Wilson v Pinci
[2005] WASC 114
WILSON -v- PINCI & ANOR [2005] WASC 114
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASC 114 | |
| Case No: | CIV:1827/2004 | 31 MAY 2005 | |
| Coram: | MASTER SANDERSON | 7/06/05 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | ROBERT BRIAN WILSON MARC VICTOR PINCI KIM MAREE PINCI |
Catchwords: | Practice and procedure Application for summary judgment Turns on own facts |
Legislation: | Nil |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
MARC VICTOR PINCI
First Defendant
KIM MAREE PINCI
Second Defendant
Catchwords:
Practice and procedure - Application for summary judgment - Turns on own facts
Legislation:
Nil
Result:
Application dismissed
(Page 2)
Category: B
Representation:
Counsel:
Plaintiff : Ms A Stewart
First Defendant : In person
Second Defendant : No appearance
Solicitors:
Plaintiff : Phillips Fox
First Defendant : In person
Second Defendant : No appearance
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 3)
1 MASTER SANDERSON: This is the plaintiff's application for summary judgment. At the conclusion of the hearing I indicated to the parties that I would reserve my decision and provide short oral reasons at a later date. After giving the matter further consideration I decided it was appropriate to provide written reasons for my decision. The plaintiff is entitled to know why in apparently such a straightforward case judgment has not been entered in his favour; the defendants need to understand the very narrow ground upon which my decision is based.
2 The facts of the case can be summarised in this way. The plaintiff is a business proprietor who operates a cabinet-making business in Kelmscott. In February 2002 the plaintiff became acquainted with the first defendant. The first defendant was marketing a range of cleaning products through a company styled MVP Clear Pty Ltd. A month or so after the first meeting the plaintiff, who says he was impressed by the performance of the first defendant's cleaning products, invested $14,000 in MVP Clear Pty Ltd.
3 From time to time throughout the first half of 2002 the plaintiff and the first defendant met and, among other things, discussed the first defendant's financial position. It was clear that the first defendant was in financial difficulty. While the first defendant was optimistic about the prospects of selling his cleaning products, both in Australia and overseas, the venture had not yet met with any degree of success. In fact, the first and second defendants were in straitened financial circumstances to the point where there was a real risk that they would lose their home. The plaintiff decided to offer the defendants some financial accommodation. The plaintiff says that an agreement was reached. The terms of this agreement are pleaded in par 1 of the amended statement of claim. It is convenient if I set out that paragraph:
"1 On or about 2 June, the plaintiff and the first named defendant on his own behalf and as agent for the second named defendant entered into an oral agreement (Agreement) by which the plaintiff agreed to provide financial accommodation to the defendants, on terms by which:
1.1 the defendants and the plaintiff were to enter into a contract (First Contract) for the sale of the defendants' property situated at 18 Petrel Close Armadale, being Lot 35 on Certificate of Title
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- Volume 2048 Folio 313 (Property) to the plaintiff for a price of $148,000;
- 1.2 the plaintiff was to obtain loan funds from BankWest in the sum of $250,000 (Advance) on terms by which payment instalments were to be calculated on the basis of the bank's usual terms for variable interest only repayments (Loan);
1.3 the Advance was to be applied by the plaintiff as follows:
1.3.1 in payment of the purchase price for the Property;
1.3.2 to meet all fees, costs, and stamp duty payable in connection with the purchase of the Property; and
1.3.3 the balance was to be paid in reduction of amounts owing by the defendants to other creditors;
1.4 the plaintiff was then to lease the Property to the defendants for a period of 3 months commencing from the date of settlement of the sale of the Property to the plaintiff (Lease);
1.5 the defendants were to make payment to BankWest of the instalments payable under the Loan;
1.6 the defendants were to pay all outgoings incurred in relation to the Property including water consumption charges for the period of the defendants' occupation of the Property under the Lease or any extension;
1.7 within 3 months of settlement on the First Contract, the plaintiff was to enter into a contract with the defendants for the sale of the Property to the defendants for $148.000 conditional on all monies owing by the plaintiff to BankWest in
(Page 5)
- relation to the Advance being cleared (Second Contract);
- 1.8 The defendants were to make payment of any stamp duties, fees, costs or expenses associated with the Second Contract; and
1.9 at settlement on the Second Sale, the defendants were to pay to the plaintiff the amount of any shortfall between the purchase price under the Second Contract and $250,000."
4 The defendants appeared in person in this matter. At the hearing the first defendant alone attended and put the defendants' case. After reading the evidence filed on behalf of the defendants and hearing argument from the first defendant, I am not entirely sure whether the defendants accept that there was an agreement in terms pleaded in par 1 of the statement of claim. It may be they contend there was such an agreement but that there were further terms. However, what is clear is that there was an agreement in terms of pars 1.1 and 1.7 of the statement of claim. In fact, an offer and acceptance was signed by all parties and the house at 18 Petrel Close, Armadale was transferred into the name of the plaintiff. The defendants have at all material times been, and remain, in possession of the property.
5 By this application, the plaintiff seeks possession of the Armadale property and he seeks judgment for the amount loaned to the defendants, plus interest and costs. Given that the plaintiff is the registered proprietor of the Armadale property, what he is seeking to do, in effect, is evict the defendants from a property which he owns. On the face of it, it would appear that the plaintiff has a compelling argument in favour of an order for possession, if nothing else.
6 However, the agreement reached by the plaintiff and the defendants bears closer examination. It has about it the characteristics of a common law mortgage - transfer of the property to the mortgagee (the plaintiff) with a right of redemption given to the mortgagors (the defendants). If that analysis of the contract is correct, then it may be that the obligation to repay all of the $250,000 as a condition of redeeming the house is a clog on the equity of redemption. Furthermore, it was a term of the contract (par 1.7) that within three months of settlement on the First Contract the plaintiff was to enter into the Second Contract. It is not pleaded that this was done. Nor does it emerge from the evidence that the second contract was ever entered into by the parties. If that is the case, there must be
(Page 6)
- some doubt as to whether or not the plaintiff is in default under the contract. There also must be some doubt as to what the consequences of such a default might be.
7 In my view, it will be necessary to examine all of the circumstances surrounding the contractual relationship between the parties to determine precisely what the rights of each might be. In other words, I am satisfied that there is a serious question to be tried. Having reached that conclusion, it is not appropriate that I enter judgment in favour of the plaintiff.
8 It will be apparent from the conclusion that I have reached that I have not relied at all on the evidence of the defendants or, indeed, upon the submissions made by the first defendant. Nothing in these reasons should be taken to suggest that I accept that the defendants have a defence to this action either along the lines suggested in the affidavits or otherwise. That is a matter for trial. My decision is based squarely on what I see as inherent difficulties in the agreement as propounded by the plaintiff. The decision goes no further than that.
9 The summary judgment application should be dismissed. I will hear the parties as to costs.
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