2 By chamber summons filed 20 June 2014 the plaintiff sought summary judgment against the defendant. On 16 December 2014 I published reasons for granting the summary judgment application: Westpac Banking Corporation v Palaniappan

Supreme Court of WA|2015-06-24

1 MASTER SANDERSON: This was the return of two applications. The first in time was the defendant's application by letter dated 4 May 2015 seeking to strike out the plaintiff's amended statement of claim. The plaintiff then applied for leave to amend its summons seeking summary judgment and 'further and alternatively' amendment of the order of 18 December 2014 granting summary judgment. The reasons why these two applications were brought requires some background facts.

2 By chamber summons filed 20 June 2014 the plaintiff sought summary judgment against the defendant. On 16 December 2014 I published reasons for granting the summary judgment application: Westpac Banking Corporation v Palaniappan [2014] WASC 475. The summary judgment application sought judgment for the plaintiff's entire claim. The defendant had guaranteed certain loans and the plaintiff was suing on the guarantee. The amount of the claim was specified in the chamber summons but as interest was payable the amount of the claim when judgment was entered was greater than the amount specified in the chamber summons. But there was no suggestion in the chamber summons itself that judgment was sought only for part of the plaintiff's claim.

3 The statement of claim referred to a 'Facility Agreement'. This agreement which was constituted by a number of documents was entered into around 1 July 2011 and was varied on 26 October 2011. The borrower under the facility agreement was Murray Riverside Pty Ltd and the defendant guaranteed those borrowings. The plaintiff pleaded the borrower was liable to repay the 'total amount owing' as defined in cl 72 of the general conditions.

4 The plaintiff pleaded the terms of the securities which touched upon the borrower's obligations under the facility agreement and referred to certain specific terms. It then pleaded the 'Guarantee'. This Guarantee was said to be dated 9 July 2008 (so it predated the Facility Agreement), but it was said pursuant to its terms the defendant guaranteed the borrower's obligations. The plaintiff pleaded the defendant agreed to guarantee the 'Guaranteed Money' which was the equivalent of the total amount owing by the borrower to the plaintiff.

5 The plaintiff then pleaded certain defaults and notices of demand and the fact receivers and managers were appointed over the borrower's property. The sale of the secured property was pleaded and the plaintiff pleaded the proceeds from the sale of the property were not sufficient to pay the total amount owing. The plaintiff pleaded a second notice of demand in an amount of $14,683,764.37 being the Guaranteed Money owing as at 22 January 2014. In the prayer for relief the plaintiff claimed payment of $14,966,604.82 a sum which was greater than the amount demanded because it included interest from the date of the demand to the date of issue of proceedings. There was a further demand for interest on the outstanding balance at different interest rates.

6 The application was supported by two affidavits of Terry Neil Lovelock, the first sworn 20 June 2014 and the second sworn 17 September 2014. By reference to these affidavits and the statement of claim it is not possible to ascertain precisely what amount is included in the overall claim for the costs and expenses of the receiver. In fact in par 31 of the defendant's submissions in opposition to the summary judgment application counsel appears to acknowledge precise quantification is not possible. It was not on that basis the application for judgment was opposed. But what is common ground between the parties is the amount claimed in the statement of claim and in a summons for judgment included receiver's costs and a penalty interest component.

7 In support of the application the plaintiff also relied on an affidavit of Georgia Elyse Bevis sworn 5 November 2014. Appearing as attachment GEB1 to that affidavit is a 'certificate' dated 4 November 2014. That certificate (which presumably is a Dobbs certificate) says $16,455,716.99 is the amount owing. That figure is broken down as follows:

interest of $1,146,555.52 that has accrued since 13 December 2013;
default interest of $391,773.06 that has accrued since 13 December 2013;
legal fees of $305,174.18; and
receiver's fees of $574,212 (ext GST).

8 In opposing the application for judgment the defendant's solicitors took a number of different points. In counsel's written submissions under the heading 'Quantum' the defendant's say it is not possible to calculate with certainty the amount the defendant allegedly owes to the plaintiff. Doubtless to cover this claim during the course of his submissions counsel for the plaintiff made the following concession:

DHARMANANDA, MR: So that's the first point. The second point is that the clause - clause 14, allows service in any other manner permitted by law and when attention turns to order 72 of this - of rule 5, sub rule 3:

'If under these rules a person has filed a document that states the person's service details, a document may be served on the person by addressing it in accordance with sub rule 4 and delivering it or posting it by prepaid post with a personal address stating the service details or if some other method of serving the person is stated in the service details, using that method to serve it on that person.'

Here, solicitors on record haven't (indistinct) exactly what has been filed by them but that had filed a document in accordance with order 71A. So that is the second matter that's relevant in so far as Ms [Bevis'] affidavit is concerned and the third is this. That Mr Lovelock's affidavit, in our respectful submission, establishes the debt, although not the exact amount of the debt in any event, and I have been instructed that for the purposes of this application the bank, in so far as the amount set out in the certificate which appears at page 5 of the affidavit is concerned, will not seek receiver's fees, legal fees or default interest which will - which is a course that I see that in the judgment for Le Miere J, a similar approach was taken where receiver's costs were not sought to be recovered in the event of some possible controversy about those matters.

THE MASTER: So that would mean that that the amount owing would be 16 - roughly sixteen and a half million less the items mentioned in 1.2.2, 3 and 4?

DHARMANANDA, MR: Correct, Master.

THE MASTER: All right.

DHARMANANDA, MR: Those are our submissions, Master.

THE MASTER: Thanks. Mr Davies.

DAVIES, MR: Can I just respond to - because I wasn't given any advance notice of the fact that the bank would say that it would not seek the legal costs, the default interest or the receiver's fees. That doesn't address the submission that I made about the references in the settlement statements to payments of approximately $1.3 million going to the receivers. Whether that's part of the receiver's fees and whether that's claimed. So I just make that point. And I don't want to have another go but can I just make the point sending something by Toll is not prepaid post and nor does order 71 have any application to documents served under this guarantee (ts 53 54).

9 At that point counsel for the defendant did not seek to amend the chamber summons. At the time the concession was made counsel was focusing on the affidavit of Ms Bevis. That explains my subsequent interchange with counsel. However counsel did not apply to amend the chamber summons. It must also be noted this concession was made in reply. Counsel for the defendant then had the last word but he did not make any reference to what amounted to an amended claim - given he was opposed to the summary judgment application he probably did not need to do so.

10 As is often my practice at the time I handed down the reasons I invited the parties to confer as to the form of judgment. This they did and the matter came back in chambers on 18 December 2014. There were a number of matters in dispute. One had to do with costs. No mention was made of any amendment to the chamber summons. It would appear the parties during the course of negotiation had settled on a figure of $15,181,557.75 being the amount owing and leaving to one side the matters conceded by counsel for the plaintiff in his reply.

11 It was against that background the plaintiff sought to amend its statement of claim to claim those amounts it says are owing pursuant to the Guarantee but were not covered by the judgment. The defendant objected. Through his solicitors he said the plaintiff's full entitlement was as specified in the judgment, this was not an application for partial summary judgment, and amendment to the statement of claim ought be disallowed. The plaintiff thereupon applied pursuant to the slip rule to amend the judgment to make it clear the judgment entered was for part of the claim only. Both parties accepted if the judgment was for part of the claim only then the defendant would need leave to appeal. At present an appeal has been lodged but it is proceeding on the basis the judgment entered represents the plaintiff's full entitlement and the appeal is as of right.

12 It was the defendant's position that at all material times the plaintiff was seeking judgment for the full amount of its claim - there was never any suggestion of an application for partial summary judgment. That was contrasted with the position in Commonwealth Bank of Australia v Oswal [2012] WASC 128 where it was made plain the plaintiff was applying for partial judgment only. Further it was contended this was not a case where the slip rule could be employed. There was in counsel's submission no 'slip'. A concession was made as to penalty interest and receiver's fees and the like and the plaintiff was bound by that concession. It could not now revisit the issue and seek judgment for amounts that had already been conceded.

13 In answer to the defendant's submissions the plaintiff makes a number of points. First it is said the failure to seek to amend the chamber summons to seek partial summary judgment is an irregularity which is covered by O 2 r 1(2) of the Rules of the Supreme Court 1971 (WA). On that basis the plaintiff says it is entitled to file an amended statement of claim and it is not precluded from doing so by the judgment. Further, it points to the terms of the Guarantee and in particular cl 8.2(b). That clause provides:

This guarantee and indemnity does not merge with or adversely affect, and is not adversely affected by, any of the following:

...

(b) a judgment or order which we obtain against you in respect of the guaranteed money or any other amount payable under this guarantee and indemnity.

14 Further, reference was made to cl 5.4 of the Guarantee. It reads as follows:

If any amount you must pay under this guarantee and indemnity becomes covered by a court order, you must pay interest on that amount as a separate obligation. The interest accrues from and including the date we first ask you for the amount until but excluding the date that amount is paid. This obligation is not affected by the court order. The rate is the rate that applies under clause 5.3 or the rate in the court order (whichever is higher).

15 The plaintiff then goes on to argue in the alternative the judgment ought be amended under the provisions of the slip rule. The form of orders proposed makes it clear the plaintiff obtained judgment for part of its claim.

16 In my view the plaintiff ought be given leave to amend its statement of claim and the judgment ought be amended in the terms proposed by the plaintiff.

17 There are two main reasons for this decision. First, it seems to me the concession made by counsel during the course of the summary judgment application was a concession made in the context of that application and not in the context of the action as a whole. That conclusion is drawn in part from the way in which counsel actually made the concession. He did refer to the Oswal decision and in all probability it did not occur to him to seek to amend the chamber summons at that time, as much as anything, because of an oversight. Second, were this decision to be overturned on appeal it is difficult to imagine the further conduct of this action would be limited to the amount presently stated in the judgment. The plaintiff could pursue its entire claim. It would be an anomalous situation if by conceding the appeal the plaintiff was better off than would be the case if it was successful on appeal.

18 This case emphasises the need for solicitors to give careful consideration to the procedural aspects of any application and carefully consider the form of any order. But it also highlights the need to do justice between the parties. If the plaintiff's claim is to be limited by what amounts to a technical failure to amend the chamber summons there is a real risk the law will be brought into disrepute. Accordingly the amendment to the statement of claim ought be permitted and the plaintiff ought be permitted to amend the judgment in terms of the minute proposed.

19 The problems that have arisen in this matter are largely of the plaintiff's making. Accordingly, subject to hearing from the parties, there will be an order the plaintiff pay the costs of the application for leave to amend the statement of claim and for leave to amend the judgment and the costs thrown away by reason of the amendment. The plaintiff should also pay the reserve costs.

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