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 later in these reasons. Relevantly, the defendants agreed to pay the plaintiffs AUD$800,000[1] within five months from the date of the lapse of absolute caveats as referred to in the Settlement Agreement.
[1] All references to $800,000 in these reasons are to Australian Dollars.
Following execution of the Settlement Agreement, the Singapore Proceedings were discontinued, and the absolute caveats lapsed on or about 7 December 2022. By letter dated 10 May 2023, the plaintiffs' solicitors gave notice of default to each of the defendants requiring payment of $800,000 payable to the plaintiffs under the Settlement Agreement to be made by 12 May 2023, failing which the plaintiffs would commence recovery proceedings.
The defendants have not paid the amount of $800,000 to the plaintiffs.
The plaintiffs commenced this proceeding on 17 July 2023 claiming payment of $800,000, alleged to be due and payable by the defendants under the Settlement Agreement. By chamber summons filed on 17 August 2023 (Application), the plaintiffs apply for summary judgment against the defendants pursuant to O 14 r 1 of the Rules of the Supreme Court 1971 (WA) (RSC).
The defendants oppose the Application. They dispute they are liable to pay the amount of $800,000 claimed by the plaintiffs, say they have a defence to the claim, and that there are questions to be tried. Amongst other matters, set out in more detail later in these reasons, the defendants claim the Settlement Agreement is unenforceable because the person who signed it on behalf of the defendants was not authorised to do so. They also seek to go behind the Settlement Agreement and argue that the plaintiffs' claim in the Singapore Proceedings should have been brought against David Lian, not the defendants, though this is not addressed in the evidence in any particular detail.
For the reasons that follow, the matters referred to in the affidavit filed by the defendants in opposition to the Application and in the submissions made on their behalf do not disclose an arguable defence to the plaintiffs' claim, nor persuade me there is any other good reason why there ought to be a trial of this action. Judgment will be entered for the plaintiffs.

Submissions and evidence relied on by the parties

In support of the Application, the plaintiffs rely on the affidavits of Han Ee Val Peh notarised on 7 August 2023 (Peh Affidavit), Kevin Desmond De Souza sworn on 17 January 2024 (De Souza Affidavit), Soon Yien Foo notarised on 17 January 2024 (Foo Affidavit), and an outline of submissions filed on 9 February 2024.
The defendants rely on an affidavit of Johnson Seng Chong Ngoi, the sole director of each of the defendant companies, sworn on 30 November 2023 (Ngoi Affidavit) and an outline of submissions filed on 15 February 2024.

Factual background

The factual background to, and the context in which, the plaintiffs' claim arises are set out in the Peh Affidavit. Other than in relation to the Settlement Agreement, those facts are not disputed.[2]
[2] Defendants' outline of submissions filed 15 February 2024 [2]; ts 29.
It is not necessary to set out all of the matters deposed to in the Peh Affidavit relating to the incorporation and shareholdings of each of the defendants, nor all of the background to the parties entering into the share sale agreements and shareholder agreements giving rise to the disputes between them. The plaintiffs' claim is to enforce the Settlement Agreement entered into at the mediation on 21 November 2022. What follows is a summary.
The first plaintiff, Soon Li Peh, is the second plaintiff, Han Ee Val Peh's, father. In about October 2017, the plaintiffs became acquainted with David Lian[3] who, at that time, was a director and shareholder of each of the defendant companies, which owned certain land.[4]
[3] Peh Affidavit [19].
[4] Peh Affidavit [14], [15], VP-5.
KBRG owned land situated at and known as:
(a)10 Wanaping Road, Kenwick in the State of Western Australia and being the whole of the land in Lot 7 on Plan 3775 in Certificate of Title Volume 1048 Folio 790 (Kenwick Land); and
(b)58 Strickland Street, South Perth in the State of Western Australia and being the whole of the land in Lot 11 on Plan 5716 in Certificate of Title Volume 1088 Folio 508 (South Perth Land) on 19 March 2014.[5]
[5] Peh Affidavit [8], [9], VP-2.
Global (then known as Amerald Shepperton Australia Pty Ltd),[6] owned land situated at and known as 356 Shepperton Road, East Victoria Park in the State of Western Australia and being the whole of the land in Lot 499 on Plan 2609 in Certificate of Title Volume 1295 Folio 154 (East Victoria Park Land).[7]
[6] Peh Affidavit [15], VP-5.
[7] Peh Affidavit [12], VP-4.
Amerald owned land situated at and known as 156 Melville Parade, Como in the State of Western Australia and being the whole of the land in Lot 34 on Plan 3352 in Certificate of Title Volume 1739 Folio 389 (Como Land).[8]
[8] Peh Affidavit [16], VP-6.
Between November and December 2017, the plaintiffs had discussions with David Lian about a property development venture involving the Kenwick Land, South Perth Land, East Victoria Park Land and Como Land (Properties).
On about 14 May 2018, the plaintiffs entered into:
(a)share sale agreements with:
(i)KBRG and David Lian to purchase 70 shares in KBRG for a consideration of $418,884.20;[9]
[9] Peh Affidavit [23], [25], VP-7.
(ii)Global (Amerald Shepperton Australia Pty Ltd as it then was) and David Lian to purchase 70 shares in Global for a consideration of $152,225.50;[10] and
[10] Peh Affidavit [23], [25], VP-8.
(iii)Amerald and David Lian to purchase 700 shares in Amerald for a consideration of $332,265,[11]
(Share Sale Agreements); and
(b)shareholder agreements with:
(i)KBRG and David Lian regulating the affairs and operations of KBRG and the development of the Kenwick and South Perth Land;[12]
(ii)Global (Amerald Shepperton Australia Pty Ltd as it then was) and David Lian regulating the affairs and operations of Global and the development of the East Victoria Park Land;[13] and
(iii)Amerald and David Lian regulating the affairs and operations of Amerald and the development of the Como Land,[14]
(Shareholder Agreements).
[11] Peh Affidavit [23], [25], VP-9.
[12] Peh Affidavit [24], [25], VP-7.
[13] Peh Affidavit [24], [25], VP-8.
[14] Peh Affidavit [24], [25], VP-9.
Between May and July 2018, the plaintiffs and David Lian discussed the proportionate share of financial contributions to be made by the parties in KBRG, Global and Amerald toward the property development venture. They agreed that the plaintiffs would contribute 70% towards meeting the expenses, which included the monthly mortgage payments in respect of the Properties, and David Lian would contribute 30%.[15]
[15] Peh Affidavit [28] - [29].
On 30 May 2018, the plaintiffs caused absolute caveats to be lodged over the Properties.[16]
[16] Peh Affidavit [30], [31], VP-11.
Ms Peh deposes that, from about February 2020, the plaintiffs became aware that David Lian had not been regularly contributing towards his share of the mortgage repayments for the Properties, and funds contributed by the plaintiffs towards the expenses, including the mortgage repayments and local council rates for the Properties, had not been applied to those expenses by David Lian and the defendants.[17]
[17] Peh Affidavit [32] - [34].
On 19 February 2020, lawyers instructed by the plaintiffs gave written notice under the Shareholder Agreements of their withdrawal from the property development venture.[18]
[18] Peh Affidavit [37].
In April 2020, the plaintiffs commenced the Singapore Proceedings against David Lian and each of the defendants to recover monies paid by the plaintiffs and, upon payment, to transfer their shares in each of those companies to David Lian. They also sought declarations in relation to the Shareholder Agreements.[19]
[19] Peh Affidavit [38].
On 29 April 2021, David Lian was adjudged bankrupt by the High Court of Singapore and a private trustee was appointed to his bankrupt estate.[20]
[20] Peh Affidavit [39] - [40], VP-12.
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. Mr Seng Fai Chan, the defendants' Australian lawyer and authorised representative, attended the mediation by video-link.[21]
[21] Foo Affidavit [13], [15].
A Settlement Agreement was executed by or on behalf of the plaintiffs and each of the defendants on 21 November 2022. A copy of the executed Settlement Agreement and the schedules to it is attached to the Peh Affidavit.[22]
[22] Peh Affidavit [41] - [42]; VP-13.

The Settlement Agreement

The Settlement Agreement is dated 21 November 2022 and is stated to be between the plaintiffs and the defendants, KBRG, Global and Amerald. It is signed in counterpart by each of the plaintiffs[23] and on behalf of each of the defendants by Seng Fai Chan as their authorised representative.[24]
[23] Peh Affidavit, VP-13, page 267.
[24] Peh Affidavit, VP-13, pages 283 - 284.
Although the defendants raise a number of matters they say give rise to a defence to the plaintiffs' claim, the defendants' submissions at the hearing of the Application focused on the validity of the Settlement Agreement. The defendants contend that Mr Chan did not have authority to agree a settlement and execute the Settlement Agreement on behalf of the defendants.
This is disputed by the plaintiffs, who refer to an Agreement to Mediate entered into between the parties and the mediators dated 17 November 2022, by which the plaintiffs say Mr Chan was authorised by the defendants to represent them in the mediation and to settle the disputes the subject of the mediation.
The recitals, though not forming part of the Settlement Agreement, set out the background to it. They refer to the Singapore Proceedings, to David Lian being adjudged bankrupt, to the mediation, and to the parties' desire to settle all claims each has or may have against the other arising from or relating to the Singapore Proceedings on the terms set out in the Settlement Agreement.
Relevantly, by cl 1, the plaintiffs and the defendants agreed, with no admission of liability:
… to a full and final settlement of any and all existing claims, counterclaims and/or liabilities, whether known or unknown, that each Party has or may have against another Party, arising from, relating to and/or in connection with [the Singapore Proceedings].
Provision is made for the usual releases, waiver, and discharge of liability upon payment of the sum referred to in cl 2.1.
Clause 2.1 provides that KBRG, Global and Amerald shall, within five months from the date of lapse of the absolute caveats over the Properties,[25] pay the plaintiffs the settlement sum of $800,000 by way of bank transfer to the account specified.
[25] As provided in cl 5.2.
Clause 5.2 provides that, upon receipt of the signed Settlement Agreement, together with the attached schedules, the plaintiffs shall allow the absolute caveats over the Properties to lapse on 7 December 2022.
Clause 5.3 provides that in place of the absolute caveats, the plaintiffs could lodge 'subject to claim' caveats over the Properties as security for payment of the settlement sum of $800,000.
Following entry into the Settlement Agreement:
(a)the plaintiffs lodged 'subject to claim' caveats over the Properties on 2 December 2022;[26]
(b)the absolute caveats over the Properties were allowed to lapse between 7 December 2022 and 13 December 2022; and
(c)a notice of discontinuance was filed in the Singapore Proceedings on 12 December 2022.[27]
[26] Peh Affidavit [44], VP-16.
[27] Peh Affidavit [44], VP-14, VP-15.
The defendants did not pay the $800,000 to the plaintiffs within five months of the lapse of the absolute caveats.
By letter dated 10 May 2023, the plaintiffs' lawyers gave notice of default to the defendants claiming payment of $800,000 payable under the Settlement Agreement by 12 May 2023, failing which the plaintiffs would commence recovery proceedings.[28]
[28] Peh Affidavit [45] - [47], VP-18.

These proceedings and the plaintiffs' application for summary judgment

The plaintiffs commenced these proceedings against the defendants on 17 July 2023.
The defendants each entered an appearance on 28 July 2023.
The Application was filed on 17 August 2023 within the 21-day time limit under RSC O 14 r 1. In essence, the plaintiffs claim that the defendants are liable to pay the $800,000 to them under the terms of the Settlement Agreement. Ms Peh deposes on behalf of the plaintiffs to her belief that the defendants have no defence to the claim or any part of it.
The plaintiffs have filed a memorandum seeking waiver of conferral under RSC O 59 r 9(2). I am satisfied that the plaintiffs' lawyers made several attempts to confer with the defendants' lawyers before filing the chamber summons but, through no fault of the plaintiffs or their lawyers, were unable to do so within the 21-day timeframe in which an application for summary judgment was required to be filed. In the circumstances, it is appropriate that an order be made under RSC O 59 r 9(2) waiving the requirement to confer.
Despite an application having been made for summary judgment, the defendants filed a defence on 20 November 2023 and an amended defence on 30 November 2023.

The defendants' submissions and opposition to the Application

The defendants deny they are liable to pay the amount of $800,000 claimed by the plaintiffs and, as has been referred to, say (amongst other things) that the Settlement Agreement was entered into without the authority of the defendants.
Mr Ngoi deposes in the Ngoi Affidavit that he purchased David Lian's share in the three defendant companies for one dollar each in June 2021.[29]
[29] Ngoi Affidavit [5].
Mr Ngoi states, amongst other matters, that he believes the plaintiffs are not creditors of the defendants. He believes that there is no dispute between the plaintiffs and the defendants' and the plaintiffs' cause of action is against David Lian.[30]
[30] Ngoi Affidavit [11] - [13].
He states that he believes the plaintiffs wrongly added the defendants as parties to the Singapore Proceedings, and that the plaintiffs' former solicitors misrepresented to the defendants that they were liable for the debt under the provisions of the Shareholder Agreements. He says that consequent to the misrepresentation, the defendants agreed to enter into the Settlement Agreement with the plaintiffs; which Seng Fai Chan executed on the defendants' behalf.[31]
[31] Ngoi Affidavit [16] - [17].
Mr Ngoi does not condescend to particulars or give any further detail as to the basis for these broad statements, which largely replicate what is pleaded, and unparticularised, in the amended defence filed on 30 November 2023.
Mr Ngoi also deposes, and it is submitted on behalf of the defendants, that the Settlement Agreement was not validly executed in accordance with s 127 of the Corporations Act 2001 (Cth), stating that on 21 November 2022, there were two directors of the defendants. It is submitted that neither of the defendants passed a company resolution to authorise the defendants' solicitor to sign the Settlement Agreement on their behalf.[32]
[32] Ngoi Affidavit [18] - [19].
Mr Ngoi also states, amongst other things, without elaboration or deposing to any facts in support, that:
(a)the plaintiffs do not have a valid cause of action against the defendants, are vexatious litigants and have commenced the proceedings to 'harass, annoy, frustrate, worry or cause financial loss and inconvenience to' the defendants;[33] and
(b)the proceedings against the defendants are an abuse of process and the plaintiffs have an ulterior motive in commencing them.[34]
[33] Ngoi Affidavit [21].
[34] Ngoi Affidavit [22].
Mr Ngoi states that, in the alternative, the defendants have not breached the Settlement Agreement because he has repeatedly disputed that the debt is owed in emails to the plaintiffs' lawyers in May 2023.[35] He does not depose to the basis of the dispute or identify or attach the emails referred to. Nor have such been identified or referred to in the defendants' written or oral submissions.
[35] Ngoi Affidavit [23].

Principles relating to summary judgment

The legal principles that apply to an application for summary judgment are well settled and are not in dispute.
An application under RSC O 14 must be supported by an affidavit verifying the facts upon which the claim is based and stating that, in the deponent's belief, there is no defence to the claim.[36]
[36] RSC O 14 r 2(1).
The power to grant summary judgment should be exercised with great care, and summary judgment should only be granted in the clearest of cases, where there is no real issue to be tried.[37]
[37] Westpac Banking Corporation v Anderson [2017] WASC 106 [104].

As the Court of Appeal said in Sutton Investments Pty Ltd v Realistic Investments Pty Ltd:[38]
Summary judgment will be granted only when there is no real question to be tried. The power to order summary judgment is one that should be exercised with great care: Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99. It is only in the clearest of cases, when there is a high degree of certainty about the ultimate outcome of the proceedings if it went to trial, that summary judgment ought properly be granted: Agar v Hyde[2000] HCA 41; (2000) 201 CLR 552 [57]; Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [46]; Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 [24], [53] - [55].
[38] Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14 [24].
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).

Disposition

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'.
Clause 3 of the Agreement to Mediate, which is headed 'Authorisation of Representatives', provides that 'The following persons are authorised to represent Party A … in the mediation and settlement of disputes …'. The person named as the representative of Party A, the defendants, is stated as Seng Fai Chan.
Mr Chan attended the mediation as the defendants' authorised representative. The defendants were also represented at the mediation by their Singapore lawyers, Mr George Pereira and Mr Timothy Chan of Pereira & Tan LLC.
After a negotiated outcome was reached between the plaintiffs and the defendants at the mediation:
(a)a draft settlement agreement was prepared by the plaintiffs' lawyers;
(b)the draft settlement agreement was then sent by email to Mr Pereira and Mr Chan of the defendants' Singapore lawyers;
(c)through the mediators, the defendants' lawyers communicated proposed amendments to the draft settlement agreement to the plaintiffs' lawyers; and
(d)the draft settlement agreement was revised and, after production of various rounds of amendments, a final draft settlement agreement was produced.[47]
[47] Foo Affidavit [21] - [22]. Copies of the email correspondence exchanged between the parties' lawyers on 21 November 2022 are attached to the Foo Affidavit, SYF-4.
The Settlement Agreement was executed by or on behalf of the plaintiffs and each of the defendants in counterparts on 21 November 2022. Copies of the schedules to the Settlement Agreement signed on behalf of the defendants by Mr Ngoi and his co‑director, Lynn Palm, were received by the plaintiffs' lawyers on 22 November 2022.[48]
[48] Foo Affidavit [24] - [27]. A copy of the executed Settlement Agreement and the schedules to it are attached to the Peh Affidavit [41] - [42], VP-13.
By cl 15 of the Settlement Agreement, the defendants confirmed that they had been given the opportunity to review and consider the agreement (including the opportunity to seek independent legal advice in relation to and/or in connection with all the materials provided for in the agreement) and agreed the terms of the agreement are fair and reasonable.
Clause 22 of the Settlement Agreement, headed 'Authority to Sign', provides 'Seng Fai Chan warrants that he has the authority to sign [the] agreement on behalf of [the defendants]'.
On the materials before me, I am satisfied that Seng Fai Chan had actual authority, as confirmed in the Agreement to Mediate, to represent the defendants at the mediation and to settle the dispute being mediated.
In any event, Mr Chan was clearly held out by the defendants as having authority to represent and to give effect to the terms of any settlement reached between the plaintiffs and the defendants as a result of the mediation.
As observed by Master Sanderson in Bialosowski Administrator of Est of P Bialosowski v Bialosowski,[49] a solicitor who appears at a mediation for a party will generally be taken to have authority to settle the dispute being mediated. In this case, the defendants had signed the Agreement to Mediate confirming Seng Fai Chan's authority.
[49] Bialosowski Administrator of Est of P Bialosowski v Bialosowski [2023] WASC 173 [15].
If the defendants take the view that Seng Fai Chan acted beyond his authority that is a matter between the defendants and Mr Chan. It does not affect the plaintiffs and the settlement agreed at the mediation, which they are entitled to enforce.
There was no suggestion by the defendants at the time of the settlement, or until after their obligation to pay monies under it arose, of any lack of authority on the part of Seng Fai Chan. The day after the Settlement Agreement was signed by him on behalf of the defendants to give effect to the settlement, Mr Ngoi and his co-director, Lynn Palm, signed each of schedules A to C to the Settlement Agreement on behalf of the defendants.[50]
[50] Peh Affidavit, VP-13, pages 285 - 290.
The contention that the Settlement Agreement is invalid because no resolution was passed by the directors of each of the defendants does not give rise to a defence. No such resolution was required.
The other matters sought to be relied upon by the defendants to the effect that there was some misrepresentation or that the defendants had been incorrectly joined as defendants to the Singapore Proceedings, are not supported by the affidavit material filed on behalf of the defendants. In any event, the defendants agreed to mediate the dispute the subject of the Singapore Proceedings and entered into the Settlement Agreement as a result.
By the Settlement Agreement, the defendants agreed to pay $800,000 to the plaintiffs upon lapse of the absolute caveats. The absolute caveats lapsed from 7 December 2022. Under the terms of the Settlement Agreement, the defendants became liable to pay $800,000 to the plaintiffs. They did not do so. Notice was given to the defendants requiring payment to be made in accordance with the terms of the Settlement Agreement. The defendants have failed to pay the $800,000 or any part of it.
I am satisfied the plaintiffs have established a prima facie case that their claim against the defendants is a good one and there is no defence to it.
The defendants make sweeping statements that the plaintiffs' claim is disputed but do not condescend to particulars to establish an arguable defence.
The only matter deposed to by Mr Ngoi that is suggested may give rise to a triable issue is the argument advanced to the effect that Seng Fai Chan was not authorised to execute the Settlement Agreement on behalf of the defendants. For the reasons stated, I am not persuaded that argument has any merit or gives rise to an arguable defence to the plaintiffs' claim.
The defendants have failed to satisfy their evidentiary burden by demonstrating there is a triable issue or an arguable defence to the plaintiffs' claim.

Conclusion and orders

I recognise that summary judgment should only be awarded in the clearest of cases. I am satisfied on the evidence before me, exercising the proper degree of care, that this is such a case, and it is appropriate to grant summary judgment.
As noted earlier in these reasons, I am satisfied it is appropriate to waive the requirement to confer under RSC O 59 r 9(1).
Accordingly, subject to hearing from the parties as to the final form of orders, I will make the following orders:
1.The requirements of RSC O 59 r 9(1) be waived in relation to the Application.
2.Judgment be entered for the first and second plaintiffs against the first, second and third defendants (the defendants) pursuant to RSC O 14 r 3 in the amount of $800,000 together with interest at the rate of 6% per annum pursuant to s 32 of the Supreme Court Act 1935 (WA) until the date of payment.
I will also hear from the parties as to costs. Subject to hearing from the parties, there does not appear to be any reason why costs should not follow the event, and the defendants be ordered to pay the plaintiffs' costs of the action, including the costs of the application for summary judgment and the costs reserved.
If the parties agree the final form of orders and as to costs, they are to file an agreed minute by 22 July 2024. If they do not agree, they are each to file a minute of proposed orders by that date.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AP
Associate to Master Russell
15 JULY 2024