Tang v Kathleen Marie JOKOVCEVICH as Trustee for the Gracie Family Trust - [2010] WADC 45

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: TANG & ANOR -v- KATHLEEN MARIE JOKOVCEVICH as Trustee for the GRACIE FAMILY TRUST [2010] WADC 45

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 8 MARCH 2010

DELIVERED : 8 APRIL 2010

FILE NO/S: CIV 3154 of 2009

BETWEEN: YUN TONG TANG
First Plaintiff
FUNG CHUN TANG LEE
Second Plaintiff
AND
KATHLEEN MARIE JOKOVCEVICH as Trustee for the GRACIE FAMILY TRUST
Defendant

Catchwords:

Practice - Practice under the Rules of the Supreme Court of Western Australia - Application of the plaintiff for summary judgment - Turns on its facts

Legislation:

Duties Act 2008 (WA)

Result:

Application dismissed

Representation:

Counsel:

First Plaintiff                :     Mr J P Cook
Second Plaintiff            :     Mr J P Cook
Defendant:     In person

Solicitors:

First Plaintiff                :     Mendelawitz Morton
Second Plaintiff            :     Mendelawitz Morton
Defendant:     Not applicable

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

Acemount Pty Ltd v Sunlong Holdings Pty Ltd [2009] WASC 249
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387

DEPUTY REGISTRAR HARMAN: By their claim in the action the plaintiffs seek damages as a consequence of their termination of a contract for the sale of real estate. By the contract the parties had adopted the 2002 revision of the Joint Form of General Conditions for the Sale of Land. Under cl 24.3 of those conditions, upon termination, the vendor is entitled to forfeit the deposit; and under cl 24.6, where settlement on resale is within 12 months of termination, is entitled to liquidated damages.
The plaintiffs have applied for summary judgment. During the plaintiffs' response to the defendant's submissions they foreshadowed their intention to make submissions as to the sufficiency of the defendant's evidence. I then intervened as the balance of the time allocated to the hearing on that day would have been insufficient for that purpose. In the course of subsequent discussions the defendant agreed with the plaintiffs' solicitor's proposition that their application could rest on their written submissions and my evaluation of the defendant's evidence.
Prior to that point I indicated that it had been my view that the plaintiffs' case was straightforward in relation to all but the cost of repairs to a stove and of compliance with legislation requiring the installation of residual current devices and smoke detectors. Those features of the claim were valued at $471 and $440 respectively. In coming to that conclusion, I had been satisfied that in relation to each other allegation of material fact pleaded, there was either uncontested evidence or concession.
In her defence the defendant raises the issue of the impact of s 27 of the Stamp Act 1921. Annexed to her affidavit of 4 January 2010 is what she identifies as a true copy of the Duties Document Lodgement and Assessment Form submitted to the Office of State Revenue. It bears a seal of "State Revenue" and the date 13 November 2009. I accept that it relates to the contract and that I can accept at face value its content if for no other reason than that the plaintiffs rely on the same document. I would conclude that the form and the contract were lodged at the Office of State Revenue on 13 November 2009.
The writ issued on 23 October 2009. The defendant deposes that she believes that the plaintiff did not submit the contract for assessment prior to commencing the proceedings. The first‑named plaintiff deposes that he believes to the contrary and in support of that belief he refers to the form. It seems to me that he must be wrong in his belief.
It is a matter of considering whether lodgement of the contract with the Office of State Revenue is sufficient compliance with requirements imposed by the legislature.
The plaintiffs accepted the defendant's offer to purchase the property on 13 July 2008. As it came into effect on 1 July 2008 the Duties Act 2008 would apply to the contract rather than the Stamp Act. The plaintiffs submit that by lodging the contract with the Office of State Revenue they satisfied the requirements of s 279(2)(b)(i) of the Duties Act. It is as follows:
"279.Receipt of transaction records in evidence
(1)A transaction record for a dutiable transaction —
(a)is not available for use in law or equity for any purpose; and
(b)cannot be presented in evidence in a court exercising civil jurisdiction,
unless it is duty endorsed.
(2)Despite subsection (1), a court may admit in evidence a transaction record that is not duty endorsed —
(a)where the person that produces the transaction record is the person liable to pay the duty —
(i)if the transaction record has been transmitted to the Commissioner; or
(ii)if the court is satisfied that the transaction record will, after its admission, be transmitted to the Commissioner in accordance with arrangements approved by the court;
or
(b)where the person that produces the transaction record is not the person liable to pay the duty —
(i)if the name and address of the person so liable and the transaction record have been transmitted to the Commissioner; or
(ii)if the court is satisfied that the name and address of the person so liable and the transaction record will be transmitted to the Commissioner in accordance with arrangements approved by the court.
(3)A court may admit in evidence a duty endorsed duplicate of a transaction record for a dutiable transaction.
(4)Despite subsection (1), a court may admit in evidence an unexecuted copy of an instrument that effects a dutiable transaction or an instrument that evidences a dutiable transaction if the court is satisfied that a transaction record for the dutiable transaction is duty endorsed."
In Acemount Pty Ltd v Sunlong Holdings Pty Ltd [2009] WASC 249 Hasluck J considered s 279 of the Duties Act in reaching a determination under s 27 of the Stamp Act. In that case it was taken to be common ground that at the date of the determination there was no document in existence that could be described as a document stamped or endorsed by the Commissioner of State Revenue. At [128] and [129] of his reasons, he states as follows:
"It is of interest to note also, although this is not material to the interpretation issue, being simply an aside, that the conclusion I have come to is consistent with the new regime constituted by the Duties Act and related legislation in that, by s 279 of that Act, a transaction record that is not duty endorsed can be admitted in evidence not only by a person not liable to pay the duty (pursuant to requirements akin to s 27(3) of the Stamp Act) but also by a person liable to pay the duty (such as the plaintiff in the present case) if the name and address of the person liable and the transaction record is transmitted to the Commissioner. In other words, the purpose of the rule replacing the s 27(1) rule, like the s 27(1) rule itself, is not to involve the court in the process of enforcement but to ensure that steps are taken which will facilitate enforcement by the Commissioner.
It follows from this conclusion that, in my view, in the particular circumstances of this case, the s 27(1) rule does not apply to the subject contract at the trial of the action to prohibit any use being made of the contract in pleading or in giving evidence. The making of the arrangement is analogous to the provision of a sufficient undertaking in the manner allowed for by the decided cases with the result that, pursuant to the reasoning of the High Court in Shepherd's case, the contract can now, at trial, be regarded as good ab initio for all purposes. …"
His Honour had previously canvassed s 27 of the Stamp Act and the practices that had emerged over time to accommodate its impact. It was in the context of canvassing changes to the legislative provisions that his Honour considered the effect of s 279 of the Duties Act.
I accept that the observations are no more than obiter. It appears to me that on the reasoning of his Honour there is scope to consider that bringing a contract to the attention of the Commissioner after the commencement of an action may be sufficient compliance with s 279 of the Duties Act.
In my opinion s 279(2) would permit me to consider the contract. In my opinion in both commencing the action prior to it being duty endorsed and in pleading the contract the plaintiffs have not acted contrary to s 279(1).
In opening her submissions the defendant conceded that the agreement with the plaintiffs had been terminated. The issues she then canvassed were estoppel by representation, waiver by conduct, failure to act in good faith and duty to mitigate loss. In essence the defendant's submission was that there were sufficient reasons to consider that she should not be deprived of the benefit of a trial.
As to estoppel, the defendant referred to a passage from the reasons for decision of Brennan J in Waltons Stores (Interstate) Ltd v Maher(1988) 164 CLR 387 at 428 in which he sets out conditions the satisfaction of which would justify that result. The evidence upon which she relies is said to be found in par 20 to par 41 of her affidavit of 4 January 2010. The events canvassed in those paragraphs occurred over the period from an unspecified date that I might infer commenced prior to 27 February 2009, the date specified for settlement, to an unspecified date after 30 June 2009.
The first condition is that a particular legal relationship between the parties either existed or would exist from which the party sought to be bound would not be free to withdraw. A significant feature of the case before me is that the plaintiffs have demonstrated that they were able to terminate the contract. I have already observed that the defendant accepts that fact.
The defendant characterises the content of the particular paragraphs of her affidavit as evidence of her willingness to continue with the purchase. I take it that the defendant would consider that such willingness would accord with the second condition enunciated by Brennan J: that the plaintiffs had induced the defendant to adopt an assumption or expectation. There is nothing at all in the evidence that I have identified or at all that either specifies any act or particular omission on the part of the plaintiffs or which indicates that they had taken any significant action.
The evidence in support of the proposition that the defendant has suffered detriment is at par 47 of the defendant's affidavit of 4 January 2010, where she states that she informed the finance provider that she would no longer be able to buy the property and as a consequence she no longer has access to those funds. There is no other evidence in relation to the finance or finance generally. For what it is worth, the contract was not conditional on finance.
In my opinion there is no basis for the proposition that the plaintiffs be estopped from relying upon the terms of their agreement with the defendant.
As to waiver, the defendant submitted that the plaintiffs are unable to recover damages as they did not to respond to her post-termination offer to purchase the property.
In my opinion by bringing their claim the plaintiffs are acting consistently with the notice of default and the notice of termination. There is no basis to consider that the plaintiffs have waived their contractual rights.
As to damages, the defendant made a number of submissions. Part of the material upon which she relied is found in her affidavit of 4 March 2010. It was filed outside the timetable established by the order of 14 December 2009 for the conduct of the application. As I indicated during the course of the hearing, whilst for the Court to consider the substance of that material may conceivably prejudice the plaintiffs, they had foregone the opportunity to seek an adjournment. As I recall there was no final determination given in relation to the issue but it was my understanding that the plaintiffs recognised that the defendant would be given the opportunity to rely upon the material. In that event they would contest its sufficiency.
Be that as it may, I take it to be the case that it is uncontroversial that the contract for resale of the property was entered into with Maginn on 30 August 2009 and that the resale price was $1,700,000.
The price payable by the defendant had been $2,027,000. She would rely on the sale to Maginn to demonstrate that the plaintiff had accepted a significantly lesser price than she was prepared to pay. At that point she would draw on what she describes as an offer made on 18 March 2009 conveyed to the plaintiffs' agent via telephone by her husband. Out of context that material and also the statement that the same offer was made by email are insufficient however at par 32 of her affidavit of 4 January 2010 the defendant gives evidence of her belief that it was conveyed to the plaintiffs as the agent later indicated that he had not received an answer from the plaintiffs. It seems to me that the defendant ought to be able to rely on the import of the communication.
Similarly so, and although the agent was then no longer the selling agent, what transpired prior to the response of presumably one of plaintiffs that "I will not sell the house to you at any price". That would include the statement at par 39 of the same affidavit, that on 30 June 2010 she was in a position to offer immediate and full settlement.
I accept that it is not explicit that thereby the defendant had conveyed that she was proposing the purchase price that the parties had agreed almost one year previously, however according to par 41 to par 43, as at 3 August 2009 there is sufficient evidence to convey that she then offered a full, total and immediate settlement. In my opinion the defendant had thereby conveyed to the plaintiffs that she was interested in purchasing the property at or about the time that it was resold. On the basis of what had then transpired it is open to consider that the price would be that which had previously agreed between the parties, $327,000 more than the sale price to Maginn.
The fundamental issue is whether in the context that I have portrayed, by accepting the offer of Maginn on 30 August 2009 the plaintiffs acted reasonably. In an application for summary judgment it is the applicant who carries the onus of establishing a clear case for a judgment. The plaintiffs rely on the fact that they engaged a real estate agent and that the real estate agent marketed the property as he chose to do. There is no evidence of the plaintiffs in relation to any relevant communications with their agent or their former agent. That is not to suggest that it would have been desirable that the plaintiffs had responded to the defendant's affidavit. In all probability had they done so they would not have been given leave to rely upon its contents. But it remains open to consider that if prior to the application being made, the plaintiffs had been aware of the communications, there would have been reason to reflect on the case they would put forward in seeking judgment. I make that observation as the court's record reveals that the defence canvasses the same material. It was filed on 19 November 2009. The application was filed the following day. It certifies for an unspecified person that the parties conferred but did not resolve the issues giving rise to the application. If there had been any such conferral I would be surprised if, in light of the content of what would have least have been an imminent defence, the defendant had not at least alluded to her attempts to purchase the property.
In my opinion the question of the reasonableness of the plaintiffs' actions calls for consideration at trial.