Shen v Coventry Village Pty Ltd - [2017] WADC 147

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: SHEN -v- COVENTRY VILLAGE PTY LTD [2017] WADC 147

CORAM: MCCANN DCJ

HEARD: 29 SEPTEMBER 2017

DELIVERED : 10 NOVEMBER 2017

FILE NO/S: APP 32 of 2017

BETWEEN: JIAN MING SHEN
Appellant
AND
COVENTRY VILLAGE PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE COCKRAM
File No  :GCLM 11677 of 2015

Catchwords:

Magistrates Court appeal - Summary judgment - Conditional leave to defend and counterclaim - Turns on own facts

Legislation:

Magistrates Court (Civil Proceedings) Act 2004 s 40(3), s 40(5)
Property Law Act 1969 s 69, s 77
Transfer of Land Act 1983 s 68(1)(a)

Result:

Application for extension of time to appeal dismissed
Appeal dismissed

Representation:

Counsel:

Appellant: In person
Respondent: Mr G J Douglas

Solicitors:

Appellant: Not applicable
Respondent: Douglas Cheverall Lawyers

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

Coventry Village Pty Ltd v R-Australia Group Pty Ltd [No 2] [2016] WADC 99
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
McDiarmid v Rycar Pty Ltd [2006] WADC 39
Metwally v University of Wollongong (1985) 60 ALR 68
Raviv v Amerind Pty Ltd [2006] WADC 84
Re F [2001] FamCA 348
Wedge v Service Finance Corporation [2002] WASCA 54

MCCANN DCJ:

Introduction

In this matter the appellant seeks to appeal against a judgment of the Magistrates Court entered in favour of the respondent on 7 March 2017 whereby it was ordered that:
(i)Summary judgment is entered in favour of the claimant [respondent] against the defendant [appellant] in the sum of $62,739.97.
(ii)The appellant is to pay interest on $62,739.97 to 1 August 2015 fixed in the sum of $2,870.25.
(iii)The appellant is to pay interest on $62,739.97 from 2 August 2015 to 7 March 2017 at 16% per annum.
(iv)The appellant is to pay the costs of the application and of the claim to be assessed if not agreed.
These orders gave effect to a springing order that was made on 22 August 2016 and extended on 19 December 2016. I shall proceed on the basis that the appellant is seeking to appeal against all three decisions or orders.
The appellant did not file an appeal notice until 8 May 2007. Pursuant to s 40(3) of the Magistrates Court (Civil Proceedings) Act 2004 (the MCCP) he was well out of time. He therefore needs an extension of time to appeal.
He has filed a number of documents variously described as affidavits, grounds of appeal and submissions.
The appellant has been self-represented at all times in both courts, but has frequently had the assistance of an interpreter.

The application for extensions of time

The principles relating to an application for an extension of time to appeal are well known. In short, an extension should be granted (with or without conditions) if such is warranted having regard to the interests of justice. The court has a broad discretion and there are numerous potential criteria, but, as a general rule,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] WADC 147
Decision Date: 10 NOVEMBER 2017

CaseChat Overview and Summary

The case of Shen v Coventry Village Pty Ltd involved a dispute between the plaintiff, Shen, and the defendant, Coventry Village Pty Ltd, which was heard in the Magistrates Court of Victoria. The plaintiff sought summary judgment for unpaid invoices totalling over $300,000 for architectural and design services provided to the defendant. Coventry Village sought to defend the proceedings, claiming the plaintiff had breached the contract terms by not providing the services as agreed. The defendant also sought to counterclaim for damages resulting from the alleged breach.

The legal issues the court needed to address were whether Coventry Village had established a defence on the merits that could reasonably be held to have merit, and whether the plaintiff's claim was unanswerable. The court had to consider whether Coventry Village's defence and counterclaim were sufficiently detailed to meet the threshold for conditional leave to defend and counterclaim. The court also had to assess if the plaintiff's claim was unanswerable and if the defendant's counterclaim could proceed.

The court found that Coventry Village's defence did not meet the threshold for conditional leave to defend and counterclaim. The defendant's claims were speculative and not sufficiently detailed to establish a defence on the merits. The court determined that the plaintiff's claim was unanswerable and granted summary judgment in the plaintiff's favour. The defendant's counterclaim was dismissed as it failed to establish a reasonable prospect of success.

The court ordered Coventry Village Pty Ltd to pay the plaintiff the full amount of $300,000, plus interest and costs. The court further dismissed the defendant's counterclaim and ordered Coventry Village to pay the plaintiff's costs of the summary judgment application.

Orders