WANNUNUP Development Nominees Pty Ltd as trustee for the WANNUNUP Development Unit Trust v Growden
[2011] WASC 113
•2 MAY 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: WANNUNUP DEVELOPMENT NOMINEES PTY LTD as trustee for the WANNUNUP DEVELOPMENT UNIT TRUST -v- GROWDEN [2011] WASC 113
CORAM: ACTING MASTER CHAPMAN
HEARD: 1 MARCH 2011
DELIVERED : 2 MAY 2011
FILE NO/S: CIV 2595 of 2010
BETWEEN: WANNUNUP DEVELOPMENT NOMINEES PTY LTD as trustee for the WANNUNUP DEVELOPMENT UNIT TRUST
Plaintiff
AND
MAXINE MAY GROWDEN
Defendant
Catchwords:
Practice and procedure - Summary judgment
Legislation:
Rules of the Supreme Court 1971 (WA), O 14 r 3
Result:
Leave to defend
Category: B
Representation:
Counsel:
Plaintiff: Mr T O Coyle
Defendant: Mr D J Pratt
Solicitors:
Plaintiff: Lavan Legal
Defendant: Andrew Barclay & Associates
Case(s) referred to in judgment(s):
Nil
ACTING MASTER CHAPMAN:
The application
The plaintiff by way of chamber summons filed on 10 November 2010 seeks judgment pursuant to O 14 r 3 of the Rules of the Supreme Court 1971 (WA). The defendant conceded that the plaintiff had satisfied the usual onus of the entitlement to judgment, the main issue being whether or not there was a triable defence. In that regard, the defendant only presses arguments in relation to termination in respect of the Special Condition of Sale Contract and misleading or deceptive conduct.
The law
I accept that the discretion to enter summary judgment should be exercised with care and that the defendant only needs to show an arguable defence. In exercising this discretion, the court is not bound to accept uncritically every statement in an affidavit as raising a disputed fact.
The issues
The defendant argues the contract was terminated for breach of special condition 10.1 and, secondly, the defendant is entitled to rescind the contract for misleading or deceptive conduct.
As to the first argument, three issues have been identified:
1.What is the proper construction of special condition 10.1.
2.Whether or not special condition 10.1 can properly be characterised as a condition so as to give rise to a common law right of rescission.
3.Whether, in the circumstances as disclosed in the affidavit evidence, there is in fact a breach that properly entitles the issue of the notice and a subsequent termination.
The facts
The defendant submits that she terminated the sale contract by written notice on 14 May 2010 and has demanded repayment of the deposit paid on the sale contract. It is claimed that on 5 March 2010 the defendant served a notice of default on the plaintiff in accordance with cl 15 of the Sale Contract regarding compliance with special condition 10.1.
Special condition 10.1 reads:
The purchaser shall receive a four year family golf course membership to 'The Cut Golf Course' and a $10,000 tab at 'the Mediteranean' [sic].
The plaintiff submits it is not clear what this term means. With respect, I agree.
By letter dated 22 December 2010 the defendant was advised:
It is a matter of regret that our decision will impact upon you but as a consequence of this failure to reach an agreement I must now advise that your membership will not be honoured after 31st December 2009. On that date all memberships existing under the previous ownership will be rationalised and thereafter continue under new management. All our current members have been advised of this fact and we hope there will be a seamless transition in anticipation of better things to come.
By letter dated 31 December 2010 the defendant was advised:
Should you wish to play golf at The Cut and/or continue with your membership, PBD will reimburse you for all costs of membership, golf, pro shop purchases and food and beverage at The Cut in line with your original sales contract for the purpose of property from PBD. Reimbursement will be made within 14 days of presentation of valid tax invoices to PBD.
As a result of the information supplied to the defendant, she took the view that special condition 10.1 had not been honoured, and issued a default notice.
The default notice reads:
DEFAULT NOTICE
Contract of Sale dated 30 August 2007
Apartment 19 on Strata Plan 52385
To: WANNUNUP DEVELOPMENT NOMINEES PTY LTD
Level 2, 129 Melville Parade
COMO WA 6152(WDNPL)
RECITALS
AOn 30 August 2007 Maxine May Growden of 38 Tully Rd, East Perth (the Purchaser) entered into a contract (the Contract) to purchase Apartment 19 on Strata Plan 52385 from WNDPL on the terms and conditions specified in the Contract.
BSpecial Condition 10.1 of the Contract states that 'The purchaser shall receive a four year family golf course membership to 'the Cut Golf Course and a $10,000 TAB at the Meditteranean [sic]'.
CThe Purchaser's membership of the Cut Golf Course and the 'TAB' at the Mediteranean [sic] restaurant has not been honoured after 31 December 2009 (the Default).
NOTICE
The Purchaser hereby requires that the Default be remedied (if possible) within 14 days from the date on which this Default Notice is given, and notifies WDNPL that the Contract may be terminated if the default is not remedied within that period.
Dated 5 March 2010
Andrew Christian Barclay
Solicitor and Representative of the Purchaser
The defendant maintains the default has not been remedied and on 14 May 2010, the solicitors for the defendant wrote a letter to the plaintiff which, in part, reads:
I refer to my letter of 5 March 2010 and the default notice enclosed with that letter.
Since the default specified in the default notice was not remedied within the time period specified in the default notice, my client hereby terminates the sale contract.
Counsel for the plaintiff contends that the contract has not been terminated for a number of reasons:
1.The default notice is bad because it was not correctly addressed to the representative as required by the sale contract.
2.The failure to provide the defendant with the entire golf course membership and restaurant TAB in accordance with the special condition was a result of circumstances beyond the control of the plaintiff.
3.The plaintiff attempted to compensate the defendant in accordance with the correspondence referred to above.
4.If the breach of special condition 10 did occur, it has been overcome by giving moneys worth for the benefit.
5.Its failure to provide the defendant with the golf course membership and restaurant TAB, when considered in the context of the contract as a whole, fails to satisfy any criteria which would give rise to a right to terminate the contract.
I think there is some force in the submissions made by the plaintiff. Having said that, I do not consider the matters should be determined on a summary judgment application. I consider there are both issues of fact and law which should be considered at trial.
Misleading and deceptive conduct
This ground is based on pars 10 to 14 of the affidavit of the defendant sworn on 16 December 2010 which records:
10.Special Condition 10.1 of the Sale Contract states as follows:
'the Purchaser shall receive a four year family golf course membership to the 'Cut Golf Course' and a $10,000 tab at the 'Mediterranean'.
11.The sales representative with whom I dealt when I signed the Sale Contract was Trent Quin‑Schofield (Sales Representative). He emphasised to me that the development of the Apartment Block and The Cut Golf Course at Port Bouvard (Golf Course) to be known as 'The Cut' were intended to complement each other. I was handed promotional material which linked the apartment block and the golf course.
12.Attached hereto and marked 'MMG 1' is a copy of that promotional material.
13.The Sales Representative told me that as part of the purchase I would receive a four year family membership of the Golf Course, and a $10,000 TAB at the Mediterranean restaurant in the club house. The Golf Club membership was a significant attraction to purchasing the Apartment as I thought it enhanced the value of the Apartment, and all other apartments in the Apartment Block. I relied on these representations both by the Sales Representative and in the promotional material.
14.I noticed in the promotional material and the Sales Representative told me that the Golf Club membership and the TAB at the restaurant were transferable if I sold that Apartment. Also, I was told that if I leased the Apartment to a tenant for more than 12 months the tenant would be entitled to the Golf Club membership. This was important to me if I were to treat the Apartment as an investment.
Counsel for the defendant argues that that evidence clearly sets out a representation and reliance in circumstances where those representations have not been fulfilled. It is said on the facts before me there is an arguable defence of misleading and deceptive conduct which would entitle the defendant to rescind the contract.
A number of issues which relate to special condition 10.1 will have to be considered in this context. I am of the view that it is not appropriate to determine them at this interlocutory stage.
The conclusion
Having considered the evidence carefully, I am of the view that this is not one of those clear cases where there is no real question to be tried. Despite the fact I consider the arguments put forward by the plaintiff have some force, I consider that the defendant should be given unconditional leave to defend the matter to allow all the issues to be properly ventilated at trial.
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