Sheldon Philip Coates as trustee for the Sheldon Coates Superannuation Fund v Robertson

[2020] WASC 171

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   SHELDON   PHILIP   COATES   as   trustee   for   THE   SHELDON   COATES   SUPERANNUATION   FUND -v- ROBERTSON [2020] WASC 171

CORAM:   MASTER SANDERSON

HEARD:   ON THE PAPERS

DELIVERED          :   21 MAY 2020

PUBLISHED           :   21 MAY 2020

FILE NO/S:   CIV 2546 of 2018

BETWEEN:   SHELDON PHILIP COATES as trustee for THE SHELDON COATES SUPERANNUATION FUND

First Plaintiff

HARVEY LARRY CHARLES COATES as trustee for THE SHELDON COATES SUPERANNUATION FUND

Second Plaintiff

AND

KEVIN JOHN ROBERTSON

First Defendant

MADHUKAR BHALLA

Second Defendant

Catchwords:

Costs - Summary judgment application brought but not heard - Turns on own fact

Legislation:

Nil

Result:

Costs of the application be costs in the cause

Category:    B

Representation:

Counsel:

First Plaintiff	:	No appearance
Second Plaintiff	:	No appearance
First Defendant	:	No appearance
Second Defendant	:	No appearance

Solicitors:

First Plaintiff	:	Williams & Hughes
Second Plaintiff	:	Williams & Hughes
First Defendant	:	Minter Ellison
Second Defendant	:	MGM O'Connor Lawyers

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

Whitehall Holdings Pty Ltd v Custom Credit Corporation (Supreme Court of WA Full Court, 1992, Library No 920347, unreported

MASTER SANDERSON:

1. These reasons deal with costs of an application for summary judgment which did not proceed.  The parties reached agreement after the filing of affidavits.  Really the issue of costs should have been resolved without the need to refer the matter to the court.  The amount of costs involved is modest - probably less than the costs involved in preparing submissions to deal with the issue of costs.  Anyway, these reasons deal with the issue.

2. The plaintiffs issued an application for summary judgment against the first defendant on 13 March 2020.  It was supported by an affidavit of John Andrew Robertson sworn the same day.  Submissions in support of the application were filed on 23 March 2020 - before the first return date.

3. In opposition to the application the first defendant swore an affidavit dated 30 March 2020.  On 6 April 2020 I made orders by consent dismissing the application for summary judgment and providing for submissions as to costs.  In other words, the matter was resolved without even the need for an initial chambers hearing.

4. The parties acknowledge that as a statement of general principle the usual order in an unsuccessful summary judgment application is that the costs of the application be costs in the cause.  This is a principle of longstanding and is derived from the decision of the Full Court in Whitehall Holdings Pty Ltd v Custom Credit Corporation (Supreme Court of WA Full Court, 1992, Library No 920347, unreported.  Of course any statement of principle in relation to costs must be seen as a guide only.  Each case is dependent upon its facts.  But there must be something exceptional about a case which takes it out of the usual.  The plaintiff says that this is one of those cases.  The defendant says that this case is unexceptional and the usual order as to costs ought apply.

5. The claim itself is detailed in a statement of claim which was filed 7 October 2019.  It is pleaded the first and second plaintiffs have at all material times acted as co‑trustees of the Sheldon Coates Superannuation Fund.[1]  It is said the first and second defendants were officers of a company Fairstar Resources Limited.[2]  The plaintiffs that by written agreement made on or about 19 April 2009 Fairstar engaged the first plaintiff through his company Iron Resources Pty Ltd as a geological consultant to undertake certain work on Fairstar's tenements.[3]  The plaintiffs plead that during the period of engagement the first plaintiff discovered on Fairstar's tenements a significant deposit of iron ore.[4]

   [1] Statement of claim filed 7 October 2019 [1].

   [2] Statement of claim filed 7 October 2019 [2].

   [3] Statement of claim filed 7 October 2019 [5 - 6].

   [4] Statement of claim filed 7 October 2019 [7].

6. The plaintiff pleads that in September of 2012 the first plaintiff was asked by the first defendant to attend a meeting at Fairstar's offices.  Present at the meeting were the first plaintiff and the first and second defendants.[5]  The plaintiffs say at that meeting certain representations were made to the first plaintiff.[6]  For present purposes the nature of those representations is immaterial.  It is to be noted however that the representations were oral and while they were allegedly made to the first plaintiff in the presence of both defendants there was no other party present.

   [5] Statement of claim filed 7 October 2019 [8].

   [6] Statement of claim filed 7 October 2019 [9].

7. The plaintiff says in reliance on the representations the first defendant arranged for a loan of $1 million to Fairstar from the Sheldon Coates Superannuation Fund.[7]  A security deed was entered into between Fairstar and the superannuation fund.[8]  Fairstar is now in receivership.[9]  The superannuation fund has recovered an amount of $600,000[10] but has been left lamenting for the remaining $400,000.  The plaintiffs say that the defendants made representations which were false and misleading and which give rise to a claim for damages.[11]  The damages claim in the statement of claim is unquantified.

   [7] Statement of claim filed 7 October 2019 [11].

   [8] Statement of claim filed 7 October 2019 [13].

   [9] Statement of claim filed 7 October 2019 [18].

   [10] Statement of claim filed 7 October 2019 [19].

   [11] Statement of claim filed 7 October 2019 [24].

8. It must be said that, on the face of the statement of claim, this is not a matter which is amenable to summary judgment.  The plaintiffs claim is based upon a breach of oral representations allegedly made by the defendants.  Unless the defendants actually admit those representations it is difficult to see how the plaintiffs could obtain summary judgment.  In any summary judgment application the version of events most favourable to the defendants must be assumed.  If there is a conflict of evidence then the version of events put forward by the defendants must be accepted.

9. The first defendant filed a defence on 3 March 2020.  By pars 8 and 9 of that defence he denies he made the representations pleaded by the plaintiffs.  The plaintiffs complain that is a bear denial in no way fleshed out by material facts.  Be that as it may, it sets out at least in broad outline the first defendant's position.  It should have been apparent to the plaintiffs from that point onwards no summary judgment application could succeed.  The tactic of issuing an application in those circumstances was questionable.

10. The plaintiffs in support of their position make a number of points.  The first they say that the first defendant has been guilty of delay.  Second, they point to the bear denial in the defence making the point that material facts should have been pleaded.  But even assuming these two points are well made, they do not justify the issue of an application for summary judgment.  They might have justified a strike out application or some other case management direction designed to move the action along.  But, with respect, the summary judgment application was pointless.

11. In all the circumstances I am satisfied that the costs in relation to the summary judgment application ought be costs in the cause.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

CB
Associate to Master Sanderson

21 MAY 2020