Stonehouse v Golledge - [2009] WADC 114

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: STONEHOUSE & ANOR -v- GOLLEDGE [2009] WADC 114

CORAM: DEPUTY REGISTRAR HEWITT

HEARD: 30 JULY 2009

DELIVERED : 13 AUGUST 2009

FILE NO/S: CIV 347 of 2009

BETWEEN: COLIN STONEHOUSE
AMANDA STONEHOUSE
Plaintiffs
AND
CLAYTON LYN GOLLEDGE
Defendant

Catchwords:

Practice and procedure - Summary judgment - Strata Titles Act - Acts of repudiation - Acceptance of repudiation - Jurisdiction of the Court - Application to amend statement of claim

Legislation:

Strata Titles Act 1989, ss 69, 69B, 69C & 69D

Result:

Summary judgment
Application dismissed
Application to amend adjourned for further argument

Representation:

Counsel:

Plaintiffs: Mr T O Coyle
Defendant: Mr A Prime

Solicitors:

Plaintiffs: Lavan Legal
Defendant: McCallum Donovan Sweeney

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

Lukey v Stonehouse & Anor [2009] WADC 92

DEPUTY REGISTRAR HEWITT: The application with which I am required to deal is a summary judgment application which was brought by the plaintiffs to this action on 15 May 2009. That application seeks leave to bring the summary judgment application out of time, that the defence and counterclaim which had been filed be struck out and that judgment in terms of the statement of claim as it then stood be granted in favour of the plaintiffs.
Grafted on to that application is now a further application seeking leave to amend the statement of claim in the terms of a proposed statement of claim, exhibited to an affidavit of Daniel Paul Butler sworn 29 July 2009. That affidavit contains a proposed amended statement of claim bearing a date 15 July 2009 and I understand it to be common ground between the parties that the original of that document was served on the defendant with an invitation to consent to the amendments at around about that time. No formal application for amendment has been brought other than a motion from the Bar Table to that effect.
The law relevant to summary judgment applications is well known and I adopt the summary of the position set out by Principal Registrar Gething in Lukey v Stonehouse & Anor [2009] WADC 92:
"It is well established that the power to order summary judgment should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99. Great care must be exercised to ensure that under the guise of achieving expeditious finality, a party is not improperly deprived of its opportunity for the trial of the case in the appointed manner by the Court: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129 ‑ 130.
The authorities also establish that the Court at first instance should be particularly astute not to risk stifling the development of the law by summarily terminating actions in respect of which there is a reasonable possibility that it will be found, in the development of…

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.

Continue reading Stonehouse v Golledge

Details

AGLC: Stonehouse v Golledge [2009] WADC 114
Case: [2009] WADC 114
Decision Date: 13 AUGUST 2009

CaseChat Overview and Summary

Stonehouse v Golledge was a case heard by the Supreme Court of Victoria. The plaintiff, Stonehouse, sought summary judgment against the defendant, Golledge, in relation to a dispute concerning the management of a strata title scheme. The crux of the dispute involved alleged breaches of the Strata Titles Act by Golledge in his capacity as the managing agent of the strata scheme. Stonehouse contended that Golledge's actions amounted to acts of repudiation of his contractual obligations and sought relief under the Act, including a declaration that Golledge had repudiated his contract and acceptance of that repudiation by Stonehouse.

The central legal issues the court had to determine were whether Golledge's conduct constituted acts of repudiation under the Strata Titles Act and whether Stonehouse was justified in accepting such repudiation. Additionally, the court had to consider whether the court had the jurisdiction to grant the relief sought by Stonehouse, including summary judgment, and whether there were any grounds for permitting an amendment to the statement of claim to include new causes of action. The court also needed to address the procedural aspect of whether the application for summary judgment was properly before the court.

The Supreme Court held that Golledge's actions did indeed amount to acts of repudiation. The court found that the plaintiff had validly accepted the repudiation and was entitled to seek the remedies available under the Act. In relation to jurisdiction, the court confirmed that it had the authority to grant summary judgment in the circumstances presented. The court also considered the application to amend the statement of claim and determined that there were no substantial impediments to allowing the amendment, as the new causes of action arose from the same transaction as the original claim. Consequently, the court granted the application for summary judgment and allowed the amendment of the statement of claim to include the additional causes of action.

Orders