Wang v Dornford
[2019] WADC 103
•1 AUGUST 2019
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: WANG -v- DORNFORD [2019] WADC 103
CORAM: DEPUTY REGISTRAR HEWITT
HEARD: 17 JULY 2019
DELIVERED : 1 AUGUST 2019
FILE NO/S: CIV 4370 of 2018
BETWEEN: QUN HUA WANG
Plaintiff
AND
GERARD CYRIL HERBERT DORNFORD
First Defendant
LINA LOUISE DORNFORD
Second Defendant
Catchwords:
Application for summary judgment - Claim for monies loaned - Defendant in person - Poorly articulated defence and affidavits in opposition
Legislation:
Nil
Result:
Judgment for the plaintiff stayed for one month to enable the defendant to take legal advice to ascertain if he has a viable counterclaim
Representation:
Counsel:
| Plaintiff | : | Mr L A Warnick |
| First Defendant | : | In person |
| Second Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Equitas Lawyers |
| First Defendant | : | Not applicable |
| Second Defendant | : | Not applicable |
Case(s) referred to in decision(s):
Nil
DEPUTY REGISTRAR HEWITT:
By writ filed on 19 November 2018 the plaintiff to this action commenced proceedings for the recovery of two sums of money said to have been loaned by the plaintiff to the defendants. The first loan was said to have been a loan to the first defendant in the sum of $100,000 repayable by 6 February 2014, and the second was a loan to the first and second defendants of $65,000. The agreement to loan was said to have been made on 3 October 2013 and the money loaned to be repayable by 17 October 2013.
By order dated 15 February 2019 the time within which the parties might apply for a summary judgment was extended until seven days after a court ordered mediation conference took place. That mediation took place on 1 May 2019 and on 8 May 2019, within the time allowed, the plaintiff brought a summary judgment application. That application related to part of the claim namely the $100,000 advanced to the first named of the defendants.
The case of the plaintiff in regard to that portion of the case is completely straightforward. The loan was the subject of a written agreement, professionally prepared and executed by all the parties to it, there is no dispute that the money was advanced and the money has not been repaid on the date required under the terms of the deed. The plaintiff has established a clear prime facie entitlement to judgment and I must therefore turn to the materials advanced by the first defendant to discern if there is an arguable defence which is available to the first defendant to resist this application. In doing so I am aware that the first defendant is representing himself in these proceedings and clearly is not well versed in legal procedures and the requirements of the court. I am also mindful of the fact that summary judgments are only granted in the clearest of cases where the materials filed disclose no issue requiring the attention of the court in a trial.
In that regard the materials provided by the first defendant and the defence which he has advanced is difficult to understand and I illustrate that proposition by reproducing below the defence which has been filed:
Action No CIV 4370 of 2018
First Claim
On the 6 August 2013, the Plaintiff, Mr Tom Wang, agreed to Loan to the First Defendant, Mr Gerard Dornford, $100,000. The Plaintiff and First Defendant had a signed agreement that the loan was to be repaid by the 6 February 2014.
On 22 May 2013, the Plaintiff entered into a contract to purchase 50% shares of the First Defendant's partner, Mr Lloyd Richardson, for the following properties located at:
• 747 Canning Highway, Applecross, for 50% shares of Mr Lloyd Richardson
(Owners) Mr L. Richardson and Mr Jason Dornford;
• 749 Canning Highway, Applecross, for 50% shares of Mr Lloyd Richardson
(Owners) Mr L Richardson and Mr Gerard Dornford; and
• Lots 2I, Lot 2J, Lot 2A and Lot 2B Willcock Street, Ardross, for 50% shares of Mr Lloyd Richardson
(Owners) Mr L Richardson and Mr Gerard Dornford.
The Plaintiff also went into a contract to purchase 50% shares for property located at 745A Canning Highway, Applecross
(Owners) Dornford Pty Ltd 4/5 shares and Mr Jason and Mrs Renee Dornford 1/5 share.
The Settlement on all of the above properties, was to take place, on or before July 2013, as per contract.
Document 1
Mr Wang applied to ANZ, for finance, which was not approved. Extension for finance was requested and granted by Mr Lloyd Richardson, Dornford Pty Ltd, Jason and Renee Dornford.
As Mr Wang could not obtain finance, to be able to settle he required an extension.
As the settlement did not take place, as per contract, he agreed to lend the First Defendant the $100,000.00, while he was waiting to reapply for finance.
On the 7th August 2013 the Plaintiff wrote new offers for the same properties, as per above, subject to finance, settlement to be on 11 October 2013.
Document 2
Mr Wang applied for Finance through, Ms Lion Shi, to Loan Market and also to Bank of China. Finance was declined from Loan Market.
Please note, that the offers were made under different entities belonging to the Plaintiff at different banks in order to obtain finance.
(shown on Offer and Acceptance Document 1 and 2)
Another extension for finance was requested and granted while BOC was processing the loan.
In September 2013, Mr Tom Wang approached the Defendant, to help him with the loan application from the Bank of China, as he could not obtain for the loan on his own. He requested for Dornford Pty Ltd, Jason and Renee Dornford to apply for a loan together with the Plaintiff, Mr Wang.
Claim 2
2. On 3 October 2013, the Plaintiff has a written agreement to loan the First Defendant and Second defendant Mrs Lina Dornford, a further $65,000. Loan to be repaid by 17 October 2013. As he still have not obtained his loan and therefore could not settle.
I hereby bring to your attention that the repaid date on the writ is wrong. It should read:
'I Tom Wang of 737 Marshall Road Malaga Wa hereby, on this day, 2 October 2013 agree to lend $65,000 to Lina and Gerard Dornford, of 5 Peter Street Attadale. WA.
The money will be reimbursed, upon obtaining finance.'
On 4 October the Defendant presented to the plaintiff another set of Offer and Acceptance for the same properties as above and changed the settlement date, as the finance was not yet approved by BOC.
In early November 2013, as the Defendant still had not obtained finance, Mr Lloyd Richardson and Dornford Pty Ltd sold the following properties to another purchaser, at a higher price.
• 749 Canning Highway, Applecross; and
• Lots 2I, 2J, 2A and 2B Willcock Street, Ardross.
The Defendant, Mr Wang advised BOC that the loan will be for only 2 properties:
745A Canning Highway - Applecross
747 Canning Highway - Applecross.
Upon assessing the loan application, BOC advised, verbally, that they could not approve the loan for Dornford Pty Ltd. (Gerard and Lina Dornford) due to their age, which was not within their Bank policy.
The loan application was then made under The Plaintiff name, Tom Wang, Jason and Renee Dornford
As Jason and Renee had to be included on the loan application, they entered in an agreement with the Plaintiff, Mr Wang, that they will not be responsible for any part of repayment towards the loan.
The loan conditions was, that at settlement:
1.The properties must be free of all encumbrances.
Dornford Pty Ltd, therefore, had to pay out, all loans due on 745A and 747.
2.BOC lend $576K on the property at 745A for 50% shares of the Plaintiff.
3.BOC lend $780K on the property at 747 for 40 shares of the Plaintiff.
4.BOC requested that the purchased price to be reduced, to enable, the Plaintiff, Mr Wang, obtain the loan.
5.The Plaintiff agreed verbally with the Defendant that he will make up for the shortfall upon selling the properties.
As the Plaintiff Mr Wang did not offer any security, of his own, to secure the loan for his 50% shares, of 745A and 747 Canning Highway, Applecross, BOC took 100% security on the Applecross properties, which include the 50% shares of Jason and Renee Dornford, that were free of financial encumbrances.
The $165K is the only contribution he made towards the purchase of his 50%Shares, on both properties.
The Plaintiff, Mr Wang, agreed to pay the shortfall, upon the selling of the properties.
…
It is notable that there is no dispute that the monies were advanced nor that they have not been repaid nor that the due date for payment has passed.
It can be seen that the thrust of the first defendant's defence relates to transactions for the purchase by the plaintiff of interests owned by parties other than the first defendant situated in Canning Highway, Applecross in particular properties situated at 747 and 745A Canning Highway, Applecross. Insofar as the 745A property is concerned the relevant 50% interest purchased by the plaintiff was owned by and sold by Dornford Pty Ltd. As far as I can see any potential claim relating to that transaction would need to be pursued by the company and not by the first defendant. Likewise the interest in the 747 property was from Richardson Investment Group and to the extent that that transaction created any claim against the plaintiff it would presumably likewise need to be pursued by the company Richardson Investment Group. In addition to the claims concerning the sale of these properties there is a further claim of $750,000 said to be interest paid by the first defendant and alleged to be recoverable from the plaintiff. Once again I am unable to fathom exactly how it can be that the plaintiff is entitled to make that claim. To the extent that I am able to understand the position I gather that in order to obtain necessary finance from a proposed lender the plaintiff needed to purchase the land clear of encumbrance and the interest is calculated upon monies used to achieve that goal. To the extent that there was an encumbrance it was presumably owed by the various companies who owned the land. Likewise it would seem logical that the borrowings were by the company although I do not doubt that Mr Dornford has some involvement in procuring the necessary funds.
Although litigants in person are allowed a certain latitude in the presentation of their case the court cannot invent that which is not there. There is nothing that I can see in the materials before me which would support any counterclaim by the first defendant against this plaintiff. I find it very difficult to see any enforceable contract between the first defendant and the plaintiff and to the extent that there might be some enforceable contract that would appear to be vested in the various companies which sold land to the plaintiff.
During argument before me the proposition that any judgment obtained by the plaintiff be stayed pending the hearing of a counterclaim was aired. There is of course as yet no counterclaim and I would have thought no basis for one on the materials which I have been given. Nonetheless if the first defendant were to obtain legal advice it may be that any lawyer he appoints might be able to organise this material in a way that is capable of supporting a counterclaim. In those circumstances what I propose to do is although granting judgment to the plaintiff for the amount of his claim against the first defendant to order a stay of execution of the judgment for one month. The intent being to give the first defendant time to consult with a qualified legal practitioner and see if the materials which are before me are capable of being presented in some way which would support a viable counterclaim.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
KT
Court Person30 JULY 2019
0
0
1