Rutherford v Soobiah Pty Ltd - [2009] WASC 231

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RUTHERFORD -v- SOOBIAH PTY LTD [2009] WASC 231

CORAM: MASTER SANDERSON

HEARD: 30 JUNE 2009

DELIVERED : 30 JUNE 2009

PUBLISHED : 20 AUGUST 2009

FILE NO/S: CIV 1248 of 2009

BETWEEN: SIMONE RUTHERFORD
IAN HEY
Plaintiffs
AND
SOOBIAH PTY LTD
IEW INVESTMENTS PTY LTD
IAN GORDON KENNEDY
PETER VASSILLEFF
Defendants

Catchwords:

Summary judgment - Application for judgment with damages to be assessed - Turns on own facts

Legislation:

Nil

Result:

Judgment for the plaintiffs

Category: B

Representation:

Counsel:

Plaintiffs:     Mr D F Beere
First-named Defendant     :     Mr K C Staffa
Second-named Defendant    :     No appearance
Third-named Defendant     :     No appearance
Fourth-named Defendant     :     No appearance

Solicitors:

Plaintiffs:     D F Beere
First-named Defendant     :     Staffa Lawyers
Second-named Defendant    :     Summers Legal
Third-named Defendant     :     Summers Legal
Fourth-named Defendant     :     Morgan Alteruthemeyer

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

Nil

MASTER SANDERSON: This was the plaintiffs' application for summary judgment against the first‑named defendant. After hearing argument I made the following orders:
1.Summary judgment be entered against the first‑named defendant on the issue of liability.
2.The plaintiffs have leave to list their claim as against the first‑named defendant for assessment of damages.
3.The first‑named defendant pay the plaintiffs' costs of the action and of this application save for the first‑named defendant's costs of its defence which are to be paid by the plaintiffs to the first‑named defendant.
At the conclusion of the hearing I indicated to the parties that I would publish reasons for my decision. These are those reasons.
The application for summary judgment was lodged on 18 March 2009. The first‑named defendant filed an appearance on 24 February 2009. Under O 14 r 1(1) an application for summary judgment must be brought within 21 days of the filing of an appearance. This application was brought 22 days after the appearance was entered and is therefore one day out of time. The chamber summons seeking judgment did not seek an extension of time and the affidavit in support of the application did not deal with the issue of the delay. But the delay is only one day. The plaintiffs' solicitor practises in the south west of the state.
Given I was satisfied the application had merit it seemed to me that time should be extended accordingly. However, it would appear that when the final orders were made no extension was granted. That oversight should be rectified under the slip rule.
The application is supported by an affidavit of the first‑named plaintiff sworn 11 March 2009. The summary of the facts which follows is taken both from the statement of claim and from the first‑named plaintiff's affidavit.
The plaintiffs are the registered proprietors of Lot 29 on Plan 4900 at 147 Bussell Highway, Margaret River (Lot 29). On 31 October 2007 the first‑named defendant signed for and on behalf of all defendants a contract by way of offer and acceptance to buy Lot 29. The purchase price was $1,750,000 with $100,000 paid by way of deposit. Settlement was to take place on 30 April 2008. The contract incorporated the 2002 Joint Form of General Conditions for the Sale of Land (the General Conditions).
The contract was varied by an addendum signed on behalf of the first‑named defendant on 5 May 2008. This addendum changed the settlement date to 12 May 2008. The copy of the addendum annexed to the first‑named plaintiff's affidavit (Annexure SR4) does not indicate that it was signed by the plaintiffs. The plaintiffs' case is put on the basis that they agreed to the extension of time in relation to the settlement date.
The defendants failed to effect settlement on either 30 April 2008 or 12 May 2008. On 13 May 2008 the plaintiffs sent notices of default to all the defendants. In relation to the first‑named defendant it was sent to two addresses. One of these was the first‑named defendant's address as shown on the contract and the other was the registered office of the first‑named defendant.
The default notice was issued in accordance with cl 23 of the General Conditions. The notice required the first‑named defendant to effect settlement within 10 days of service of the notice. The first‑named defendant failed to effect that settlement.
The default notice indicated that if the first‑named defendant did not comply with its terms within the time specified then the contract may be terminated by the plaintiffs. It is the plaintiffs' case that as a result of the terms of the contract and the failure of the first‑named defendant to comply with those terms and with the default notice, the plaintiffs were entitled to terminate the contract, forfeit the deposit and sue for damages. The entitlement to sue for damages is found in cl 24.3 of the General Conditions.
On 23 June 2008 the plaintiffs terminated the contract, forfeited the deposit and subsequently issued these proceedings.
The property is presently on the market but has not been resold. Clause 24.6 of the General Conditions deals with the situation when there is a resale within 12 months. Given that the plaintiffs are attempting to resell the property and given that 12 months had not yet passed when this action was commenced since the contract was terminated it is not clear whether the plaintiffs' entitlement to damages is to be assessed under cl 24.6 or the general damages default provision found in cl 24.3(b). That is the reason why the plaintiffs at present are seeking judgment only with respect to liability with damages to be assessed.
The first‑named defendant raised a number of matters which, it was submitted, meant that judgment ought not be entered under O 14. First, it was said the statement of claim was defective. It was said that par 6 of the statement of claim did not allege that the defendants' failure to settle the purchase constituted a default under the contract. In my view, there is no merit in that submission. The statement of claim pleads the date upon which settlement was to take place under the original contract and the date upon which it was to take place under the variation. It is then said in par 6 of the statement of claim that the defendants failed to settle. That must be seen as a default under the contract - it could not be characterised otherwise. To put the position differently - what the plaintiffs are required to plead are the material facts. The failure to settle is the material fact. That material fact is then married up with the provisions of the contract between the parties to give the default. Moreover, none of the defendants could be in any doubt as to the nature of the default alleged against them. It is clear from the statement of claim and it is clear from the events which have led to this action being taken.
Secondly, it was alleged that the action - or at least the application for judgment - against the first‑named defendant could not be given because the first‑named defendant was not the sole purchaser of the property. This submission requires further examination. When the contract of sale was written up the buyer was said to be:
Soobiah Pty Ltd ATF The Soobiah Trust (35% share or in the alternative 37.5% share) of PO Box 674, Subiaco, WA 6984 and/or nominees.
The '35%' was subsequently amended to '25%'. It is common ground that 'ATF' stands for 'as trustee for'.
Appearing under the 'Special Conditions' to the contract as par 11 is the following:
(11)The nominees to this contract are:
11.1Iew Investments Pty Ltd ATF Williamson Trust (25% or in the alternative 37.5%).
11.2Ian Gordon Kennedy ATF The Kennedy Trust (25%)
11.3Peter Vassilleff ATF Pitch Investments (25% or in the alternative 0%)
There is no evidence to suggest that at any stage the first‑named defendant gave to the plaintiffs any notice which effected the interests of the first‑named defendant or of the nominees. For instance, it may have been open to the first‑named defendant to notify the plaintiffs that under the clause it nominated one or perhaps all of the nominees as the buyers under the contract. But that was not done. In fact, taking cl 11 of the Special Conditions with what is found as the description of 'buyer' in the contract it makes it plain that all four of these parties were intending to take an interest in the property or alternatively, three of them would take an interest - Soobiah Pty Ltd remaining in and Peter Vassilleff dropping out. There is nothing in the evidence to suggest any other alternative. That being so, the plaintiffs are entitled to fall back upon cl 26.5(g) of the General Conditions. That clause reads as follows:
Where the Buyer or the Seller and any other person who is a Party consists of more than one person, then each of the two or more persons:
(1)may exercise any right; and
(2)are liable,
both jointly and severally.
In my view, given that the liability is joint and several, the plaintiffs were entitled to sue the first‑named defendant. It may be the first‑named defendant has rights against the other named defendants. But that is not the issue. The plaintiffs have sued and are entitled to judgment against the first‑named defendant.
Thirdly, it was claimed that the application lacked merit. As I understand this submission it was said that the fact the plaintiffs readvertised the property for sale at a higher price than the price in the contract in some way prevented this claim being brought. There are two answers to that submission. First, this is a claim based in contract. Whether or not the plaintiffs have suffered any damage they have an actionable right and they are entitled to bring proceedings. Further, as I have already detailed, the fact the property has not been sold and may not have been sold within 12 months of termination of the contract does not prevent the question of liability being determined. That is what the plaintiffs are seeking. In my view, that is the judgment they were entitled to.
Fourthly, it was said the default notice was defective because it referred to a failure to complete the contract rather than the contract as allegedly varied. In my view, there could be no reasonable misunderstanding of the nature and intent of the default notice. It called upon the first‑named defendant to settle. Settlement did not take place and certain rights accrued to the plaintiffs. They have exercised those rights. There can be no question of the first‑named defendant not understanding what default had to be rectified.
For these reasons I was satisfied there should be judgment for the plaintiffs in the terms set out earlier in these reasons. Further, and as I have indicated, the judgment should be amended to grant an extension of time to bring the application.