Well Holdings Pty Ltd v Greg Rowe Pty Ltd - [2016] WASC 72

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: WELL HOLDINGS PTY LTD -v- GREG ROWE PTY LTD [2016] WASC 72

CORAM: MASTER SANDERSON

HEARD: 29 JANUARY 2016

DELIVERED : 4 FEBRUARY 2016

PUBLISHED : 4 MARCH 2016

FILE NO/S: CIV 1905 of 2015

BETWEEN: WELL HOLDINGS PTY LTD
Plaintiff
AND
GREG ROWE PTY LTD
First Defendant
GREGORY HOWARD ROWE
Second Defendant

FILE NO/S :CIV 2324 of 2015

BETWEEN :TREVALLEY INVESTMENTS PTY LTD
First Plaintiff
MNWA PTY LTD
Second Plaintiff
AND
GREG ROWE PTY LTD
Defendant

Catchwords:

Practice and procedure - Application to transfer Magistrates Court action to Supreme Court - Turns on own facts

Legislation:

Magistrates Court (Civil Proceedings) Act 2004 (WA)

Result:

Application dismissed

Category: B

Representation:

CIV 1905 of 2015

Counsel:

Plaintiff:     Mr K J O'Toole
First Defendant             :     Ms W F Gillan
Second Defendant         :     Ms W F Gillan

Solicitors:

Plaintiff:     James Chong Lawyers
First Defendant             :     Rowe Bristol Lawyers
Second Defendant         :     Rowe Bristol Lawyers

CIV 2324 of 2015

Counsel:

First Plaintiff                :     Mr J R Birman
Second Plaintiff            :     Mr J R Birman
Defendant:     Ms W F Gillan

Solicitors:

First Plaintiff                :     Birman & Ride
Second Plaintiff            :     Birman & Ride
Defendant:     Rowe Bristol Lawyers

Case(s) referred to in judgment(s):

Nil

MASTER SANDERSON: In each of these two matters the applications are identical. The plaintiffs seek to have remitted to this court proceedings presently in the Magistrates Court. The applications are made pursuant to s 39 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (the Act). After hearing argument I reserved my decision and some days later indicated to the parties I would dismiss both applications. I said I would publish reasons for my decision. These are those reasons.
Section 39 of the Act is in the following terms:
39.Transfer of Magistrates Court case to superior court
(1)In this section -
superior court means the District Court or the Supreme Court.
(2)A party to a case in the Court may apply to a superior court for an order that all or a part of the case be transferred to the superior court.
(3)The application must be made in accordance with rules of court that apply in the superior court.
(4)The superior court may make such an order if it is satisfied that all or a part of the case is within its jurisdiction and -
(a)involves a claim by the claimant or another party, or an issue, that is outside the Magistrates Court's jurisdiction; or
(b)should be dealt with by the superior court because of its complexity or because of a question of law involved.
(5)A superior court that makes an order under subsection (4) may also make any other necessary orders including orders as to -
(a)the registry of the superior court in which the case is to be conducted; and
(b)the payment of fees in the superior court; and
(c)the costs in the case in relation to proceedings in the Magistrates Court.
(6)On receiving an order made under subsection (4) a registrar of the Magistrates Court is to send the Court's file to the superior court.
(7)If an order is made under subsection (4) the superior court is to deal with the case as if it had been commenced in that court.
It was the position of both plaintiffs that both of the requirements of s 39(4) were satisfied. That is to say there was a claim by the plaintiffs (in these proceedings) which was brought in the Magistrates Court was outside the Magistrates Court jurisdiction. It was further submitted that the matter was of some complexity justifying the Magistrates Court proceedings being transferred to this court. It was not suggested there was a question of law involved which in and of itself would require transfer to this court.
In the Magistrates Court there is only one set of proceedings. The first defendant in both of these actions is the claimant in the Magistrates Court proceedings. The first defendant in the Magistrates Court proceedings is Well Holdings Pty Ltd. The first and second plaintiffs in CIV 2324 of 2015 stand in the place of Mammoth Nominees Pty Ltd, the second defendant in the Magistrates Court proceedings. The reason why that is so is not presently relevant and was not an issue between the parties.
In an attempt to maintain some clarity in these reasons I will refer to the parties as 'Greg Rowe', 'Well Holdings', and 'Mammoth'. The general procedure claim was issued by Greg Rowe on 27 February 2013. The claim was in an amount of $58,982.40.
The statement of claim is quite straightforward. Greg Rowe alleges on or about 17 February 2009 the parties entered into a written agreement pursuant to which Greg Rowe would provide project management services to Well Holdings and Mammoth relating to property known as lots 13 and 100 Treeby Road, Anketell. Reference is made to a letter from Greg Rowe to Well Holdings and Mammoth dated 17 February 2009 and two emails one from each of the other parties accepting the terms and conditions set out in the letter. Pursuant to the agreement Well Holdings and Mammoth would make certain payments to Greg Rowe for its services. It is pleaded services were provided and invoices were sent but payment was not made. Greg Rowe says that amounts to a breach of contract and sues for payment of the unpaid invoices.
The procedure in the Magistrates Court requires a statement of defence and a counterclaim to be in two separate documents. That is so even where there is a claim for set‑off. In its present amended defence Well Holdings does not admit it had any agreement with Greg Rowe and although it admits receiving invoices it denies any liability for payment of those invoices. Mammoth admits the agreement pleaded by Greg Rowe but says there were additional terms to the agreement. One of those terms was a 'monthly fee backstop term' which meant no fees were payable after February 2011. It is worthy of note there is a significant inconsistency between the position of Well Holdings and Mammoth. Well Holdings denies there was any agreement; Mammoth says there was an agreement but it contained further relevant terms as to payment.
Both Well Holdings and Mammoth have filed counterclaims. Well Holdings while maintaining its position there was no contract between it and Greg Rowe says accounts were rendered by Greg Rowe for work undertaken and these invoices were paid. It now says there has been overpayment and seeks repayment of an amount of $158,425.41. Greg Rowe joins issue with Well Holdings on the counterclaim.
Mammoth having accepted there was a contractual arrangement between it and Greg Rowe says it has overpaid Greg Rowe in relation to five separate payments. It seeks repayment of some $60,437.88.
It can be seen from that brief summary of Greg Rowe's claim and Well Holdings and Mammoth's counterclaims that the matter is of no great complexity and that the respective claims as pleaded are within the jurisdiction of the Magistrates Court. That being so it is to my mind doubtful whether the requirements of s 39(4) are satisfied. The reference in s 39(2) is 'to a case in the Court'. The reference in s 39(4) is to 'the case' which must mean the case in the Magistrates Court. That being so it is only the case as it stands in the Magistrates Court that is relevant in determining whether or not the matter should be transferred to the superior court. There is nothing in the legislation which suggests reference to extraneous material. Really it is on the basis of extraneous material - that is to say matters not the subject of the claims in the Magistrates Court - that Well Holdings and Mammoth rely upon to transfer the proceedings to this court.
What Well Holdings and Mammoth have done is each issue separate proceedings in this court - the proceedings in which the transfer application is brought. The nature of the claims made by Well Holdings and Mammoth can be illustrated by referring to the amended substituted statement of claim filed by Well Holdings in CIV 1905 of 2015. The pleading refers to two parcels of land, one known as 'Anketell South' and the other known as 'Anketell North' Well Holdings refers to an agreement entered into between it and Greg Rowe. That agreement is said to be constituted in part by a letter of 11 February 2009. How that pleading sits with the defence raised in the Magistrates Court proceedings is unclear. In broad terms it is said Greg Rowe undertook to do certain planning work on terms and conditions. It is said Greg Rowe breached the terms of the agreement between the parties and as a consequence Well Holdings has suffered loss and damage. It is further alleged Greg Rowe engaged in misleading and deceptive conduct and that too led to loss and damage. It is not easy to work out precisely what amount is claimed by Well Holdings. It is sufficient if I say it is outside the jurisdiction of the Magistrates Court.
The claim by Mammoth is slightly differently framed and specifies the damages at $2,828,169. There would appear to be very little if any difference between the claims made by Well Holdings and Mammoth.
Really what should have happened in this case is when Greg Rowe made its claim Well Holdings and Mammoth should have pleaded their claims and as those claims exceeded the jurisdiction of the Magistrates Court the matter would then have been transferred without argument. But that did not happen and now three years after proceedings were issued in the Magistrates Court and with a trial imminent Well Holdings and Mammoth want to transfer the proceedings to this court. In my view there is no justification for such a move. Well Holdings and Mammoth are concerned if the matter proceeds in the Magistrates Court and there is a finding as to the terms of the contractual arrangement between them and Greg Rowe they may not be able to pursue any entitlement they have because of an Anshun estoppel. To that there are two answers. First, it is open to question as to whether or not a finding by a Magistrates Court could ever give rise to an Anshun estoppel. But even assuming it can counsel for Greg Rowe gave an undertaking there would be no reliance in any proceedings in this court on such a point. In other words it would not be taken by way of defence. So Well Holdings and Mammoth are not at risk in proceedings in the Magistrates Court.
To my mind it would not have been in the interests of justice to transfer the Magistrates Court proceedings to this court. The proceedings in the lower court have proceeded too far; resolution of proceedings in this court might take years. The fact Well Holdings and Mammoth approached the Magistrate Court proceedings as they did has led to any prejudice they now suffer. Greg Rowe should not be prevented from having a relatively simply claim in the Magistrates Court determined. Upon publication of these reasons the parties can file short submissions in relation to costs.