Szulc v Szulc [No 2]
[2016] WASC 381
•21 NOVEMBER 2016
SZULC -v- SZULC [No 2] [2016] WASC 381
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 381 | |
| 21/11/2016 | |||
| Case No: | CIV:2445/2014 | 20 OCTOBER 2016 | |
| Coram: | MASTER SANDERSON | 20/10/16 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Orders made | ||
| B | |||
| PDF Version |
| Parties: | SCOTT ANDREW SZULC MAXWELL JAN SZULC |
Catchwords: | Practice and procedure Application for orders allowing enforcement of judgment Turns on own facts |
Legislation: | Nil |
Case References: | Szulc v Szulc [2015] WASC 451 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
MAXWELL JAN SZULC
Defendant
Catchwords:
Practice and procedure - Application for orders allowing enforcement of judgment - Turns on own facts
Legislation:
Nil
Result:
Orders made
Category: B
Representation:
Counsel:
Plaintiff : In person
Defendant : In person
Solicitors:
Plaintiff : In person
Defendant : In person
Case(s) referred to in judgment(s):
Szulc v Szulc [2015] WASC 451
1 MASTER SANDERSON: In this matter on the plaintiff's application dated 10 May 2016 I made certain orders giving effect to a judgment entered on 17 February 2016. The matter has quite a history and it will be necessary to set out some of that history in explaining why I made the orders I did. By way of background the plaintiff is the son of the defendant. The plaintiff was represented by solicitors up until recently but appeared in person on this application. At all times the defendant has represented himself.
2 The action was commenced by writ of summons filed 17 October 2014. On 13 July 2015 the plaintiff applied for summary judgment. The matter finally came on for hearing before Acting Master Gething on 2 November 2015. The acting master dismissed the application: see Szulc v Szulc [2015] WASC 451. In doing so the acting master provided a detailed summary of the plaintiff's cause of action. Relevantly it reads as follows:
In July 2013 the plaintiff and the defendant each executed a REIWA standard form Contract for Sale of Land or Strata Title by Offer and Acceptance (the Contract). Pursuant to the Contract, the defendant agreed to sell his half share as a tenant in common in the Property to the plaintiff.
The plaintiff asserts that the Contract is binding, and that in October 2013 the defendant purported to terminate it. By writ of summons filed 17 October 2014, the plaintiff commenced the present action against the defendant seeking specific performance of the Contract, alternatively, damages or equitable compensation in lieu of specific performance. The defendant asserts that the Contract is 'a succession plan gone wrong' and that it was part of a wider agreement which was never finalised.
By application dated 13 July 2015, the plaintiff sought orders for summary judgment pursuant to Rules of the Supreme Court 1971 (WA) (RSC) O 14 r 3. This application was commenced within the 21 day time limit set out in RSC O 14 r 1, the defendant's memorandum of appearance being filed on 22 June 2015.
The plaintiff filed two affidavits in support of the application, being sworn 11 July 2015 and 18 September 2015. The plaintiff also filed an affidavit of Rebecca Womack sworn 14 July 2015. Ms Womack is a licenced settlement agent engaged by the plaintiff.
The Contract is annexed to the Plaintiff's First Affidavit. It is apparent on the face of the Contract that the plaintiff signed the Contract in the presence of a witness on 9 July 2013 and that the defendant signed the Contract in the presence of a witness on 15 July 2013. The Contract incorporates by reference the 2011 General Conditions, being the Joint Form of General Conditions for the Sale of Land agreed between the Law Society of Western Australia and REIWA. The General Conditions are attached to the Contract.
The Contract included a chattel identified as: 'CAT CHALLENGER, 95E' (Tractor).
There are two odd aspects to the Contract. The first one is that no settlement date is provided for in the space set out in page 1 of the Contract. This is not fatal to the Contract as this contingency is provided for in the General Conditions cl 3.5. For the reasons which follow, I do not need to consider this issue further.
The second oddity is that the description of the purchase price reads: 'Yet to be determined, see below special conditions'. The special conditions provide:
'TOTAL PURCHASE PRICE TO INCLUDE
REPAYMENT OF ALL ENCUMBRANCE ON TITLE AS OF 1/7/2013
$40,000 PAYMENT NET TO SELLER
CLAUSE 7 of the general conditions (outgoings) does not apply.'
In the amended statement of claim the plaintiff identified nine encumbrances on the title to the Property:
• Mortgage C103030 in favour of United Credit Union Society Ltd (transferred to Mortgage D464520 in favour of Wendy Joan Spencer).
• Mortgage C144123 in favour of Australia & New Zealand Banking Group Ltd.
• Caveat E507247 to Beverley Elaine Szulc as to the defendant's interest.
• Caveat I819503 in favour of the Shire of Ravensthorpe.
• Caveat C422944 to International Harvester Credit Corporation of Australia.
• Warrants I101606 and I239099 to the benefit of Esanda Finance.
• Caveats I287572 to the benefit of Esanda Finance.
• Property (Seizure and Sale) Order K542189.
• Memorial L615448 in favour of Legal Aid.
The plaintiff goes on to state that, in performance of his obligations under the Contract in respect of the purchase price, he made payments which had the effect of discharging each of these encumbrances. The total amount paid out by the plaintiff was $171,130.08. In his affidavit, the plaintiff attaches documents which record or evidence the payments made to discharge the encumbrances. None of these encumbrances now appear on the extract of the certificate of title for the Property printed 8 July 2015 and attached to the Plaintiff's First Affidavit.
The deposit payable was $40,000 which was to be paid within seven days of acceptance, and was to be held by the defendant. In the amended statement of claim, it is pleaded that, pursuant to the plaintiff's obligations under the Contract, the plaintiff paid the deposit to the defendant in three tranches:
(a) $18,043.75 on or about 14 July 2013 to the defendant;
(b) $1,956.25 on or about 14 July 2013 to Spana Pty Ltd at the direction of the defendant; and
(c) $20,000 on or about 15 July 2013 again to Spana at the direction of the defendant.
It appears that the defendant owed Spana money in relation to the Tractor, and that the payments made by the plaintiff to Spana satisfied this obligation. This in turn, says the plaintiff, comprised payment of the deposit under the Contract [2] - [12]. (footnotes omitted)
3 The acting master was not satisfied summary judgment ought be entered. In essence the acting master concluded there was an arguable defence the contract was void for uncertainty. Having dismissed the application the matter went back into the case management system. The next step was for the defendant to file a defence. He did not do so.
4 On 14 January 2016 the case management registrar made a springing order requiring the defendant to file a defence 'within 14 days of the date of personal service of this order'. No defence was filed. An affidavit of service was filed on behalf of the plaintiff and on 17 February 2016 judgment was entered against the defendant.
5 On 10 May 2016 the plaintiff applied for orders giving effect to the sale of the property pursuant to the contract. The matter was first returned in chambers on 24 May 2016 and was adjourned to a special appointment on 1 July 2016. After hearing submissions I made orders in the following terms:
1) In accordance with the Judgment entered on 17 February 2016, the Contract for Sale of Land or Strata Title by Offer and Acceptance (the Contract of Sale) being attachment SAS-3 to the affidavit of Scott Andrew Szulc sworn 11 July 2015 be specifically performed to effect the sale of the property the subject of the Contract of Sale to the Plaintiff at 12.00 noon on 3 October 2016 (Settlement Date) at the office of Vogt Graham Lawyers, Level 5, 102 James Street, Northbridge.
2) On or before 11 July 2016, the Plaintiff is to:
a) appoint a solicitor or settlement agent with instructions to give effect to the settlement pursuant to the order in paragraph 1 (Plaintiff's Agent); and,
b) notify the Defendant in writing of the name and contact details of the Plaintiff's Agent.
3) On or before 18 July 2016, the Defendant is to:
a) appoint a solicitor or settlement agent with instructions to give effect to the settlement set out in this order (Defendant's Agent); and,
b) notify the Plaintiff's agent in writing of the name and contact details of the Defendant's Agent.
4) Not less than 21 days prior to the Settlement Date the Plaintiff shall cause the Plaintiffs Agent to serve on the Defendant's Agent a draft settlement statement for the Contract of Sale.
5) The Plaintiff must cause for the Plaintiff's Agent to, by not later than 10 business days prior to the Settlement Date, serve on the Defendant's Agent:
a) a signed registrable transfer of the Defendant's interest in the Property completed in accordance with these orders; and,
b) any other document which the Defendant is required to sign to give effect to the sale of the Defendant's interest in the Property and in the Tractor to the Plaintiff.
6) The Defendant must execute any documents provided to him by the Plaintiffs Agent to give effect to the sale of the Defendant's interest in the Property and in the Tractor to the Plaintiff.
7) The Defendant must cause the Defendant's Agent to, by not later than 5 business days prior to the Settlement Date, serve on the Plaintiff a signed registrable transfer of the Defendant's interest in the Property completed in accordance with these orders.
8) The Defendant must transfer the Defendant's interest in the Property and the Tractor on the Settlement Date, pursuant to section 242 (1A) of the Transfer of Land Act 1893 (WA).
9) On the Settlement Date, the Defendant must deliver vacant possession of the Property and the following documents to the Plaintiff:
a) all documents of title to the Property (specifically including the duplicate certificate of title);
b) discharges of all encumbrances (if any) lodged against the Property as at the Settlement Date;
c) withdrawals of all caveats lodged against the Property as at the Settlement Date; and,
d) all other documents that may be necessary to enable the Plaintiff to become the registered proprietor of the Property.
10) In the event that the Defendant fails to comply with any of the above orders, the Plaintiff have liberty to apply for an order pursuant to section 242 (1B) of the Transfer of Land Act.
11) The parties have liberty to apply generally.
12) The Defendant pay the Plaintiff's costs of this application.
6 The defendant did not comply with these orders. He made it plain he had no intention of settling. With that in mind the plaintiff's solicitors filed what they described as a 'Second Amended Writ of Summons'. That document was filed 8 August 2016. Apart from tidying up a few omissions in the statement of claim the amended writ of summons added as parties to the action the Registrar of Titles and the Commissioner of Titles. That was done, it would seem, to allow effect to be given to a transfer without the need for the defendant to sign any documents. It is noteworthy the amended writ of summons was filed without leave. What should have been done is a minute should have been filed and an application for leave should have been made. However for reasons which will become apparent this omission is of no real consequence. In fact the plaintiff's solicitor Willfried Vogt filed an affidavit sworn 8 August 2016 which was said to be in support of an application for orders to join the Registrar of Titles and the Commissioner of Titles. However it would appear no chamber summons was ever lodged to give effect to the intended application.
7 On 5 September 2016 the plaintiff gave notice he intended to act in person. On 4 October 2016 the plaintiff lodged a minute of proposed orders. The matter was then listed in chambers on 6 October 2016. I treated the matter as being an application made under the liberty to apply provision in the orders of 1 July 2016. There was no separate chamber summons issued by the plaintiff.
8 At the hearing the plaintiff appeared by telephone. He indicated he wished to file further affidavits. He needed an adjournment for that purpose. The defendant indicated he wished to seek to set aside the default judgment. I then adjourned the matter to 20 October 2016 and indicated to the parties I would deal with the plaintiff's application and any application made by the defendant to set aside default judgment.
9 On 20 October 2016 I made the following orders:
1) Pursuant to Order 18 rule 6(2)(b) of the Rules of the Supreme Court the Registrar of Titles be joined to this action as the second defendant.
2) Pursuant to Order 18 rule 6(2)(b) of the Rules of the Supreme Court the Commissioner of Titles be joined to the action as the third defendant.
3) The second amended Writ of Summons indorsed with the Statement of Claim dated 8 August 2016 stand as the Second Amended Writ of Summons indorsed with the Statement of Claim in the proceedings and further service be dispensed with.
4) Pursuant to section 242 (1A) of the Transfer of Land Act 1893 (WA) the one undivided half interest in the Property the subject of the Contract for Sale of Land or Strata Title by Offer and Acceptance (the Contract of Sale) being attachment SAS-3 to the affidavit of Scott Andrew Szulc sworn 11 July 2015 registered in the name of the defendant, vests in the plaintiff.
5) The parties have liberty to apply generally.
6) The defendant's chamber summons filed 17 October 2016 to set aside default judgment be dismissed with no order as to costs.
10 As the foregoing history of this action makes clear the plaintiff's claim was not without its difficulties. It must be borne in mind that as at the date I made the enforcement orders the action had been on foot for two years and three days. The judgment given pursuant to the springing order had been in place for eight months and two days. The defendant had been well aware of what remedy the plaintiff was seeking and why. He evinced no intention of complying with the orders requiring him to give effect to the settlement. However on 17 October 2016 he did file a chamber summons seeking to set aside the default judgment. That application was supported by an affidavit of the defendant sworn 4 October 2016. Before detailing the contents of that affidavit it is convenient to quote from an affidavit in reply sworn by the plaintiff on 17 October 2016. Relevantly that affidavit reads as follows:
The Property subject to this dispute was originally purchased by the Defendant, my Father and his then wife, my Mother in the 1970's each held a 50% Tenant in Common share. I attach and mark with the letters 'BB-1' a true copy of a title search of the Property dated 19 June 2013.
As detailed in paragraph 4 of the Defendant's Submission dated 11 September 2015, the relationship between my parents ended in 1984. The Defendant has occupied the property since this time, and has had and continues to have full economic benefit of 100% of the property.
...
In December 1998 the Shire of Ravensthorpe began pursuing the Defendant for outstanding rates for the property. On 9 March 2004 a caveat, 1819503, was registered onto the title in relation to this matter. On 26 March 2012 Lawyers representing the Shire of Ravensthorpe, having failed to extract relief from the Defendant, wrote to my mother to pursue her for the payment of outstanding rates on the property. I attach and mark with the letters 'BB-3' a true copy of a letter from the Shire of Ravensthorpe to my Mother dated 26 March 2012.
During mid 2012, I was advised by my Mother that as a result of the letter dated 26 March 2012 from the Shire of Ravensthorpe, she intended to re-commence enforcement action of the Family court orders. This action became Family Court matter CAC 45 of 2013.
On 25 March 2013 the Defendant wrote to me of an offer to settle the property dispute and transfer My Mother's and the Defendant's interest in the property to me. I attach and mark with the letters 'BB-4' a true copy of the letter to me from the Defendant dated 25 March 2013.
On 14 April 2013 I wrote to the Defendant stating amongst other things:
a. of in principle agreement to purchase both shares of the property;
b. concern over the total amount required to settle due to the liabilities associated with the caveats being unknown;
c. that I did not agree to points 5-7 until the transfer was complete;
d. requested the Defendant advise me of the term for the proposed for share farming; and
e. I set a time during the June- July 2013 holiday period to visit the farm to discuss further.
I attach and mark with the letters 'BB-5' a true copy of the letter from me to the Defendant dated 14 April 2013.
In response to my letter of 14 April a number of phone calls were exchanged between the Defendant and I discussing the matter which confirming his intention to transfer his share of the property to me.
On 26 May 2013 I received from my Mother a properly executed and witnessed contract of offer and acceptance for her 50% share on the property. The wording of this contract were to be the basis of the 15 July 2013 Contract. I attach and mark with the letters 'BB-6' a true copy of the Contract dated 26 May 2016.
As a result of the 26 May 2013 contract and the Defendant's stated intention to transfer his 50% of the property to me in exchange for repayment of the encumbrances on the title, I started negotiations with the other caveators.
In late June 2013, I travelled to Western Australia to personally meet with a number of the creditors to achieve settlement. Between 28 June and 1 July I travelled to the property to meet with the Defendant to advise of progress, seek and was granted his written authorisation to act on his behalf on the accounts relating to the caveats, and confirm the terms of the agreement.
During this period, the Defendant confirmed his intention to transfer his 50% share of the property to me stating words to the effect 'the time is right'. In exchange, I agreed to the repayment of all creditors listed as caveats on the title of the property as on 1 July 2013.
On or about 1 July 2013, the Defendant revealed that he had another outstanding debt owing to Spana Pty Ltd for his 2010 purchase of a Challenger 95E Tractor. The Defendant claimed that this debt was at risk of legal action that could result in another encumbrance being added to the title. In response, I increased the offer by $40,000 to be paid as a deposit, paid in part to the Defendant and in part on the Defendant's direction to Spana Pty Ltd to protect the title and in exchange for the tractor being added as a chattel to the transfer.
The precise cost in dollars was not yet known, 'yet to be determined', as negotiated settlements between the Defendant's creditors and myself were incomplete. The final agreement between the Defendant and I was the act of the removal of the encumbrances at whatever the cost to me plus a $40,000 payment in favour of the Defendant, in exchange for the Defendants 50% of the Property.
On or about 9 July 2013 I wrote the terms of the agreement into a REIWA (Non-member) Contract for sale of land or strata title by Offer and Acceptance. In constructing the wording of the contract I could not list a specific settlement date nor exact price in dollars as settlement with all the creditors was not finalised. I had the document witnessed and express post to the Defendant, being attachment 'SAS-3' to the Affidavit of Scott Andrew Szulc sworn 11July 2015.
On or about Sunday 14 July 2013 the Defendant called me to advise that he had received the contract and would have it signed and witnessed on his travel to Esperance on 15 July 2013 and requested the deposit be paid. On 14 and 15 July 2013 the Deposit was paid as detailed in the statement of claim. On 15 July 2013 the Defendant signed the contract.
An offer to settle with the final creditor, Esanda had been made by me on 10 July 2013 of $3,750. The Agent acting on Esanda's behalf required confirmation in writing from the Defendant that I was authorised to act for the Defendants. Following my request, the Defendant faxed a letter to Esanda on 15 July 2013. An email from Esanda accepting the offer was received 16 July 2013. I attach and mark with the letters 'BB-7' a true copy of the fax to Esanda completed by the Defendant dated 15 July 2013.
By 16 July 2013, one day after the contract was signed, the exact price in dollars of the transfer could be determined. The contract was assessed for Stamp duty on or about 17 September 2013. During which time an independent 'reasonable' person assessed both contracts and determined the purchase price. I attach and mark with the letters 'BB-8' a true copy of the stamp duty assessment [6] - [23].
11 Returning then to the defendant's affidavit the only relevant paragraph is par 3. It is in the following terms:
Contract of Sale Document. General Conditions for the sale of land.
Clause 1.4 Notice of non-payment
(a) The buyer does not pay the Deposit in full as required by the contract.
The Plaintiff asserts he paid $40,000.00 (Forty thousand dollars) towards the purchase of tractor (95E) which he substitutes for deposit then claimed the said tractor as Chattel on the Contract for Sale of land offer and acceptance document. I agree he purchased the tractor (95E) and was the owner at date on Contract document.
Clause 1.5 Termination for non-payment
(a) 2 [sic] The Seller may terminate the Contract by giving notice of Termination to the buyer.
Notice of Termination (Revoking) was given to Plaintiffs Agent dated 3 October 2013 Annexure C & D (Page 65 of the Amended Statement of Claim dated 10 July 2015, Affidavit of Plaintiff sworn 11 July 2015)
Under these circumstances the Offer and Acceptance Contract Agreement was lawfully terminated even before the Plaintiff sort [sic] relief by application to the Court.
12 The defendant in a matter such as this is entitled to every consideration; and he has received every consideration. There is nothing in the affidavit filed in support of the application to set aside judgment which could possibly explain either the delay or the reasons why judgment ought not be entered. The best that can be said on the available evidence is the defendant changed his mind. Having reached an agreement with the plaintiff he subsequently decided it was not in his best interests and he simply refused to give effect to it. In my view there was no basis for setting aside the judgment and there was every reason to make orders giving effect to the judgment that had been entered.