Tah Land Pty Ltd v Subway Realty Pty Ltd
[2023] WADC 44
•22 MARCH 2023
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: TAH LAND PTY LTD -v- SUBWAY REALTY PTY LTD [2023] WADC 44
CORAM: REGISTRAR JEYAMOHAN
HEARD: 22 MARCH 2023
DELIVERED : Ex tempore
PUBLISHED : 12 APRIL 2023
FILE NO/S: CIV 5041 of 2022
BETWEEN: TAH LAND PTY LTD
Plaintiff
AND
SUBWAY REALTY PTY LTD
First Defendant
D I BRITZ PTY LTD
Second Defendant
WESTERN AUSTRALIAN PLANNING COMMISSION
Third Defendant
DAVID IAN BRITZ
Third Party
Catchwords:
Summary judgment - Taking order - Contractual interpretation - Limitation of liability clause - Statutory interpretation - Turns on own facts
Legislation:
Land Administration Act 1997 (WA), s 177, s 178
Planning and Development Act 2005 (WA), s 191
Rules of the Supreme Court 1971 (WA), O 14 r 1
Transfer of Land Act 1893 (WA)
Result:
Plaintiff's summary judgment application dismissed
Representation:
Counsel:
| Plaintiff | : | Mr N W Kalmund |
| First Defendant | : | Mr T C Russell |
| Second Defendant | : | No appearance |
| Third Defendant | : | Mr V M McMullen |
| Third Party | : | No appearance |
Solicitors:
| Plaintiff | : | Hotchkin Hanly |
| First Defendant | : | Minter Ellison |
| Second Defendant | : | Not applicable |
| Third Defendant | : | State Solicitor's Office |
| Third Party | : | Robson Legal |
Case(s) referred to in decision(s):
Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Ansearch Ltd v Wavtech Pty Ltd [2006] WASC 184
Bynon v Atma Nominees Pty Ltd as trustee for the Badjyn Investment Trust and the H & B Farm Trust [2017] WASC 30
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Gel Custodians Pty Ltd v Dewar [2014] WASC 177
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2010] HCA 2; (2010) 240 CLR 409
Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109
Webster v Lampard (1993) 177 CLR 598
Westpac Banking Corporation v Anderson [2017] WASC 106
REGISTRAR JEYAMOHAN:
[This decision was delivered extemporaneously on 22 March 2023 and edited from the transcript.]
Overview and summary
By chamber summons dated 20 December 2022 the plaintiff seeks orders for summary judgment against the first defendant in the sum of $120,863.23 including GST plus interest on the sum; that interest claimed being at the rate of 6% per annum pursuant to s 32 of the Supreme Court Act 1932 (WA) from the date each amount became due until judgment (Application).
Issues
In terms of the issues, the preliminary issue to be determined is in broad terms:
1.Has the plaintiff established a prima facie entitlement to judgment?
2.Does the defendant have an arguable defence?
3.Is there 'some other reason' for there to be a trial of the action?
Background
By way of background in or about 2004 the plaintiff lessor granted a lease to the first defendant (Lease) for part of the land comprised in certificate of title volume 1934 folio 843 and volume 1934 folio 844 (together the Land). The history of the Lease is set out at par 7 of the affidavit of Jocelyn Miriam St Friar, dated 3 February 2023 (St Friar Affidavit) and pars 4 ‑ 6 of the plaintiff's submissions (dated 1 March 2023) and are not in dispute.
These can be summarised broadly as follows:
1.that the Lease was for a term of five years commencing 16 September 2004 and expiring on 15 September 2009;
2.the parties agreed to extend the Lease by executing a deed of extension on or about 14 December 2009, but extended the term of the Lease for a further five years, commencing on 16 September 2009 and expiring on 15 September 2014 and otherwise incorporated the terms of the Lease;
3.the parties further agreed to extend the Lease by executing a new deed of extension on or about 30 September 2014, which extended the Lease term commencing 16 September 2014 to 29 April 2021 and otherwise incorporated the terms of the Lease.
The plaintiff alleges as against the first defendant breach of the Lease between on or about 1 November 2021 and on or about 1 July 2022, and continuing, by failing or refusing to pay the plaintiff money purportedly due and owing from the first defendant to the plaintiff pursuant to the Lease (Arrears).
A memorandum of appearance was entered on behalf of the first defendant on 29 November 2022. The plaintiff filed and served a statement of claim on 19 December 2022.
The amount claimed by the plaintiff in its Application comprises unpaid rent, outgoings and other moneys purportedly payable by the first defendant to the plaintiff in the sum stated of $128,163.23 inclusive of GST plus interest.
For the purposes of these proceedings it is sufficient to note that the first defendant says that on 21 May 2013 the first defendant sublet the premises to the director of the second defendant to operate a Subway business. The first defendant says that this individual is the sublessee and these matters are the subject of the first defendant's third party proceedings against the third party.
Taking Order
It is also appropriate to (note) the terms of the taking order by way of background. On or about 7 October 2021 the third defendant lodged with the Registrar of Titles a taking order of the Land (Taking Order) pursuant to s 177 and s 178 of the Land Administration Act 1997 (WA) (Land Administration Act) and s 191 of the Planning and Development Act 2005 (WA).
The plaintiff's application for judicial review of the Taking Order in the Supreme Court of Western Australia proceeding CIV 1069 of 2022 was dismissed (by that honourable court) on 17 February 2023.
Landgate had not (taken steps to) register the Taking Order pending the outcome of the (judicial) review proceedings.
Legal principles: summary judgment
In terms of the principles applicable to summary judgment, both parties have directed this court's attention to the relevant principles.
In summary I note as follows:
1.Summary judgment should be exercised with great care and will not be exercised unless it is clear that there is no real question to be tried: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87, 99.
2.The onus is on a plaintiff to persuade the court that it is an appropriate case to award summary judgment: Gel Custodians Pty Ltd v Dewar [2014] WASC 177.
3.Once a plaintiff has established a prima facie right to judgment, the onus is on the defendant to satisfy the court why judgment should not be given: Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109, 110.
4.The defendant does not have to show a defence on the balance of probabilities, only to show cause as to why there is an arguable defence: Westpac Banking Corporation v Anderson [2017] WASC 106.
5.The court should not dispose of an action summarily where there is a conflict on the facts. Summary judgment must only be granted where the court has a high degree of certainty of the outcome of the proceedings if they went to a trial: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57].
6.Summary judgment is appropriate where the defence is so obviously untenable that it cannot possibly succeed or where it would be manifest that to allow the defence to stand would involve useless expense: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, 129.
7.In determining whether there is an issue in dispute which ought to be tried, the version of facts put forward by the defendant should be accepted, assuming they are not inherently incredible: Webster v Lampard (1993) 177 CLR 598.
8.The court is not bound to accept uncritically as raising a dispute of fact calling for further investigation every statement in an affidavit, however equivocal, lacking in precision or inconsistent with contemporary documents: Ansearch Ltd v Wavtech Pty Ltd [2006] WASC 184 [28].
9.If defending a summary judgment application on the basis of factual issues, the defendant must file an affidavit/s which provide particulars of the facts upon which he asserts that summary judgment should not be given: Westpac Banking Corporation v Anderson [106].
10.Summary judgment is not only given where a case is so hopeless as to not require argument. Extensive argument may sometimes be necessary to demonstrate that there is no question which ought to be tried: Bynon v Atma Nominees Pty Ltd as trustee for the Badjyn Investment Trust and the H & B Farm Trust [2017] WASC 30 [16].
The evidence relied upon
In terms of the evidence relied on, the plaintiff's Application is supported by the affidavits of Raymond Jin Wen Tan dated 20 December 2022 (Tan Affidavit), Evan Joseph Taylor dated 1 March 2023 (First Taylor Affidavit) and 22 March 2023 (Second Taylor Affidavit).
The first defendant relies on the St Friar Affidavit in opposition to the Application.
I have carefully considered the written submissions filed and the submissions made by counsel for the plaintiff and the first defendant during the hearing of the application on 22 March 2023 in addition to the affidavit materials provided to this court.
Analysis
The plaintiff must first establish a prima facie right to judgment against the first defendant. It is the plaintiff's case that there is no triable issue in the proceedings (for the following reasons).
Taking Order not presently registered
First, that the Taking Order and any future Taking Order does not give rise to any question that ought to be tried in this Application. The plaintiff's position in this respect is that the Taking Order was not registered. (Relevantly) plaintiff's counsel submitted that the live issue from the plaintiff's perspective is that:
1.at this point in time, the Land remains registered to the plaintiff;
2.as at the date of this hearing, the Taking Order has yet to be registered within the meaning of the Land Administration Act and has no legal effect;
3.the Lease (therefore) is (presently) not extinguished until (the Taking Order) is registered;
4.the Taking Order becomes registered when it is entered on the register established under the Transfer of Land Act 1893 (WA);
5.the Taking Order never had legal effect and will not have any legal effect on this basis and that the plaintiff as the registered proprietor of the land at all material times is entitled to be paid under the terms of the Lease as at the date of the hearing of the Application.
(Secondly), it is the plaintiff's position that the future registration of a Taking Order cannot affect the plaintiff's claim as against the first defendant at this point in time. Payment (pursuant to the Application) is (therefore) sought on the basis that the (Land) remains (registered) with the plaintiff as at the date of the hearing (of the Application). The plaintiff says that the Taking Order will be amended and in those circumstances registration can only occur in the future.
Section 179 of the Land Administration Act
The plaintiff relies on s 179 of the Land Administration Act with respect to the date of taking. It is the plaintiff's submission that as no date is specified in the Taking Order, the terms of the Taking Order are in present and future tense and do not have retrospective effect. Further, acts of the Registrar (of Titles) are currently not in force and in effect (and) will not have any force and effect until the Taking Order is registered. The plaintiff relies on the authority of Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2010] HCA 2; (2010) 240 CLR 409 which the plaintiff says is relevant to the construction of s 179 of the Land Administration Act.
Having had regard to the plaintiff's submission, applying the rationale in Mandurah Enterprises v Western Australian Planning Commission, and having considered the provision of s 179, it is my view that these matters require interpretation of the intended effect of that section and the meaning of registration which is at the heart of the period of time the Taking Order is said to apply from.
Third party
Counsel for the first defendant pointed to the third party notice that was served on the third party on 15 March 2023, and the fact that the third party (that was not present at the hearing of the Application) has an interest and will be an affected party, should an outcome with respect to summary judgment be achieved in the present Application. Counsel for the plaintiff pointed to the fact that the third party is a director of the second defendant who has a been a party to these proceedings from the time of commencement of the proceedings. However, counsel for the first defendant has submitted that (despite this) there are issues in the present Application which affect the third party and these include issues as to indemnity against the third party in addition to matters of factual uncertainty as to liability and issues as to quantum.
Effect of registration of the Taking Order
Counsel for the first defendant has also pointed to the outcome of the registration process itself which remains under consideration by the Registrar of Titles. (Counsel for the first defendant) submits that it is not in issue as to what the Certificate of Title (presently) says, but it is a matter of fact rather that that Certificate of Title is subject to dealings on the land and there remains a question around the matter of registration.
The effect of the Taking Order as submitted by counsel for the first defendant is that the plaintiff's interest is extinguished on the date on which the Taking Order is said to take effect from. Whilst counsel for the plaintiff submits that:
1.there is no uncertainty that the Taking Order has not been registered;
2.the court must determine that the (Taking) Order currently has no effect and that this will determine the first defendant's liability in respect of the claim,
(in my view), there remains a live question as to matters of when and if the Taking Order takes effect from the date of the (Taking) Order being issued as opposed to the date on which the (Taking) Order is registered. Those are matters which require on submission from counsel (and) consideration of the effect of s179 of the Land Administration Act.
No prejudice
Counsel for the first defendant has submitted that there is no prejudice to the plaintiff in allowing the registration process to occur and that that will then inform matters as to the liability of the respective parties to these proceedings, including the second defendant. Counsel for the first defendant has submitted that there is a live issue as to which party is liable to pay in circumstances where the order was made on 7 October 2021 and that whilst this issue remains live, there remains the question of liability in respect of the Arrears payable.
Uncertainty as to the amount payable - contract construction
There is also the separate matter of the proper construction of the limitation of liability clause in the Lease itself (Limitation Clause).
Counsel for the plaintiff submits that its construction of the Limitation Clause ought to be preferred. Counsel for the first defendant has put forward a competing position and submits that it would make no sense on a proper construction to construe a $40,000 cap for each breach in circumstances where the amount of rent payable sits at around $10,000 a month.
Conclusion
On my analysis of the matters before me today there remain live issues as to which party is liable to pay the Arrears of rent, and to the extent they are found to be liable, are liable to pay the Arrears in what amount. The question of the amount of Arrears payable can only be informed by matters of construction with respect to the Limitation Clause and the cap imposed if any under the terms of the Lease. (These) are all matters which require proper consideration and determination.
Whilst it is not appropriate that I express a view on the merits and prospects of any of those questions to be determined, in consideration of the evidence before me, it is my opinion that even at its lowest point, there is evidence of a difference of opinion regarding the amount, manner and timing of the claimed Arrears. I consider therefore that the existence and extent of any obligation and respective payment of the Arrears should be a matter for a trial judge.
To oppose the summary judgment application the first defendant need only to have demonstrated that its defence is not so obviously untenable and that its version of the facts is not inherently incredible. It is not a high bar that the first defendant has had to overcome.
In summary I conclude that it cannot be said that there is no real question to be tried.
Conclusion and orders: summary judgment
I therefore make orders that the plaintiff's application for summary judgment be dismissed.
Costs
In circumstances where the matter before this court has been the question of (the plaintiff's application for) summary judgment, the Application was unsuccessful. I would therefore be minded to make orders in terms of costs being awarded to be payable to the first defendant in respect of the application.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AC
Court Officer
6 APRIL 2023
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