Wang v Malop Street Pty Ltd - [2019] VSC 193

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

S CI 2016 00643

WEIDONG WANG	Plaintiff
v
MALOP STREET PTY LTD (ACN 164 083 818) (in liquidation)	First Defendant
DALE HOWARD ROBERTSON	Second Defendant
KELLIE RAE ROBERTSON	Third Defendant

JUDGE:	Lansdowne AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	13 March 2019
DATE OF JUDGMENT:	14 March 2019
DATE OF WRITTEN REASONS:	25 March 2019
CASE MAY BE CITED AS:	Wang v Malop Street Pty Ltd
MEDIUM NEUTRAL CITATION:	[2019] VSC 193

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PRACTICE AND PROCEDURE – Summary enforcement on a compromise – Whether the Court has jurisdiction to give such judgment where the compromise does not contain a provision that time for payment is of the essence – Held: yes - Roberts v Gippsland Agricultural and Earth Moving Contracting Co Pty Ltd [1956] VLR 555; Seachange Management Pty Ltd v Pital Business Pty Ltd (2009) 23 VR 396; Barratt v Rees [2014] VSCA 327 considered and applied – Green v Rozen [1955] 1 WLR 741 not followed – Fraser v Elgen Tavern Pty Ltd and ors [1982] VR 398 distinguished.

PRACTICE AND PROCEDURE – Summary enforcement on a compromise – Whether justice can be done by the giving of summary judgment – Whether a variation to the compromise proved – Whether sufficient explanation for delay given to justify the whole of the interest sought – Whether the summons should be adjourned to enable another proceeding to be instituted – Judgment given on the summons but limited as to the interest.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W Stark	Prudentia Legal Melbourne
For the First Defendant	No appearance
For the Second and Third Defendants	Mr M Pirrie	Trueman Dawson

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Factual background........................................................................................................................... 1

Submissions and evidence............................................................................................................... 4

Use of summary procedure......................................................................................................... 4
Variation to the Terms.................................................................................................................. 4
Discretionary matters................................................................................................................... 5

Consideration...................................................................................................................................... 6

Summary enforcement jurisdiction............................................................................................ 6
Variation to the Terms................................................................................................................ 13
Discretionary matters................................................................................................................. 18
Delay. .................................................................................................................................. 18
Proposed negligence claim.............................................................................................. 20

Conclusion and orders.................................................................................................................... 21

HER HONOUR:

Introduction

These reasons concern the summary enforcement jurisdiction of the Court, in particular whether a breach of terms that do not contain a provision that time is of the essence may be enforced by summons in the original proceeding. In the event that I am against them on this submission, the defendants oppose the giving of judgment on the summons on the basis of an alleged variation of the terms, and for other discretionary reasons.

These written reasons revise and elaborate oral reasons I gave on 14 March 2019. On that day, I ruled that the summons was not incompetent and I would give judgment for the plaintiff on the summons. I then heard the second and third defendants further in relation to the payment of interest, and the grant of a stay. As a result of those further submissions, I limited the judgment on interest and granted a fourteen day stay.

Factual background

In this proceeding the plaintiff sought to recover by writ…

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.

Continue reading Wang v Malop Street Pty Ltd

Details

AGLC: Wang v Malop Street Pty Ltd [2019] VSC 193
Case: [2019] VSC 193
Decision Date: 14 March 2019

CaseChat Overview and Summary

Wang v Malop Street Pty Ltd is a case before the court where the primary issue was the summary enforcement of a compromise agreement. Wang, the plaintiff, sought to enforce a compromise agreement against Malop Street Pty Ltd, the defendant. The dispute centred around whether the court had the jurisdiction to enforce the compromise if the agreement did not explicitly state that the time for payment was of the essence. Additionally, the court needed to determine if justice could be served by granting summary judgment on the compromise, whether there was sufficient evidence of a variation to the compromise, and if the delay in enforcement was adequately explained. The case also questioned whether the summons should be adjourned to allow for another proceeding to be instituted.

The legal issues involved interpreting the jurisdiction of the court to enforce compromises without a clause specifying that payment time is of the essence, as well as the principles of justice in granting summary judgments. The court examined whether a variation to the compromise had been adequately proven and if the delay in enforcement was justified. It also considered whether the summons should be adjourned, allowing for another proceeding to be initiated.

The court held that it did have the jurisdiction to enforce the compromise even in the absence of an explicit clause stating that time for payment was of the essence. It referred to precedents such as Roberts v Gippsland Agricultural and Earth Moving Contracting Co Pty Ltd, Seachange Management Pty Ltd v Pital Business Pty Ltd, and Barratt v Rees. The court distinguished the case from Fraser v Elgen Tavern Pty Ltd and ors and declined to follow Green v Rozen. Justice could be done by granting summary judgment, but the interest sought was limited. The court found that the explanation for the delay was sufficient and that the summons should not be adjourned.

In conclusion, the court granted judgment on the compromise but limited the interest sought by the plaintiff. It ruled that the compromise could be enforced without the specific clause on the essence of time for payment and that justice could be served through the summary judgment. The court also found that the delay in enforcement was adequately explained and that there was no need to adjourn the summons for another proceeding.

Orders