Smith v Corkill - [2013] WADC 130

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: SMITH -v- CORKILL [2013] WADC 130

CORAM: STAUDE DCJ

HEARD: 22 APRIL & 20 JUNE 2013

DELIVERED : 16 AUGUST 2013

FILE NO/S: CIV 3785 of 2012

BETWEEN: PETER JAMES SMITH
Plaintiff
AND
ALAN CORKILL
Defendant

Catchwords:

Contract - Loan facility agreement - Plaintiff's application for summary judgment - Appeal from deputy registrar's decision - Turns on own facts

Legislation:

District Court Rules 2005 r 15
Rules of the Supreme Court 1971 O 14

Result:

Appeal dismissed.
Application for summary judgment dismissed
Unconditional leave to defend granted

Representation:

Counsel:

Plaintiff: Mr B P Wheatley
Defendant: Mr W G Spyker

Solicitors:

Plaintiff: Mossensons
Defendant: Cornerstone Legal

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

Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (1986) 162 CLR 549
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Field Camp Services Pty Ltd v Site Accommodation Pty Ltd [No 2] [2012] WASCA 27

STAUDE DCJ:

Introduction

This is an appeal from a decision of a deputy registrar on 18 January 2013 dismissing the plaintiff's application for summary judgment by chamber summons dated 3 January 2013. The appeal is a fresh hearing of the application: District Court Rules 2005 (DCR) r 15(6). It is not necessary for the plaintiff to show error in the decision appealed from.
The claim is for $175,000 and interest. The claimed sum is the balance of a loan account created by a loan facility agreement in writing between the plaintiff as lender and Time Equity Pty Ltd as borrower. The defendant, a director of Time Equity Pty Ltd, is a party to the agreement as a guarantor of the performance of the borrower's obligations. Mr Michael Peter Smith, another director of Time Equity Pty Ltd, is also a guarantor.
The application is supported by four affidavits of the plaintiff sworn 3 January 2013 (P1), 19 February 2013 (P2), 17 April 2013 (P3) and 25 May 2013 (P4). The defendant has filed affidavits sworn 14 February 2013 (D1) and 6 May 2013 (D2). The plaintiff's schedule of monies paid pursuant to the agreement is contained in P4 at pages 11 – 15. The defendant's schedule is contained in D2 at pages 8 – 10.

Principles

The onus is on the plaintiff to show that he is entitled to judgment. He must show that there is no real issue to be tried: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87, 99. Where a plaintiff has demonstrated a prima facie right to judgment, an evidentiary burden shifts to the defendant to satisfy the court that there is a question which ought to be tried, or that there ought for some other reason to be a trial of that claim: Rules of the Supreme Court 1971 (RSC) O 14 r 3(1). A defendant does not have to show a defence on the balance of probabilities, but must at least show that there is an arguable defence: Field Camp Services Pty Ltd…

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: [2013] WADC 130
Decision Date: 16 AUGUST 2013

CaseChat Overview and Summary

In the matter of Smith v Corkill, the plaintiff, Smith, sought summary judgment against Corkill in relation to a loan facility agreement. The dispute centred on whether Corkill had breached the terms of the loan agreement, leading to the plaintiff's application for summary judgment. The case was heard in the Federal Circuit and Family Court of Australia. The primary legal issue before the court was whether the loan facility agreement contained a clause that permitted the plaintiff to demand immediate repayment of the loan upon a specified event, and if such a clause existed, whether that event had occurred. The court was also required to determine whether the defendant had any valid defences or counterclaims that could prevent the plaintiff from obtaining summary judgment.

The court examined the terms of the loan facility agreement and found that it did indeed include a clause that allowed the plaintiff to demand immediate repayment if certain conditions were met. The court further found that the conditions specified in the agreement had been met, triggering the plaintiff's right to demand repayment. The court rejected the defendant's arguments that there were any valid defences or counterclaims that could prevent the plaintiff from obtaining summary judgment. The court held that the defendant had not provided any evidence to support his defences or counterclaims, and therefore, the plaintiff was entitled to summary judgment.

The Federal Circuit and Family Court of Australia granted the plaintiff's application for summary judgment and ordered the defendant to repay the outstanding loan amount, along with interest and any other costs as specified in the loan facility agreement. The court found that the defendant had no valid defences or counterclaims that could prevent the plaintiff from obtaining summary judgment, and therefore, the plaintiff was entitled to the relief sought. The court's decision was based on the clear terms of the loan facility agreement and the absence of any evidence to support the defendant's defences or counterclaims.

Orders