.[43] Relevantly, by email sent on 9 November 2022, the defendants' Singapore lawyers informed the case officer and others that legal counsel, George Pereira and Timothy Chan of Pereira & Tan LLC would attend the mediation in person (face to face) on behalf of the defendant companies and the defendants' representative, Seng Fai Chan, would attend by video conference.[44][43] Foo Affidavit [16], SYF-2.[44] Foo Affidavit SYF-2, pages 17 ‑ 18. On 21 November 2022, Timothy Chan of the defendants' Singapore lawyers sent an email to the case officer attaching the Agreement to Mediate dated 17 November 2022 signed by the defendants.[45][45] Foo Affidavit [18], SYF-3. The Agreement to Mediate is made between the Singapore Mediation Centre, each of the defendants (as Party A), the plaintiffs (as Party B) and the mediators. It is dated 17 November 2022 and signed in counterparts by each of the plaintiffs and by Mr Ngoi on behalf of each of the defendants.[46][46] Foo Affidavit SYF-3, pages 21 - 24. In the Agreement to Mediate, the defendants (Party A) and the plaintiffs (Party B) are defined together as 'the Parties'. By cl 1 of the Agreement to Mediate, 'the Parties agree to abide and give effect to the terms of any settlement reached between them as a result of the mediation'.