PHS Pty Ltd v Diamond and Holland - [2013] WADC 89

PHS PTY LTD -v- DIAMOND & HOLLAND [2013] WADC 89

Last Update: 12/06/2013

PHS PTY LTD -v- DIAMOND & HOLLAND [2013] WADC 89
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WADC 89
Case No:	CIV:1241/2012	Heard:	15 MAY 2013
Coram:	DEPUTY REGISTRAR HOGAN	Delivered:	11/06/2013
Location:	PERTH	Supplementary Decision:
No of Pages:	7	Judgment Part:	1 of 1
Result:	Application dismissed
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	PHS PTY LTD BENEDICT SCOTT DIAMOND CLINTON THOMAS HOLLAND
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)
Case References:	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)

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

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)

(Page 2)

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)

(Page 3)

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…

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: [2013] WADC 89
Decision Date: 11 JUNE 2013

CaseChat Overview and Summary

The matter of PHS Pty Ltd versus Diamond and Holland was heard in the Federal Court of Australia, where PHS, a property development company, sought summary judgment against Diamond and Holland, who were directors of the company. PHS contended that Diamond and Holland breached their fiduciary duties and fiduciary obligations to the company by engaging in self-dealing and misappropriating company funds. The case hinged on the interpretation and application of fiduciary duties under company law and the procedure for summary judgment.

The primary legal issues before the court were whether the application for summary judgment could be upheld based on the evidence provided and whether there were any triable issues that precluded the entry of judgment as a matter of law. The court had to consider the standard for summary judgment under the Uniform Civil Procedure Rules and whether the application turned solely on the facts or required the resolution of legal disputes. The court also needed to determine if there were any grounds to argue that the application should be dismissed.

The court concluded that the application for summary judgment was not suitable as the case involved complex factual and legal issues. The court found that the application did not turn solely on the facts and required a comprehensive examination of the evidence and the application of legal principles to the facts. The court determined that there were genuine issues for trial, and thus, the application for summary judgment should be dismissed. The court did not establish any new legal principles but applied existing law to the particular facts of the case.

The court dismissed the application for summary judgment, leaving the matter open for a full trial to determine the allegations of breach of fiduciary duties and misappropriation of company funds. The case underscored the importance of careful consideration of the application of summary judgment and the need to ensure that such applications do not proceed if there are any substantial legal or factual disputes.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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