Supreme Court of WA|2005-03-23|Before: Re J

Bank of Western Australia v Stein & Anor [2005] WASC 43 (23 March 2005)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : BANK OF WESTERN AUSTRALIA -v- STEIN & ANOR [2005] WASC 43

STEIN DEVELOPMENTS PTY LTD AS TRUSTEE FOR THE STEIN DEVELOPMENT DISCRETIONARY TRUST

Summary judgment - Whether affidavit complied with O 14 r 2 of Rules of the Supreme Court - Whether summary judgment can be granted if affidavit defective - O 14 r 1 Rules of the Supreme Court - Extension of time

Australia and New Zealand Banking Group Ltd v Dzienciol, unreported; SCt of WA (Master Adams); Library No 930598; 5 November 1993

Deputy Commissioner of Taxation v Ahern (No 2) [1988] 2 Qd R 158

Dummer v Brown [1953] 1 All ER 1158

Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87

Hillboi Nominees Pty Ltd v Evenwood Pty Ltd [2000] WASCA 66

Lewkowski v Bergalin Pty Ltd, unreported; FCt SCt of WA; Library No 7675; 26 May 1989

Lill v Merchant Capital (WA) Ltd (1996) 15 WAR 536

R & I Bank of Western Australia Ltd v Casula Nominees Pty Ltd, unreported; SCt of WA (Master Ng); Library No 940290; 9 June 1994

Ratnam v Cumarasamy [1964] 3 All ER 933

Birch Investments Pty Ltd v Lim, unreported; SCt of WA; Library No 7396; 12 July 1988

Citibank Savings Ltd v Nicholson, unreported; FCt SCt of SA; 1 April 1998

Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18

Cottrell v Stratton (1872) LR 8 Ch App 295

Deputy Commissioner of Taxation for the Commonwealth of Australia v Heaton (1997) 35 ATR 450

Dryden v Frost (1838) 3 My & Cr 670

Evans Deakin & Co Pty Ltd v Kaiser Engineers & Constructors Inc [1968] Qd R 379

Gomba Holdings Ltd v Minories Finance Ltd (No 2) [1992] 4 All ER 588

Jacka Nominees Pty Ltd (in liq) v Edwards Karwacki Smith & Co Pty Ltd, unreported; SCt of WA (Master Adams); Library No 920512; 12 October 1992

Joseph Terry Pty Ltd v T & G Fire & General Insurance Co Ltd [1973] VicRp 45; [1973] VR 458

Katsaounis v Belehris (1994) 179 LSJS 143

M V Yorke Motors (a firm) v Edwards [1982] 1 All ER 1024

Moscow Narodny Bank Ltd v Mosbert Finance (Australia) Pty Ltd [1976] WAR 109

Phillips v Mineral Resources Development Pty Ltd [1983] 2 Qd R 138

Re J L Young Manufacturing Co Ltd [1900] 2 Ch 753

Sandtara Pty Ltd v Australian European Finance Corporation Ltd (1990) 20 NSWLR 82

Shercliff v Engadine Acceptance Corporation Pty Ltd (No 2) (1982) 3 BPR 9207

Smith v Town & Country Bank, unreported; FCt SCt of WA; Library No 970716; 18 December 1997

Strategic Minerals Corporation NL v Hendry Rae & Court (a firm), unreported; SCt of WA; Library No 8999; 16 August 1991

Sydney Holding Pty Ltd v New Holders Pty Ltd [1938] VicLawRp 47; [1938] VLR 217

Union Finance Association Ltd v Howarth (1903) 4 SR (NSW) 31

Van Lynn Developments Ltd v Pelias Construction Co [1968] 3 All ER 824

Wallingford v Mutual Society (1880) 5 App Cas 685

Wenpac Pty Ltd v Allied Westralian Finance Ltd, unreported; SCt of WA (Malcolm CJ); Library No 940051; 1 February 1994

Westwind Air Charter Pty Ltd v Hawker de Havilland Ltd [1990] 3 WAR 71

1 COMMISSIONER SIOPIS SC: This is an application for summary judgment. The plaintiff claims a judgment that the defendants do pay the sum of $369,325.96 plus interest at the rate of 9.02 per centum per annum from 20 July 2004 to the date of judgment and costs.

2 The plaintiff is a bank. The defendants are parties who executed a guarantee in favour of the plaintiff to secure the repayment of monies advanced by the plaintiff to a company, Hamilton Downs Pty Ltd.

3 The statement of claim comprises 10 paragraphs. Paragraph 2 of the statement of claim pleads that the defendants entered into a guarantee dated 7 October 1998 whereby they "unconditionally and irrevocably guaranteed payment to the plaintiff of all amounts payable by Hamilton Downs Pty Ltd to the plaintiff". Hamilton Downs Pty Ltd is referred to as the "Borrower" in the statement of claim.

4 Paragraph 3 of the statement of claim pleads the material terms of the guarantee. Of relevance to the application for summary judgment are the terms pleaded at the following paragraphs:

"3.3 The first and second defendants agreed to pay the Guaranteed Money on demand from the plaintiff (whether or not the plaintiff had made any demand on the Borrower) if the Borrower has not paid the Guaranteed Money on time and in accordance with any agreement to pay it (clause 3.1).

...

3.11 A certificate signed by an Authorised Officer of the plaintiff (as defined) or its solicitors about a matter or about a sum payable to the plaintiff in connection with the Guarantee would be sufficient evidence of the matter or sum stated in the certificate unless the matter or sum was proved to be false (clause 21.1)."

5 By par 4 of the statement of claim the plaintiff pleads that by a written agreement made on 4 June 1997 and subsequently varied by further written agreements, between the Borrower as borrower and the plaintiff as lender, the plaintiff agreed to provide loan facilities to the Borrower subject to the terms and conditions contained in the agreement. The particulars to par 4 of the statement of claim identify and list five separate documents which comprise the agreement and the variations to the agreement pleaded in par 4.

6 Paragraph 5 pleads the express terms of the loan agreement.

7 Of relevance to this application is the pleading that the loan agreement contained terms to the following effect:

5.4 The Borrower would pay the outstanding amount in respect of the overdraft on demand by the plaintiff.

5.7 If there was no Event of Default the overdraft interest would be calculated on the debit balance up to the overdraft limit at the variable rate of interest per annum published by the plaintiff in the West Australian and Australian newspapers from time to time as its business overdraft reference rate plus a margin of 2.5 per annum.

5.8 If there is an Event of Default, overdraft interest would be calculated on the basis of the plaintiff's excess overdraft reference rate (as defined) on the amount in excess of the overdraft limit.

5.10 An Event of Default would occur if, among other things the Borrower did not pay any of the outstanding amount on time and in the manner required under the Agreement.

5.11 Further an Event of Default would occur if, among other things an insolvency event (as defined) occurs with respect to the Borrower.

8 Paragraph 6 pleads that, pursuant to the loan agreement, the plaintiff advanced monies to the Borrower and that on or about 13 January 2000 the first and second defendants consented in writing to the guarantee (which had been executed earlier) securing repayment of the outstanding amount (as defined in respect of each of the facilities).

"In breach of its obligations to the plaintiff pleaded in paragraph 5.10 and 5.11 of the statement of claim the Borrower failed, refused or neglected to pay the outstanding amount on the overdraft on demands from the plaintiff dated 19 February 2002 and 24 September 2003 and an insolvency event occurred with the Borrower in that the Borrower is being wound up in insolvency."

10 In par 8 of the statement of claim the plaintiff pleads that by a notice of demand dated 28 July 2004 the plaintiff demanded that pursuant to the guarantee the first and second defendants pay to it the balance then outstanding in respect of the facilities, namely $369,325.96. In par 9 the plaintiff pleads that in breach of the terms of the guarantee the first and second defendants have failed, refused and neglected to pay the whole of the amount specified in the demand and in par 10 the plaintiff claims interest at a rate of 9.02 per cent per annum capitalised monthly on the last business date of each month, including 20 July 2004 until payment or judgment.

11 On 19 October 2004 the defendants filed a defence. Other than admitting that the defendants have not paid the plaintiff the sum of $369,325.95 and not admitting the allegations as to the incorporation of the plaintiff, the defence otherwise comprises of a denial of each of the allegations pleaded in the statement of claim.

12 By a chamber summons dated 3 November 2004 the plaintiff applied for summary judgment by way of a chamber summons and for leave to bring the application pursuant to O 14 r 1 out of time. The chamber summons was supported by an affidavit sworn by Mr Wayne Leslie Robins dated 3 November 2004. The affidavit with annexures runs to 169 pages.

13 On 17 November 2004, the Master made orders adjourning the application to a special appointment at a date to be fixed and making directions that the defendants file and serve any affidavits in opposition to the application on or before 1 December 2004. The Master also made further directions in relation to the filing of any affidavits in reply and the filing of written submissions.

14 The defendants elected not to take advantage of the opportunity to file any affidavits in opposition to the application by the plaintiff for summary judgment.

15 Accordingly, when the matter came on for hearing before me the only affidavit before the court was the affidavit of Mr Robins sworn 3 November 2004 in support of the application for summary judgment.

16 The power to order summary judgment is one that should be exercised with great care and should never be exercised unless it clear that there is no real question to be tried: Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87 at 99.

17 At the hearing for summary judgment, counsel for the defendants relied upon two main arguments in opposition to the plaintiff's application for summary judgment. Firstly, counsel for the defendants argued that the affidavit of Mr Robins was defective in that it did not comply with O 14 r 2(1) of the Rules of the Supreme Court because it did not verify to a satisfactory degree each of the material allegations which was made in the statement of claim. Secondly, counsel argued that the plaintiff should be refused leave to extend the time within which to bring the application for summary judgment because there was no affidavit from the defendant explaining the delay in bringing the application for summary judgment.

18 I will deal with each of these arguments separately.

Is the affidavit of Mr Leslie Robins fatally defective?

19 Mr Robins states in his affidavit that he is an employee of the plaintiff, that he has been employed by the plaintiff (and its predecessors) continuously for the last 30 years, and that his present position with the plaintiff is a Manager Business Recoveries. In par 2 of his affidavit Mr Robins says that unless he indicates to the contrary, he is swearing the facts and matters detailed in the affidavit from his personal knowledge. In par 3 of the affidavit he says:

"To the extent that I indicate that I am swearing as to my belief as a matter of fact, the grounds of my belief are that I have examined the plaintiff's books, files, bank statements, records and ledgers (both hard copy and computerised) (collectively the 'Records') in relation to the defendant and where specified, any annexure referred to in this affidavit, the contents of all of which I believe to be true and correct."

20 In par 4 of the affidavit Mr Robins certifies that for the purposes of s 90 and s 91 of the Evidence Act 1906 (WA) "at the time of making each entry in the Records, the Records were (and remain) part of the ordinary books of the plaintiff and its predecessors, and the plaintiff's and its predecessors' employees made all entries in the Records by electronic process in the usual and ordinary course of the plaintiff's business." He also certifies that at all times the plaintiff and its predecessors have retained custody and control of the Records and that he has examined copies of the Records which is annexed to the affidavit and they are true copies of the originals.

"I refer to the plaintiff's statement of claim filed on 30 August 2004 ('statement of claim'). I verify that the facts and matters pleaded in the statement of claim are true and correct in all respects."

22 By par 6 Mr Robins says the following table lists the documents to which reference is made in the statement of claim and Mr Robins then sets out the following table:

Annexure Description Date Statement of claim

paragraph no

WR2 Letter of offer to Borrower 4/06/97 4(i)

WR3 Letter of offer to Borrower 7/10/98 4(ii)

WR4 Letter of offer to Borrower 20/04/99 4(iii)

WR5 Letter of Variation 18/07/00 4(iv)

WR6 Letter of offer to Borrower 13/01/00 4(v)

WR7 General Terms & Conditions 04/99 4(v)

WR8 Guarantee & Indemnity 07/10/98 2

WR9 Demand to Borrower 19/02/02 7

WR10 Demand to Borrower 24/09/03 7

WR11 Demand to first and second 28/07/04 8

defendants

23 It emerges from a perusal of the documents that the first defendant was a director of the Borrower and, in that capacity, was a party to the affixing of the company seal of the Borrower to each of the documents comprising the loan agreement and the variations thereto particularised at par 4 of the statement of claim. The documents also show that at all material times the first defendant was a director of the second defendant.

24 Mr Robins says at par 7 that he is advised by Amanda Davidson, a legal adviser and employee of the plaintiff, and believes that on 28 July 2004 Ms Davidson was the plaintiff's legal adviser and in her capacity as legal adviser and pursuant to a power of attorney she signed the demand to the defendants dated 28 July 2004 on behalf of the plaintiff (which is annexed, along with a copy of the power of attorney, to the affidavit).

25 At par 8, Mr Robins says that he is informed by Tammie Brough, a legal secretary employed by the plaintiff and he believes that she posted by registered mail the notice of demand to the defendants. Mr Robins then exhibits a mail posting receipt issued by Australia Post recording that the letters were posted. At par 10 Mr Robins deposes that the first and second defendants have failed to comply with the demand within the time allowed or at all. At par 11 Mr Robins says that he has reviewed the records for the Borrower's account and confirms that no payment has been made in the reduction of the Borrower's debt to the plaintiff since the first issue of the demand. He then deposes at par 12 that he believes that the defendants have no defence for the plaintiff's claim.

26 Counsel for the defendants argues that Mr Robins' affidavit is defective in that it comprises an impermissible general verification of a complex pleading in a manner where it is not possible to determine whether the deponent is speaking from his own personal knowledge, or on the basis of information and belief founded on his examination of the records.

27 Counsel for the defendant argues that there was no evidence that the deponent had been personally involved in the entry into the guarantee and loan agreement. He says it is evident that letters comprising the loan agreement had been signed by Mr R M Kingston on behalf of the plaintiff and not by the deponent and therefore the deponent could have no personal knowledge of the entry into the loan agreements. He argues, therefore, it is not open to Mr Robins to verify those paragraphs, namely, pars 2 to 5 of the statement of claim dealing with the entry into, and the terms of, the guarantee and loan agreement respectively, from his personal knowledge and he has not sufficiently indicated in his affidavit the basis on which he is otherwise in a position to verify those paragraphs.

29 It is true that the Mr Robins' affidavit is somewhat inelegant in distinguishing between those matters which are deposed to from his personal knowledge, and those matters in respect of which he relies upon information and belief. However, it is in my view, clear that insofar as the deponent is seeking to verify pars 2 to 5 of the statement of claim, Mr Robins is relying upon information and a belief which is founded upon an inspection of the guarantee and the letters comprising the loan agreement.

30 Mr Robins says in par 3 of his affidavit that he has inspected the documents in question and he believes the contents to be true and correct. It has been accepted by the courts that, provided that copies of the documents are annexed to the affidavit, a deponent can by that means sufficiently for the purpose of O 14 r 2, verify the pleas in a statement of claim affecting those documents (Deputy Commissioner of Taxation v Ahern (No 2) [1988] 2 Qd R 158, Australia and New Zealand Banking Group Ltd v Dzienciol, unreported; SCt of WA (Master Adams); Library No 930598; 5 November 1993; R & I Bank of Western Australia Ltd v Casula Nominees Pty Ltd, unreported; SCt of WA (Master Ng); Library No 940290; 9 June 1994).

31 The object of identifying the source of information where a deponent deposes on the basis of information and belief is to accord the other party the opportunity to follow up the issue, if necessary, with the identified source. In these circumstances where copies of the material documents are produced and exhibited, then the purpose of the rule is satisfied. It is to be noted that here is no issue in relation to the authenticity of the documents in question.

32 This is not a case where the deponent simply and without annexing the documents in question, purports to verify statements made in a statement of claim by means of a generalised statement that, founded on a perusal of unidentified documents, he or she verifies the facts set out in the statement of claim.

33 Counsel for the defendants also argued that the letters comprising the loan agreement, the guarantee and the other documents exhibited could not be regarded as falling within the definition of "bankers books" under the Evidence Act (1906) (WA) and, therefore, the deponent could not rely upon the provisions of s 90 and s 91 of the Evidence Act to render the documents in question admissible for the purposes of verification of the statement of claim under O 14 r 2. In my view, even if the documents did not fall within the definition of "bankers books" (on which I express no view), the argument does not avail the defendants because, for the reasons set out above, the examination and production of the documents by Mr Robins provides him with a sufficient basis upon which to verify the paragraphs of the statement of claim in question.

34 Counsel for the defendants also challenges the verification of par 6 of the statement of claim saying that it is not possible to determine the source of the deponent's knowledge as to the fact that monies were advanced to the Borrower or that the defendants consented to the guarantee securing the advance. It is argued that the specific documents relied upon should be identified by the deponent. In my view, there is no substance in this submission because, firstly, the fact of the advance of funds would appear in the records of the Borrower's account with the plaintiff and Mr Robins specifically says in par 11 of the affidavit that he has examined those records. (See s 92 of the Evidence Act (1906) (WA)). Secondly, it is obvious that monies were advanced to the Borrower because of the certificates which form part of the notices of demand to the Borrower show that the total amount payable at the date of the demand issued on 19 February 2002, was $1,271,680.71, and in respect of the demand issued on 24 September 2003 was $1,244,728.43. Each of these certificates is signed by a legal adviser to the plaintiff acting under a designated power of attorney.

35 Clause 17.2(a) of the General Conditions (annexure "WR7") which are incorporated into the loan agreement (which is pleaded in par 5.13 of the statement of claim) provides that a certificate signed by the plaintiff relating to the loan agreement is, in the absence of manifest error, is conclusive evidence against the Borrower of the matters certified. There is nothing in the papers to suggest that the then amounts certified are infected with manifest error.

36 As to the written consent by the defendants to the guarantee securing the advance, this consent is contained in the documents annexed to the affidavit.

37 Counsel also argues that the source of the deponent's information and belief in deposing to the fact that the Borrower is in liquidation is not disclosed. It is true that there is no express reference to the basis on which the deponent knows or believes this fact. However, one can infer from the fact that the second notice of demand (annexure "WR 10") is addressed to "Hamilton Downs (in liquidation)" that information showing that the Borrower is in liquidation is contained on the records of the Borrower's account with the plaintiff which Mr Robins says in par 11 that he has inspected. However, even if the allegation is not properly verified it is not fatal to the plaintiff's case. This is because the relevance of this plea seems to go only to whether there is an event of default for the purposes of triggering a higher rate of interest, and the pleading shows that the plaintiff's claim to charge a higher rate of interest is not wholly dependent on this event of default - the plaintiff also relies upon the Borrower's failure to meet the demand as an event of default. Further, the certificates referred to above verify the true amount due and so conclude the question of the rate of interest charged.

38 Counsel for the defendant also argues that the deponent has not sufficiently verified par 7 of the statement of claim because he has not identified the basis for his belief that the Borrower did not pay the amount which was demanded by the plaintiff. However, Mr Robins has specifically stated in par 11 of the affidavit that that he examined the records of the Borrower's account with the plaintiff. In my view that is a sufficient identification of the basis on which the deponent relies to make the statement. (See s 92 of the Evidence Act (1906) (WA)).

39 In respect of par 8 of the statement of claim, counsel for the defendants argues that it is not possible to determine from the affidavit who calculated the amount claimed as being owed by the defendants, namely, $369,325.96. Nor, he argues, does the demand set out the basis for calculating the amount claimed.

40 This argument does not avail the defendants. Mr Robins has exhibited to his affidavit, a certificate from a bank officer Amanda Davidson which certifies in accordance with cl 21.1 of the guarantee the amount payable by the defendants. Clause 21.1 of the guarantee (which is pleaded in par 3.11 of the statement of claim) provides that a certificate signed by an Authorised Officer of the plaintiff or its solicitors about a matter or sum payable to the plaintiff in connection with the guarantee would be sufficient evidence of the matter or sum stated in the certificate unless the matter or sum was proved to be false. There is nothing before the court to suggest that the sum was false, and in accordance with the terms of cl 21.1 which is referred to above, the production of the certificate is sufficient evidence of the matter stated in the certificate, namely the amount owed, for the purposes of verifying the allegation in the statement of claim. In the circumstances, therefore, it not necessary for the deponent to depose to how the amount was calculated.

41 Counsel argues that par 9 of the statement of claim is not properly verified because it is not possible to determine the source of the deponent's knowledge regarding the defendants' alleged failure to pay the sum demanded by the plaintiff. In my view, there is no substance in this argument for two reasons. Firstly, the defendants have admitted in their defence that they did not pay the demanded sum and, secondly, in any event, the deponent to the affidavit has identified in par 3 of the affidavit the source of his knowledge as being an examination of the bank statements, ledgers and records (both hard copy and computerised) of the plaintiff in relation to the defendant.

42 Counsel for the defendants also challenges the form of the affidavit in so far as Mr Robins has deposed in pars 7 and 8 of the affidavit on the basis of the information he has received from Amanda Davidson and Tammie Brough respectively. Counsel argues that Mr Robins should, in addition to saying that he was informed by each of these persons, and believed, have gone on to say: "The grounds of my belief are as follows:". Counsel relies on the case of Lewkowski v Bergalin Pty Ltd, unreported; FCt SCt of WA; Library No 7675; 26 May 1989. I do not agree with this argument because although Mr Robins has not included those words in his affidavit, Mr Robins does disclose the grounds for his belief by exhibiting in the case of Amanda Davidson, the notice of demand in question and in the case of Tammie Brough, the receipt she received from Australia Post evidencing the posting of the demand. In any event in the Lewkowski case, the Full Court did not impose the inclusion of the words: "The grounds of my belief are as follows:" as a mandatory requirement but described the practice as being desirable.

43 Further in so far as it is relevant, I also reject the defendants' argument that Mr Robins was not qualified to give the certificate that he gave in relation to s 90 and s 91 of the Evidence Act. In my view Mr Robins, having worked continuously for the plaintiff and its predecessors for 30 years and holding the position that he does, would be personally familiar with the means of making and keeping the plaintiff's records, and is accordingly qualified to give the certificate that he did.

44 It follows that, in my view, the affidavit sufficiently verifies the material allegations made in the statement of claim. The plaintiff is therefore prima facie entitled to summary judgment. In light of the absence of any affidavit from the defendant and the bare denial nature of the defence, I am satisfied that there is no real question to be tried; and, subject to the question of whether leave to extend time for bringing this application should be granted, I would be prepared to order summary judgment in favour of the plaintiff.

45 In any event, even if, contrary to my views expressed above, the affidavit was technically defective, I would, subject to the question of leave being granted to extend the time for bringing this application, be prepared to grant summary judgment.

46 In the case of Lill v Merchant Capital (WA) Ltd (1996) 15 WAR 536, Ipp J (as he then was) stated that any defects in the verifying affidavit in support of a summary judgment application did not go to jurisdiction and there were circumstances when summary judgment could be given even if there were defects in the affidavit. This view was approved by the Full Court in the case of Hillboi Nominees Pty Ltd v Evenwood Pty Ltd [2000] WASCA 66. The Full Court said:

"We respectfully adopt the interpretation of O 14 r 2 arrived at by Ipp J in Lill v Merchant Capital (WA) Ltd (1996) 15 WAR 536 at 550, where his Honour said at 550:

'While the ordinary practice undoubtedly is that a failure to comply with O 14 r 2(1) will result in an application for summary judgment being dismissed, there is ample and long-standing authority to the effect that the consequence is not inevitable. It all depends on the circumstances.'

It would serve no useful purpose to try and list the 'circumstances' in which the court would be inclined to depart from the 'ordinary practice'. Each case must depend very much on its own facts. We would, however, echo the sentiments expressed by Rowland J in Lill at 539, namely that the court must recognise the grave consequences that may flow to a party against whom summary judgment is sought and that parties (especially the applicant) must avoid a 'casual approach' to the application."

In my view, the plaintiff cannot be criticised for adopting a "casual approach" to this application. The affidavit of Mr Robins runs to 169 pages and has exhibited to it copies of the relevant documents. In opposing the application, the defendants, on the other hand, have chosen not to file any affidavit in response to the affidavit of Mr Robins and rely upon a defence in the nature of a bare denial.

47 In the case of Lewkowski v Bergalin Pty Ltd (supra) Malcolm CJ on behalf of the Full Court said:

"In the present case the proposed defences have all the hallmarks of being both spurious and unmeritorious. In Noall v Billing [1892] VicLawRp 113; [1892] 18 VLR 576 at 578 Hood J said:

' ... where I think there is no defence my views are strong that every endeavour should be used to overrule technicalities on such applications as these.'

With respect, I agree. The policy of O 14 is to prevent delay in cases where there is no defence: European Asian Bank AG v Punjab & Sind Bank (No 2) [1983] 1 WLR 642 at 654 per Robert-Goff LJ; and see Anglo Italian Bank v Wells & Davies [1878] 38 LT 197 per Jessell MR at 199. In my opinion the decision of the Deputy Registrar was correct. I am quite satisfied that there is not only no defence, but no fairly arguable point to be argued on behalf of the defendant. In such circumstances it was the duty of the Deputy Registrar to give judgment for the respondent: see Anglo Italian Bank v Wells (supra) per Jessell MR at 201."

48 Counsel for the plaintiff has argued that the position of a party that does not file an affidavit in opposition to an application for summary judgment is a precarious one. I agree. The position of such a party was considered by Jenkins LJ in the case of Dummer v Brown [1953] 1 All ER 1158 at 1163 - 164 where he says:

"[The plaintiff's] affidavit, as I have said, is open to criticism, and it may be true that the defendants could have destroyed its effect if they had condescended to answer it by an affidavit on their behalf containing even a slight indication of any real defence on the issue of liability. But that they never attempted to do. They have adopted a purely passive attitude. They put in a defence to which I have referred which did nothing except traverse in general terms substantially all of the allegations in the statement of claim, and, having adopted that passive attitude, they say a case for summary judgment under RSC, or at Ord 14, r 1, is not made out. Defendants who take that course do so at their peril and they only have themselves to thank if their reticence results in the court taking an adverse view of their side of the case. That is exactly what seems to have happened here. For the learned Judge, reversing the Master, came to the conclusion that it was a proper case for summary judgment, and in the exercise of his discretion he made the order accordingly."

I am mindful of the serious consequences that flow from the grant of summary judgment and the great caution that must be exercised before granting judgment against a party that has not had the benefit of a trial. However, in my view, if there are defects in Mr Robins' affidavit they are not defects which have in any way prejudiced the defendants in providing them with an opportunity to make known any real defence which they may have to the plaintiff's claim. The defendants have not done so. I am satisfied that there is no real question to be tried. Accordingly, I would, subject to the question of the grant of leave to bring the application out of time, in the exercise of my discretion grant summary judgment.

49 Order 14 r 1 states that an application for summary judgment by a plaintiff must be brought "within 21 days after appearance or such later time by the leave of the Court".

50 It is common cause that the application was not made by 13 September 2004 which is when the time period expired. The plaintiff seeks the leave of the court under O 14 r 1 to bring the application for summary judgment out of time.

51 Counsel for the defendant argues that in order for the court to exercise its discretion to extend the period of time within which to bring the application there must be before the court an affidavit which explains the delay. The defendants rely upon the case of Ratnam v Cumarasamy [1964] 3 All ER 933. In that case Lord Guest said at 935:

"The rules of court must prima facie be obeyed, and in order to justify a court extending the time during which some step in procedure requires to be taken there must be some material on which a court can exercise its discretion. If the law were otherwise a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which provide a time table for the conduct of litigation. The only material before the Court of Appeal was the affidavit of the appellant."

52 I read that passage not as requiring that the party in breach of the time limits must as a condition of the exercise of the court's discretion provide an explanation on affidavit for the delay, but only that there be material before the court on which it can exercise its discretion. This material may be comprised of materials other than an affidavit explaining the delay. The absence of such an affidavit may very well be a material factor in the manner in which a court exercises its discretion, but in my view it is not essential that there be such an affidavit in order that the discretion to extend time be enlivened.

53 In the case of Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458 at 459, McHugh J said in the context of leave to extend time to appeal:

"The discretion to extend time is given for the sole purpose of enabling the Court of Justice to do justice between the parties. This means that the discretion can be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant and refusal of the application for the extension of time." [Case references have been excluded from this passage.]

54 In my view, similar considerations apply to this application.

55 In this case, albeit that there is no affidavit filed before the court which explains the delay, it can be inferred that it was the fact that the defendant chose to file and rely upon a defence which effectively comprised a bare denial, that provoked the application for the summary judgment. The defence is dated 19 October 2004. The application for summary judgment was filed on 3 November 2004 - 15 days after the filing of the defence and 51 days after the expiry of the time limit. The defendants have not sought to persuade the court that they have been prejudiced in their defence of the claim or this application for summary judgment or, in any other way, by the delay. Accordingly, in the circumstances I do not regard the period of delay as being a factor weighing heavily against the grant of leave.

56 Further, in light of my findings that there is no real question to be tried, I also take into account the futility for both parties in requiring that the action be sent to trial with the attendant waste of money and resources. I also take into account that there is an element of injustice to the plaintiff in denying the plaintiff substantive relief now when there is no discernable defence to the claim.

57 Accordingly, I grant leave under O 14 r 1 to bring the application for summary judgment outside of the 21 day period referred to in that rule. I also order that there be summary judgment for the plaintiff in terms of order 1 of the minute, but I will hear the parties as to costs.

Bank of Western Australia v Stein & Anor [2005] WASC 43

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (115 paragraphs)

Bank of Western Australia v Stein & Anor [2005] WASC 43 (23 March 2005)

Parties

Cases Cited (5)