JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	28 May 2020
DATE OF JUDGMENT:	12 August 2020
CASE MAY BE CITED AS:	PPG (WA) Pty Ltd v Efron
MEDIUM NEUTRAL CITATION:	[2020] VSC 482

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PRACTICE AND PROCEDURE – Application by the defendant for summary judgment pursuant to s 63 of the Civil Procedure Act 2010 (Vic) – Whether the plaintiff’s claim has any real prospect of success – Whether the plaintiff’s allegation of breach of contract is time barred under s 5 of the Limitations of Actions Act 1958 (Vic) – Whether there is a debateable point of law – Rules of the Supreme Court 1971 (WA) Order 3 r 5, and Order 4A r 28 – Consequences of a proceeding being on the Inactive Cases List – Whether proceeding in Western Australia capable of being reinstated using the power of the Court to extend time – Rowe v Stoltze (2013) 45 WAR 116; Rosebridge Nominees Pty Ltd (in liq) v Commonwealth Bank of Australia [2018] WASCA 112, referred to – FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 referred to – Application of ‘comity rule’ – DPP (Cth) v Thomas; DPP (Cth) v Wu (2016) 53 VR 546 referred to – Application for summary judgment dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Minahan	James D Mapleston
For the Defendant	Mr T J Scotter	Colin Biggers & Paisley

HER HONOUR:

In or around February 2006, Fermanagh Investments Pty Ltd (‘Fermanagh’), Glenariff Holdings Pty Ltd (‘Glenariff’) and Burswood On Swan Holdings Pty Ltd (‘Burswood’) (collectively, ‘WA plaintiffs’) commenced a proceeding in the Supreme Court of Western Australia (‘WA Supreme Court’) against the plaintiff in this proceeding (‘PPG’),[1] along with Mr Gavin Brown and Sinclair Consulting WA Pty Ltd (‘Sinclair Consulting’) (collectively ‘WA defendants’) (‘WA proceeding’). In the WA proceeding, the WA plaintiffs sought, among other things, damages for alleged breaches of fiduciary duty and breaches of contract arising out of a joint venture between Fermanagh and PPG with respect to the development of land in Perth (‘development’). Glenariff and Burswood were the vehicles by which the development was undertaken.
[1]Then known as ‘Protocol Property Group’ Pty Ltd.

Initially, the WA defendants held a thirty per cent share of both Glenariff and Burswood, but by the time the WA proceeding commenced, Glenariff and Burswood were wholly owned by Fermanagh.

On or about 18 May 2007, the WA defendants filed an amended defence and counterclaim in the WA proceeding. PPG counterclaimed against Fermanagh and Glenariff seeking, among other things, restitution and damages for breach of contract, an accounting for PPG’s interest in companies incorporated for the purposes of the development, including Glenariff and Burswood, and orders setting aside the agreement by which the WA defendants had…

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.

Continue reading PPG (WA) Pty Ltd v Efron

Details

AGLC: PPG (WA) Pty Ltd v Efron [2020] VSC 482
Case: [2020] VSC 482
Decision Date: 12 August 2020

CaseChat Overview and Summary

The case of PPG (WA) Pty Ltd v Efron involves a dispute between a contractor and a homeowner regarding alleged breaches of contract. The defendant, Efron, applied for summary judgment under section 63 of the Civil Procedure Act 2010 (Vic) to dismiss the plaintiff's claim for being time-barred and lacking any real prospect of success. The matter was heard in the Supreme Court of Western Australia.

The primary legal issues before the court were whether the plaintiff's claim was statute-barred under section 5 of the Limitations of Actions Act 1958 (Vic) and whether there was a debatable point of law that warranted further proceedings. The court also considered whether the proceeding, which was on the Inactive Cases List, could be reinstated by extending time using the inherent jurisdiction of the court.

The court examined the principles of comity and the power to extend time, referencing cases such as Rowe v Stoltze and Rosebridge Nominees Pty Ltd (in liq) v Commonwealth Bank of Australia. It concluded that while the proceeding was on the Inactive Cases List, there was a debatable point of law regarding the application of the comity rule and the possibility of extending time. Consequently, the application for summary judgment was dismissed, allowing the case to proceed.

The final orders of the court were that the defendant's application for summary judgment was dismissed, and the case would continue to be heard on its merits. The court found that the issue of whether the plaintiff's claim was time-barred and whether there was a real prospect of success were points of law that required further examination.

Orders