Rebbuts Pty Ltd v Levanta Pty Ltd
[2022] WADC 84
•6 SEPTEMBER 2022
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: REBBUTS PTY LTD -v- LEVANTA PTY LTD [2022] WADC 84
CORAM: REGISTRAR HOGAN
HEARD: 15 AUGUST 2022
DELIVERED : 6 SEPTEMBER 2022
FILE NO/S: CIV 4778 of 2018
BETWEEN: REBBUTS PTY LTD
Plaintiff
AND
LEVANTA PTY LTD
Defendant
Catchwords:
Practice and procedure - Defendant's summary judgment application
Legislation:
Rules of the Supreme Court 1971 (WA)
Strata Titles Act 1985 (WA)
Result:
Application dismissed
Representation:
Counsel:
| Plaintiff | : | Mr A M Prime |
| Defendant | : | Mr J F Park |
Solicitors:
| Plaintiff | : | Anthony Prime Legal Services |
| Defendant | : | Dentons Australia |
Case(s) referred to in decision(s):
Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Barrick Gold of Australia Ltd v F L Smidth Inc [No 2] [2007] WASC 186
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27
Gerovich v Maxwell John Gerovich as executor of the estate of Anthony Gerovich [2018] WASC 153
Michael v Nicolson (Unreported, WASC, Library No 950660S, 1 December 1995)
Newmont Power Pty Ltd v Barrick Gold of Australia Ltd [2008] WASCA 74
Nu-Fortune Gold Ltd v Roxbury Trading Pty Ltd [No 4] [2020] WASC 25
REGISTRAR HOGAN:
By chamber summons dated 11 May 2022 the defendant seeks summary judgment be entered against the plaintiff pursuant to O 16 of the Rules of the Supreme Court 1971 (WA) (RSC).
In support of the application the defendant filed affidavits of Alexander Sharpe, affirmed 9 May 2022 and Ryan Eamonn Lennon, sworn 16 May 2022.
The plaintiff filed an affidavit of Paul Murray Stubber, sworn 5 July 2022 in opposition to the defendant's application.
Background
The plaintiff's claim relates to 18 BendPak PL-7000X Parking Lifts (Hoists) installed at commercial premises in Belmont, Western Australia in or about October 2011.
The plaintiff alleges that the defendant installed the Hoists in an outdoor environment in circumstances where it knew the Hoists should not be installed in an outdoor environment and that consequently the Hoists failed, requiring repairs and the installation of a roof structure (the Canopy Claim) to protect the Hoists from further moisture and weather damage.
The defendant requires leave to bring the application as the time provided under O 16 r 1 expired on 5 February 2019, the appearance having been filed on 15 January 2019.
Summary judgment principles
The principles of when a court should allow an application for summary judgment are well established.
It is trite law that the power to order summary judgment should be exercised with great care. It is only in the clearest of cases where there is a high degree of certainty about the ultimate outcome of the proceedings if it went to trial, that summary judgment ought properly be granted: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57]; Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; Nu‑Fortune Gold Ltd v Roxbury Trading Pty Ltd [No 4] [2020] WASC 25.
The onus is on the defendant, as applicant, to persuade the court that it is appropriate in the circumstances to award summary judgment pursuant to O 16 r 1 of the RSC.
As stated in Gerovich v Maxwell John Gerovich as executor of the estate of Anthony Gerovich[2018] WASC 153 [27] - [28]:
27.The principles in relation to the determination of applications for summary judgment are well established. A party should not ordinarily be denied the opportunity to have his or her case determined following trial, and for that reason, the jurisdiction to grant summary judgment should be reserved for the clearest of cases, where there is a high degree of certainty about the ultimate outcome of the action if it were allowed to go to trial. In other words, the question is whether, on the material before the Court, it has been demonstrated that the plaintiff's action should not be permitted to proceed to trial because it is apparent that it must fail.
28.However, that does not mean that summary judgment will be given only where the case is so hopeless as not to require argument. Extensive argument may be necessary to demonstrate that a party's case is so clearly untenable that it cannot possibly succeed.
(references omitted)
Any explanation for why an application for summary judgement was not made within time allowed should be on affidavit and the failure to do so may be fatal to the application: Michael v Nicolson (Unreported, WASC, Library No 950660S, 1 December 1995); Barrick Gold of Australia Ltd v F L Smidth Inc [No 2] [2007] WASC 186 [10] (Barrick). The delay must be justified: Barrick [16] and Newmont Power Pty Ltd v Barrick Gold of Australia Ltd [2008] WASCA 74.
The defendant's claim
The defendant claimed that the delay in bringing the summary judgment application was not extensive considering that the defendant did not discover many of the issues with the plaintiff's claim until a late stage in the proceedings because the plaintiff failed to give full and adequate discovery on time.
Affidavits of discovery were filed by the plaintiff on 15 July 2019, 17 June 2021, and 30 July 2021.
The defendant made a freedom of information application to the City of Belmont to determine that there was a requirement that the plaintiff install the Hoists. The documents received on 17 November 2021 in response to that request, have still not been formally discovered to the defendant, despite the fact they would be in the possession of the plaintiff.
The defendant pleads that:
(a)the plaintiff's claim in relation to the repairs to the Hoists must fail because the plaintiff did not have standing to bring the proceedings and they ought to have been commenced in the name of the strata company as per the Strata Titles Act 1985 (WA);
(b)the proper plaintiff for the Canopy Claim is 'Rebutts Pty Ltd as trustee of the Kalis Trust';
(c)the plaintiff will not be able to establish that it has incurred a loss, as claimed, in relation to the Hoists. The plaintiff was required to install the Hoists to meet the City of Belmont's requirements regarding car bays and alternative hoists designed for outdoor installation would have cost the plaintiff an extra $106,200; and
(d)even if the plaintiff's allegations are correct, the Hoists are now satisfactory, and the plaintiff has suffered no loss as deduction of the Canopy Claim costs ($58,839) from the $106,200 results in a saving of $47,361.
Extension of time to make the application
The proceedings were listed for mediation in the court on 12 December 2019.
The defendant's chambers application relies in part on documents provided at that mediation. Those documents were discovered on a 'without prejudice' basis, but the defendant did not raise that issue with the plaintiff until October 2021 (Lennon affidavit 'REL 4'). There is no explanation for the delay in seeking formal discovery of the documents.
The defendant asserted that it considered the action liable to be dismissed from as early as 12 December 2019 (Lennon affidavit page 66) yet only filed the application on 11 May 2022.
The defendant foreshadowed its intention to make an application for summary judgment by letter dated 23 August 2021 ('REL 1').
The defendant raised the issues regarding the plaintiff being the wrong party by letters dated 23 August 2021 ('REL 1'), 19 November 2021 ('REL 6'), and 18 January 2022 ('REL 7').
Although the affidavit of Ryan Eamonn Lennon attaches correspondence exchanged between the solicitors from 23 August 2021 to March 2022 there is no proper explanation as to the delay in making the chambers application after 23 August 2021.
Whilst there is a discretion afforded to the court to extend time, I am not persuaded that there is sufficient explanation for the delay between 23 August 2021 and 11 May 2022.
In the circumstances, leave to bring the application for summary judgment out of time is refused and the application dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
TS
Court Officer
6 SEPTEMBER 2022
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