Rodie v Grunsell - [2005] WADC 6

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: RODIE -v- GRUNSELL [2005] WADC 6

CORAM: FENBURY DCJ

HEARD: 6 DECEMBER 2004

DELIVERED : 28 JANUARY 2005

FILE NO/S: CIV 1211 of 2004

BETWEEN: WENDY GAYE RODIE
Plaintiff
AND
NOEL THOMAS GRUNSELL
Defendant

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :REGISTRAR CHRISTO
File No  :CIV 1211 of 2004

Catchwords:

Appeal from registrars refusal to grant plaintiff's appliction for summary judgment under O 14 Rules of the Supreme Court - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Representation:

Counsel:

Plaintiff: Mr I N Wilson
Defendant: Mr M W Fatharly

Solicitors:

Plaintiff: Ian Wilson Barrister and Solicitor
Defendant: Kott Gunning

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

Fancourt v Mercantile Ltd (1993) 154 CLR 87
Webster v Lampard (1993) 177 CLR 598

Case(s) also cited:

Nil

FENBURY DCJ: This is an appeal against a registrar's decision refusing the plaintiff's application for summary judgment brought pursuant to the provisions of O 14 of the Rules of the Supreme Court.
In compliance with the relevant practice directions both of the parties have filed comprehensive submissions in the matter. These submissions, as they are intended to do, significantly assist the court in approaching this matter and are a helpful source of reference to and identification of the relevant issues.
In her writ, which she appears to have prepared and issued herself, the plaintiff states in the endorsement of claim "the plaintiff claimed repayment of a debt in the sum of $102, 122.64 which debt is presently owed by the defendant to the plaintiff."
In her statement of claim the plaintiff states:
"Par 2: In about June 2002 the Plaintiff and the Defendant commenced a romantic relationship.
Par 3: The Plaintiff at the verbal requests of the Defendant made throughout the period from July 2002 in or about October 2003 made (sic) cash loans to the Defendant and further effective payment of debts owed by the Defendant to various third parties it being agreed between the Plaintiff and the Defendant that she would be reimbursed by the Defendant in respect of her payment of his debt.
Par 4: In consequence of the cash loans and payments made to third parties by the Plaintiff at the Defendants request the Defendant is indebted to the Plaintiff in sum $62,122.64 ("the Loan Debt").
Par 5: Despite numerous demands made by the Plaintiff upon the Defendant to repay the loan debt the Defendant has failed to repay all or any part of the loan debt.
Par 6: Further throughout July, August and September 2002, the Plaintiff was employed as a Property Manager with Central Estate Agency of Rokeby Road Subiaco.
Par 7: In or about mid September 2002 the Defendant and the Plaintiff entered into a oral contract the terms of which were;
(a) That the Plaintiff was cease employment and desist from any form of employment;
(b)The Plaintiff would devote herself to the fulltime care, welfare and domestic requirement of the defendant;
(c)That in consideration of the Plaintiff fulfilling the terms referred to in sub paragraphs (a) and (b) thereof the Defendant would pay the Plaintiff the sum of $40,000 net for each year of compliance with the terms which payment would be made upon each anniversary there of.
Par 8: The Plaintiff ceased her employment with the said Agency in late September 2002 and has otherwise complied with the terms of the oral contract and in breach thereof the Defendant has failed neglected and refused to pay the Plaintiff the agreed sum of $40,000 payable upon the first anniversary of the said contract.
Par 9: The Defendant has in writing bearing date the 20^th day of May 2004 acknowledged in writing that he is indebted to the Plaintiff for the amount of the Loan Debt together with the sum of $40,000 but has failed neglected and refused to repay the Plaintiff these monies."
It can immediately be appreciated that the plaintiff's action arises against a background of a personal relationship, and that it was not a business relationship. That context or background obviously has a potential significantly to colour the interpretation of events and conduct that occurred during the relationship.
The centre point of the plaintiff's claim is a hand written acknowledgment of debt signed by the defendant on 29 May 2004 whereby he acknowledges that he owes the plaintiff a sum of $102,122.64.
In essence the plaintiff alleges that this document is a complete answer to any defence the defendant could possibly raise in the matter.
The defendant in his outline of submissions refers the court to Fancourt v Mercantile Ltd (1993) 154 CLR 87 at 99 which is authority for the proposition that the power to order summary judgement should be exercised with great care and should never be exercised unless it is clear there is no real question to be tried.
Further at par 4 it is submitted as follows:
"It was never intended that when the facts are in dispute an action should be disposed of summarily…and the court does not dispose of the factual merits on a conflict of affidavits or by rejecting the defendant's affidavit evidence because of its arguable inconsistency with documentary evidence adduced by the plaintiff (there is a reference to Seaman Supreme Court Civil Court Procedure at par 14.3.3)"
The defendant goes on at par 5:
"If a version of the facts is put forward by the defendant that is not inherently incredible, then in the absence of any opportunity of cross-examination it is incumbent on the Court to proceed on the basis that it will ultimately be accepted at the trial of the action. (Webster v Lampard (1993) 177 CLR 598 at 608).
Without going into a detailed analysis of every assertion made by the defendant in essence he has disclosed in the affidavits he has filed in resistance to the plaintiff's application a long history of interaction between himself and the plaintiff whereby there were various arrangements of one kind or another made between them from time to time that had financial implications. These arrangements in part related to domestic matters, accommodation and various other matters. Especially in his affidavit sworn 31 September 2004, the defendant sets out at great length the financial history of the relationship and in essence denies that he owes the plaintiff the claimed sum.
The plaintiff rebuts much of what is stated by the defendant. Some of her assertions about the accuracy of some of the things said by the defendant may appear to have some substance, others do not. Again I do not think a detailed analysis or teasing out of these issues on this appeal is required. I have that view simply because a lot of the material is contentious between the parties. It is not possible to make any findings about those matters in the circumstance. There are arguable and they well result, at the end of day, in the defendant being able to resist the plaintiff's claim. It is not for the Court to say at this stage.
There is no doubt whatsoever that on 29 May 2004, as is alleged, the defendant signed the document upon which the plaintiff purports to sue. On the face of it it is an acknowledgment of debt.
However, the defendant has sworn that he was under the influence of alcohol at the time; that he was romantically involved; that he was under pressure from the plaintiff of one kind or another and that the document was more a joke. It was not intended to have binding legal effect. It was made in circumstances similar to those which presented in the case of Louth v Diprose (1992) 175 CLR 621 where Dean J at 637:
"It has long been established that the jurisdiction of Courts of Equity to relieve against unconscionable dealing extends generally to circumstances in which;
(i) a party to a transaction was under a special disability in dealing with the other party to the transaction with the consequence that there was an absence of any reasonable degree of equality between them;
(ii) that special disability was sufficiently evident to the other party to make it prima facie unfair or 'unconscionable' that that other party procure, accept or retain the benefit of the disadvantage parties assent to the impugned transaction in the circumstances in which he or she procured or accepted it. Where such circumstances are shown to have existed, an onus is cast upon the stronger party to show that the transaction was fair, just and reasonable: …
The adverse circumstances which may constitute a special disability for the purpose of the principle relating to relief against unconscionable dealing may take a wide variety of forms and are not susceptible of being comprehensively catalogued. In Blomley v Ryan Fullagar J listed some examples of such special disability:
'Poverty or need of any kind, sickness, age, sex, infirmity of body or mind, drunkenness, illiteracy or lack of education, lack of assistance or explanation where assistance or explanation is necessary.' "
The sworn but apparently contentious evidence of the defendant is that he was very intoxicated when he wrote and signed this document. The was also under some form of personal pressure from the plaintiff at the relevant times. It may well be that as to this issue the defendant will be unsuccessful. But it is not possible to say. The Court cannot make an adverse finding about that issue on the materials that are presently to hand. Granted there maybe inconsistencies upon detailed analysis of every statement made by comparison with affidavits and documents and matters of that kind but as a generalisation I am quiet unable to say that there is no real question to be tried in this matter such that the plaintiff should be entitled to an order, now, without trial of any kind, that the defendant pay her the amount she claims or part of it.
I would therefore dismiss this appeal with costs.