Sell My Home Pty Ltd v Jakovich & Jakovich as executors of the estate of John Robert Jakovich
[2024] WASC 194
•28 MAY 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: SELL MY HOME PTY LTD -v- JAKOVICH & JAKOVICH as executors of the estate of JOHN ROBERT JAKOVICH [2024] WASC 194
CORAM: MASTER RUSSELL
HEARD: 23 APRIL 2024 & ON THE PAPERS
FURTHER EVIDENCE FILED ON 16 MAY 2024
DELIVERED : 28 MAY 2024
FILE NO/S: CIV 1281 of 2023
BETWEEN: SELL MY HOME PTY LTD (ACN 606 927 888)
Plaintiff
AND
BARRY ANTHONY JAKOVICH as executor of the estate of JOHN ROBERT JAKOVICH
First Defendant
DENNIS JOSEPH JAKOVICH as executor of the estate of JOHN ROBERT JAKOVICH
Second Defendant
Catchwords:
Practice and procedure - Judgment in default of appearance - Application for default judgment pursuant to O 13 r 9 of the Rules of the Supreme Court 1971 (WA) - Order for specific performance - Turns on own facts
Contracts - Contract for sale of land by offer and acceptance - Latest date for settlement lapsed - Seller not performed contract - Specific performance - Order for specific performance - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 9 r 1(1), O 9 r 1(4), O 13 r 1(1), O 13 r 1(1)(a), O 13 r 9(1), O 13 r 9(1)(a), O 13 r 9(2)(b), O 13 r 14
Result:
Judgment entered in default of appearance
Specific performance ordered
Category: B
Representation:
Counsel:
| Plaintiff | : | J C Yeldon |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | TGC Lawyers |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
Cases referred to in decision:
Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146; (2007) 161 FCR 513
City of Stirling v Dueschen [2011] WASC 126
Coulls v Bagot's Executor & Trustee Company Ltd (1967) 119 CLR 460
David Allan Collison as administrator of the estate of Diane Carol Collison v Collison [2024] WASC 87
Dougan v Ley (1946) 71 CLR 142
Faithfull v Woodley (1890) 43 Ch D 287
Phonographic Performance Ltd v Maitra [1998] 2 All ER 638
MASTER RUSSELL:
Overview
On 28 May 2021, the plaintiff, Sell My Home Pty Ltd (as buyer) and the defendants, Barry Anthony Jakovich and Dennis Joseph Jakovich as executors of the estate of John Robert Jakovich (as seller) entered into a standard form written Contract for Sale of Land or Strata Title by Offer and Acceptance (Contract).
The land the subject of the Contract is the property located at 33 Wanstead Street, Gwelup in the State of Western Australia, being the whole of the land comprised in Certificate of Title Volume 1583 Folio 867 and more particularly described as Lot 39 on Plan 13466 (Land).
The latest date for settlement was 12 August 2021. Settlement did not occur by that date and, despite notice having been given to the defendants, the sale of the Land has not been completed.
The plaintiff commenced these proceedings on 21 May 2023 by writ indorsed with a statement of claim seeking orders for specific performance of the Contract. No appearance has been entered by the defendants.
By chamber summons filed on 22 December 2023, the plaintiff applied for summary judgment. At the hearing of the application on 23 April 2024, counsel for the plaintiff sought leave to amend to apply for default judgment pursuant to O 13 r 9 of the Rules of the Supreme Court 1971 (WA) (RSC). I made orders on 23 April 2024 granting leave to amend the application and the plaintiff filed its amended application that day.
By its amended application, the plaintiff seeks judgment in default of appearance for the relief sought in the writ, which includes orders requiring the defendants to specifically perform and carry the Contract into execution and compelling the defendants to sign a transfer of the Land to be delivered to the plaintiff forthwith.
In support of its application for judgment in default of appearance and for the relief sought, the plaintiff relies on an outline of submissions filed on 21 February 2024 and affidavits sworn by:
(a)Rebecca Hunt on 8 May 2023 verifying personal service of the writ and statement of claim on the first defendant on 3 May 2023;
(b)Andrew Hunt on 22 May 2023 verifying personal service of the writ and statement of claim on the second defendant on 13 May 2023;
(c)the plaintiff's sole director, Mr Saverio Rocco Pulitano, on 10 November 2023 (First Pulitano Affidavit), 21 February 2024 (Second Pulitano Affidavit) and 16 May 2024 (Third Pulitano Affidavit); and
(d)the plaintiff's solicitor, Tim Galic sworn on 16 May 2024 (Galic Affidavit).
Having considered counsel's submissions and the evidence filed in support of the application, for the reasons that follow, I am satisfied the procedural requirements have been satisfied and that it is appropriate to enter judgment in default of appearance and to grant the relief sought.
The procedural requirements for default judgment
The procedural requirements for judgment to be entered in default of appearance are set out in O 13 RSC and were recently considered by Lundberg J in David Allan Collison as administrator of the estate of Diane Carol Collison v Collison.[1]
[1] David Allan Collison as administrator of the estate of Diane Carol Collison v Collison [2024] WASC 87 [12] - [17], [19] - [21].
Order 13 r 9 RSC applies where, as in this case, a plaintiff's claim is other than for the recovery of a debt, damages, land or goods. The plaintiff in this case seeks specific performance, an equitable remedy.
The procedural requirements that must be satisfied for default judgment under O 13 r 9 RSC are:
(1)The proceeding must have been commenced by writ of summons.[2]
(2)Service of the writ on the defendant must be verified by affidavit, together with indorsement of service of the writ in accordance with O 9 r 1(4) RSC.[3]
(3)No appearance must have been filed by the defendant within the time prescribed for appearing.[4]
(4)The plaintiff must produce a certificate issued by the proper officer on the day of the hearing stating that no appearance has been entered by the defendant.[5]
[2] O 13 r 1(1) RSC.
[3] O 13 r 1(1)(a) RSC.
[4] O 13 r 9(1) RSC.
[5] O 13 r 9(2)(b) RSC.
Once the procedural requirements are satisfied, the court may consider the exercise of its discretion to grant default judgment for the relief sought.
Generally, in the absence of an appearance and any responsive pleading from the defendant, the allegations made in the statement of claim are deemed to be admitted.[6] An entitlement to the relief claimed must be disclosed in the plaintiff's pleading and evidence is not admissible to support or supplement the pleaded facts. However, where a plaintiff is seeking an equitable or discretionary remedy, the court must be sufficiently informed of the circumstances to properly exercise its discretion to grant or withhold the remedy.[7] In those circumstances, evidence may be required and adduced.
[6] City of Stirling v Dueschen [2011] WASC 126 [48] (Martin J); Faithfull v Woodley (1890) 43 Ch D 287, 289.
[7] Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146; (2007) 161 FCR 513 [42]; Phonographic Performance Ltd v Maitra [1998] 2 All ER 638, 646.
The relevant factual background
The following facts are derived from the First Pulitano Affidavit, the Second Pulitano Affidavit, the Third Pulitano Affidavit and the Galic Affidavit.
The record of certificate of title relating to the Land records the registered proprietor as John Robert Jakovich.[8]
[8] Third Pulitano Affidavit [6], 'A'.
The defendants were appointed as the executors of the estate of John Robert Jakovich by his will dated 28 September 2007. A grant of probate was issued to the defendants by this court on 1 November 2016.[9]
[9] Third Pulitano Affidavit [7], 'B'.
On 28 May 2021, the plaintiff and the defendants entered into the Contract, under which the defendants agreed to sell and the plaintiff agreed to buy the Land for the purchase price of $900,000.[10]
[10] First Pulitano Affidavit [7], 'SRP3'.
The Contract is dated 28 May 2021 and was signed by the plaintiff's sole director, Mr Saverio Rocco Pulitano, and each of the defendants as executors of the estate of John Robert Jakovich, recording the defendants' acceptance of the plaintiff's offer to purchase the Land.
The Contract is a standard form REIWA Contract for Sale of Land or Strata Title by Offer and Acceptance and incorporates the Joint Form of General Conditions for the Sale of Land (2018 General Conditions), as amended by the annexure to the Contract.
A deposit of $10,000 was payable by the plaintiff to the defendants' agent, Stage Property, within seven days of acceptance. The plaintiff paid the deposit of $10,000 by bank transfer to Stage Property Trust Account on 1 June 2023.[11]
[11] First Pulitano Affidavit [8], 'SPR4'.
The settlement date provided for in the Contract is stated as 60 days after acceptance of the offer and the latest time is stated as 4.00 pm on Monday, 12 August 2021.
On 12 August 2021, the stamp duty payable on the Contract was paid by the plaintiff in the amount of $40,265 (Stamp Duty). A certificate of duty was issued by the Western Australian Department of Finance, RevenueWA on 18 August 2021.[12]
[12] First Pulitano Affidavit [10], 'SPR5'.
Settlement did not occur by 12 August 2021.[13] Mr Pulitano deposes that the plaintiff was and has, since 12 August 2021, been ready, willing and able to perform the Contract.[14]
[13] First Pulitano Affidavit [12].
[14] First Pulitano Affidavit [11].
On 13 August 2021, notice of default was given to the defendants and their agent, Apple Settlements, pursuant to cl 23 of the 2018 General Conditions (Notice of Default). The Notice of Default gave particulars of the default as failing to proceed to complete settlement of the Contract on 12 August 2021 as required by the Contract. It stated that time remains of the essence and required the defendants to remedy the default within ten business days by affirming the Contract and proceeding to settlement of it.[15]
[15] First Pulitano Affidavit [12], 'SRP6'.
The defendants did not respond to the Notice of Default and failed to comply with it or remedy the default.[16]
[16] First Pulitano Affidavit [13].
On 28 September 2021, the plaintiff lodged a caveat against the Land, claiming an equitable interest as purchaser in the fee simple.[17]
[17] First Pulitano Affidavit [14], 'SRP7'; Third Pulitano Affidavit [4], [6], 'A'.
Mr Pulitano sent an email to the first defendant on 18 November 2021, requesting the defendants comply with their obligations under the Contract.[18]
[18] First Pulitano Affidavit [15], 'SRP8'.
On 1 July 2022, Mr Pulitano on behalf of the plaintiff sent a letter to the defendants again requesting them to comply with the Contract and informing them that the plaintiff would begin proceedings for specific performance to enforce the Contract within 14 days of the date of that letter. The defendants did not respond.[19]
[19] First Pulitano Affidavit [16], 'SRP9'.
Mr Pulitano explains that he did not cause the plaintiff to commence proceedings straight away, as he hoped to be able to resolve the matter amicably with the defendants and believed he could rely on the caveat registered against the Land to protect the plaintiff's interest. When the matter did not resolve, he instructed lawyers to commence proceedings.[20]
[20] Third Pulitano Affidavit [4] - [5].
TGC Lawyers, acting on instructions from Mr Pulitano on behalf of the plaintiff, issued these proceedings on 21 March 2023. The writ was served on the first defendant on 3 May 2023 and on the second defendant on 13 May 2023. The application for judgment was not filed until 10 November 2023.
Mr Galic deposes in his affidavit to the reasons for the delay in making the application for default judgment. The delay rests entirely with the plaintiff's lawyers and not because of anything attributable to the plaintiff.
The relief sought - specific performance
The plaintiff seeks specific performance of the Contract in lieu of monetary damages. The plaintiff is unable to quantify any damages at this time and says that damages would not be an adequate remedy for breach of the Contract for the purchase of the specific land the subject of it.
Mr Pulitano deposes that the plaintiff signed the offer to buy the Land because there was approval in place for a subdivisional land development. He states that it is the plaintiff's intention to develop the Land with the expectation of profiting from its subdivision. The plaintiff is unable to quantify any damage suffered as a result of the defendant's breach of Contract at this stage. The development approval has lapsed and an application will need to be lodged to renew it. That cannot be done until the Contract is performed.
Compliance with procedural requirements under O 13 r 9
I am satisfied on the evidence filed by the plaintiff that the relevant procedural requirements have been complied with. The defendants have each been served with the writ and the statement of claim and the writ has been indorsed in accordance with O 9 r 1(4) RSC.
At the hearing of the application for judgment in default of appearance on 23 April 2024, counsel for the plaintiff tendered a certificate signed by the proper officer as required under O 13 r 9(2)(b) RSC, certifying that no appearance has been entered by the defendants.[21]
[21] Exhibit 1: Certificate under O 13 r 9(2)(b) RSC signed by the Counter Coordinator as the proper officer on 23 April 2024.
The procedural requirements having been satisfied, I am empowered to consider the exercise of my discretion to grant default judgment for the relief sought.
Disposition as to relief sought - an order for specific performance of the Contract
In my view, the evidence adduced by the plaintiff is sufficient to establish a basis for default judgment to be entered on its claim for specific performance of the Contract.
The evidence supports the existence of the Contract and that the defendants, as executors of the estate of the registered proprietor of the Land, were authorised to enter into the Contract.
The plaintiff paid the deposit of $10,000 due under the Contract in accordance with its terms. The plaintiff has also paid the Stamp Duty payable on the Contract.
The latest date for settlement of the Contract was 12 August 2021. Settlement did not occur by that date and, despite notice having been given to the defendants, the sale of the Land has not been completed. The plaintiff's evidence that it was and remains ready, willing and able to complete the Contract is uncontradicted.
The contract sought to be enforced by an order for specific performance concerns the sale and purchase of land, a category of contracts for which the granting of specific performance is generally uncontroversial.[22] No equitable or other defence has been raised.
[22] Coulls v Bagot's Executor & Trustee Company Ltd (1967) 119 CLR 460, 503; Dougan v Ley (1946) 71 CLR 142, 153 - 154.
The plaintiff has explained the delay in bringing action to enforce the Contract and in making the application for default judgment.
In the circumstances, I am satisfied it is appropriate to exercise my discretion to grant the equitable relief sought in the application for judgment in default of appearance.
Conclusion and orders
For these reasons, I grant judgment in default of appearance in favour of the plaintiff, and will order the defendants to specifically perform the Contract and carry it into execution by signing a transfer of land and delivering it to the plaintiff within 14 days.
There will be liberty to apply.
There will also be an order that the defendants are to pay the plaintiff's costs of the action and of the notice of motion for judgment in default of appearance.
The orders are to be served personally on the defendants and shall include notice to the defendants of their right to apply under O 13 r 14 RSC for an order setting aside or varying the default judgment, and for an order suspending the enforcement of all or any part of the judgment under s 15 of the Civil Judgments Enforcement Act 2004 (WA).
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AM
Associate to Master Russell
28 MAY 2024
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