JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: RAEBURN -v- LOAN WA PTY LTD [2023] WASC 134
CORAM: ACTING MASTER MCDONALD
HEARD: 20 JULY 2022
DELIVERED : 28 APRIL 2023
PUBLISHED : 28 APRIL 2023
FILE NO/S: CIV 2240 of 2021
BETWEEN: BRYAN MCMASTER RAEBURN
First Plaintiff
MIGUEL ANGEL MARON NICHOLS
Second Plaintiff
AND
LOAN WA PTY LTD
First Defendant
ASSET FINANCE AUSTRALIA PTY LTD
Second Defendant
Catchwords:
Practice and procedure ‑ Summary judgment ‑ Application for summary judgment brought by plaintiffs in respect of declaratory relief concerning contract of guarantee ‑ O 14 r 1 Rules of the Supreme Court 1971 (WA) ‑ Whether defendants have good defence on the merits ‑ Whether contract of guarantee a deed or whether supported by valid consideration ‑ Arguable defences established
Practice and procedure ‑ Pleadings - Strike-out application ‑ O 20 r 19(1)(b) Rules of the Supreme Court 1971 (WA) ‑ Application to strike out parts of the counterclaim asserting misleading or deceptive conduct claims ‑ Whether pleadings frivolous ‑ Pleadings disclose comprehensible causes of action
Legislation:
Australian Consumer Law (WA), s 18
Australian Securities and Investments Commission Act 2001 (Cth), s 12DA
Competition and Consumer Act 2010 (Cth), s 131A, s 140, Sch 2
Fair Trading Act 2010 (WA), s 19(2), s 36
Property Law Act 1969 (WA), s 9(1), s 9(4)
Rules of the Supreme Court 1971 (WA), O 3 r 3, O 14 r 1, O 14 r 8, O 20 r 19(1)(b)
Result:
Application for summary judgment dismissed
Application to strike-out paragraphs of counterclaim dismissed
Category: B
Representation:
Counsel:
| First Plaintiff | : | K A Dundo |
| Second Plaintiff | : | K A Dundo |
| First Defendant | : | S J Davis |
| Second Defendant | : | S J Davis |
Solicitors:
| First Plaintiff | : | KD Legal (Perth) |
| Second Plaintiff | : | KD Legal (Perth) |
| First Defendant | : | MGD Law |
| Second Defendant | : | MGD Law |
Cases referred to in decision:
Argy v Blunts & Lane Cove Real Estate Pty Ltd (1990) 26 FCR 112
Beaton v McDivitt (1987) 13 NSWLR 162
Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304
Chappell v Goldspan Investments Pty Ltd [2021] WASCA 205
Coghlan v S H Lock (Aust) Ltd (1987) 8 NSWLR 88
Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] AC 847
Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87
HCK China Investments Ltd v Solar Honest Ltd [1999] FCA 1156
Matouk v The Entrance Seabreeze Pty Ltd [2010] NSWSC 649
McKay v National Australia Bank Ltd [1998] 1 VR 173
Mercantile Bank of Australia Ltd v Weigall (1895) 16 ALR 192
Morgan v Pallister [2004] WASC 188
Neilsen v Hempston Holdings Pty Ltd (1986) 65 ALR 302
New Standard Energy PEL 570 Pty Ltd v Outback Energy Hunter Pty Ltd [2019] SASCFC 132
NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2002] WASCA 107
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- Case
- [2023] WASC 134
- Decision Date
CaseChat Overview and Summary
The court had to decide whether the defendants had a good defence on the merits, specifically concerning the nature of the contract of guarantee and the validity of the consideration. Additionally, the court had to determine whether the counterclaims were frivolous and should be struck out, as they were considered not to disclose any comprehensible causes of action.
The court held that the defendants' defences were not so untenable as to warrant striking them out. The court found that the pleadings disclosed comprehensible causes of action concerning implied representations regarding the guarantee and the registration of a caveat. The court also considered the defendants' failure to take reasonable care of their own interests but found that the plaintiffs' submissions were not supported by the authorities cited. The court concluded that the defendants had arguable defences and the pleadings disclosed comprehensible causes of action, leading to the dismissal of the plaintiffs' application for summary judgment and the strike-out application.
The court ordered that the plaintiffs' application for summary judgment and the strike-out application be dismissed and that the plaintiffs pay the defendants' costs forthwith, to be taxed if not agreed.
Orders
Orders of the court
138. The following orders will be made:
138. 1. The plaintiffs' Amended Chamber Summons for Summary Judgment and Strike-Out filed 7 April 2022 be dismissed.
138. 2. The plaintiff pay the defendants' costs of the summary judgment application and the application to strike-out the Amended Defence and Counterclaim, forthwith, to be taxed if not agreed.
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
In the present case, the defendants plead that the description of the plaintiffs as guarantors within the 25 September Term Sheet, combined with the act of signing the document above the word Guarantor, conveyed an implied representation to the defendants that they would personally guarantee and be liable for repayment of the loan and all interest payable.[145] The defendants say this alleged representation is not answered by the mere fact the plaintiffs entered into the instrument in question (and by doing so, according to the plaintiffs, fulfilled the promise). In my view, the cause of action is not so untenable that I would strike it out. In addition, the surrounding circumstances, and any reasonable inferences, assumptions and expectations, will need to be examined as part of the contextual enquiry in considering whether the representation should be found to have been made, and whether it was in fact misleading.[146][145] Amended Defence and Counterclaim [23].[146] Ridgepoint Corporation Pty Ltd v McCallum Donovan Sweeney (A Firm) [50] (Kenneth Martin J). The defendants also plead that the plaintiffs' conduct in signing the '25 September Term Sheet' with the 'Charging Clause', in combination with the asserted failure to disclose that the Town of Cambridge was the registered proprietor of the Wembley property and the first plaintiff was not, and had no authority to agree to registration of a caveat over that property, carries an implied representation that the first plaintiff had sufficient ownership, authority and/or control over the Wembley property to allow the defendants to register a caveat.[147] The factual responses articulated by the plaintiffs cannot definitively answer this plea, at this interlocutory stage, where there are disputes on the evidence. It is enough to say that the cause of action is not so untenable that I would strike it out. [147] Amended Defence and Counterclaim [33]. Under the heading Reasonable Care, the plaintiffs made a number of submissions directed to whether the defendants should be regarded as responsible for their own misfortune, having failed to take reasonable or ordinary care.[148] These submissions were directed at both the Implied Guarantor Representation and the Implied Caveat Representation. The source of these submissions, as a matter of law, is said to be the observations of Gibbs CJ in Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191,199:The heavy burdens which the section creates cannot have been intended to be imposed for the benefit of persons who fail to take reasonable care of their own interests.[148] Plaintiffs' Submissions [55] ‑ [59] and [62] ‑ [69]. The plaintiffs observe that this broad statement must be seen in light of later authorities such as Neilsen v Hempston Holdings Pty Ltd (1986) 65 ALR 302, 309 (Pincus J), Argy v Blunts & Lane Cove Real Estate Pty Ltd (1990) 26 FCR 112, 138 (Hill J), and Wormald v Maradaca Pty Ltd [2020] NSWCA 289 [119] (Bell P).[149] A review of these authorities tends to undermine, not support, the ultimate submission advanced by the plaintiffs in the context of this application. [149] Plaintiffs' Submissions [57] ‑ [58].