Thomasz Investments Pty Ltd v Hirsch
[2023] WADC 82
•26 JULY 2023
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: THOMASZ INVESTMENTS PTY LTD -v- HIRSCH [2023] WADC 82
CORAM: REGISTRAR KINGSLEY
HEARD: 27 OCTOBER 2022
DELIVERED : 26 JULY 2023
FILE NO/S: CIV 1349 of 2022
BETWEEN: THOMASZ INVESTMENTS PTY LTD
Plaintiff
AND
RICKY DEAN HIRSCH
Defendant
Catchwords:
Practice - Application for summary judgment
Legislation:
Oaths, Affidavits and Statutory Declarations Act 2005 (WA)
Result:
Application dismissed
Representation:
Counsel:
| Plaintiff | : | Mr D Todorov |
| Defendant | : | Mr C G Thorpe |
Solicitors:
| Plaintiff | : | Tempora Legal |
| Defendant | : | Lawley Legal |
Case(s) referred to in decision(s):
Nil
REGISTRAR KINGSLEY:
The plaintiff has brought an application for summary judgment against the defendant in the amount of $223,011.49, together with further interest at the rate of 12% per annum, computed daily and compounded monthly from 30 June 2022.
The plaintiff's application is supported by three affidavits sworn by Jarrod Brenton Thomasz: the first affirmed 2 May 2022 (Thomasz' first affidavit), the second affirmed 30 June 2022 (Thomasz' second affidavit), the third affirmed 27 September 2022 (Thomasz' third affidavit).
The defendant opposes the application and has sworn an affidavit on 13 October 2022.
Procedural difficulty
All three of the plaintiff's supporting affidavits had been affirmed before Dino Tadorov, who has prepared the affidavit and has appeared as counsel.
Section 9(6) of the Oaths, Affidavits and Statutory Declarations Act 2006 (the Act) defines who is an authorised witness, and this includes an experienced legal practitioner. Section 9(7) then goes on to provide that an experienced legal practitioner who has prepared the affidavit is not an authorised witness. Section 16 of the Act provides that where there are deficiencies in the form of the affidavit and the procedure of oath or affirmation, then the affidavit may be relied upon.
Plaintiff's counsel sought to persuade me that O 37 r 5 of the Rules of the Supreme Court 1971 (WA) assisted in that this was an irregularity and thus, could be waived by the court.
Defendant's counsel pressed that the matter be heard and made it clear that the defendant was not taking the point that the affidavits are not properly before the court. Defendant's counsel pressed that the matter proceed by way of hearing. A summary judgment application can be defeated on technical grounds. The defendant has chosen not to take the technical point, and his counsel firmly pressed that the matter proceed. I place weight on that fact.
In my opinion, the statutory requirement that a practitioner who prepared the affidavits is not an authorised witness and this goes beyond a matter of form or procedure. The statutory requirement is clear.
However, having regard to defendant's counsel pressing that the matter be heard, I formed the view that pursuant to r 24(1) of the District Court Rules 2005 (WA), a case management direction may be made admitting the affidavits into evidence to facilitate the case being conducted and concluded efficiently, economically and expeditiously.
Objections to Thomasz' first affidavit
Defendant's counsel has filed a list of objections to Thomasz' first affidavit. Sensibly, and in the interests of conducting the hearing efficiently, defendant's counsel did not seek to argue each of those objections and was content to allow me to determine, if I were to rely on the objected parts, and the extent of reliance and weight to be given.
Summary judgment - guiding principles
Plaintiff's claim
The principles concerning an application for summary judgment are well known and may be stated in short form - each statement being supported by legal authority:
(a)summary judgment should not be exercised unless it is clear there is no real question to be tried;
(b)the onus is on the plaintiff to persuade the court that it is appropriate to award summary judgment;
(c)once the plaintiff has established a right to judgment the onus is on the defendant to satisfy the court why judgment should not be entered;
(d)all the defendant needs to show is that there is an arguable defence;
(e)there should be a high degree of certainty as to the outcome of the proceedings and a court should not dispose of an action summarily where there is a conflict of the facts;
(f)in determining whether there is an issue in dispute, the version of facts put forward by the defendant should be accepted, assuming those facts are not inherently incredible; and
(g)however, a court is not bound to accept uncritically as raising a dispute of fact every statement in an affidavit.
The plaintiff brings a claim as trustee of the Thomasz self‑managed superannuation fund (Thomasz SMSF). The plaintiff pleads a loan agreement was entered into on 9 September 2017, pursuant to which the plaintiff agreed to lend to the defendant $108,500 to develop property defined as the Marmion property (of which the defendant was the owner). The plaintiff pleads that the parties agreed that the loan amount was paid retrospectively on 28 June 2017.
Hirsch deposes that the plaintiff approached him in 2017 expressing an interest to invest in his development. Hirsch deposes that the plaintiff would invest through a self‑managed superannuation fund into the development of Marmion and that the plaintiff would invest $100,000. On completion, the loan amount plus $100,000 was to be paid, plus an additional amount of $100,000 by way of profit. Hirsch deposes that the $100,000 paid for Marmion would be reinvested into the next project (Cambridge) and on the sale of Marmion the profit of $100,000 was to be paid.
Hirsch deposes that in February 2020 the plaintiff confirmed the loan amount of $100,00 would be reinvested in the Cambridge Project.
The joint venture is entered into on 11 April 2017 between the defendant and Jarrad Thomacz.
Pursuant to the joint venture agreement, on or about 23 June 2017, the defendant and the plaintiff entered into a loan agreement whereby the plaintiff lends $108,500 to the defendant.
Subsequently, in August 2017 concerns were raised by a self‑managed superannuation fund auditor that the various loan agreements entered into by Hirsch and the investors did not go into detail ordinarily included in a loan agreement. The auditor was concerned that the self‑managed superannuation fund would not pass an audit.
Subsequently, an agreement is made on 9 September 2017, designed to satisfy the auditor's requirements.
The 9 September 2017 agreement gives additional rights to the plaintiff and arguably, ousts the joint venture agreement. The joint venture agreement and the second loan agreement were regarding a loan made over a succession of several properties. The current loan is now in respect of a single property, the Marmion property. Further, repayment was crystallised at two years, regardless at the state of the development and a higher penalty interest rate (12% versus 10%) was imposed.
Clause 14.6 of the current loan disclaims all prior agreements and representations.
The defendant argues that the plaintiff has given no consideration for those benefits that have been conferred. The defendant further argues that the only consideration was the plaintiff performing an existing legal duty under the joint venture agreement or second loan agreement.
In my opinion, having regard to the factual background, it is arguable that there has been no consideration for the agreement upon which the plaintiff now seeks to sue.
Further, I am troubled by the circumstances that have led to the current loan agreement. It is the case that there are representations made by the plaintiff, relied upon by the defendant, in entering and carrying out the joint venture agreement. The joint venture agreement enabled encumbering of the Marmion property in circumstances where the plaintiff knew or ought to have known, that there were multiple depositors with the equivalent rights. The plaintiff now asserts the defendant encumbered the property in breach of the terms of the current loan agreement where that express written consent was given in the joint venture agreement. Arguably, that set of circumstances may give rise to an estoppel.
For those reasons, I am not prepared to give judgment for the plaintiff and the defendant has leave to defend.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
TS
Court Officer
26 JULY 2023
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