| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : THI & ORS -v- QUADWEST DEVELOPMENTS PTY LTD [2009] WADC 195 CORAM : DEPUTY REGISTRAR HARMAN HEARD : 16 NOVEMBER 2009 DELIVERED : 14 DECEMBER 2009 FILE NO/S : CIV 3229 of 2008 BETWEEN : HUYNH HUON THI First Plaintiff
NGUYEN LOI VAN
Second Plaintiff
TRAN TUYEN VAN
Third Plaintiff
TRAN DAU THI
Fourth Plaintiff
AND
QUADWEST DEVELOPMENTS PTY LTD
Defendant
Catchwords: Practice - Western Australia - Practice under the Rules of the Supreme Court 1971 (WA) - Application for summary judgment by plaintiff - Evidence of qualified belief that there is no defence - Turns on its fact
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Legislation: Nil Result: Application for summary judgment dismissed Representation: Counsel:
First Plaintiff : Mr A Prentice
Second Plaintiff : Mr A Prentice
Third Plaintiff : Mr A Prentice
Fourth Plaintiff : Mr A Prentice
Defendant : Mr S Leslie
Solicitors:
First Plaintiff : Mossenseons
Second Plaintiff : Mossenseons
Third Plaintiff : Mossenseons
Fourth Plaintiff : Mossenseons
Defendant : Talbot Olivier
Case(s) referred to in judgment(s):
Nil
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1 DEPUTY REGISTRAR HARMAN: By way of a deed dated 23 February 2007 the parties dealt with the impact of building works being undertaken by the defendant on the plaintiffs' café business.
2 The deed expresses the average income of the business for each calendar month. Any claim to compensation for any calendar month would be established by reference to the average monthly income for the corresponding month expressed in the deed. The mechanism for determining the amount of compensation involves certification of the earned monthly income by the plaintiffs' accountant. The term earned income is defined as the gross receipts earned by the business. The process for compensating the plaintiffs involved rendering an account upon which the defendant would pay within seven days. 3 The plaintiffs' claim in the action is for compensation due under invoices issued for compensation for each month between 1 June 2008 and 31 October 2008. They have issued the application for judgment now before me for determination. They carry the onus of persuasion that it is appropriate for the Court to award judgment. 4 In her affidavit sworn 19 February 2009 the plaintiff Huynh Huon Thi produces the deed. She deposes that pursuant to cl 3(1) the plaintiffs rendered the relevant invoices to the defendant and that despite demand they remain unpaid. 5 A complicating feature of the plaintiffs' case is that the judgment sought is for less than the invoiced amounts. In effect they seek judgment for $250.00 less than the amount of each invoice on the basis that the business was open for one hour less each day than had been the case in the period that the averages expressed in the deed had been established. The deed does not contemplate any change in trading hours. In her affidavit Thi gives evidence that the concession proposed reflects the reasoning of an arbitrator for his determination of the impact of the reduced hours of trade in considering claims relating to earlier invoices. 6 The defendant submitted that the change of trading hours has a more fundamental impact. 7 In what I consider to be a related issue, in putting the application Thi did not depose to her belief there was no defence to the claim or any particular part. The evidence of her belief was qualified by an unspecified reference to the arbitrator's award. There having been no more useful submission I take it to be the case that I ought to infer that the qualification was intended to be a reference to the arbitrator's (Page 4)
determination as to the impact of the reduction in the plaintiffs' hours of trade on claims made by the plaintiff for invoices issued for prior periods. He reduced each claim by $250.00. 8 At the hearing the sufficiency of Thi's evidence of belief was in issue, so too whether the plaintiffs should be granted leave to rely on evidence subsequently filed that her belief was not so qualified. 9 In my opinion the qualified belief expressed by Thi is not sufficient for the purposes of r 2. Putting that observation to one side, had I been prepared to draw the inference, the qualification recognises that the defendant would have defences at least to the extent of the same or a similar finding to that made by the arbitrator. The existence of those defences could not sit comfortably with the evidence of unqualified belief now sought to be introduced. 10 In considering the form and impact of any defence, although I accept that both the arbitrator and the judge who heard a subsequent appeal have both made relevant determinations they could not be more than persuasive. Ultimately the only significance of the determinations and the on which they are founded is that they relate to compensation payable for periods prior to those the subject of the claim before me. 11 Even were I to view matters differently I struggle with the proposition that there is sufficient evidence upon which I could determine that the value of the particular hour of each day of trade over any of the relevant periods was $250.00. Apart from the prospect that I would simply adopt the arbitrator's decision and his reasons there is no basis upon which I could assess the impact of the change of trading hours on the plaintiffs' entitlement to compensation. 12 At par 5 of his affidavit of 8 April 2009 Gordon Du gives evidence that he was requested by Thi to calculate and certify the monthly income generated by the plaintiffs' business for each relevant month and compile a tax invoice for any compensation due under the deed. He continues as follows: (Page 5)
did not rely on any other documents in calculating the Earned Monthly Income." 13 One feature of the defendant's opposition to the application was that the expression "earned monthly income" defined in the deed would not exclude receipts other than in the form of cash. On the basis of the last sentence of par 7 of Du"s evidence, such receipts would appear to have been excluded from his calculations. The context in which that evidence should be considered is provided by par 11 of Thi's affidavit which is as follows: "The majority of payments for purchases made by the business's customers are made either by cash or credit card. ..." 14 It is immediately apparent that there is scope to consider that in any of the calculations to which Du refers he would not have included forms of payment other than by cash or credit card and conceivably may not have included any payment made by credit card. For the purposes of the application it is appropriate to recognise that there is no evidence that all payments for purchases by customers of the business were recorded by cash register tape. Although the accountant attaches to his evidence what he deposes to be the relevant cash register tapes I am unable to discern whether they include receipts other than by way of cash. 15 I accept that after the defendant filed its evidence and submissions the plaintiffs sought to remedy the defects that I have just canvassed by bringing further evidence. The second step in such a process of remediation would be to seek leave to rely on that evidence. Although at the hearing leave was sought in relation to other such material no such application was made in relation to the particular evidence. 16 I note that at par 11 Thi also gives evidence that: "Since we purchased the Business, I have always personally recorded the daily takings in an exercise book." 17 I note that along with the cash register tapes Du has attached what may be the relevant pages of Thi's exercise book for the months of June and October however there is no evidence that such is the case. In any event Du's evidence is that he only considered the cash register tapes. (Page 6)
18 In light of the scope established by Thi's evidence that distinguishes forms of payment and the fact that the onus of persuasion is on the plaintiff I ought to consider that there is no definitive statement as to what the expression "daily takings" would include. 19 A further difficulty is that the cash register tapes are simply introduced as those upon which Du relied. There is no relevant evidence of Thi. In order that I was satisfied that the plaintiff had discharged the onus of persuasion it seems that I would be required to infer that there were no other tapes. In my opinion it would be difficult to justify taking such a step in circumstances where it would be at least as easy to infer that the plaintiff would have had no difficulty in providing evidence on the point. 20 Where a party seeks to establish a case for summary judgment it is for the applicant to satisfy the court that it is appropriate that judgment be awarded. In my opinion at that point the plaintiff has fallen short of the mark. 21 The defendant also made submissions in relation to the process of certification that would be undertaken by the accountant. In light of the plaintiffs' failure it is probably unnecessary that I deal with the issue other than to state that where issues of interpretation arise in an application for summary judgment it is appropriate to reflect upon the prospect that they would be more appropriately dealt with at trial. 22 Finally the plaintiff sought leave to introduce evidence. During the course of the hearing I had considered and dismissed one such application. The application was made twice subsequently. On the last such occasion the plaintiff sought to introduce evidence that Du had certified the earned monthly income for the relevant months. I accept that evidence may be admitted at any point but that it is at least desirable that all evidence of the applicant would be before the respondent before it filed its affidavit. 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 fundamental points and so the prospect that the court would grant some indulgence does not arise.
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