RetireInvest Pty Ltd v Roselake Corporation Pty Ltd
[2008] WADC 90
•1 JULY 2008
RETIREINVEST PTY LTD -v- ROSELAKE CORPORATION PTY LTD & ANOR [2008] WADC 90
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WADC 90 | |
| Case No: | CIV:201/2008 | 17 JUNE 2008 | |
| Coram: | DEPUTY REGISTRAR HEWITT | 1/07/08 | |
| PERTH | |||
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Judgment for the plaintiff against the second defendant | ||
| PDF Version |
| Parties: | RETIREINVEST PTY LTD (ACN 001 744 125) ROSELAKE CORPORATION PTY LTD (ACN 077 966 128) KARINA WILCZEWSKI |
Catchwords: | Practice and procedure Western Australia Summary judgment Extension of time Turns on its own facts |
Legislation: | Nil |
Case References: | Webster v Lampard (1993) 177 CLR 598 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
ROSELAKE CORPORATION PTY LTD (ACN 077 966 128)
First Defendant
KARINA WILCZEWSKI
Second Defendant
Catchwords:
Practice and procedure - Western Australia - Summary judgment - Extension of time - Turns on its own facts
Legislation:
Nil
(Page 2)
Result:
Judgment for the plaintiff against the second defendant
Representation:
Counsel:
Plaintiff : Mr S Pratt
First Defendant : No appearance
Second Defendant : Mr K C B Staffa
Solicitors:
Plaintiff : Jackson McDonald
First Defendant : Not applicable
Second Defendant : Staffa Lawyers
Case(s) referred to in judgment(s):
Webster v Lampard (1993) 177 CLR 598
(Page 3)
1 DEPUTY REGISTRAR HEWITT: In this matter the plaintiff seeks a summary judgment against the second defendant by a summons filed 1 May 2008 amended by a minute handed up in court dated 17 June 2008. The defendant objects to the application on the grounds that it is out of time. The Rules of the Supreme Court require an application for summary judgment to be filed within 21 days of the date upon which an appearance is entered. The Rules also require a party filing an appearance to serve a copy on the plaintiff. In this instance it is clear that the second defendant did not serve a copy of the appearance on the plaintiff and that appears in par 4 of the second defendant's affidavit.
2 Ultimately, the defendant appointed solicitors and they filed a notice of appointment dated 12 March 2008 which was received by the plaintiff's solicitors on 13 March 2008.
3 The delay is not great and is in part explained by the failure of the second defendant to comply with the Rules of Court in regard to the service of an appearance. I therefore grant the leave sought in par 1 of the chamber summons to bring an application for a summary judgment. I now turn to the merits of that application.
4 On 4 October 2007 the plaintiff and the defendants entered a deed under the terms of which the first and second defendants acknowledged and agreed that an amount of $316,612.56 together with interest at a nominated rate was a debt due and owing by them to the plaintiff. The deed provided that if the first and second defendants paid the sum of $140,000 within 21 days of the date of execution of the deed and the further sum of $35,000 within a further 12 months of the date of execution of the deed those payments would be accepted in satisfaction of the full amount due.
5 It is common ground that the monies have not been paid and the plaintiff seeks the sum of $316,612.56 together with interest on that sum.
6 It has been suggested that the deed is not stamped but I have inspected a copy which bears the stamping details and that aspect of the matter is no longer relevant. The facts of the plaintiff's case are set out in the affidavit of support but in essence the plaintiff points to the deed and acknowledgement of debt in it, the failure to pay any monies towards that debt, and seeks a judgment in the sum acknowledged to be due. In my view the plaintiff has set out a prima facie entitlement to judgment and I now turn to examine the matters which are raised by way of defence to
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- determine if they disclose an arguable defence or other proper reason to justify this matter going to trial.
7 An initial matter for consideration is whether the plaintiff is suing on the deed itself or simply relying upon the deed, and the acknowledgement of debt within it, in an evidentiary sense. That point is important because the second defendant contends that she has rescinded the deed and as a consequence it is not binding on her nor is the acknowledgement of debt effective to create a liability from her to the plaintiff.
8 The deed is said to have been rescinded by letter dated 30 May 2008 some four months after this action commenced, and one month after the present application was filed.
9 The basis upon which the second defendant claimed to be entitled to rescind was said to be breaches of pars 4, 5 and 14 of the deed. Those paragraphs are in the following terms:
"Commission payments
4. Subject to Wilczewski's and Roselake's compliance with this Deed RI will within 7 days of the execution of this Deed:
a) Arrange for the payment of INGA of all Wilczewski's and Roselake's outstanding commission payments relating to or arising from their clients who have submitted to RI and/or INGA valid transfer requests; and
b) Facilitate the transfer to Sentry of the clients who have submitted valid transfer request of their business to Wilczewski and Roselake as authorised representatives of Sentry:
Letter
5. Subject to Wilczewski and Roselake's compliance with this Deed RI will within 7 days of the execution of this Deed, prepare and send to all clients of Wilczewski and Roselake as at 3 September 2007 a letter in the form of the document annexed and marked A hereto to be freighted to Wilczewski and Roselake for distribution to
- their clients by them without covering letters or comments.
- Non –disparagement
14. Each party to this Deed agrees it or she will not in any way disparage or criticise the other parties publicly (including via any letters, email or brochure or pamphlet) in relation to the matters the subject the Background hereof and Wilczewski and Roselake further acknowledge and agree that the limitation on RI's part to enforce the payment in full of the Amount Claimed and Interest is conditional only upon Wilczewski's and Roselake's compliance with this Deed, including this clause 14."
10 A party seeking to rescind a contract is required to do so promptly upon becoming aware at the breach. Additionally the right to rescind is an election to be exercised by the party entitled.
11 A breach (if there was one) of pars 4 and 5 would have occurred seven days after the date of the deed ie, by 11 October 2007. Nonetheless the second defendant made no move to rescind the contract but emailed the plaintiff on 29 October 2007 in the following terms:
"Although I have tried extremely hard to obtain finance for your payment to meet your deadline today there has been a small delay. I understand this is very disappointing (I am very disappointed), but it has just not been possible to have it all finalised for today.
My accountant, Matthew Symons, is happy to answer any queries directly from you in relation to this as he is liaising with the relevant parties and is confident that I will receive the finance soon. Matthew's contact details are as follows. … I apologise once again and will write to you in a few days with a more accurate date.
Kind regards
Karina Wilczewski"
12 In my opinion the second defendant's email evinced a clear intention to keep the deed on foot and did in fact achieve a small concession from
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- the plaintiff. By doing so the second defendant lost her right (if there was one) to rescind on the ground of breaches of pars 4 and 5.
13 As to the allegation of breach of par 14 as discussed elsewhere in these reasons there is no evidence to support that proposition.
14 I therefore conclude that the attempt by the second defendant to rescind the deed was ineffective and it remains a valid document which can be relied upon by the plaintiff.
15 The first issue raised by the second defendant is that the plaintiff's rights are contingent on compliance with pars 4 and 5. That point founders on the same basis as the rescission point ie, the election by the second defendant to proceed evidenced by her email. To the extent the deed expresses any contingency the performance of the obligations in pars 4 and 5 was said to be contingent on defendants' compliance with the deed. (Although it is to be noted the time horizon for that compliance as far as payment goes was 21 days.) There is nothing within the deed to support the interpretation argued to by the second defendant and in light of the conduct of the second defendant outlined above even if there were she would have been estopped from such a contention.
16 There are additional allegations of non-compliance with the terms of the deed by the second defendant and those arise under par 14 of the deed which effectively contains mutual covenants between the parties not to disparage or criticise the other. It is said by the second defendant that that term has been breached but her evidence on that point is thin to the point of being non-existent. Certain letters which would answer the description of being disparaging were written by the plaintiff but those letters were written prior to the execution of the deed and therefore do not constitute a breach. Insofar as there is an allegation of breach it appears in par 36 of the second defendant's affidavit which effectively state that the second defendant was dismissed by her then employer allegedly as a result of certain telephone conversations between employees of the plaintiff company and the second defendant's employer. Exactly what the content of those conversations might have been, who made the telephone calls or anything else relevant to those calls is not revealed. There is, in effect, no evidence which could satisfy me to any standard that the plaintiff is in breach of par 14 of the deed.
17 It therefore appears to me that there is no evidence presented by the second defendant to support an allegation that the plaintiff is in breach of that term of the deed. The next matters relate to whether or not the
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- plaintiff complied with the requirements of par 4 of the deed namely the payment of outstanding commissions and the transfer of clients. The second defendant alleges that only one half of the outstanding commissions has been paid which would leave on my calculations a balance of something of the vicinity of $8,000. On that score the plaintiff has filed the affidavit of Linda Griffin which gives details of compliance given by the plaintiff under the terms of the deed. Since the second defendant did not complain of want of performance of those matters in any communication prior to this summary judgment application, and since the second defendant has been at some pains to point out how critical the performance of these obligations was to her financial survival I find her allegations of non-performance to be so implausible that I disregard them and accept the evidence of the plaintiff. In such a finding I characterise the allegations of the second defendant, in the context of the facts as they existed at the time, as inherently incredible: Webster v Lampard (1993) 177 CLR 598 at 608.
18 The next matter which is raised by the second defendant is the allegation that the plaintiff has behaved unconscionably exerting pressure on the second defendant to execute the deed upon which it now relies.
19 In that regard the matter does not deserve a great deal of attention. The plaintiff invited the second defendant to engage a solicitor to assist her which she did. The terms of the deed were the subject of negotiation between the plaintiff and the solicitor representing the defendants. The deed itself contained an acknowledgement of debt in excess of $300,000 and a provision that something slightly more than one half of that amount would be accepted in satisfaction of the debt. That to me has the appearance of a hard fought compromise between the parties in which the plaintiff was persuaded to accept less than the amount it considered to be due in order to secure the rapid payment of something rather less than the total it claimed to be due. I am unable to perceive anything in what transpired between the parties to indicate that the plaintiff behaved in any way unconscionably nor is there anything to support the proposition, as advanced on behalf of the second defendant, that her free will was overborne by the pressure which was brought to apply on her. In fact the negotiations under the terms of the deed were quite protracted, and as I have said its terms suggest a hard fought bargain rather than provisions which were imposed willy nilly upon the second defendant through the desperation of her position.
20 I therefore summarise this matter as follows:
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- 1. The purported repudiation of the deed by the second defendant some four months after this action commenced and in the face of earlier conduct which appears to me to bear the imprint of affirmation of the contract, was ineffective.
2. I find the allegations of breach inconsistent with the contemporaneous conduct of the second defendant and inherently implausible and accept the matters deposed to by the plaintiff as to its performance of the relevant provisions.
3. If there were breaches of the deed by the plaintiff they do not affect its entitlement to sue for the balance acknowledged to be due.
4. The plaintiff should be entitled to a summary judgment.
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