Stephens v Liu - [2021] WADC 45

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   STEPHENS -v- LIU [2021] WADC 45
CORAM:   DEPUTY REGISTRAR HEWITT
HEARD:   13 MAY 2021
DELIVERED          :   27 MAY 2021
FILE NO/S:   CIV 417 of 2021
BETWEEN:   MARK STEPHENS
Plaintiff
AND
LIN LIU
Defendant

Catchwords:

Practice and procedure - Specific performance claim - Summary judgment application - Jurisdiction of a deputy registrar - Turns on its own facts

Legislation:

District Court of Western Australia Act 1969 (WA), s 53(1) and s 55(1)(bb)
District Court Rules 2005 (WA), r 8(1) and r 11

Result:

Summary judgment given

Representation:

Counsel:

Plaintiff	:	Mr D Pratt
Defendant	:	In person

Solicitors:

Plaintiff	:	Avon Legal
Defendant	:	Not applicable

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

Nil

DEPUTY REGISTRAR HEWITT:

This action was commenced by a writ of summons filed on 9 February 2021 to which the defendant appeared on 22 February 2021. The plaintiff filed a statement of claim on 25 February 2021 and on 15 March 2021 filed an application for summary judgment and that is the application with which I am required to deal.
Put simply, the plaintiff's claim is that he entered a binding contract for the purchase of a piece of land owned by the defendant and the defendant has refused to perform that contract and he therefore seeks specific performance of it. The first matter to consider is whether or not I, as a deputy registrar, have the power to deal with this application on a summary judgment. Section 50 of the District Court of Western Australia Act 1969 (WA) (the Act), s 55(1)(bb) provides jurisdiction for the court to deal with:
an action for specific performance of or for the rectifying, delivering up, or cancelling of any agreement whatever, where the amount in dispute or the value of the property affected is not more than the jurisdiction limit.
The purchase price of the land subject of the action was $235,000 and is therefore well within the jurisdictional limit of this court.
The next issue to be considered is whether a registrar has power to exercise the jurisdiction conferred upon the court and in that respect s 53(1) of the Act is in the following terms:
Without affecting the generality of the foregoing provisions of this Act, in all actions, matters and causes within the jurisdiction of the Court, a District Court judge has for the purposes of this Act, in addition to the powers and authorities conferred upon him by this Act, all the powers and authorities of a judge of the Supreme Court; and in all such actions, matters or causes, a registrar who is or has been a legal practitioner has, and is deemed to have always had, for the purposes of this Act, in addition to the powers and authorities conferred upon him by this Act, all the powers and authorities of the master and the registrar of the Supreme Court; and every registrar or other officer of the Court shall in all such actions, matters or causes, discharge any duties that a corresponding officer of the Supreme Court has authority to discharge, either under the order of a judge of the Supreme Court or under the practice of that Court, and all officers of the Court in discharging those duties, shall conform to the rules of the court.
I next turn to the District Court Rules 2005 (WA) which in r 8 provides as follows:
(1)A legally qualified registrar may deal with any proceedings that a judge may deal with in chambers other than -
(a)proceedings involving a review of the taxation of costs; and
(b)proceedings in relation to an originating summons that raises for determination -
(i)a question of law; or
(ii)a question as to the construction of a statute or document; or
(iii)a question arising out of an interest in land; or
…
Finally I turn to r 11 which provides, that with certain identified exceptions, proceedings that may be dealt with by a registrar are not to be listed before a judge.
As a result of consideration of these matters I have formed the view that a registrar has the power to deal with the application, and I should deal with the application.
The plaintiff's case is a straightforward one. The defendant is the owner of a property in Maddington which was advertised for sale by an agency called Jim's Realty Pty Ltd which she appointed her agent for the purposes of sale. The plaintiff was interested in purchasing the property and lodged a written offer to purchase with the defendant's agent for $230,000. That offer was not accepted and the defendant countered with an offer to sell for $235,000. That offer was accepted by the plaintiff and upon that acceptance the necessary alterations were incorporated in the original document, initialled by the parties, and signed by the defendant. Pursuant to the terms of the contract the plaintiff paid a deposit of $5,000 to the defendant's agent. That sum was paid on 17 November 2020. Very shortly thereafter the defendant resiled from the contract and instructed her agent accordingly. The plaintiff did not accept that state of affairs and insisted upon proceeding with the purchase. The defendant responded that if he wanted to take possession of the property he would need to take her to court. The defendant continued to resist cooperation in proceeding to settlement and transfer of the property and as a consequence these proceedings commenced.
As can be seen the facts are fairly straightforward. There is in existence a written signed contract for the sale of the property and evidence of a refusal by the defendant to consummate that sale. On the face of matters the plaintiff's claim looks clear and I therefore turn to the matters raised by the defendant to discern if there is any basis upon which she might successfully defend the action.
The first point which is raised is that the deposit of $5,000 was a holding deposit and merely represented an expression of interest. In fact the contract made it clear that the deposit was for the purchase of the land the contract also made it clear that it was intended to be a binding contract for the sale. It is suggested that any deposit less than 10% of the price could not be regarded as a deposit and must be simply regarded as a holding deposit and an expression of interest in proceeding with the sale and that the contract is not complete. It is also relevant to note that the purchase price was arrived at by acceptance of the defendant's counter offer. Hardly consistent with the propositions now advanced by the defendant.
Insofar as it is suggested by the defendant that the contract is not complete her complaint is that she was not provided with a copy of the general conditions of sale. Given that the plaintiff was operating through an agent and there is no doubt that the relevant contract of sale was delivered to the agent I am unable to see how this basis of defence could succeed. The contract for sale by reference incorporates the general conditions of sale and ultimately the contract which the plaintiff pursues was created by an offer by the defendant to him which he accepted. The defendant's complaint about the normal deposit on a sale of land being 10% of the value is correct but it is not a requirement of the contract that it be of that amount and a lesser amount or even no amount at all by way of deposit does not invalidate the contract so entered. A further complaint is made that the defendant has not signed an acknowledgement of the receipt of the relevant general conditions of sale but in my view that confers no basis for a defence.
The next complaint is that the amount is too low and is less than the market value. The defendant is from a Chinese background and speaks Mandarin. The agent appointed likewise speaks Mandarin. There is not, in my view, any basis for complaint that language difficulties led her to executing a contract for a lower price than she now thinks would have been appropriate.
The next point raised by the defendant is that she has tenants in the property with an entitlement to tenancy to July 2025. Presumably the defendant did not regard that as an obstacle when she put the property on the market and it is certainly not an obstacle now.
The next point made is that the defendant lost her job as a cashier during the COVID‑19 crisis and the rental income is her only income. That contention flies in the face of the evidence of Mr Chen who represented the defendant in this transaction. Mr Chen says that the defendant was advised that the presence of the tenants would not be an obstacle to the sale of the property and as a consequence she responded that she would be able to ask the tenants to vacate within two weeks.
As to the issue of the value of the property, Mr Chen states that it had structural issues although they are not specified and an outdoor toilet was installed on the front of the property which had not been approved by the City of Gosnells. Mr Chen states that in respect of the structural issues the defendant advised that she had consulted a builder to provide a quotation for the necessary repairs and compliance issues and was quoted a figure between $80,000 and $100,000.
Also of some importance, is Mr Chen's statement that he was advised that the purpose for the sale of the property was to purchase a property for her son in Melbourne and that in order to achieve that end it was necessary for the defendant to borrow further money. Mr Chen says that he was told by the defendant that the bank was not prepared to advance further monies and as a consequence she no longer wanted to sell the property.
That information throws some light on the defendant's allegation that she needed to retain the property in order to have an income stream. Not only was the defendant selling the property to use towards buying another property for her son but also intended to borrow further money. The effect of that plan, if carried out, would have been to extinguish the income stream from the property the subject of the sale and add an additional burden to service whatever loan she took out to assist in the purchase of the Melbourne property.
The defendant presents herself as a victim, led astray by the agent she appointed. It is not the job of a purchaser accepting an offer made to him by the defendant, to inquire into her relationship with the agent and assure himself that the seller has been properly advised by that agent. The transaction was an arm's length transaction and there is no conduct alleged by the buyer which could in any way impugn the validity of the contract for sale.
As a consequence I have reached the decision that the contract which was entered by the defendant with the plaintiff should be specifically performed and should the defendant not cooperate in that process, that orders should be made to ensure that the sale proceeds.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
LF
Court Officer
27 MAY 2021