Ranieri v Janalyn Pty Ltd

[2000] WADC 13

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   RANIERI & ANOR -v- JANALYN PTY LTD [2000] WADC 13

CORAM:   LA JACKSON DCJ

HEARD:   25 JANUARY 2000

DELIVERED          :   28 JANUARY 2000

FILE NO/S:   CIV 3103 of 1998

BETWEEN:   ANTONIO RANIERI

ASSUNTA RANIERI
Plaintiffs (Respondents)

AND

JANALYN PTY LTD (ACT 073 294 318)
Defendant (Applicant)

Catchwords:

Practice and Procedure - Summary judgment application.

Legislation:

Rules of the Supreme Court, O16.

Result:

Application for summary judgment dismissed.

Representation:

Counsel:

Plaintiffs (Respondents) :     Mr P Mendelow

Defendant (Applicant)    :     Ms P Cahill

Solicitors:

Plaintiffs (Respondents) :     Griffiths & Godecke

Defendant (Applicant)    :     Pullinger Stewart

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

Nil

Case(s) also cited:

Nil

1. LA JACKSON DCJ:  This is an application for summary judgment.

2. This action was commenced by writ on 18 August 1998 claiming damages for breach of a lease of commercial premises in Osborne Park.  On 29 September 1998 an amended statement of claim was filed and served.  That was the subject of an application to strike out significant parts.  That was heard by me on 22 April 1999 and on 30 July 1999 the application was granted.

3. The original statement of claim relied upon a written lease agreement and certain correspondence as constituting the lease.  There were two documents described as lease agreements.  I decided neither constituted a lease over the premises as the property described in each was not the same.  I also decided that the documents were not admissible in evidence as they required stamping pursuant to ss27 and 31B of the Stamp Act.  I also decided that the correspondence did not constitute a lease.

4. As a result, on 20 August 1999 a substituted statement of claim was filed alleging an oral agreement to lease and a breach of that agreement resulting in damages.  No defence was filed to the substituted statement of claim.

5. On 18 September 1999 an application to strike out the statement of claim was brought.  I was fortunate enough in this case to have prepared by both party's solicitors detailed outlines of submissions in which very many matters were raised.  In the end, the main thrust of the argument by the defendant for the striking out of the statement of claim was that the plaintiff (landlord) had by correspondence from their solicitors repudiated the lease and that repudiation had been accepted on behalf of the defendant.  It was argued that subsequent to the acceptance of repudiation the plaintiff sought to resurrect the lease but by then it was too late.  The plaintiffs argue that although at some stage the correspondence did indicate a repudiation of the lease that position was resiled from and the defendant remained in possession and paid rent for many months prior to purporting to accept the repudiation of the lease.  There were also arguments as to a letter purporting to confirm the terms of the oral agreement to lease and as to whether that document should have been pleaded and whether it could be produced in evidence without having been stamped.

6. An application for summary judgment is brought pursuant to O16 of the Rules of the Supreme Court.  It must be brought within 21 days after appearance or at any later time by leave of the Court.

7. It is appropriate to deal with the question of time first.  Clearly in the case of a substituted statement of claim the requirement to bring the application within 21 days after appearance can have no application.  In this case, in my opinion, the application was brought within a reasonable time after the filing of the substituted statement of claim.  Seaman at para 16.1.1 says:

   "The onus is on the applicant to justify any delay by affidavit evidence and its absence is fatal to an application under this order."

8. Whilst clearly that is generally appropriate, I do not consider it to be so in this case.  I did not and do not require any affidavit as to the reasons for delay since the filing of an appearance as they are self‑evident.

9. Seaman at para 16.1.3 says:

   "A case must be very clear indeed to justify the summary intervention of the Court to prevent a plaintiff submitting his case for trial in the ordinary way, and once it appears that there is a real question, whether of fact or law and that the rights of the parties depend upon it, it is not competent for the Court to dismiss the action as frivolous or vexatious and an abuse of process."

10. And at para 16.1.4:

    "The power to order summary judgment should be exercised with great care and should never be exercised unless it is clear there is no real question to be tried."

11. Whilst the arguments of counsel for both parties were detailed and most helpful, it is unnecessary for me to consider them in detail.  It is sufficient for me to say that this is not a case where it can clearly be said that the proceedings are frivolous or vexatious nor can it be said that there is no good cause of action.  In my opinion the interpretation of the correspondence can only be done in the context of the factual circumstances surrounding the leasing of the property.  There is an arguable case both in favour of the plaintiffs and in favour of the defendant.  It will only be in the clearest of cases that summary judgment should be ordered.  I do not consider this is such a case and accordingly the application for summary judgment will be dismissed.