Szulc v Szulc
[2017] WASCA 121
•30 JUNE 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SZULC -v- SZULC [2017] WASCA 121
CORAM: MURPHY JA
BEECH JA
HEARD: 22 JUNE 2017
DELIVERED : 30 JUNE 2017
FILE NO/S: CACV 1 of 2017
BETWEEN: MAXWELL JAN SZULC
Appellant
AND
SCOTT ANDREW SZULC
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :MASTER SANDERSON
Citation :EX TEMPORE DECISION DELIVERED 13 DECEMBER 2016
File No :CIV 2445 of 2014
Catchwords:
Practice and procedure - Hearing to show cause - Whether any grounds have reasonable prospect of succeeding pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA) - Whether appeal to be dismissed pursuant to r 43(2)(g)(ii) of the Supreme Court (Court of Appeal) Rules 2005 (WA) - Dispute concerning the purchase of a half share interest in real property by a son from his father
Legislation:
Rules of the Supreme Court 1971 (WA), O 14 r 3
Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(i), r 43(2)(g)(ii)
Transfer of Land Act 1873 (WA), s 242(1A)
Result:
Respondent's application allowed and appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: In person
Solicitors:
Appellant: In person
Respondent: In person
Case(s) referred to in judgment(s):
Commonwealth v Albany Port Authority [2006] WASCA 185
DA Christie Pty Ltd v Baker [1996] 2 VR 582
Nominal Defendant v Manning [2000] NSWCA 80; (2000) 50 NSWLR 139
Szulc v Szulc [2015] WASC 451
Szulc v Szulc [No 2] [2016] WASC 381
REASONS OF THE COURT: This matter came before the court on 22 June 2017 by way of a registrar's notice to attend dated 18 May 2017. The purpose of the hearing was to consider the respondent's application to dismiss, or alternatively to strike out, the appeal, and for the appellant to show cause why the appeal should not be dismissed pursuant to r 43(2)(g)(i) or r 43(2)(g)(ii) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Rules).
The appeal in this matter was commenced by notice filed 5 January 2017 in respect of Master Sanderson's decision on 13 December 2016. By that decision, the master dismissed the appellant's application filed 23 November 2016. By that application, the appellant applied to set aside the 'Default Judgment of Principal Registrar Gething dated 30 January 2016' and for the 'matter to be brought to trial'.
The proceedings in the primary court concerned, in substance, a dispute between Scott Szulc (the respondent) and his father Maxwell Szulc (the appellant) over a contract for the sale by the appellant to the respondent of the appellant's half interest in certain land. At the time of the contract for sale, the appellant was the registered proprietor of a half share as a tenant in common of the land.
The litigation has a lengthy history. It is summarised below.
Background
On 17 October 2014, the respondent commenced proceedings against the appellant seeking, relevantly, specific performance of a contract for the sale of the appellant's half share as tenant in common of certain land, and a tractor. An amended writ of summons indorsed with a statement of claim was filed by the respondent on 10 July 2015. The respondent alleged, in effect, that, by written contract made on 15 July 2013, the appellant agreed to sell, and the respondent agreed to purchase, the appellant's interest in the land and a specified tractor. It was alleged that the parties agreed, in effect, that, by way of consideration, the respondent would pay off certain debts and liabilities in respect of the appellant's interest in the land, and would also pay a further sum of $40,000, which sum was to be paid by way of deposit.
The respondent alleged that he had paid the relevant debts and liabilities, and had also paid the sum of $40,000 by:
(a)payment of $18,043.75 directly to the appellant; and
(b)payment of the remainder of the sum of $40,000 to a company called Spana Pty Ltd, at the direction of the appellant.
On 13 July 2015, the respondent filed an application for summary judgment. The respondent filed two affidavits sworn by himself on 11 July 2015 and 18 September 2015 in support of that application. The first affidavit verified the statement of claim and provided evidence as to the relevant payments. The respondent also filed an affidavit sworn by Ms Womack, a licenced settlement agent, on 14 July 2015 in support of the application. No affidavit in response to the summary judgment application was filed by the appellant. The appellant did, however, file submissions on 14 September 2015. Amongst other things, the appellant, in his submissions, acknowledged the payment of $40,000 in the manner alleged by the respondent, but said:
As per the Contract of Sale conditions the $40,000 … deposit to be paid within 7 (seven) days didn't happen. The total purchase price was never entered.
On 2 November 2015, Acting Master Gething heard the application for summary judgment.
On 30 November 2015, Acting Master Gething delivered judgment and dismissed the application for summary judgment. He concluded that there was an arguable defence that the contract was void for uncertainty: Szulc v Szulc.[1] Acting Master Gething took the view that the contract for sale left some doubt as to the scope of the consideration payable by way of purchase price. Acting Master Gething did not, however, find there to be any arguable case with respect to the alleged non‑payment of the sum of $40,000.
[1] Szulc v Szulc [2015] WASC 451.
Acting Master Gething gave the appellant leave to defend the action and ordered that the appellant file a defence by 21 December 2015.
The appellant did not file a defence by this date.
On 14 January 2016, Registrar Gething ordered, relevantly:
Unless within 14 days of the date of personal service of this order, [the appellant] files and serves a Defence, judgment be entered for [the respondent] against [the appellant] in terms of the relief claimed in [the respondent's] Amended Statement of Claim dated 10 July 2015, with damages to be assessed.
The appellant did not file a defence in accordance with this order.
On 17 February 2016, it was ordered that:
Judgment be entered for [the respondent] against [the appellant] in terms of the relief claimed in [the respondent's] Amended Statement of Claim dated 10 July 2015, with damages to be assessed.
The relief claimed in the amended statement of claim included a claim for specific performance. On 10 May 2016, the respondent applied for procedural and other consequential orders giving effect to Registrar Gething's order for judgment on 17 February 2016. (In the materials filed by the parties, the judgment of 17 February 2016 has been described as the 'default' judgment.)
On 24 May 2016, that matter was listed in chambers before the master. The appellant opposed the orders on the basis, in effect, that any orders for specific performance were contrary to the orders made by Registrar Gething on 30 November 2015 giving him unconditional leave to defend the action. The master adjourned the matter to a special appointment on 1 July 2016.
On 1 July 2016, the master rejected the appellant's submission that orders giving effect to the judgment for specific performance should not be made. The master did so on the basis that the appellant's reliance on Acting Master Gething's order of 30 November 2015 had been overtaken by the later orders on 17 February 2016. The master indicated that if the appellant wished to set aside the orders of 17 February 2016, he would need to make an appropriate application supported by an affidavit.
On 1 July 2016, accordingly, Master Sanderson ordered, relevantly:
In accordance with the Judgment entered on 17 February 2016, the Contract … be specifically performed to effect the sale of the property the subject of the Contract … to [the respondent] at 12.00 noon on 3 October 2016. (original emphasis)
Master Sanderson also gave liberty to apply.
On 8 August 2016, the respondent's solicitors filed a document described as a 'Second Amended Writ of Summons' indorsed with a statement of claim, which, amongst other things, added as parties to the action the Registrar of Titles and the Commissioner of Titles.
On 20 October 2016, the respondent lodged a minute of proposed orders. The minute included orders to the effect that (1) the Registrar of Titles and the Commissioner of Titles be joined to the action as defendants; (2) that the second amended writ of summons specially indorsed with the statement of claim dated 8 August 2016 stand as the relevant statement of claim in the proceedings; and (3) that, pursuant to s 242(1A) of the Transfer of Land Act 1893 (WA), the appellant's one undivided half interest in the land be vested in the respondent. That matter was listed in chambers on 6 October 2016. Master Sanderson treated the matter as being an application made under the liberty to apply provision in the orders of 1 July 2016.
At the hearing on 6 October 2016, the respondent said that he needed an adjournment and wanted to file further affidavits. The appellant indicated that he wished to seek to set aside the 'default' judgment of 17 February 2016. Master Sanderson adjourned the matter to 20 October 2016.
On 17 October 2016, the appellant filed a chamber summons to set aside 'default' judgment of 17 February 2016.
The application was supported by an affidavit of the appellant filed 17 October 2016. By that affidavit, the appellant asserted, in effect, that the respondent had not paid the contractual deposit of $40,000, and that the respondent had accordingly terminated the contract by notice dated 3 October 2013.
The respondent filed an affidavit in response on 20 October 2016. The affidavit was dated 17 October 2016. In that affidavit, the respondent deposed to certain matters leading up to the entry into the contract of sale dated 15 July 2013, and again deposed, in effect, that the deposit of $40,000 was paid as alleged in the statement of claim on 14 and 15 July 2013. He also deposed that the appellant signed the contract on 15 July 2013.
On 20 October 2016, Master Sanderson made, relevantly, orders to the effect that:
(a)the appellant's chamber summons filed 17 October 2016 be dismissed; and
(b)pursuant to s 242(1A) of the Transfer of Land Act, the one undivided half share interest in the property the subject of the contract, registered in the name of the appellant, vests in the respondent.
The master published reasons for his decision on 21 November 2016: Szulc v Szulc [No 2].[2]
[2] Szulc v Szulc [No 2] [2016] WASC 381.
By application filed 23 November 2016,[3] the appellant filed a further application, seeking to have the 'matter … brought to trial', and to have the decision of '30 January 2016 [sic]' set aside. The application stated that the grounds for it were that the respondent had been 'unjustly awarded his claim for Breach of Contract', and that the respondent had 'breached the Contract by not paying the deposit as required by the terms of the Contract of Sale'.
[3] But dated 26 October 2016.
The appellant's application filed 23 November 2016 was supported by an affidavit by the appellant filed 23 November 2016.[4] In that affidavit, he again asserted that the deposit of $40,000 had not been paid.
[4] But dated 26 October 2016.
The respondent filed affidavits on 9 and 13 December 2016 in opposition to the appellant's application filed 23 November 2016.
On 13 December 2016, the appellant's summons, filed 23 November 2016, was heard by Master Sanderson.
On that occasion, Master Sanderson gave extempore reasons, and said:
Well, this is an application to set aside the default judgment entered against the [appellant]. In reasons I have published, Szulc v Szulc [No 2] [2016] WASC 381, I actually considered that issue and considered whether or not it was appropriate in all the circumstances to set aside the default judgment [of 17 February 2016]. After all, it's the default judgment [of 17 February 2016] which provides the foundation for the … enforcement orders that I made. I saw no basis for setting aside that default judgment and I am, I think, functus officio.
I can't now set aside a judgment, having already determined that the judgment ought not be set aside. …
If it's now to be set aside, it must be set aside by the Court of Appeal and I have no further role in this matter. So the application to set aside the default judgment [of 17 February 2016] will be dismissed.
Master Sanderson made orders to the effect that the appellant's chamber summons filed 17 October 2016, to set aside the 'default' judgment of Principal Registrar Gething dated 14 January 2016 and extracted 17 February 2016, be dismissed.
It is the master's decision of 13 December 2016 against which the appellant filed an appeal notice.
Appeal - procedural history
On 5 January 2017, the appellant filed an appeal notice against Master Sanderson's decision on 13 December 2016. The appeal notice stated that an extension of time was not needed. On 19 January 2017, appellant filed a service certificate certifying that he had served the respondent with the appeal notice on 17 January 2017.
On 27 January 2017, the respondent filed a notice of his intention to take part in the appeal. He indicated that he was not appealing the primary decision.
On 1 February 2017, the appellant filed an appeal notice in the same terms as the appeal notice filed 5 January 2017, save that it now stated that an extension of time was needed. He also filed an affidavit sworn by himself on 31 January 2017 in support of an application for an extension of time.
On 7 March 2017, the respondent filed an application for the appeal notice to be dismissed or struck out. He filed an affidavit sworn by himself on 6 March 2017 in support.
On 9 March 2017, the Court of Appeal Registrar ordered that:
1.By 30 March 2017 the appellant file and serve any affidavit in response to the affidavit of Scott Andrew Szulc sworn 6 March 2017 in support of the respondent's application dated 6 March 2017 to dismiss, alternatively to strike out, the Appeal Notice.
2.By 6 April 2017 the respondent file and serve written submissions in support of his application dated 6 March 2017 to dismiss, alternatively to strike out, the Appeal Notice.
3.By 13 April 2017 the appellant file and serve written submissions in response.
On 14 March 2017, the Court of Appeal Registrar issued a notice to attend before a single Judge of Appeal on 21 April 2017 to consider the respondent's application filed 7 March 2017.
On 21 March 2017, the appellant filed an affidavit sworn by himself on 20 March 2017.
On 29 March 2017, the appellant filed an appellant's case.
On 3 April 2017, the Court of Appeal Registrar issued an amended notice to attend before a single Judge of Appeal on 21 April 2017 to consider the respondent's application filed 7 March 2017, and to show cause why the appeal should not be dismissed pursuant to r 43(2)(g)(i) and (ii) of the Rules.
On 6 April 2017, the respondent filed submissions in support of his application. The appellant filed submissions in opposition on 18 April 2017.
On 21 April 2017, the matter came on for hearing and Murphy JA ordered that:
1.The appellant's case is struck out.
2.The appellant file and serve a substituted appellant's case by 4.00 pm, 5 May 2017.
3.The directions hearing including in relation to the respondent's application to dismiss the appeal notice be adjourned to a date to be fixed.
On 10 May 2017, the appellant filed an amended appellant's case dated 5 May 2017.
On 18 May 2017, the Court of Appeal Registrar issued the present notice to attend to consider the respondent's application filed 7 March 2017, and for the appellant to show cause why the appeal should not be dismissed pursuant to r 43(2)(g)(i) and (ii) of Rules.
Amended appellant's case
The amended appellant's case dated 5 May 2017 contains two grounds of appeal.
Ground one is to the effect that the appellant's application for orders that the matter be brought to trial should have been granted in accordance with O 14 r 3(1) and (2) of the Rules of the Supreme Court 1971 (WA). The ground is as follows:
In accordance with the Rules of the Supreme Court 1971 Order 14 Summary Judgement Rule 3(1) unless the Court dismisses the application, the Court may give such judgement for the Plaintiff against the Defendant on that claim or part thereof as may be just.
The Application for Summary Judgment by the Respondent was dismissed by Acting Master Gething on 30 November 2015.
Order 14 Rule 3(2) The Court may, by Order and subject to such conditions, if any, as may be just, stay execution of any judgement given against a Defendant under this Rule until after the trial of any counter claim made or raised by the Defendant in the action.
Therefore my Application for Orders that the matter be brought to trial should have been granted. (original emphasis)
Ground two is to the effect that the Master erred in failing to take into account the $40,000 deposit that had not been paid, which, the appellant says, renders the contract capable of termination. The ground is as follows:
Master Sanderson erred in making Orders favouring the Respondent that had not taken into account the deposit of $40,000.00 (Forty Thousand Dollars) still has not been paid to the Seller.
Failure by the Buyer to pay deposit allows the Contract of Sale of Land to be terminated.
Disposition
The appeal should be dismissed on the basis that the grounds have no reasonable prospect of succeeding. This is for two reasons.
The first reason is that the grounds do not challenge the basis upon which the master dismissed the appellant's application filed 23 November 2016. The basis upon which the master dismissed that application was that it was, in substance, a re‑run of the appellant's earlier application filed 17 October 2016, which the master had dismissed on 20 October 2016, from which there had been no appeal or application for leave to appeal. In some circumstances it is possible to make a second interlocutory application after the first was unsuccessful.[5] Nevertheless, in the circumstances of this case the master was right to see the application of 23 November 2016 as nothing more than a rerun of the application that had been dismissed on 20 October 2016, albeit that the second application included a (misplaced) reference to O 14 r 3. The master was, accordingly, plainly correct in dismissing the appellant's application filed 23 November 2016 as an abuse of process.
[5] See for example, Commonwealth v Albany Port Authority [2006] WASCA 185 [72]; DA Christie Pty Ltd v Baker [1996] 2 VR 582; Nominal Defendant v Manning [2000] NSWCA 80; (2000) 50 NSWLR 139.
The second reason is that, even if the second application were not characterised as an abuse of process, the only substantive point raised in the grounds of appeal is the alleged non‑payment of the $40,000 deposit. However, the appellant had admitted, as early as 11 September 2015, in the materials on the summary judgment application, that the respondent had paid $40,000 to him or at his direction. In his written submissions filed on 10 May 2017, as part of his amended appellant's case, the appellant, on one view of it, appears to suggest that the contract for sale required the payment of two amounts of $40,000. That is not arguably correct. The terms of the contract provide, in effect, for a purchase price that comprises the discharge of all encumbrances and the payment of the sum of $40,000. Those terms also provided for a deposit of $40,000. On a plain reading of the contract it provides for the payment of one sum of $40,000, which was to be paid as a deposit. Once that amount had been paid, the deposit had been paid. The respondent's unchallenged evidence is that the amounts were paid on 14 and 15 July 2013, well before the appellant's purported termination of the contract by notice dated 3 October 2013.
In his oral submissions on 22 June 2017, the appellant appeared to assert that the $40,000 which he accepted had been paid by the respondent, which he attributed to the purchase of the tractor, was separate from and stood outside the contract, leaving the $40,000 deposit under the contract unpaid. There is no merit in that assertion. The contract provides that the relevant tractor is part of what was sold by the appellant to the respondent under the contract. Moreover, at no stage in the application before the acting master, the applications before the master, or in any affidavit filed in this appeal, has the appellant adduced any evidence to support this assertion. To the contrary, his written submissions on this appeal did not challenge and, in effect, adopted the respondent's evidence in his affidavit of 17 October 2016, that the discussion about the need for the respondent to pay the $40,000 on account of the tractor preceded the signing of the contract, and led to the inclusion of the $40,000 component of the purchase price.
The respondent's application filed 7 March 2017 was, in substance, an application to dismiss the appeal, effectively on the basis that it had no reasonable prospect of succeeding.
For the reasons given above, the appropriate orders are:
1.The respondent's application filed 7 March 2017 that the appeal be dismissed is allowed.
2.The appeal be dismissed pursuant to pt 5 r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA).
0
3
3