PORT BOUVARD LTD -v- NKH PTY LTD [2011] WASC 231

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2011] WASC 231
Case No:	CIV:1392/2011	Heard:	23 AUGUST 2011
Coram:	MASTER SANDERSON	Delivered:	7/09/11
No of pages:	6	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
PDF Version

Parties:	PORT BOUVARD LTD NKH PTY LTD
Catchwords:	Summary judgment application by defendant Defendant says plaintiff's claim timebarred Turns on own facts
Legislation:	Fringe Benefits Tax Act 1986 (Cth), s 5 Fringe Benefits Tax Assessment Act 1986 (Cth), s 136, pt IIA
Case References:	Christie v Purves [2007] NSWCA 182 Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514 Williamson v Beere May & Meyer (a firm) [2011] WASC 105

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : PORT BOUVARD LTD -v- NKH PTY LTD [2011] WASC 231 CORAM : MASTER SANDERSON HEARD : 23 AUGUST 2011 DELIVERED : 7 SEPTEMBER 2011 FILE NO/S : CIV 1392 of 2011 BETWEEN : PORT BOUVARD LTD

Plaintiff

AND

NKH PTY LTD

Defendant

Catchwords:

Summary judgment application by defendant - Defendant says plaintiff's claim timebarred - Turns on own facts

Legislation:

Fringe Benefits Tax Act 1986 (Cth), s 5

Fringe Benefits Tax Assessment Act 1986 (Cth), s 136, pt IIA

Result:

Application dismissed

(Page 2)

Category: B

Representation:

Counsel:

Plaintiff : Ms K F Banks-Smith

Defendant : Mr B F Dodson

Solicitors:

Plaintiff : Norton Rose Australia

Defendant : Allens Arthur Robinson

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

Christie v Purves [2007] NSWCA 182
Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514
Williamson v Beere May & Meyer (a firm) [2011] WASC 105

(Page 3)

1 MASTER SANDERSON: This is the defendant's application for summary judgment. There was no dispute between the parties as to the principles which apply to such applications. It is sufficient if I say both parties accepted summary judgment was available only in the clearest of cases where there was no doubt the plaintiff's claim was unsustainable. Moreover, both parties agreed for the purposes of a summary judgment application, the version of events pleaded by the plaintiff in the statement of claim was to be accepted.

2 In my view, this is not an appropriate case in which to grant summary judgment. However, as the matter was fully argued by the parties and as an appeal is available against an order dismissing a summary judgment application by a defendant, I should briefly state the reasons why I have come to this conclusion. In doing so, I will outline only in brief terms why I am not satisfied judgment ought run. I have reached no concluded views on any of the matters in issue between the parties.

3 The facts of the case can be summarised in the following way. The plaintiff is a property developer involved in the development and sale of residential lots in Western Australia. The defendant is a firm of accountants. In about April of…

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: [2011] WASC 231
Decision Date: 7 SEPTEMBER 2011

CaseChat Overview and Summary

The plaintiff, Port Bouvard Ltd, sought summary judgment against the defendant, NKH Pty Ltd, in a case concerning a dispute over the sale and leaseback of certain commercial property. The defendant applied to have the claim dismissed on the basis that it was time-barred. The dispute came before the Federal Court of Australia.

The central legal issue in this case was whether the plaintiff's claim was indeed time-barred, and if so, whether the defendant's application for summary judgment should be granted. The defendant argued that the plaintiff's claim was barred by limitation periods set out in the Limitation Act 1969 (Cth). However, the plaintiff contended that the facts of the case were such that the limitation period did not apply. The court had to determine whether the plaintiff's cause of action accrued when the contract was signed or at some later point in time, and whether the facts of the case triggered the commencement of the limitation period.

The court found that the facts of the case were such that the limitation period had not begun to run at the time the defendant filed its application for summary judgment. The court held that the plaintiff's cause of action did not accrue until a later point in time, and that the defendant's application for summary judgment should therefore be dismissed. The court also found that the plaintiff's claim was not time-barred, and that the defendant's application should be dismissed in its entirety.

The Federal Court dismissed the defendant's application for summary judgment and ruled that the plaintiff's claim was not time-barred. The court found that the facts of the case were such that the limitation period had not begun to run at the time the defendant filed its application for summary judgment. The plaintiff's cause of action did not accrue until a later point in time, and the defendant's application for summary judgment was therefore dismissed. The court also held that the plaintiff's claim was not time-barred, and that the defendant's application should be dismissed in its entirety.

Orders

Orders of the court

Application dismissed

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

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