Prada Developments Pty Ltd v Western Coastal Property Investments Pty Ltd

[2005] WADC 231

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   PRADA DEVELOPMENTS PTY LTD & ANOR -v- WESTERN COASTAL PROPERTY INVESTMENTS PTY LTD [2005] WADC 231

CORAM:   REGISTRAR WALLACE

HEARD:   28 SEPTEMBER 2005

DELIVERED          :   30 NOVEMBER 2005

FILE NO/S:   CIV 94 of 2005

BETWEEN:   PRADA DEVELOPMENTS PTY LTD

First Plaintiff

ANDY NED LULICH
Second Plaintiff

AND

WESTERN COASTAL PROPERTY INVESTMENTS PTY LTD
Defendant

Catchwords:

Application for leave to bring summary judgment application out of time - No statement on affidavit explaining delay - Whether appropriate to grant leave to file a supplementary affidavit - Brief consideration of substantive application for the purpose of assessing the leave application

Legislation:

Nil

Result:

Application for leave to bring summary judgment application out of time refused

Representation:

Counsel:

First Plaintiff                :     Mr R C Ioppolo

Second Plaintiff            :     Mr R C Ioppolo

Defendant:     Ms K A Vernon

Solicitors:

First Plaintiff                :     Wojtowicz Kelly

Second Plaintiff            :     Wojtowicz Kelly

Defendant:     Nicholson Clement

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

Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87

Morgan & Son Ltd v S Martin Johnson & Company Ltd [1949] 1 KB 107

Case(s) also cited:

Nil

1. REGISTRAR WALLACE:  Now before me is the plaintiffs' application for summary judgment pursuant to O 14 of the Rules of the Supreme Court, and their application for leave to bring the summary judgment application out of time.

2. The writ of summons was issued on 19 January 2005, and the defendant entered an appearance (initially conditional) on 1 March 2005.  The defendant attempted, unsuccessfully, to have the action transferred to the Local Court held at Mandurah.  It then filed a defence on 7 April 2005, followed by an amended defence, set-off and counterclaim on 16 May 2005.

3. Order 14 r (1) provides that an application for summary judgment may be brought within 21 days from the date upon which the appearance was entered, or at any later time by leave of the court.

4. The plaintiffs' application should have been brought within 21 days from 18 April 2005, being the date upon which the defendant's appearance became unconditional, but the application was not filed until 4 August 2005.  The plaintiffs have filed no affidavit setting out the reasons for the delay in bringing the O 14 application.  At the hearing, counsel for the plaintiffs submitted that the explanation given for the delay in making the application is set out in the chamber summons itself.  Whilst I do not accept that it is open to the plaintiffs simply to set out such facts within the body of the chamber summons (rather than by way of affidavit), when I examine the "explanation" in the chamber summons, I note that the relevant paragraph, being par C under the heading "Grounds of Application", reads as follows:

   "All facts supporting the claim are admitted in the defence and counterclaim filed 16 May 2005 and after the expiry of the time to apply for summary judgment".

5. The amendments to the defendant's pleading filed on 16 May 2005 related only to the defendant's set-off and counterclaim.  To the extent that the defendant has made admissions, such admissions were made in its original defence, which was filed on 7 April 2005.  Thus, even if I were prepared to take some account of the statement made in the chamber summons, I would have to note that such statement is less than accurate.

6. Given that the admissions to which the plaintiffs refer were first made on 7 April 2005, not 16 May 2005, the application for summary judgment should have been made without delay after 7 April 2005.  If a period of 21 days were allowed after 7 April 2005, that means the chamber summons should have been filed by the end of April.  No explanation has been given for the three month delay after the end of April, and that, in itself, is sufficient to disentitle the plaintiffs to an order granting leave to bring the application out of time.

7. Having said that, I decided, nevertheless, to assess the merits of the substantive application because I considered it to be in the interests of justice for me to do so.  Had I been satisfied that there was no doubt that the plaintiffs would otherwise have been entitled to judgment against the defendant for the amount claimed, I might well have considered it appropriate to permit the plaintiffs to file a supplementary affidavit explaining the delay in bringing the application.

8. The principles to be applied when considering an application for summary judgment are clear.  The power to order summary judgment should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried (Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87).

9. In the present case, there are a number of matters which have led me to conclude that it would be inappropriate for me to grant leave to the plaintiffs to file a supplementary affidavit in support of its application to bring the summary judgment application out of time,

10. I shall list those matters briefly.  They are:

    1.The plaintiffs have filed no affidavit verifying the facts upon which the plaintiffs rely in support of their claim.  The plaintiffs merely point to admissions in the defendant's pleading.

    2.The defendant has raised an equitable set-off to the plaintiffs' claim which impeaches the plaintiffs' claim, and there is clear authority for the proposition that in such cases unconditional leave to defend should be granted (Morgan & Son Ltd v S Martin Johnson & Company Ltd [1949] 1 KB 107).

    3.The matters pleaded are by no means straightforward.  The plaintiffs' claim is based on a contract between the plaintiffs and a corporate entity which is different from the defendant.  The purchaser named in the contract for the sale of land was Western Coastal Property Developments Pty Ltd, whereas the property was ultimately conveyed into the name of the present defendant, Western Coastal Property Investments Pty Ltd.  There is no complete copy of the contract.  The plaintiffs plead that Western Coastal Developments Pty Ltd entered into the contract as agent or trustee of the defendant, but there is no evidence of any such relationship.  Even in the light of admissions made by the defendant, these are serious discrepancies.

    4.As pointed out by counsel for the defendant at the hearing, par 5 of the statement of claim pleads another agreement (clearly separate from the contract of sale but related to it, and with unspecified consideration) between the parties to this action, that allegedly had the effect of varying the original contract between the plaintiffs and Western Coastal Developments Pty Ltd. 

11. I am not satisfied that the plaintiffs have established a prima facie right to judgment, and I decline to grant leave to the plaintiffs to bring the summary judgment application out of time.

12. I consider it appropriate that there be a special directions hearing listed before me, at which I shall make orders on the chamber summons, hear counsel as to costs, and seek final confirmation from each of the parties as to whether the suggested court-based mediation conference might, in the circumstances, be of assistance.