Satchi and Satchi Australia Pty Ltd v Zeaiter Corporate Holdings Pty Ltd - [2010] NSWSC 715

NEW SOUTH WALES SUPREME COURT

CITATION:
Satchi & Satchi Australia Pty Ltd v Zeaiter Corporate Holdings Pty Ltd [2010] NSWSC 715

JURISDICTION:
Common Law

FILE NUMBER(S):
2008/289772

HEARING DATE(S):
25 June 2010

JUDGMENT DATE:
25 June 2010

PARTIES:
Satchi & Satchi Australia Pty Limited (P1)
Hemalatha sothy Ranjini Satchithanantham (P2)
Zeaiter Corporate Holdings Pty Ltd (D)

JUDGMENT OF:
Garling J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable

COUNSEL:
T Satchithanantham (by leave) (Ps)
D J Edwards, Solicitor (D)

SOLICITORS:
T Satchithanantham (by leave) (Ps)
Thurlow Fisher

CATCHWORDS:
PRACTICE AND PROCEDURE – Summary judgment – Principles for exercise of summary judgment – Refusal to reopen previous orders of court.

LEGISLATION CITED:
Supreme Court Act 1970 s 48

CATEGORY:
Procedural and other rulings

CASES CITED:
Cosmos E C Commerce Pty Limited v Sue Bidwell & Associates Pty Limited [2005] NSWCA 81
General Steel Industries Incorporated v Commissioner for Railways NSW (1964) 112 CLR 125

TEXTS CITED:

DECISION:
Notices of motion dated 20 April 2010 and 21 May 2010 dismissed. Applicants to pay the costs of the respondent of the notices of motion.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST
GARLING J
FRIDAY, 25 JUNE 2010
2008/289772 SATCHI & SATCHI AUSTRALIA PTY LIMITED & Anor v ZEAITER CORPORATE HOLDINGS PTY LIMITED

JUDGMENT

HIS HONOUR: This is the hearing of two notices of motion. The first dated 20 April 2010 and the second which is described as an amended notice of motion dated 21 May 2010. Both of these motions are brought by the applicants Satchi & Satchi Australia Pty Limited and Mrs Satchithanantham. They are represented today before me by leave of the court by Mr Satchithanantham.
In support of these motions, the applicants rely on six affidavits, each sworn by Mr Thambiappah Satchithanantham on the following dates: 28 December 2007, 28 April 2008, 6 June 2008, 9 July 2008, 23 March 2009 and 17 July 2009. The deponent, Mr Satchithanantham, was not cross examined on any of these affidavits.
In addition, a number of documentary exhibits were tendered and have been marked. I have read and considered all of the evidence carefully. As these motions are interlocutory and I am delivering an ex tempore judgment I will not refer to the evidence in any specific detail or in any particular way.
The only respondent to the motions is the defendant Zeaiter Corporate Holdings Pty Ltd. It was represented today by its solicitor Mr Edwards.
The motions are brought in proceedings which were commenced by summons filed in court on 7 January 2008. The summons claims a range of relief both interim and final which relates to the occupation by the plaintiffs of either the ground or first floor of commercial premises in Station Street at Wentworthville. As well, orders are sought which relate to various proceedings in the Administrative Decisions Tribunal to which I will refer as the ADT.
These proceedings brought by the summons have been before the court on many occasions. The thorough and comprehensive judgments of Hoeben J of 9 May 2008 and 30 July 2008 relieve me of the need to describe in any detail the factual background to the summons or the various disputes between the parties to these notices of motion. If any detail of the chronology of appearances and of that material is necessary to understand these reasons it can be found in either or both of the judgments of Hoeben J.
It is important however for me to note that as a consequence of the judgments of Hoeben J some of the relief sought in the summons has already been disposed of by the court. It is not open to me and I do not propose to sit as if on an appeal from the orders of Hoeben J. Importantly the matters disposed of in those judgments include, firstly, in the judgment of 9 May 2008 that all relief sought in the summons relating to proceedings numbered 079043 in the ADT was dismissed and secondly, by the judgment of 30 July 2008, it was determined that issues relating to the occupation of some of the premises after January 2008 were also disposed of, in particular in paragraphs 26 and 27 of the judgment of Hoeben J of 30 July 2008 his Honour said this:
“26These matters, even if they were made out do not answer the point raised by the defendant, ie the failure to comply with the undertaking given to the court on 4 February 2008. In my opinion the defendant is entitled to be relieved of any obligation to comply with order 1 of the consent orders made on 4 February 2008 and this order should be discharged.
27The defendant was not able to establish an entitlement to the second order sought by it, ie that the second plaintiff give up possession of the premises to the defendant. Such an order does not necessarily follow from a discharge of the first consent order. On the contrary all that it does is to enable the defendant to now take whatever steps it regards as appropriate to regain possession of the premises”.
As it was argued today, the principal relief sought by the applicants was summary judgment on all outstanding claims. That can be found as order 1 in the amended notice of motion. Such summary judgment would include orders granting substantive relief as to the legal nature and effect of two registered leases, the granting of relief in the form of mandatory orders requiring the defendant to restore the applicants to possession of the ground and first floor premises of the Wentworthville property from which they were variously evicted in 2004 and 2008 and which have since been re-tenanted, the interruption of the eviction process of Mr and Mrs Satchithanantham from their domestic premises at Westmead at the request of the National Australia Bank and the payment of at least $7 million, but probably more, by way of damages.
The principles upon which a court is entitled to summary judgment are well known. They can be found in many cases. In General Steel Industries Incorporated v Commissioner for Railways NSW (1964) 112 CLR 125, Barwick CJ said at pp 128 and 129:
“The jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion.
……
The test to be applied has been variously expressed, so obviously untenable that it cannot possibly succeed, manifestly groundless, so manifestly faulty that it does not admit of argument.”
These principles have been applied in many cases in this court. An example of that is to be found in the decision of the Court of Appeal in Cosmos E C Commerce Pty Limited v Sue Bidwell & Associates Pty Limited [2005] NSWCA 81 at [37] in the judgment of Pearlman JA with whom Hodgson and Ipp JJA agreed.
I am wholly unpersuaded that this is a suitable matter for summary judgment. There are a number of reasons for this.
Firstly, the evidence relied upon by the applicants does not sufficiently support any entitlement to the relief claimed.
Secondly, the nature of the issues of fact and law or issues of fact or law which the applicants wish to raise and have determined by this process of summary judgment are not so clear that I could make findings of the necessary kind to satisfy the legal test for summary judgment. Put another way, I am not satisfied that the issues are so clear that the respondent defendant's arguments cannot possibly succeed or are manifestly groundless. On the contrary, it seems to me that some such appellation may, on the material that I have seen, be able to be applied to the applicants' arguments. However, I do not need to decide that and I do not.
Thirdly, much of the relief claimed on the notice of motion is outside the terms of the orders sought in the original summons. In particular in the amended notice of motion of 21 May 2010, orders 2 to 4 inclusive, 6 and 7 inclusive, and 11 and 12 travel well beyond the original relief claimed.
Fourthly, the consequences of the granting of summary judgment on the basis of orders 11 and 12 would, or, at least might, affect the rights of other parties such as the National Australia Bank and the present tenants of the commercial premises at Wentworthville, neither of whom are parties to these proceedings.
Much the same can be said of the orders sought in the notice of motion dated 20 April 2010. In that motion, orders 2 to 5 seem to involve the exercise of a jurisdiction and the making of orders which properly belongs to the Court of Appeal by reason of the provisions of s 48 of the Supreme Court Act 1970 which allocates to the Court of Appeal proceedings by way of an appeal from the Appeal Panel of the ADT.
In all of those circumstances I am not satisfied that the orders sought in either the notice of motion or the amended notice of motion ought be made and I dismiss each of those motions.
The applicants must pay the costs of the respondent of the notices of motion.
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LAST UPDATED:
30 June 2010