Theginge Pty Ltd v Winter Equipment (WA) Pty Ltd - [2013] WADC 69

THEGINGE PTY LTD -v- WINTER EQUIPMENT (WA) PTY LTD [2013] WADC 69

Last Update: 16/05/2013

THEGINGE PTY LTD -v- WINTER EQUIPMENT (WA) PTY LTD [2013] WADC 69
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WADC 69
Case No:	CIV:2588/2012	Heard:	27 MARCH & 3 APRIL 2013
Coram:	DEPUTY REGISTRAR HOGAN	Delivered:	02/05/2013
Location:	PERTH	Supplementary Decision:
No of Pages:	12	Judgment Part:	1 of 1
Result:	Application refused
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	THEGINGE PTY LTD WINTER EQUIPMENT (WA) PTY LTD
Catchwords:	Practice and procedure Plaintiff's application for summary judgment Application out of time Whether extension should be granted Delay caused by solicitors Consideration of prima facie merits of application Application refused
Legislation:	Nil
Case References:	Australian Can Co Pty Ltd v Levin & Co Pty Ltd [1947] VLR 332 Baltic Shipping Co v Dillon (1993) 176 CLR 344 David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 Deputy Commissioner of Taxation v Heaton (1997) 35 ATR 450 Evans v Bartlam [1937] AC 473 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 Harbeck v Vasse Dozer Hire Pty Ltd [2009] WADC 48 Morgan v Pallister [2004] WASC 188 Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109 Negoescu v Reeh (Unreported, WASC, Library No 950576, 20 October 1995) Payton v Harvard Nominees Pty Ltd (Unreported, WASC, Library No 930132, 12 March 1993) Permanent Custodians Ltd v Archer [2009] WASC 363 Smith v Town & Country Bank (Unreported, WASCA, Library No 970716, 18 December 1997) Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 429 Zurich Bay Holdings Pty Ltd v Burton [1999] WASC 161

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : THEGINGE PTY LTD -v- WINTER EQUIPMENT (WA) PTY LTD [2013] WADC 69 CORAM : DEPUTY REGISTRAR HOGAN HEARD : 27 MARCH & 3 APRIL 2013 DELIVERED : 2 MAY 2013 FILE NO/S : CIV 2588 of 2012 BETWEEN : THEGINGE PTY LTD

Plaintiff

AND

WINTER EQUIPMENT (WA) PTY LTD

Defendant

Catchwords:

Practice and procedure - Plaintiff's application for summary judgment - Application out of time - Whether extension should be granted - Delay caused by solicitors - Consideration of prima facie merits of application - Application refused

Legislation:

Nil

Result:

Application refused

(Page 2)

</Order>

Representation:

Counsel:

Plaintiff : Mr J R Birman

Defendant : Mr J Garas

Solicitors:

Plaintiff : Birman & Ride

Defendant : Middletons

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

Australian Can Co Pty Ltd v Levin & Co Pty Ltd [1947] VLR 332
Baltic Shipping Co v Dillon (1993) 176 CLR 344
David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353
Deputy Commissioner of Taxation v Heaton (1997) 35 ATR 450
Evans v Bartlam [1937] AC 473
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Harbeck v Vasse Dozer Hire Pty Ltd [2009] WADC 48
Morgan v Pallister [2004] WASC 188
Moscow…

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.

Keep reading for free

Create a free CaseChat account to read Theginge Pty Ltd v Winter Equipment (WA) Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] WADC 69
Decision Date

CaseChat Overview and Summary

Theginge Pty Ltd sought summary judgment against Winter Equipment (WA) Pty Ltd in a matter concerning a loan agreement. The court was tasked with determining whether the plaintiff's application for summary judgment, filed out of time, should be granted and whether the delay caused by the plaintiff's solicitors was justifiable. Additionally, the court had to consider the merits of the plaintiff's application and whether there were any arguable defences raised by the defendant.

The court examined the delay in the plaintiff's application, considering the circumstances and whether the defendant had suffered any prejudice due to the delay. The court noted that the plaintiff's solicitors were responsible for the delay, and while the delay was substantial, the merits of the application needed to be considered before granting leave to make the application out of time.

Regarding the legal issues, the court considered the principles of summary judgment, the burden of persuasion, and the need for the court to be satisfied that there was no real question to be tried. The court also scrutinised the evidence provided by both parties and considered the credibility and admissibility of the documents and affidavits.

The court found that the plaintiff had satisfied the requirements of Order 14 of the Rules of the Supreme Court and had the prima facie right to an order in terms asked. The defendant, however, raised arguable defences, including misleading or deceptive conduct in relation to the loan agreement and the condition of the plant and equipment. The court concluded that there was a real question to be tried and denied the plaintiff's application for summary judgment.

The court also considered the final orders to be made, taking into account the reasons provided in the judgment. The application for summary judgment was refused, and the court would hear the parties on the final orders to be made.

Orders