Ross v Cox

[2016] WASC 394

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   ROSS -v- COX [2016] WASC 394

CORAM:   ACTING MASTER STRK

HEARD:   13 SEPTEMBER 2016

DELIVERED          :   5 DECEMBER 2016

FILE NO/S:   CIV 2047 of 2016

BETWEEN:   ANTHONY RICHARD ROSS

Plaintiff

AND

PETER COX
First Defendant

PL COX PTY LTD
Second Defendant

MARIA LAURA COX
Third Defendant

Catchwords:

Summary judgment - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Plaintiff:     In person

First Defendant             :     Mr R J S French

Second Defendant         :     Mr R J S French

Third Defendant           :     Mr R J S French

Solicitors:

Plaintiff:     In person

First Defendant             :     Robert French

Second Defendant         :     Robert French

Third Defendant           :     Robert French

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

Hillboi Nominees Pty Ltd v Evenwood Pty Ltd [2000] WASCA 66

Lill v Merchant Capital (WA) Ltd (1996) 15 WAR 536

Westpac Banking Corporation v Thorpe (Unreported, WASC, Library No 970465, 18 September 1997)

1. ACTING MASTER STRK:  By chamber summons filed 5 August 2016, the plaintiff (Mr Ross) seeks summary judgment against the first and third defendants (Mr Cox and Ms Cox).

2. As at the hearing of the summary judgment application no appearance had been filed by or on behalf of Mr Cox, whereas Ms Cox was represented at the hearing.

3. Mr Ross relies on an affidavit sworn by him on 20 July 2016 in support of his claim for summary judgment.  In short, Mr Ross asserts that Mr and Ms Cox have breached a loan agreement dated 4 March 2014 and seeks that judgment be entered against Mr and Ms Cox in the amount of $400,000, together with costs.  He does not press for summary judgment of all of the claims agitated in by him in the proceedings.

Requirements of O 14 r 2 of the Rules of the Supreme Court 1971 (WA)

1. An application for summary judgment is to be made by summons supported by an affidavit verifying the facts on which the claim or part of the claim to which the application relates is based, and stating that in the deponent's belief there is no defence to the claim or part thereof, as the case may be, or no defence except as to the amount of any damages claimed.

2. Mr Ross' application for summary judgment is not supported by an affidavit which satisfies O 14 r 2(1) of the Rules of the Supreme Court1971 (WA). Mr Ross fails to verify the facts on which the part of the claim to which the application relates is based, and also fails to state that in his belief there is no defence to the claim or part thereof.

3. Failure to produce an affidavit that complies with O 14 r 2(1) will ordinarily result in the application for summary judgment being dismissed.[1]  However, the consequence is not inevitable.

   [1] Lill v Merchant Capital (WA) Ltd (1996) 15 WAR 536, 550 (Ipp J); Hillboi Nominees Pty Ltd v Evenwood Pty Ltd [2000] WASCA 66 [81] (Ipp, Owen & Steytler JJ).

4. Having regard to all of the circumstances, including the fact that Mr Ross is not represented in these proceedings, I am not satisfied that there is good reason in this case to divert from the ordinary course.

5. For completeness I note that the application would fail, even if I was to overlook strict observance of the requirements of O 14 r 2(1).

Failure to properly plead the cause of action

1. If the cause of action underlying a claim is not properly pleaded in the statement of claim, then a summary judgment in respect of the same claim must be dismissed.[2]

   [2] Westpac Banking Corporation v Thorpe (Unreported, WASC, Library No 970465, 18 September 1997) (Sanderson M).

2. As explained above, Mr Ross asserts that Mr and Ms Cox have breached a loan agreement dated 4 March 2014 and seeks that judgment be entered against Mr and Ms Cox in the amount of $400,000, together with costs.

3. As noted above, Mr Ross does not verify in his affidavit all of the facts necessary to ground his claim - for example, he does not explain or provide any particulars of the amounts advanced to Mr and Ms Cox.  The issue is compounded as the cause of action underlying Mr Ross' claim is not properly pleaded in the statement of claim.

4. In this regard I note that the statement of claim does not clearly plead that an advance was made pursuant to the loan agreement, nor does it provide the specific amounts that were alleged to have been advanced by Mr Ross to Mr and Ms Cox, and which Mr Ross says were to be repaid under the loan agreement.

5. Consistent with the approach taken by Master Sanderson in Westpac Banking Corporation v Thorpe, Mr Ross' application for summary judgment fails because of action underlying Mr Ross' claim is not properly pleaded in the statement of claim.

Other matters raised by Ms Cox

1. Had Mr Ross satisfied me that his claim was a good one and had his affidavit verified the essential elements of the cause of action upon which his application for summary judgment was based, the evidentiary onus would have shifted to Ms Cox to demonstrate that there is an arguable defence or other reason for trial.

2. In this case, Mr Ross has not satisfied me that his claim is a good one and his affidavit does not verify the essential elements of the cause of action upon which the application for summary judgment is based.  In the circumstances, there is no need for me to consider and address the numerous other matters raised by Ms Cox in opposition to the summary judgment application.

Judgment

1. For these reasons, I dismiss the application for summary judgment.