| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : PHS PTY LTD -v- DIAMOND & HOLLAND [2013] WADC 89 CORAM : DEPUTY REGISTRAR HOGAN HEARD : 15 MAY 2013 DELIVERED : 11 JUNE 2013 FILE NO/S : CIV 1241 of 2012 BETWEEN : PHS PTY LTD Plaintiff
AND
BENEDICT SCOTT DIAMOND
First Defendant
CLINTON THOMAS HOLLAND
Second Defendant
Catchwords: Practice and procedure - Summary judgment - Turns on own facts - No new principles Legislation: Rules of the Supreme Court 1971
Supreme Court Act 1935 (WA)
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Result: Application dismissed
Representation: Counsel:
Plaintiff : Mr T C Young
First Defendant : No appearance
Second Defendant : Mr C L Hollett
Solicitors:
Plaintiff : Birman & Ride
First Defendant : Not applicable
Second Defendant : Bowen Buchbinder Vilensky
Case(s) referred to in judgment(s):
Australian Can Co Pty Ltd v Levin & Co Pty Ltd [1947] VLR 332
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Gracechurch Holdings Pty Ltd v Breeze (1992) 7 WAR 518
Harbeck v Vasse Dozer Hire Pty Ltd [2009] WADC 48
Permanent Custodians Limited v Archer [2009] WASC 363
Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 429
Whitehall Holdings Pty Ltd v Custom Credit Corp Ltd (Unreported, WASC, Library No 9189, 19 June 1992)
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1 DEPUTY REGISTRAR HOGAN: PHS Pty Ltd (the plaintiff) claims that in consideration of the supply of goods on credit to CSC Mining Services Pty Ltd (in liquidation), Clinton Thomas Holland (the second defendant) agreed to indemnify the plaintiff against any losses, charges or expenses arising out of a default by CSC.
2 PHS applied for orders that: 1. pursuant to O 14 r 3 of Rules of the Supreme Court 1971 (RSC) judgment be entered in favour of the plaintiff against the second defendant in the sum of $253,972.51; 2. the second defendant pay the plaintiff interest at the rate of 6% pursuant to s 32(1) of the Supreme Court Act 1935 (WA), on the balance of the undisputed invoices referred to in attachment 1 of the plaintiff's submissions filed 13 May 2013, from their respective due dates until judgment. 3. The second defendant forthwith pay the plaintiff's costs of this application to be taxed. 3 The plaintiff relied upon the following affidavits in support of the application: 4 In opposition to the application the second defendant filed the affidavit of Clinton Thomas Holland sworn 17 April 2013.
General principles regarding summary judgments 5 Where a plaintiff has satisfied the requirements of O 14 of the RSC 1971, it has the prima facie right to an order in terms asked and the burden shifts to the defendant to satisfy the court why judgment should not be given: Harbeck and Ors v Vasse Dozer Hire Pty Ltd [2009] WADC 48 [13]. 6 To avoid judgment being entered the defendant must satisfy the court with respect to the claim that there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial of the claim (RSC O 14 r 3(1). (Page 4)
7 In doing so the defendant must condescend upon particulars 'it is not enough to merely say that there is a dispute or to raise bare allegations unsupported by material facts': Permanent Custodians Limited v Archer [2009] WASC 363 [6]. 8 The power to order summary judgment is to be exercised with great care. It will not 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. If after argument there remains real uncertainty as to the plaintiff's right to judgment without further investigations of the facts, summary judgment must be refused: Australian Can Co Pty Ltd v Levin & Co Pty Ltd [1947] VLR 332. The defendant is not required to establish its defence at this point but only that there is a real case to be investigated either in fact or in law. If there is real uncertainty without argument or full investigation of the facts, then the power to award summary judgment should not be exercised. 9 What is required is condescension to the particulars of an arguable defence, not the defence in its complete form and a statement of facts which show that it is arguable: Whitehall Holdings Pty Ltd v Custom Credit Corp Ltd (Unreported, WASC, Library No 9189, 19 June 1992). 10 Even if the facts which are established are inconclusive, if it is not possible to say without doubt on the whole of the material that there is no question to be tried there should be leave to defend and summary judgment must be refused: Fancourt v Mercantile Credits Ltd [99].
Has the plaintiff satisfied the condition precedent to the exercise of jurisdiction 11 The plaintiff relied upon the affidavits of Mark Peter Della Vedova to verify as true the following facts: 1. In consideration for the supply of goods on credit to CSC, Holland jointly and severally agreed to: (i) indemnify PHS against any losses, costs, charges and expenses of any nature which it might incur as a result of a default by CSC; and (ii) pay 'all outstanding monies due now [or] at any time in the near future for goods which have been supplied or may have been supplied [to CSC] from time to time' (Holland affidavit, par 10, page 4). (Page 5)
2. It is claimed that between May and September 2009, PHS supplied the goods and services particularised in its invoices to the value of $835,393.56 and that the invoices remain unsatisfied to the value of $482,440.61 plus accrued interest thereon and that Holland is liable to pay this amount. 12 Holland argued that the application should be dismissed on the basis that the plaintiff had not complied with the requirements of O 14 r 2(1) in verifying the facts on which the claim to which the application relates is based. The affidavits of Mark Peter Della Vedova depose to verify the facts in the statement of claim filed on 30 April 2012 however there is no affidavit deposing to the facts in the amended statement of claim filed 31 August 2012. 13 Having considered the wording of the Della Vedova affidavits I am satisfied that when read in their entirety that they verify the facts on which the claim to which the application relates is based and that PHS has complied with the requirements of O 14 r 2(1).
The position of the second defendant 14 Holland claimed that there is a triable issue of law as to: (i) what are the terms of contract formed by the execution of the guarantee and indemnity. Holland argued that the account terms and conditions were not incorporated into the guarantee and indemnity and/or plant hire agreements and as such PHS will have no contractual right to claim interest on unpaid monies. (ii) what are the terms of any contract formed by the execution of the guarantee and indemnity referred to in paragraph 2 of the amended statement of claim. Holland argued that there is ambiguity as to whether the account terms and conditions, which Holland claims to be a separate stand-alone document and not a single document as indicated in the affidavit of Mark Peter Della Vedova sworn 26 June 2012 at [6] and Annexure 'MPD1', formed part of the contract. The guarantee and indemnity does not contain any express terms incorporating the account terms and conditions and vice versa. As a consequence Holland argued that the guarantee and indemnity is void for uncertainty. (iii) whether the terms of the individual plant hire agreements incorporate the terms of the guarantee and indemnity and/or the (Page 6)
15 Holland claimed that there is a triable issue of law and fact as to; 16 Holland argued that there was insufficient information in the pleadings to establish the basis upon which various interest charges have been calculated and the applicable interest rates upon which PHS relies in the period in question. 17 Holland argued that whilst judgment has been entered against the first defendant (Diamond), this cannot bind Holland who was not a party to those proceedings: Gracechurch Holdings Pty Ltd v Breeze (1992) 7 WAR 518.
The position of the plaintiff 18 The plaintiff took issue with the wording of the Holland affidavit in the use of 'disputing' rather than 'denying' certain facts. Holland argued that it is clear that in raising a dispute that he denies the allegations or facts to which he refers. I accept this. 19 The plaintiff argued that the guarantee and indemnity cannot be void for uncertainty unless its terms are so obscure and so incapable of any definite or precise meaning that the court is unable to attribute any particular contractual intention (Upper Hunter County District Council v (Page 7)
Australian Chilling & Freezing Co Ltd (1968) 118 CLR 429, 437. The plaintiff argued that the contractual intention was clear. I accept this. 20 The plaintiff argued that the guarantee and indemnity does not depend on any other document for its force and effect and that there is no legal requirement for either the guarantee and indemnity to refer to the account terms and conditions or the plant hire agreements or for the account terms and conditions to refer to the guarantee and indemnity or the plant hire agreements. PHS argued that although the evidence suggests that the account terms and conditions are part of the guarantee and indemnity it does not matter if that is not the case. 21 PHS contended that Holland agreed to indemnify PHS against any losses, costs charges and expenses of any nature, and that the indebtedness of CSC is acknowledged by the liquidator. (Attachment 'MPD 3' affidavit of Mark Peter Della Vedova dated 21 September 2012).
Determination 22 Given the 'great care' that I am required to exercise in determining an application for summary judgment, I am not satisfied that it is clear that there is no real question to be tried as to the appropriate interpretation of the terms of the contract formed by the execution of the guarantee and indemnity. 23 Any ambiguity as to how the guarantee and indemnity interacts with the account terms and conditions and the plant hire agreements, must be construed against the plaintiff and in favour of the second defendant: Scottish Amicable Life Assurance Society v Reg Austin Insurances and Ors (1985) 9 ACLR 909, 920. 24 Consideration of the charges in the tax invoices and the responsibility for damage to machinery and the cost of repairs is a matter for a trial judge with the benefit of oral evidence and argument. The 'acknowledgement' of indebtedness by the liquidator and the effect upon the rights and obligations of the second defendant is a matter for a trial judge. 25 In this case I am unable to say that there is no real question to be tried and in the circumstances the orders sought in the minute of proposed orders dated 15 May 2013 are refused. 26 I will hear the parties on the final orders to be made having regard to the determination. |