Zianni Pty Ltd v Bojbasa - [2016] WADC 116

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: ZIANNI PTY LTD -v- BOJBASA [2016] WADC 116

CORAM: DEPUTY REGISTRAR KUBACZ

HEARD: 22 JULY 2016

DELIVERED : 9 AUGUST 2016

FILE NO/S: CIV 3507 of 2015

BETWEEN: ZIANNI PTY LTD
Plaintiff
AND
SLAVOJKA BOJBASA
Defendant

Catchwords:

Procedure - Summary judgment - Defendant's application - Contractual interpretation

Legislation:

Rules of the Supreme Court 1971

Result:

Defendant's application for summary judgment dismissed

Representation:

Counsel:

Plaintiff: Mr D G Johnston
Defendant: Mr R J Christensen

Solicitors:

Plaintiff: Moray & Agnew
Defendant: Zilkens & Co

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

Anderson v Effexseven (1999) 10 ANZ Ins Cas 61‑424
Ansearch Ltd v Wavetech Pty Ltd [2006] WASC 184
Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99
Australian Can Co Pty Ltd v Levin & Co Pty Ltd [1947] VLR 332
Balangarri Aboriginal Corp (in liq) v Cleanthous [2004] WASC 200
Barrick Gold of Australia Ltd, FL Smidth Inc [2007] WASC 186
Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640
Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Michael v Nicolson (Unreported, WASC, Library No 950660S, 1 December 1995)
Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598

DEPUTY REGISTRAR KUBACZ: By application dated 5 May 2016 the defendant, Slavojka Bojbasa, sought to set aside default judgment against her and to apply for summary judgment against the plaintiff, Zianni Pty Ltd, pursuant to O 16 r 1 of the Rules of the Supreme Court 1971 (WA) (RSC).
The plaintiff has claimed damages arising out of alleged damage to its property following the explosion of an automatic teller machine (ATM) installed by the defendant at its business premises which she leased from the plaintiff.
The plaintiff claims an indemnity from the defendant in relation to the damage and/or damages for breaches of the lease contract.
In respect to the setting aside of the default judgment, the defendant says that she did not intentionally delay the filing of a defence and therefore it should be set aside.
With respect to the summary judgment, the defendant says that she has a good defence on its merits and that the defence involves limited documentation and only questions of law and not fact so that it is an appropriate matter to be dealt with summarily.
The defendant's application is supported by the affidavits of Raymond John Christensen sworn 4 May 2016 and Slavojka Bojbasa also sworn 4 May 2016.

Setting aside default judgment

The defendant seeks an order that the judgment entered in default of filing a defence on 31 March 2016 be set aside.
The plaintiff in its written submissions did not oppose the application on the grounds that there are triable issues between the parties.
During oral argument the plaintiff clarified its instructions to…

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.

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Details

Case: [2016] WADC 116
Decision Date: 9 AUGUST 2016

CaseChat Overview and Summary

In the matter of Zianni Pty Ltd v Bojbasa, the defendant, Bojbasa, sought summary judgment against the plaintiff, Zianni Pty Ltd, in a dispute concerning the interpretation of a contractual indemnity clause and an alternative claim for damages due to the alleged breach of lease terms. The case was heard in the Supreme Court of Western Australia.

The legal issues that the court needed to decide revolved around the proper interpretation of the indemnity clause in the lease agreement and whether the plaintiff's interpretation of the clause was so lacking in merit that it could not succeed. Additionally, the court had to determine if there was a genuine dispute about the defendant's right to judgment concerning the damages claimed for the alleged breach of lease terms.

In its reasoning, the court found that the plaintiff's interpretation of the indemnity clause aligned with the objective approach to construing terms, as established in Electricity Generation Corporation v Woodside Energy Ltd. The court was not satisfied with the defendant's approach of omitting a word from clause 6.2 to support her interpretation, as this did not consider the clause as a whole and was not in line with relevant case law, such as Australian Broadcasting Commission v Australian Performing Right Association Ltd. The court also noted that there was a serious question to be tried regarding the indemnity clause and that the plaintiff should have the opportunity to present its interpretation and evidence in the trial setting. Furthermore, the court found that there was real uncertainty regarding the defendant's right to judgment without further investigation of the facts concerning the damages claimed for the alleged breach of lease terms. Therefore, the court dismissed the defendant's application for summary judgment.

The court will hear the parties on the issue of costs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The plaintiff's interpretation of the clause has merit given that it seems to follow the 'objective approach' to construing the term in line with the principles espoused in Electricity Generation Corporation v Woodside Energy Ltd. I am not satisfied that the defendant's approach of simply omitting a word from cl 6.2 to give support to her interpretation of the clause is an appropriate way in which to deal with the construction of a commercial contract as outlined the in relevant case law. As stated in Australian Broadcasting Commission v Australian Performing Right Association Ltd the clause needs to be construed in context, considering the terms as a whole. Omitting words from the clause does not consider the clause as a whole, in fact it seeks to consider the terms of the clause in the only way which can be positive for the defendant. This is not the correct way in which to approach interpretation of contractual clauses. I am therefore not satisfied that the plaintiff's interpretation of the clause is claim so clearly untenable that it cannot possibly succeed: Balangarri, that the claim is frivolous or vexatious or that there is no merit in the plaintiff's interpretation and claim. Whilst there may be some merit in the defendant's defence, this is not a matter which should be dealt with summarily as it is not clear on the evidence before me that the defendant's interpretation of the indemnity clause is the only interpretation that can be found. Further, the plaintiff should have the opportunity to present its interpretation of the clause, and bring any evidence to support its interpretation in the trial setting. There is clearly a serious question to be tried in this matter and therefore it is not an appropriate for the summary judgment to be granted. In the alternative to the indemnity claim, the plaintiff claims damages for the defendant's breach of the lease terms. I will not go into detail as to the terms of the clauses purported to have been breached because for the purposes of this hearing, whilst the defendant does not admit the breach of the lease, for the purposes of the application breach of the lease was accepted (paragraph 41 of the defendants written submissions). The defendant submitted that the issue is not the purported breach of the lease but whether any breaches were capable of causing the damages and the loss suffered. In oral submissions, the plaintiff stated that from its view point the issue of causation is one of expert evidence and it wanted the opportunity to bring in expert opinion on this issue. Given that following this submission there is real uncertainty as to the defendant's right to judgment without further investigation of the facts, summary judgment must be refused: Ansearch Ltd v Wavetech Pty Ltd [2006] WASC 184, [28]; Australian Can Co Pty Ltd v Levin & Co Pty Ltd (335). For the reasons outline above, the defendant's application for summary judgment is hereby dismissed. I will hear the parties on costs.