Thi v Quadwest Developments Pty Ltd - [2010] WADC 32

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: THI & ORS -v- QUADWEST DEVELOPMENTS PTY LTD [2010] WADC 32

CORAM: EATON DCJ

HEARD: 10 MARCH 2010

DELIVERED : 19 MARCH 2010

FILE NO/S: CIV 3229 of 2008

BETWEEN: HUYNH HOUN THI
NGUYEN LOI VAN
TRAN TUYEN VAN
TRAN DAU THI
Plaintiffs (Appellants)
AND
QUADWEST DEVELOPMENTS PTY LTD
Defendant (Respondent)

Catchwords:

Practice and procedure - Appeal from a registrar's refusal to grant summary judgment for the plaintiffs - issue estoppel

Legislation:

Commercial Arbitration Act 1985

Result:

Appeal allowed - Summary judgment granted

Representation:

Counsel:

Plaintiffs (Appellants) : Mr A J Prentice
Defendant (Respondent) : Mr S G Leslie

Solicitors:

Plaintiffs (Appellants) : Mossensons
Defendant (Respondent) : Talbot Olivier

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

Blair & Perpetual Trustee Co Ltd v Curran (Adams' Will) (1939) 62 CLR 464
Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18
Fancourt v Mercantile Credits Limited (1983) 154 CLR 87
Wyatt v MR & RC Smith Pty Ltd [2008] WASCA 55

EATON DCJ: The plaintiffs, by writ of summons filed in this Court on 18 December 2008, claimed an amount of $86,290.38 said to be an amount due by the defendant to the plaintiffs by reason of a deed executed by the parties on 23 February 2007. In the alternative, the plaintiffs claim damages in the amount referred to.
The defendant entered an appearance on 22 January 2009.
The plaintiffs filed a statement of claim on 13 March 2009 asserting that the defendant, in breach of a deed dated 23 February 2007 made between the plaintiffs and the defendant had failed to pay the sum of $86,290.38. Again, the prayer for relief was for that amount or damages.
One week later, on 20 March 2009, the plaintiffs, by chamber summons, applied for summary judgment in the amount claimed with interest thereon. The application was listed for hearing on 16 November 2009 and heard on that day by Deputy Registrar Harman. He later reserved his decision.
On 14 December 2009 he delivered written reasons for dismissing the plaintiffs' application. On 23 December 2009 the plaintiffs filed a notice of appeal from that judgment.
In due course the appellants entered the appeal for hearing and the matter was listed before Deputy Registrar Hewitt on 2 February 2010. He adjourned the appeal for hearing before a judge on 10 March making certain directions as to the filing of submissions.
Part 2 Div 3 of the District Court Rules 2005 deals with appeals from registrars. Regulation 15 provides that a party dissatisfied with a registrar's decision may appeal to a judge. The appeal must be commenced within 10 days after the date of the decision by service of a notice setting out the particulars of the decision to which the appeal relates and the final orders sought. Such an appeal is to be by way of a new hearing of the matter that was before the registrar.
By their notice of appeal the appellants seek an order that Deputy Registrar Harman's decision dismissing their application for summary judgment be set aside and in lieu thereof there be judgment for them in the sum of $86,290.38 plus interest thereon at the rate of 6 per cent per annum pursuant to s 32 of the Supreme Court Act 1935 from the dates when each of the individual payments comprising the amount claimed fell due for payment. The appellants sought costs to be taxed.
By O 14 of the Rules of the Supreme Court 1971 where a plaintiff has served a statement of claim on the defendant and the defendant has entered an appearance the plaintiff may, on the ground that the defendant has no defence to a claim included in the writ or to a particular part of it, apply for judgment. Such an application is to be supported by an affidavit verifying the facts on which the claim or part of the claim on which the application is based and stating that, in the deponent's belief, there is no defence to the claim or part thereof. Such an affidavit may contain statements of information or belief provided that the sources or grounds thereof are disclosed. On the hearing of such an application, unless the court dismisses it or the defendant satisfies the court with respect to the claim or part of the claim to which the application relates that there is an issue or question in dispute which ought to be tried or that there ought, for some other reason, to be a trial of that claim or part, the court may give such judgment for the plaintiff against the defendant having regard to the nature of the remedy or relief claimed.

Preliminary matters – late filing and affidavits

Before the deputy registrar was an affidavit sworn by the first‑named appellant Huynh Huon Thi sworn 19 February 2009 and an affidavit sworn by Gordon Du on 8 April 2009. The respondent relied upon the affidavit of Dean Anthony Rafferty sworn 25 June 2009.
An application under O 14 must be made within 21 days after appearance or at any time later by leave of the court. An appearance was entered on 22 January 2009. The application for summary judgment was filed on 20 March 2009, clearly beyond the 21 days referred to. There was no application for leave to apply beyond 21 days. The application came initially before Deputy Registrar Hewitt on 7 April 2009. He directed that the applicants file a further affidavit within 7 days, that the respondent file and serve any affidavit in opposition within 14 days and that the matter be adjourned to a special appointment with costs reserved. The respondent later filed an outline of submissions which made reference to the requirement for an application to be made within 21 days after an appearance or at any later time by leave of the court but, beyond that statement, took the matter of the late filing of the application no further. Similarly, the applicants' submissions filed one day after the respondent's submissions made no reference to the need for leave. On the chamber summons of the defendant filed 20 October 2009, the hearing of the application for summary judgment was adjourned. Deputy Registrar Harman, in dealing with that application, adjourned the hearing to 16 November 2009 and directed that the respondent file any further submissions and affidavits in opposition by 3 November 2009. In compliance with that direction the respondent filed an outline of submissions on 2 November 2009 clearly taking the point that the application did not comply with O 14 r 1 because it had been filed out of time, pointing out that there had been no explanation for the delay nor application for leave to extend time. In response, the appellants, in their outline of submissions filed 12 November 2009, pointed out that although the appearance had been filed on 27 January 2009, it was not served upon the plaintiffs until 23 February 2009. The application for summary judgment was only 4 days out of time. The point had hitherto not been taken. The appellants filed an amended chamber summons, the substance of the application being a prayer for relief by way of leave to bring the application out of time, and an affidavit sworn by the solicitor for the appellants in support of that amended application.
The judgment of Deputy Registrar Harman, the subject of the appeal, was delivered on 14 December 2009. There is no mention by him of the application for an extension of time.
In the final paragraph of his judgment he made reference to the appellants seeking leave to introduce further affidavits. The Deputy Registrar did not, in his judgment, make it clear precisely what he regarded as being before him. He did not accede to the application noting:
"Whilst there is scope for the court to consider that an application for summary judgment should not be defeated on technical grounds, it is easy to see that a plaintiff might be given the opportunity to rely on later affidavit material or even obtain judgment conditional upon filing evidence. As I have indicated, I do not consider that the plaintiff has come close to persuading me on some of the fundamental points and so the prospect that the court would grant some indulgence does not arise".
I take the view that there should be leave to the parties to file and rely upon supplementary affidavits for the purpose of the hearing of the appeal. Accordingly, the affidavits before me in that regard, filed by the appellants, are as follows:
•affidavit of Huynh Huon Thi sworn 19 February 2009
•affidavit of Huynh Huon Thi sworn 12 November 2009
•affidavit of Gordon Du sworn 8 April 2009
•affidavit of Gordon Du sworn 20 November 2009
So far as the respondent is concerned, I regard the following affidavits as being before me for the purpose of the hearing of the appeal:
•affidavit of Dean Anthony Rafferty sworn 25 June 2009
•affidavit of Dean Anthony Rafferty sworn 21 October 2009.
The question of the late filing of the application for summary judgment remains outstanding and was not, it seems, dealt with by the Deputy Registrar on the hearing of the application. Given that the appeal is by way of a new hearing, that the respondent concedes that no prejudice was occasioned by the delay and that the delay was only four days, I grant leave to bring the application outside the 21 days stipulated by O 14.

The factual background

The affidavit of Huynh Huon Thi sworn 19 February 2009 annexes the deed referred to in the appellants' indorsement and statement of claim. The parties to that deed dated 23 February 2007 are the appellants and the respondent, respectively. The recitals describe the appellants as "the owners" being the proprietors of a business known as the "Rhodes Island Café" located at ground floor, 239 Adelaide Terrace, Perth. Those premises were occupied by the owners as assignees of a lease. The deed further recited that the respondent, described as "the company" was, at the time of execution of the deed, carrying out development at 239 Adelaide Terrace, Perth, the premises being lot 2 on Strata Plan 45261. Finally, the deed recited that the works to be carried out by the company would adversely affect the business carried on by the owners and that agreement had been reached whereby the company would compensate the owners for their potential losses in the manner described in the deed.
Clause 3 of the deed provided for calculation of the compensation to be paid. In particular, at the end of each month the owners' accountant was to certify an amount described as the "earned monthly income" for the month just complete. He or she was then to compare that figure with the "average monthly income". If the former was less than the latter the company was to pay the difference to the owners, that amount being referred to as "the compensation sum". The mechanism would be by way of the provision of a tax invoice for the compensation sum to be paid within seven days of receipt.
In accordance with the mechanism described in the deed the owners provided the company with tax invoices at the conclusion of each month from December 2006 to November 2008, inclusive. The company paid those invoices rendered for the months of December 2006, January, February and March 2007 and April and May 2008. The remaining invoices were not paid.
The dispute as between the appellants and the respondent with respect to the invoices for April 2007 to March 2008, inclusive, was the subject of an arbitration conducted by the Hon. Robert Anderson QC. His award and reasons dated 26 September 2008 are marked with the letter "B" and annexed to the affidavit of Huynh Huon Thi sworn 19 February 2009.
On 6 November 2008 the respondent applied to the Supreme Court of Western Australia for leave to appeal against the arbitrator's award and to set aside the award for technical misconduct under s 42 of the Commercial Arbitration Act 1985. Those applications came before Murphy J on 31 July 2009. On 16 September 2009 he dismissed both applications and published reasons for doing so.
In her affidavit sworn 19 February 2009 Huynh Huon Thi deposes that the respondent has not made payment to the appellants of the amounts ordered by the Hon. Robert Anderson QC in his award. It was common ground at the hearing of the appeal before me that the amounts ordered are now paid.
That award, she said, dealt only with tax invoices to the end of May 2008 and that, since then, the appellants have, pursuant to the terms of the deed, issued further tax invoices for the months of June, July, August, September and October 2008 in an amount of $86,290.38. She deposes further that, despite demand, the respondent has failed to make payment of the tax invoices or any of them. She deposes to having a belief, based on the arbitrator's award, that the respondent has no defence to the appellants' claim. She confirms, finally, having read the statement of claim, that the contents are true.
The appellants' claim is squarely based on the terms of the deed dated 23 February 2007. It recites that the parties agreed that the respondent should compensate the appellants for their potential losses in the manner set out within the deed. Clause 3 provides the mechanism for determining the amount to be paid by way of compensation for loss of income resultant upon the respondent's building works. It provides that at the end of each month during the term of the deed the appellants' accountant should certify the earned monthly income meaning, as defined in the deed, the gross receipts earned by the business for that month as certified by the accountant. The accountant is then to compare the amount certified with the amount referable to that month in item 1 of the schedule to the deed. If the latter is less than the former then the difference is the compensation sum. The appellants are to provide the respondent with a tax invoice for the compensation sum which is to be paid within seven days of receipt. The deed contemplates that tax invoices would be issued on a monthly basis and that the compensation sum would be paid, when an amount is payable, to the appellants direct without any deduction of whatsoever nature. Should the respondent make request of the appellants' accountant, the latter must provide all relevant supporting financial information relied upon to arrive at the earned income for a particular month.
The appellants, in their application for summary judgment, principally rely upon the affidavit of Huynh Houn Thi sworn 19 February 2009. As mentioned, that affidavit annexes the deed referred to. In par 22 of the affidavit the deponent states that the sum of $86,290.38 represents the tax invoices issued pursuant to cl 3(1) of the deed for the months of June, July, August, September and October 2008. The deponent annexes true copies of each of those invoices stating that those for June, July, August and September of 2008 were sent to the respondent on or about 29 October 2008 and that the October 2008 invoice was sent to the respondent on or about 5 November 2008. Despite demand, says the deponent, the respondent has failed to make payment of the tax invoices or any of them. By par 29 the deponent says: "Based on the award of Anderson, I verily believe that the defendant has no defence to this action". By par 30 the deponent states simply that she has read the statement of claim and confirms the truth of its contents.
It is clear that a deponent, in an affidavit filed in support of an application for summary judgment, need not set out the grounds for the belief that there is no defence to the claim. It is the case, however, that the deponent in the matter before me has set out the basis of her belief. It is, as she says, the award by the arbitrator which, it is clear, is a determination of the rights and liabilities of the parties in respect of tax invoices issued prior to those the subject of the action before me pursuant to cl 3(1) of the deed, being the subject of arbitration by reason of cl 18 of that deed which provides for dispute resolution.
Huynh Houn Thi seeks, in an affidavit sworn 12 November 2009, to clarify the basis of her belief to the effect that the respondent has no defence to the action. In doing so, at par 6, she confirms that her belief is, without qualification, that there is no defence to the appellants' claim.
The appellants' cause of action arises from the provisions of the deed dated 23 February 2007. To the extent that the deed expresses the terms of an agreement between the appellants and the respondent as to how the latter might compensate the former, the parties have agreed the mechanism for doing so. That mechanism is found in cl 3. The mechanism for creation of the debt in any given month is for the appellants to provide the respondent with a tax invoice for the compensation sum. The respondent is to pay the amount stipulated within seven days of receipt of the invoice, without deduction.
The mechanism just described is simple. According to the affidavit of Huynh Houn Thi sworn 19 February 2009, pursuant to that clause, the appellants' accountant calculated the earned monthly income for each month and the appellants, in the case of the months June, July, August, September and October 2008 issued tax invoices to the respondent, the sum of those invoices being the amount claimed in the statement of claim.
In my opinion it is sufficient for the purposes of the appellants' application for summary judgment that the deponent verify to the essential elements of the cause of action upon which the application is based by reference to compliance with cl 3 of the deed. To the extent that the production of an affidavit in support which complies with O 14(1) is a condition precedent to the exercise of jurisdiction, I am satisfied that there is compliance and, in consequence, jurisdiction.
The applicant for summary judgment assumes the burden of persuading the Court that the claim made is a good one, that there is no defence to it, that leave to defend should not therefore be granted, and that judgment should be given for the plaintiff. The party showing cause against the application assumes an evidentiary burden by that process, but the overall legal burden of persuasion remains upon the applicant (Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18 at 23). The power to order summary judgment will 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 Limited (1983) 154 CLR 87 at 99).
When Dean Anthony Rafferty filed his affidavit sworn 25 June 2009 in opposition to the application, the arbitrators award was the subject of an appeal in the Supreme Court of Western Australia. Murphy J, in that Court, dealt with applications for leave to appeal against the award and to set it aside under s 42 of the Commercial Arbitration Act 1985 for technical misconduct. For reasons published by him on 16 December 2009, he dismissed both applications.
In his affidavit sworn 21 October 2009, Dean Anthony Rafferty deposes to the respondent having received facsimiles from the appellants' solicitors from time to time enclosing tax invoices and supporting documentation from the appellants' accountant "for each month the plaintiffs wished to claim compensation from Quadwest pursuant to the deed between Quadwest and the plaintiffs dated 23 February 2007". He annexes, to his affidavit, copies of the tax invoices for the months of June, July, August, September and October 2008. In par 9 Mr Rafferty deposes to the respondent having received tax invoices sent by or on behalf of the appellants relating to compensation claimed for the months of June, July, August and September 2008 each without the appellants' accountant's certification. Paragraphs 10 and 11 of his affidavit refer to receipt of an invoice for October 2008 but with the daily taking summary and till tapes omitted and without the accountant's certification.

The deed obliges the appellants in the event of there being a claim for compensation in any given month, to, in accordance with cl 3, provide the respondent with a tax invoice for the amount claimed. There is no requirement for the tax invoice to bear any certification, signed or otherwise. Neither is there any requirement for the tax invoice to be accompanied by any other document.
Clause 3(1)(i) obliges the appellants' accountant, upon request by the respondent, to provide all relevant supporting financial information with respect to his or her calculations under that clause. There is no evidence before me of any request in those terms.
The respondent points to discrepancies said to be material as between the documents annexed to the affidavit of Dean Anthony Rafferty sworn 21 October 2009 and the documents annexed to the affidavit of Gordon Du sworn 8 April 2009 and asks:
"Were they re-issued and backdated? Why are they different if they purport to be original?"
The tax invoices relied upon as giving rise to the debt in the case of the months June, July, August, September and October 2008 are referred to in par 7, par 8, par 9, par 10 and par 11 of the appellants' statement of claim, respectively. Each of those invoices is annexed to the affidavit of Dean Anthony Rafferty sworn 21 October 2009. That affidavit does condescend to particulars but, beyond posing questions as to apparent discrepancies between documents, fails to assert a defence.
In the respondent's submissions, under the heading "Issues to be Tried" the respondent complains that the appellants do not in any way verify the veracity of the support documents. Consequently, says the respondent, the appellants do not verify the facts on which the claim is based as required by O 14 r 2(1). By support documents I take the respondent to mean till tapes, bank statements, stock purchases, MYOB data records, bankcard records, catering records, computer records and invoice books and the like.
The appellants and the respondent agreed on the mechanism for the calculation of monthly compensation, providing for the appellants' accountant to undertake certain accounting work at the end of each month, to make a comparison with the agreed monthly averages, to certify his or her results and for the appellants to issue a tax invoice in accordance with them. The appellants have complied with the requirements of O 14 in verifying the facts comprising their cause of action. The parties, by their deed, entrusted the calculation of the compensation amount to the appellants' accountant defined in cl 2 to mean "Gordon Du & Associates of 71 Mirrabooka Avenue, Westminster".
The respondent submits that although the appellant may be able to cure the alleged defect if given leave to rely upon the affidavit of Huynh Houn Thi sworn 12 November 2009 the respondent should be entitled to verify "the veracity and accuracy of the amounts invoiced with the assistance of the Court's discovery process". The deed provides, as mentioned, for the production of all relevant supporting financial information upon request by the respondent. As mentioned, there is no evidence of such a request having been made. The arbitration proceedings with respect to unpaid invoices issued prior to those the subject of the present action involved scrutiny of the source documents and supporting financial information relevant to the invoices the subject of the arbitration.
In the context of this particular action, the contention of the respondent appears to be that leave to defend should be granted to enable the respondent to undertake discovery of documents so that it might check and verify the source information. The respondent submits that, if it is allowed to do so, "there is a real likelihood that the information at source will be found to be incorrect". In my view, the respondent seeks leave to defend in order to embark upon a fishing expedition in the hope that, though there presently is no defence to the action, the process of discovery and scrutiny might produce one.
The appellants were the claimants in the arbitration. They were seeking payment of a debt brought about by the issue of a series of tax invoices pursuant to cl 3 of the deed. The arbitrator construed that clause of the deed as giving rise to separate causes of action with respect to each month. He said:
"The claims and counterclaims crystallised month by month."
The respondent's counterclaim was described by the arbitrator as "wide ranging", substantially arising from alleged representations or inducements made and/or unconscionable conduct alleged to have occurred during negotiations antecedent to the execution of the deed. The arbitrator found that no cause of action was made out arising from those negotiations. He did, however, conclude that the respondent, on the counterclaim, had made out a case for the inclusion in the deed of an implied term concerning the conduct of the business and for breach of that term. He said:
"38.Because the respondent had agreed to pay the difference between pre-construction turnover and post-construction turnover, it is necessarily to be implied that the claimants would continue to operate the café business in at least the same manner post-construction as it had been operated pre-construction, so far as this could reasonably be done. There is evidence that in one respect they did not do this. Historically the café was open until 4 pm on each trading day. From a date in January 2007 which I do not think was actually identified, Huynh closed the café at 3 pm each trading day.
39.Huynh's explanation was that since construction work had commenced, there was no worthwhile trade after the lunch trade – that all they sold after 3 pm 'was just a few lollies'. Still she did not go so far as to say that there were no sales at all after 3 pm. The burden of the obligation assumed by the respondent would obviously be lessened by each and every sale. In my opinion the earlier closing time, which was never agreed to by the respondent, was a breach of the implied term.
40.There is no evidence of what damages the respondent did actually suffer by the breach. The respondent did not try to make out a case for substantial damages. It is a case for nominal damages."
In making his award, the arbitrator awarded nominal damages to the respondent for breach of the implied term in the sum of $250 inclusive of interest for each of the months of February, March, April, May, June, July, August, September, October, November and December 2007 and for each of the months of January, February and March 2008. The arbitrator noted that the respondent had paid the tax invoices for April and May 2008 and made no award in that regard.
In submissions before me, it is common ground that the practice of closing at 3 pm rather than 4 pm continued throughout the period covered by the invoices issued for the months of June, July, August, September and October 2008. The respondent asserts that there is, in respect of each of those months, potentially a claim for damages for breach of the term implied by the arbitrator in excess of the amount of $250 per month allowed by him by way of nominal damages. The respondent submits that it should be given unconditional leave to defend so that, by the processes of discovery and interrogatory, it might attempt to quantify its actual loss. The arbitrator's award of nominal damages is not, it submits, binding upon a subsequent tribunal. Further, it submits that, in any event, the action in this Court is to recover the amounts said to be owing pursuant to the tax invoices issued for the five months, June, July, August, September and October 2008, being subsequent to those dealt with by the arbitrator.
I accept the view of the arbitrator that with the issue of each new monthly invoice, a new cause of action was created. The principle of res judicata would not operate to hinder the respondent because a discrete cause of action arises with the issue of each monthly invoice. In the matter before the arbitrator, the implication of a term and the award of damages for breach of that term came about by reason of the respondent's counterclaim. The factual basis was the closing of the café one hour earlier than had been the case when the parties reached agreement in the form of their deed. That factual scenario continues and is applicable to the action in this Court. The parties to the arbitration are the parties before me. It does seem to me that the arbitrator was called upon to consider the evidence relating to the issue raised by the early closing of the café and to make determinations based upon it.
There can be no doubt that the arbitrator was a competent tribunal (see Cross on Evidence, Eighth Australian Edition, par 5030). Issue estoppel arises where there is a judicial determination directly involving an issue of fact or law disposing once for all of the issue so that it cannot afterwards be raised between the same parties or their privies (per Dixon J in Blair & Perpetual Trustee Co Ltd v Curran (Adams' Will) (1939) 62 CLR 464 at 531). The requirements for issue estoppel are, firstly, that the same question has been decided, secondly, that the judicial decision which was said to create the estoppel was final and, thirdly, that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies (see Wyatt v MR & RC Smith Pty Ltd [2008] WASCA 55 per Buss JA at [38]).
It does seem to me that the respondent now seeks to raise an issue in the present action that was decided by the arbitrator between these parties in identical circumstances. The arbitrator resolved that issue on the respondent's counterclaim before him.
Issue estoppel may well preclude the respondent from advancing the issue but in any event, before the arbitrator, the issue was raised on the respondent's counterclaim. Before me, the issue is not raised as a defence but again, rather, as a potential "defence", the respondent's hopeful submission being that the processes of interrogatory and discovery might give rise to a counterclaim for damages, by reason of breach of an implied term, greater than the amount awarded by way of nominal damages by the arbitrator.
The appellants concede that, by reason of the arbitrator's findings, they would accept summary judgment for the amount claimed less the sum of $1250 being a reduction of $250 per invoice.
There is no need, as submitted, for the appellants, in the circumstances described above, to issue new tax invoices, each for the compensation amount less $250. The appellants have sued on the tax invoices pleaded in the statement of claim and, but for a successful counterclaim, would be entitled to judgment in the amount claimed. They are, in the circumstances, at liberty to concede the amount of $1250 and to accept judgment for the amount claimed less that sum in full satisfaction of their claim.
Finally, the respondent submits that it should be given leave to defend because there is some other reason for a trial. At par 73 of its written submissions the respondent refers to issues which, it says, require further examination. Substantially, the concerns and queries raised by the respondent arise from the evidence before the arbitrator and rely upon an inference that, because those queries and concerns were present in the material considered by the arbitrator, they must necessarily be present in the material giving rise to the claim in this action. The submission by the respondent is that I should be wary or suspicious of the appellants by reason of issues considered during the course of the arbitration.
For the months of October, November and December 2007 and January, February and March 2008 the arbitrator, with one or two relatively minor exceptions in each month, having examined the documentary evidence found that the amount claimed was correctly arrived at.
If the respondent cannot show an issue which ought to be tried it must satisfy me that there are circumstances which ought to be investigated. This is not a case where I should make assumptions about the bona fides of the appellants. The parties, in arriving at the terms of the deed giving rise to the cause of action, agreed upon a means of arriving at an amount to be paid by the respondent to the appellants on a monthly basis. They reached agreement as to average monthly income as set out in the schedule to the deed. The respondent agreed with the appellants that the appellants' accountant should make the necessary calculations and certify the same and that the appellants would then provide a tax invoice to the respondent for payment. The deed obliges the appellants' accountant to provide to the respondent, upon request, all of the financial data and information relied upon for calculation of the compensation sum. The deed, in summary, provides the respondent not only with the means of verification of the amount claimed in each month but also with a means of dispute resolution. The submissions of the respondent before me amount to little more than suggestions that, with further investigation in the form of interrogatory, discovery and inspection, there might be a defence to the appellants' claim and that, in any event, I should be wary of the appellants bona fides and by that reason, if for no other, should give unconditional leave to defend. In my view, there is no fair issue to be tried and no other demonstrated reason for a trial. I find that the appellants are entitled to summary judgment in the amount claimed being $86,290.38 less $1250 being, an amount of $85,040.38. The appellants also claim interest. I will hear counsel as to appropriate orders in that regard and as to costs.