HEE -v- NYONI [2014] WASC 44 (21 February 2014)

Supreme Court of WA|2014-02-21

1 ACTING MASTER GETHING: Emerson Nyoni is the proprietor of the Kellerberrin Pharmacy in Kellerberrin in the wheatbelt of Western Australia. On 13 March 2013 he entered into a written agreement to sell the pharmacy business to Chee Koon Hee. At the same time, he entered into a written agreement to sell the land on which the pharmacy business operates to three entities associated with Mr Hee and his business partners. The purchasers seek orders by way of summary judgment for specific performance of the two sale agreements. Mr Nyoni seeks to resist summary judgment on the basis that the two agreements were entered into as a result of misleading conduct and unconscionable conduct, and that there are related Federal Court proceedings which are the more appropriate vehicle for the determination of the dispute. The dispute between the parties has been the subject of litigation in the Federal Court, which I will describe in more detail below.

2 For the reasons which follow, I am satisfied that the purchasers are entitled to summary judgment.

3 The three entities which entered into the agreement to purchase the land were C K Hee Pty Ltd as Trustee for the C K Hee Family Trust, S C Tan Pty Ltd as Trustee for the S C Tan Family Trust and Kruti Pty Ltd as Trustee for the D R Sheth Family Trust (Land Purchasers). Together with Mr Hee, these entities are the plaintiffs in the action. Mr Hee is the sole director and shareholder of C K Hee Pty Ltd. The directors of S C Tan Pty Ltd and Kruti Pty Ltd are respectively Sun Chuan Tan and Devesh Ramesh Sheth, whom Mr Hee describes as his business partners. Mr Nyoni is the first defendant. The second defendant is the Registrar of Titles, who with the third defendant, the Commissioner of Titles, took no part in the hearing.

4 There are two applications before me for determination. The first is the plaintiffs' application for summary judgment dated 1 November 2013. This was filed in accordance with the requirements of Rules of the Supreme Court 1971 (WA) (RSC) O 14 r 1. The second is Mr Nyoni's application dated 25 October 2013 seeking an order setting aside the current action (which I have taken to be an application for summary judgment) and (presumably in the alternative) an order transferring the action to the Federal Court in its cross‑vested jurisdiction.

5 Mr Nyoni filed three affidavits in relation to the two applications before me, being dated 25 October 2013, 11 November 2013 and 10 December 2013. The plaintiffs raise a number of objections to the contents of these affidavits. As discussed at the hearing, I will deal with these objections, if necessary, as part of my consideration of the merits of the applications.

6 From my review of these affidavits, the remainder of the file and the argument before me, five issues arise for determination:

(a) whether any of the plaintiffs have established a prima facie entitlement to judgment;

(b) whether Mr Nyoni has an arguable defence based on misleading and deceptive conduct;

(c) whether Mr Nyoni has an arguable defence based on unconscionable conduct;

(d) whether the actions in the Federal Court constitute 'some other reason' for there to be a trial of the action; and

(e) what final orders are appropriate.

Have any of the plaintiffs established a prima facie entitlement to judgment?

7 The plaintiffs primarily rely on an affidavit of Mr Hee sworn 1 November 2013. Mr Hee says that he is authorised to speak on behalf of all the plaintiffs. He states that it was Mr Nyoni who approached him to discuss the sale of the Kellerberrin Pharmacy. Following some discussions with Mr Nyoni at the beginning of March 2013, on 13 March 2013 Mr Hee went to Kellerberrin with his wife, and he and Mr Nyoni signed a document entitled 'Sale Agreement'. On its face, this agreement provides for Mr Nyoni, as vendor, to sell to Mr Hee, as purchaser, the pharmacy business known as Kellerberrin Pharmacy situated at 92 Massingham Street, Kellerberrin (Business Sale Agreement). The purchase price was $255,000, inclusive of a stock estimate which was subject to adjustment as set out in the agreement. Settlement was agreed to take place on 22 April 2013.

8 At the same time, Mr Hee presented to Mr Nyoni a signed offer for the purchase of the land at 92 Massingham Street, Kellerberrin for the price of $60,000, exclusive of GST. The Land Purchasers had executed the offer by their respective directors. The offer was in the standard form of the REIWA Contract for the Sale of Land by Offer and Acceptance. Mr Hee deposes that it was executed by Mr Nyoni on 13 March 2013 (Land Sale Agreement).

9 The Business Sale Agreement and the Land Sale Agreement are annexed to Mr Hee's affidavit. In the hearing before me, Mr Nyoni confirmed that he signed both these documents.

10 Mr Hee annexes to his affidavit a certificate of title search confirming that Mr Nyoni is the registered proprietor of the property at 92 Massingham Street, Kellerberrin, the subject of the Land Sale Agreement. He also annexes a business name extract for the Kellerberrin Pharmacy which confirms that this business name is registered to Mr Nyoni.

11 Mr Hee then goes on to state that subsequent to entering into the Business Sale Agreement he received advice from his accountant to the effect that the purchaser of the business should be C K Hee Pty Ltd as Trustee for the C K Hee Family Trust. As he was overseas at the time, he directed Mr Tan to add the words 'C K Hee Pty Ltd ATF C K Hee Family Trustee' beside the word 'Purchaser' in the Business Sale Agreement. A copy of this amended document is also annexed to Mr Hee's affidavit. There is no evidence that Mr Nyoni resigned the Business Sale Agreement with this amendment.

12 The respective purchasers paid the $10,000 deposit due under the Business Sale Agreement and the $5,000 deposit due under the Land Sale Agreement.

13 Mr Hee goes on to state that Mr Nyoni then requested an extension to the existing settlement date of 15 April 2013. On 18 April 2013, Mr Nyoni and a director of each of the Land Purchasers signed an agreement to vary the date of the settlement for the Land Sale Agreement to 22 May 2013. On the same date, Mr Hee, as director of C K Hee Pty Ltd as Trustee for the C K Hee Family Trust, and Mr Nyoni signed an agreement to vary the settlement date for the Business Sale Agreement to 22 May 2013. In the hearing before me, Mr Nyoni stated that he could not remember signing these two agreements. On the face of the variation agreement for the Business Sale Agreement, Mr Nyoni's signature was stated to have been witnessed by 'Amira Nyoni' who Mr Nyoni confirmed in court was his wife. Mr Nyoni did not put on any evidence to the effect that his signature was forged on this document. I am satisfied that Mr Nyoni executed the variation to the Business Sale Agreement. The fact that he and Mr Hee as director of C K Hee Pty Ltd as Trustee for the C K Hee Family Trust executed the variation to the Business Sale Agreement resolves any doubt as to whether Mr Hee or C K Hee Pty Ltd was the purchaser of the Kellerberrin Pharmacy in favour of the latter.

14 What then occurred was that on 3 May 2013, Mr Nyoni served a purported notice of rescission on Mr Hee. On 16 May 2013, Mr Hee instructed solicitors to write to Mr Nyoni advising him that his purported rescission was not accepted and that an election had been made to affirm the two agreements, stating an intention to commence proceedings for specific performance. Some attempts were then made to settle the dispute.

(a) he commenced the process of obtaining approval from Medicare for a change in the ownership of the Kellerberrin Pharmacy;

(b) Mr Nyoni has not returned the two deposit amounts;

(c) the relevant purchasers made arrangements for settlement to occur on 22 May 2013;

(d) the purchasers had sufficient funds to effect settlement of the two agreements on 22 May 2013;

(e) Mr Nyoni did not provide the signed transfer of land document prior to settlement to enable the purchasers to pay the stamp duty; and

(f) settlement did not occur on 22 May 2013, nor has it subsequently occurred.

16 I am satisfied that Mr Hee has verified the facts on which this claim is based as required by O 14 r 2(1). Mr Hee also deposes that he believes that Mr Nyoni has no defence to the action, also required by O 14 r 2(1).

17 As a general principle, an applicant for summary judgment who complies with the requirements of RSC O 14 r 2 establishes a prima facie right to summary judgment: Westwind Air Charter Pty Ltd v Hawker de Havilland Ltd (1990) 3 WAR 71, 74 (Murray J). However, in this case, a further legal issue needs to be addressed. This is whether the discretionary basis for the grant of an order for specific performance has been made out.

18 Specific performance may be awarded by way of summary judgment pursuant to RSC O 14 r 1: Goulding v Laran Holdings Pty Ltd (1997) 137 FLR 328, 334 ‑ 336 (Sanderson M). It is awarded 'instead of damages only when it can by that means do more perfect and complete justice': Wilson v Northampton & Banbury Junction Railway Company (1874) LR9ChApp 279, 284 (Lord Selbourne LC); see also Coulls v Bagot's Executor & Trustee Co Ltd [1967] HCA 3; (1967) 119 CLR 460, 503 (Windeyer J); Primewest (Mandurah) Pty Ltd v Ryom Pty Ltd as Trustee for Golden Asset Pty Ltd [2012] WASC 443 [237] (Edelman J).

19 There are four preconditions to the award of specific performance:

(a) the contract must be valid and enforceable;

(b) the party seeking to enforce the contract must have performed its obligations before the commencement of the action, and be ready and willing and able to perform its future obligations;

(c) the party resisting performance must have threatened or actually refused to perform any promise for which the time for performance has arrived; and

(d) damages at common law must be an inadequate remedy.

Bahr v Nicolay (No 2) [1988] HCA 16; (1988) 164 CLR 604, 619 ‑ 620 (Mason CJ & Dawson J); Coulls (503); Turner v Bladin [1951] HCA 13; (1951) 82 CLR 463, 472 (Reasons of the Court); The Public Trustee (WA) v Brumar Nominees Pty Ltd [No 2] [2012] WASC 337 [26] ‑ [28] (Pritchard J); Primewest [237].

20 A contract for the sale of land is the classic example of a contract where damages is regarded as an inadequate remedy for breach, and specific performance will be ordered if it is otherwise available: Rehins Pty Ltd v Debin Nominees Pty Ltd [No 2] [2011] WASC 168 [23] (Murray J); Brumar [26]; Pianta v National Finance & Trustees Ltd [1964] HCA 61; (1964) 180 CLR 146, 157 (Barwick CJ). A contract for the sale of a business, including chattels and goodwill identified in the contract, may also be the subject of an order for specific performance: Dougan v Ley [1946] HCA 3; (1946) 71 CLR 142, 151 (Dixon J); Re MAS Food Industries (Australia) Pty Ltd (in liq); Ex parte Charles Philippe Louis Nilant as liquidator of MAS Food Industries (Australia) Pty Ltd (in liq) [2000] WASC 155 [21] ‑ [23] (Anderson J).

(a) the Land Sale Agreement and the Business Sale Agreement are valid and enforceable;

(b) the relevant plaintiffs were (and still are) ready, willing and able to complete the settlement of both agreements; and

(c) in not instructing lawyers or settlement agents to attend the settlement on and do what was necessary to settle the two agreements, Mr Nyoni has refused to perform the two contracts.

22 The plaintiffs submit that damages at common law are inadequate as a remedy and that an order for specific performance of the two agreements is the appropriate remedy. Their argument is that:

(a) the parcel of land the subject of the Land Sale Agreement is unique and cannot be substituted by any other parcel of land;

(b) the Business Sale Agreement is a contract for the sale of the Kellerberrin Pharmacy together with certain plant and equipment, the business name and stock at valuation, which is also unique;

(d) the business derives its value from the following rights which attach to it:

(i) registration of the business premises by the Pharmacy Registration Board of Western Australia;

(ii) the issue of an approval by Medicare for the supply of pharmaceutical benefits pursuant to National Health Act 1953 (Cth), s 90, being approval number 51401H; and

(iii) restrictions on the locations for the opening of new pharmacies and restrictions on the relocation of existing pharmacies which is governed by the Pharmacy Location Rules;

(e) the Pharmacy Location Rules restrict the number of pharmacies which can exist by placing restrictions upon distances between pharmacies, how many pharmacies may operate in either a large or small shopping centre, how many pharmacies may operate in or near a private hospital or medical centre and how many pharmacies may operate in the same town (defined as being the same postcode); and

(f) the parties and the court would likely experience significant difficulty in assessing the quantum of damages as what is being assessed is the loss of a unique opportunity to operate the business on the land which (if specific performance of the Land Sale Agreement is also ordered in the plaintiffs' favour) would be owned by them, reducing the rental expense for the business.

23 I am satisfied that the land and business to be acquired by the plaintiffs pursuant to the Land Sale Agreement and the Business Sale Agreement are sufficiently unique that damages would not be an adequate remedy.

(a) C K Hee Pty Ltd as Trustee for the C K Hee Family Trust has established a prima facie right for summary judgment by way of specific performance in relation to the Business Sale Agreement; and

(b) C K Hee Pty Ltd as Trustee for the C K Hee Family Trust, S C Tan Pty Ltd as Trustee for the S C Tan Family Trust and Kruti Pty Ltd as Trustee for the D R Sheth Family Trust, have established a prima facie right for summary judgment by way of specific performance in relation to the Land Sale Agreement.

Does Mr Nyoni have an arguable defence based on misleading and deceptive conduct?

25 As the plaintiffs have satisfied all the requirements of RSC O 14 so as to give them a prima facie right to summary judgment, the burden shifts to Mr Nyoni as the first defendant to satisfy the court why judgment should not be given against it: Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109, 110 (Brinsden J); Westwind (74). Mr Nyoni must satisfy the court 'with respect to the claim ... that there is an issue or question in dispute which ought to be tried, or that there ought for some other reason to be a trial of that claim': RSC O 14 r 3(1). He does not have to show a defence on the balance of probabilities, but must at least show cause why there is an arguable defence: Field Camp Services Pty Ltd v Site Accommodation Pty Ltd [No 2] [2012] WASCA 27 [4] (Reasons of the Court). This is an evidentiary burden, the overall legal burden of persuasion remaining on the plaintiffs as applicants: Morgan v Pallister [2004] WASC 188 [4] (Pullin J).

26 An application for summary judgment is to be determined on the basis that the version of the facts put forward by the party opposing the application, assuming that it is not inherently incredible, would ultimately be accepted at the trial of the action: Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598, 608 (Mason CJ, Deane & Dawson JJ). The court is, however, not bound to accept uncritically as raising a dispute of fact calling for further investigation every statement in an affidavit, however equivocal, lacking in precision or inconsistent with contemporary documents or other statements by the deponent: Ansearch Ltd v Wavtech Pty Ltd [2006] WASC 184 [28] (Newnes M); Eng Mee Yong v Letchumanan [1979] UKPC 13; [1980] AC 331, 341 (Reasons of the Court). If after argument there remains real uncertainty as to the applicant's right to judgment without further investigation of the facts, summary judgment must be refused: Ansearch [28]; Australian Can Co Pty Ltd v Levin & Co Pty Ltd [1947] VicLawRp 15; [1947] VLR 332, 335 (Herring CJ, Lowe & Fullagar JJ).

27 Mr Nyoni asserts that the plaintiffs engaged in conduct in breach of Australian Consumer Law (ACL) s 18, which provides that a 'person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive'. One of the remedies open to the court once a contravention of ACL s 18 is established is an order setting aside a contract: ALC s 237, s 243. Mr Nyoni also refers to ACL s 29, which deals with false or misleading representations about goods or services. As it is not apparent to me how ACL s 29 could apply to the facts in the present action, I have focused on the broader obligation in ACL s 18.

28 The key paragraphs setting out the facts relied on by Mr Nyoni are set out in pars 5 ‑ 6 of his affidavit of 10 December 2013:

The questions of fact and law, that gave rise to the Federal Court proceedings are that the conduct of the Plaintiffs upon which Contracts of 13 March 2013 are based, were in the context of involvement of Plaintiffs in Nyoni v Shire of Kellerberrin, since 2009. Over the years, in an effort to destroy and or set up a rival pharmacy in Kellerberrin, the Shire savaged my business using outright assault, such as unauthorised electricity disconnection of my business and residence. The Shire tried and failed to recruit a rival pharmacist in Kellerberrin in 2010, and recruited Chee Koon Hee and Others (Plaintiffs) in March 2013, to mislead and deceive me to sign sell contracts that were unconscionable.
In the purported contracts of 13 March 2013, the Plaintiffs engaged in misleading and or deceptive conduct. The use of the Shire of Kellerberrin by the plaintiffs to drive down my pharmacy business since 2007 till present, meant that the Plaintiffs were in breach of the ACL section 18(1) which states that: First The First Defendant was induced to execute the contract by reason of the undue influence and/or unconscionable conduct to the Plaintiffs.

29 From reading Mr Nyoni's affidavits and hearing his submissions, I am not able to identify what specific conduct of the plaintiffs he says is misleading or deceptive, or likely to mislead or deceive. It appeared from Mr Nyoni's oral submissions that the misleading conduct alleged may be that the true purchaser of the land and business is the Shire of Kellerberrin. This complaint was also noted by Justice Gilmour in the decision in WAD 154 of 2013 on an application to dismiss those proceedings pursuant to Federal Court of Australia Act 1976 (Cth) (FCA) s 31A: Nyoni v Chee Koon Hee (No 4) [2013] FCA 948 [9]. However, there is no evidence whatsoever in the material before me to support this allegation.

30 In my view, the facts placed before the court by Mr Nyoni do not give rise to an arguable defence based on misleading or deceptive conduct by the plaintiffs in breach of ACL s 18: Field Camp Services [4].

Does Mr Nyoni have an arguable defence based on unconscionable conduct?

31 Mr Nyoni also assets that the plaintiffs have engaged in unconscionable conduct. I take this to be a reference to ACL s 20, which provides that a 'person must not, in trade or commerce, engage in conduct that is unconscionable, within the meaning of the unwritten law from time to time'. The reference to unconscionable conduct in the unwritten law is a reference to conduct that is within the equitable doctrine of unconscionable conduct: Australian Competition and Consumer Commission (ACCC) v CG Berbatis Holdings Pty Ltd [2003] HCA 18; (2003) 214 CLR 51 [7] (Gleeson J), [38] (Gummow & Hayne JJ), [156] ‑ [160] (Callinan J). As with ACL s 18, one of the remedies open to the court once a contravention of ACL s 20 is established is an order setting aside a contract: ALC s 237, s 243.

32 The equitable doctrine of unconscionable conduct is an independent cause of action or defence. The court may set aside a contract pursuant to this doctrine 'whenever one party by reason of some condition [or] circumstance is placed at a special disadvantage vis‑a‑vis another and unfair or unconscientious advantage is then taken of the opportunity thereby created': Commercial Bank of Australia v Amadio [1983] HCA 14; (1983) 151 CLR 447, 462 (Mason J). The principles by which a court will determine whether a contract may be set aside on the ground of the unconscionable conduct of one of the parties are conveniently summarised by Murphy J in Permanent Mortgages Pty Ltd v Vandenbergh [2010] WASC 10; (2010) 41 WAR 353 [219] ‑ [233]:

Equity's jurisdiction to set aside a transaction for unconscionable dealing is invoked where one party to the transaction is under a special disadvantage or disability in dealing with the other party, and that special disadvantage or disability was sufficiently evident to the other party to make it prima facie unfair or unconscionable for that other party to accept or retain the benefit of the transaction: Commercial Bank of Australia v Amadio; Louth v Diprose [1992] HCA 61; (1992) 175 CLR 621, 637.
The underlying equitable principle may be invoked 'whenever one party by reason of some condition or circumstance' is placed at a special disadvantage of which unfair and unconscientious advantage is taken by the other party: Commercial Bank of Australia v Amadio (462).
The special disadvantage will be sufficiently evident to the other party if the other party knows facts which would raise the possibility of the special disadvantage in the mind of a reasonable person: Commercial Bank of Australia v Amadio (467 ‑ 468, 479).
Where such circumstances are shown to exist, the onus is on the other party to establish that the transaction was fair, just and reasonable: Commercial Bank of Australia v Amadio (474).
The special disadvantage need not have been created by the party taking the benefit of the transaction: Louth v Diprose (629).
The special disadvantage alleged must be one 'which seriously affects the ability of the innocent party to make a judgment as to his own best interests'; mere difference in bargaining power is insufficient: Commercial Bank of Australia v Amadio (462). The 'essence of such weakness is that the party is unable to judge for himself': Blomley v Ryan [1956] HCA 81; (1956) 99 CLR 362, 392; or 'to conserve his own interests': Blomley v Ryan (415); ACCC v C G Berbatis Holdings [12], [46], [55].
In this regard care must be taken not to 'eviscerate unconscionability of its meaning': NZI Capital Corporation v Fulton [1998] FCA 667 Black CJ & Lehane J, quoting Mason CJ in Stern v McArthur [1988] HCA 51; (1988) 165 CLR 489, 503.
In ACCC v C G Berbatis Holdings, Gleeson CJ [14] said:

'Unconscientious exploitation of another's inability, or diminished ability, to conserve his or her own interests is not to be confused with taking advantage of a superior bargaining position. There may be cases where both elements are involved, but, in such cases, it is the first, not the second, element that is of legal consequence ...'

In ACCC v C G Berbatis Holdings, Gummow & Hayne JJ [56] also said that even a person in a 'greatly inferior bargaining position' may nevertheless not lack capacity to make a judgment about that person's own best interests.
In all cases, the court's equitable jurisdiction is to be exercised according to recognised principles, and the courts are not armed with a general power to set aside transactions which in the eyes of the judges appear unfair, harsh or unconscionable: Louth v Diprose (654) (Toohey J, although in dissent in the result). See also the observations of Sir Anthony Mason in 'The Impact of Equitable Doctrine on the Law of Contract', (1998) 27 Anglo‑American Law Review 1, 12 cited by Debelle & Wicks JJ in Micarone v Perpetual Trustees Australia Ltd [1999] SASC 265; (1999) 75 SASR 1 [648]:

'There is a strong objection to simply equating the concept to what is unreasonable and unfair. The object of the doctrine is not to protect people from the consequences of their own mistakes. Because our contract law, unlike that of the United States, does not impose a general obligation of good faith and fair dealing, it is preferable to think of unconscionable conduct in terms of that which shocks the conscience, something which is harsh or oppressive in that it involves taking advantage of another's special disability or disadvantage. So understood, the concept is not one which is open‑ended, to be applied according to the subjective whim of the Judge, though like other standards, such as that of "the reasonable person", borderline applications will require an element of value judgment.'

In Bridgewater v Leahy [76], Gaudron, Gummow & Kirby JJ referred with approval to the Privy Council's observations in Hart v O'Connor [1985] AC 1000, in which unconscionable conduct was described as:

'[V]ictimisation, which can consist either of the active extortion of a benefit or the passive acceptance of a benefit in unconscionable circumstances.'

In The Bell Group Ltd (in liq) v Westpac Banking Corporation [No 9] [2008] WASC 239; (2008) 225 FLR 1 [4924], Owen J said that it is not enough for there to be unequal bargaining power - the conduct of the stronger party has to be exploitative or oppressive.
Whilst the categories of disability are not closed, the requisite special disadvantage often involves poverty, need, sickness, age, infirmity of body or mind, sex, drunkenness, illiteracy, lack of education and lack of assistance or explanation when assistance or explanation is necessary: Blomley v Ryan (405, 415); lack of or limited comprehension of the English language: Commercial Bank of Australia v Amadio; impaired intelligence: Wilton v Farnworth [1948] HCA 20; (1948) 76 CLR 646; or infatuation with or emotional dependence upon another person: Louth v Diprose.
Absence of independent legal advice may in a given case be a circumstance of factual importance in determining whether a special disability exists: Bridgewater v Leahy [41].
Physical frailty and enfeeblement, with diminished knowledge by the party in question of that party's property and affairs generally, are not necessary elements of a special disadvantage: Bridgewater v Leahy [116].

33 The question of whether conduct amounts to unconscionable conduct depends upon a close analysis of the facts of the case: Permanent Mortgages [216]. In Permanent Mortgages Murphy J approved of the following comments of the High Court in Jenyns v Public Curator (Qld) [1953] HCA 2; (1953) 90 CLR 113 (Reasons of the Court):

The jurisdiction of a court of equity to set aside a gift or other disposition of property as, actually or presumptively, resulting from undue influence, abuse of confidence or other circumstances affecting the conscience of the donee is governed by principles the application of which calls for a precise examination of the particular facts, a scrutiny of the exact relations established between the parties and a consideration of the mental capacities, processes and idiosyncrasies of the donor. Such cases do not depend upon legal categories susceptible of clear definition and giving rise to definite issues of fact readily formulated which, when found, automatically determine the validity of the disposition. Indeed no better illustration could be found of Lord Stowell's generalisation concerning the administration of equity: 'A court of law works its way to short issues, and confines its views to them. A court of equity takes a more comprehensive view, and looks to every connected circumstance that ought to influence its determination upon the real justice of the case' (118 ‑ 119).

34 The problem in the present case is that Mr Nyoni has simply not placed before the court any facts which, if accepted at trial, would give rise to an arguable defence based on a breach of ACL s 20. For example, there are no facts suggesting that he was under any special disadvantage vis‑a‑vis Mr Hee and the other plaintiffs. Both Mr Nyoni and Mr Hee are pharmacists who are business proprietors. There is no evidence that Mr Nyoni was under any commercial pressure or constraints at the time of entering into the two agreements. On the material before me, there is no evidence suggesting that Mr Nyoni was anything other than perfectly free to either sell his business or not. Indeed, it was Mr Nyoni who first approached Mr Hee to discuss a sale. Nor is there any evidence that any of the plaintiffs engaged in any conduct from which it could be asserted that they took unfair or unconscientious advantage of Mr Nyoni. The evidence before me is of an agreement negotiated without too much fuss between two professional equals.

35 In my view, the facts placed before the court by Mr Nyoni do not give rise to an arguable defence based on unconscionable conduct by the plaintiffs in breach of ACL s 20: Field Camp Services [4].

Do the applications in the Federal Court constitute 'some other reason' for there to be a trial of the action?

36 Mr Nyoni submits that because there are applications in the Federal Court involving the same issues as in the present case, summary judgment ought not to be awarded. He states that this action is one of the elements in the overall dispute, which is inseparable from the controversy the subject of the Federal Court applications. He says that the plaintiffs are seeking to persuade the court in this action based on 'incomplete or untrue information'. In his affidavit of 11 November 2013, Mr Nyoni submits that the 'very question of Contracts and Specific performance cannot be resolved without those other respondents who are part of the Contracts'. He asserts that there are several elements in the 'overall dispute' in this action which are 'inseparable' from the whole controversy in WAD 382 of 2013. The only way in which this submission can prevent summary judgment being entered is if it constitutes 'some other reason' for there to be a trial of the action for the purposes of RSC O 14 r 3(1).

37 There appears to be three Federal Court applications of relevance. Mr Nyoni only refers to them in a very summary form. However, and quite properly, Mr Hee deals with the applications in his affidavit, as does an affidavit of Jacinta Binstead (a solicitor employed by the plaintiffs' lawyers), sworn 8 November 2013. The summary of the actions which follows is based on all these affidavits.

38 The first application is WAD 316 of 2010. Mr Nyoni is the applicant. The Shire of Kellerberrin is the first respondent. There are other respondents, but not any of the parties to the present action. The allegations made in this application appear to encompass, and elaborate on, the complaints identified by Mr Nyoni in his affidavit of 10 December 2013 set out above [28]. On 8 July 2013 Mr Nyoni made an application to join the plaintiffs in the present Supreme Court action as parties to WAD 316 of 2010. On 24 July 2013 this application was adjourned. There is no material before me to the effect that the application has been relisted or heard.

39 The second application is WAD 154 of 2013, which was commenced on 20 May 2013. Mr Nyoni was the applicant. There were 12 respondents including Mr Hee (first respondent), Mr Sheth (second respondent) and C K Hee Pty Ltd (seventh respondent). Against Mr Hee, Mr Sheth and C K Hee Pty Ltd (and some of the other respondents), Mr Nyoni sought orders setting aside what I have described as the Land Sale Agreement and the Business Sale Agreement for breach of ACL s 18 and s 20 and Trade Practices Act 1974 (Cth) s 52. He also sought an order denying them specific performance as a remedy.

40 The respondents in WAD 154 of 2013 applied for summary dismissal of the action pursuant to FCA s 31A. This application was heard by Justice Gilmour on 9 August 2013. On 18 September 2013 Justice Gilmour made orders dismissing the action, publishing reasons: Nyoni. It is clear from these reasons, which are in evidence before me, that Justice Gilmour's assessment of the merits of Mr Nyoni's claims for misleading conduct and unconscionable conduct mirrors the assessment I have set out above. Justice Gilmour observed that Mr Nyoni 'has put the respondents to the expense of defending claims which are either hopeless or devoid of any reasonable prospects of success' [117]. Accordingly, his Honour awarded indemnity costs against Mr Nyoni.

41 The third application, WAD 382 of 2013, is an appeal from the decision of Justice Gilmour. It was commenced on 9 November 2013. It appears from the scant material before me that late last year Justice McKerracher heard an application for leave to commence this appeal, and that the parties are awaiting His Honour's reserved decision.

42 On the evidence before me, including the copies of the Business Sale Agreement and the Land Sale Agreement, all the parties (and potential parties if one adds in Mr Hee) to the agreements are parties to the present Supreme Court action. In order for the wider dispute between Mr Nyoni and the Shire of Kellerberrin being litigated in the Federal Court to provide a reason at law for not specifically enforcing the Business Sale Agreement and the Land Sale Agreement, Mr Nyoni must identify a cause of action which, if established, would enliven a remedy in the Federal Court enabling it to either set aside the agreements or restrain the current plaintiffs from enforcing them. The two causes of action identified are pursuant to ACL s 18 (misleading conduct) and s 20 (unconscionable conduct). It is the case that, if established, these causes of action enliven the power in the ACL for the Federal Court to set aside the Land Sale Agreement and the Business Sale Agreement.

43 However, for the reasons set out above, Mr Nyoni has not placed before the court facts which, if established at trial, could give rise to an arguable claim of either breach of ACL s 18 or s 20. As I have already observed, Justice Gilmour reached the same conclusion I have done on whether Mr Nyoni has an arguable case for breach of either provision.

44 I do not consider that the existence of the Federal Court applications is 'some other reason' for there to be a trial of the action for the purposes of RSC O 14 r 3(1).

Are the plaintiffs entitled to summary judgment?

45 Mr Nyoni is not represented. Accordingly, it is appropriate that I approach the documents in which he articulates his defence with some flexibility: Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 536 ‑ 537 (Kirby P), 543 (Hope & Samuels JJA agreeing); Smart v Prisoner Review Board (WA) [2012] WASC 48 [10] (Pritchard J). He may require, and be given, some leniency in relation to compliance with the rules set out in the RSC: Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10] (Reasons of the Court). I need to be astute to ensure that, in a poorly expressed or unstructured document setting out his defence, there is no viable defence which, with appropriate amendment or permissible assistance from the court, could be put into proper form: Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338 [21] (Beech J); Tobin v Dodd [2004] WASCA 288 [15] (EM Heenan J), [3] (Murray J agreeing), [70] (Le Miere J agreeing); Wentworth (536 ‑ 537). A 'frequent consequence of self‑representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy': Neil v Nott [1994] HCA 23 [5]; [1994] HCA 23; (1994) 68 ALJR 509, 510 (Brennan, Deane, Toohey, Gaudron & McHugh JJ); Ibrahim [21]; Glew [10]; Tobin [14]. In Re Attorney‑General; Ex parte Skyring [1996] HCA 4; (1996) 70 ALJR 321, Kirby J stated:

[I]t is always important for every Judge to keep an open mind in case a person who has been rejected by courts in the past may have, hidden amongst the verbiage of his or her arguments, a point which has not previously been seen and which may have merit... Vigilance, and not impatience, is specially required where that person is not legally represented (323).

46 Even taking into account the matters in the preceding paragraph, I am satisfied that the matters Mr Nyoni raises by way of defence are so clearly untenable that they cannot possibly succeed: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 25; (1964) 112 CLR 125, 129 ‑ 130 (Barwick CJ); Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 [24] (French CJ & Gummow J), [54] ‑ [57] (Hayne, Crennan, Kiefel & Bell JJ); Alcoa of Australia Ltd v Apache Energy Ltd [2012] WASC 209 [113] (Le Miere J). I have also considered whether the material placed before the court could give rise to any of the discretionary considerations warranting a refusal to grant specific performance: see generally Brumar [30] ‑ [67]. I cannot discern an arguable defence on this basis.

47 I therefore have the high degree of certainty about the ultimate outcome of the case required by the High Court in Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552, where Gaudron, McHugh, Gummow and Hayne JJ observed:

It is, of course, well accepted that a court whose jurisdiction is regularly invoked in respect of a local defendant (most often by service of process on that defendant within the geographic limitations of the court's jurisdiction) should not decide the issues raised in those proceedings in a summary way except in the clearest of cases. Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways ... but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way [57]. (citations omitted)

These observations were adopted in Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 [46] (Gleeson CJ, Gummow, Hayne & Crennan JJ).

48 The overall legal burden of persuasion to establish that summary judgment is warranted is on the plaintiffs as applicants: Morgan [4]. They have discharged that burden and are entitled to summary judgment in the action. It also follows that I do not need to determine the objections raised by the plaintiffs to Mr Nyoni's affidavits.

49 The question then arises as to the extent of the judgment. The judgment should at least extend to specific performance of the Land Sale Agreement and the Business Sale Agreement.

50 The Land Purchasers seek the following suite of orders:

An order that the purchase price for the Pharmacy Sale Agreement be reduced or otherwise set-off by the amount of costs payable by the First Defendant to the Plaintiffs (or either of them) pursuant to any costs orders made in Federal Court proceedings WAD154 of 2013 (Federal Court proceedings), including the costs orders made before the Honourable Justice Gilmour on 18 September 2013.
Any orders or enquiries pursuant to Order 67 Rule 17 of the Supreme Court Rules be directed to be taken or made by a Registrar or other officer of this Honourable Court in order to ascertain the monies that are due to the First Defendant under the Land Contract and the Pharmacy Sale Agreement on the Settlement Date;
On or by the Settlement Date, the Plaintiffs (or either of them) shall pay into Court the amount so ascertained to be due by them to the First Defendant (as a result of the orders or enquiries referred to in the previous paragraph herein);
Out of the monies so paid into Court by the Plaintiffs (or either of them), there shall be paid:

(i) firstly to the Plaintiffs (through their solicitors), the amount of compensation payable for the First Defendant's delay in the settlement of the sale of the Property;
>
> (ii) secondly to the Plaintiffs (through their solicitors), the amount of costs payable by the First Defendant in the Federal Court proceedings and in these Supreme Court proceedings, to be taxed (if not agreed or if not already ordered);
>
> (iii) thirdly to the Plaintiffs (through their solicitors), the amount of compensatory damages for any breach of contract in relation to the Land Contract or the Pharmacy Sale Agreement;
>
> (iv) fourthly to the Plaintiffs (through their solicitors), the amount of interest (if any) on any award of damages payable to the Plaintiffs; and
>
> (v) fifthly to the First Defendant, the balance of the said monies paid into Court (if any) and it be ordered that if there is no such balance and there be any deficiency not met out of the monies paid by the Plaintiffs into Court, then such deficiency shall be payable by the First Defendant to the Plaintiffs (or either of them);

Upon the said monies being paid into Court by the Plaintiffs on the Settlement Date, the First Defendant shall give to the Plaintiffs vacant possession of the Property (inclusive of the Kellerberrin Pharmacy Business located on the Property);

51 This suite of orders raises four issues. The first is whether the Land Purchasers are entitled to an order that the amount due at settlement on the Land Sale Agreement be reduced by the amount of compensation payable pursuant to cl 4.2 and cl 4.3 of the General Conditions. I am satisfied that the General Conditions are incorporated in the Land Sale Agreement (see cl 3). Clause 4.2 and cl 4.3 provide:

If for any reason attributable to the Seller, Settlement is not completed within 3 Business Days after the Settlement Date the Seller must allow to the Buyer at Settlement, as a deduction from the Purchase Price, compensation on:

(a) the balance of the Purchase Price; and

(b) any other money payable at Settlement.

Interest payable under clause 4.1 and compensation allowable under clause 4.2 is to be calculated:

(a) at the Prescribed Rate; and

(b) from and including the Settlement Date to but excluding the date on which Settlement occurs,

and will be treated as being in full satisfaction of any claim the Party claiming interest or compensation has against the other Party as a result of the delay in Settlement.

52 I am satisfied that the Land Purchasers are entitled to judgment in their claim pursuant to these clauses. The deduction of the compensation payable pursuant to these clauses on settlement is an inherent part of specific performance of the Land Sale Agreement, and should be included in the judgment awarded.

53 The second is whether the Land Purchasers are entitled to damages over and above those in cl 4.2 and cl 4.3 of the Land Sale Agreement. Mr Hee does not identify any such damages in his affidavit. If these damages were to be claimed, it was incumbent upon the plaintiffs to include the evidence relied on in affidavits in support of the application for summary judgment. I am not prepared to give them a second opportunity to do so. That they have had this opportunity is sufficient to ensure the just determination of the action, especially as they brought the summary judgment application: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 [98], [102] (Gummow, Hayne, Crennan, Kiefel & Bell JJ). On the materials before me, the Land Purchasers have not satisfied me that they ought be given summary judgment for this head of damages.

54 The third is whether C K Hee Pty Ltd (the second plaintiff) is entitled to compensatory damages for breach of the Business Sale Agreement. If these damages were to be claimed, it was incumbent upon the second plaintiff to include the evidence relied on in affidavits in support of the application for summary judgment. Again, I am not prepared to give it a second opportunity to do so. On the materials before me, C K Hee Pty Ltd has not satisfied me that it ought be given summary judgment for this head of damages.

55 The fourth is whether the purchase price for the Business Sale Agreement should be reduced or otherwise set‑off by the amount of costs payable by Mr Nyoni to the plaintiffs (or any of them) pursuant to any costs orders made in Federal Court proceedings WAD 154 of 2013, including the costs orders made on 18 September 2013. On the material before me, there is no contractual entitlement to an order in these terms. Nor have the plaintiffs identified any cause of action that, if proven at trial, could found the jurisdiction to make the orders sought. Essentially, the plaintiffs seek to truncate the usual enforcement process for an order of the Federal Court. I am not persuaded that the Supreme Court has jurisdiction to make an order in these terms in the present action. Even if I had been so persuaded, on the materials before me, the plaintiffs have not satisfied me that they ought be given summary judgment for this head of damages.

56 Mr Nyoni seeks orders that the present Supreme Court proceedings be either set aside or in the alternative cross‑vested to the Federal Court and consolidated with WAD 382 of 2013. As I have determined that it is appropriate to award summary judgment to the plaintiffs, this application ought to be dismissed.

57 The plaintiffs submitted a detailed minute of the orders they seek should summary judgment be awarded. Using that minute as a rough starting point, my preliminary view of the appropriate orders is as follows:

Judgment be entered for the second, third and fourth plaintiffs against the first defendant pursuant to RSC O 14 r 3 that the Land Sale Agreement being attachment CKH 6 to the affidavit of C K Hee sworn 1 November 2013 be specifically performed to effect the sale of the property the subject of the Land Sale Agreement, being the land situated at 92 Massingham Street, Kellerberrin, and being more particularly described as lots 53 and 54 on diagram 19199 and being the whole of the land contained in certificate of title, vol 1841, folio 817 (Property), to the second, third and fourth plaintiffs (Land Purchasers) on [a settlement date (and a time and place) to be fixed] (Settlement Date) as tenants in common in equal shares.
Within five business days of the date of this order, the Land Purchasers are to:

(a) appoint a solicitor or settlement agent with instructions to give effect to the settlement pursuant to the order in par 1 (Purchasers' Agent); and
>
> (b) notify the first defendant in writing of the name and contract details of the Purchasers' Agent.

Within 10 business days of the date of this order, the first defendant is to:

(a) appoint a solicitor or settlement agent with instructions to give effect to the settlements set out in this order (First Defendant's Agent); and
>
> (b) notify the Purchasers' Agent in writing of the name and contract details of the First Defendant's Agent.

The first defendant use his best endeavours to ensure the special conditions 1 and 4 of the Land Sale Agreement be performed on or by the Settlement Date.
The purchase price for the Land Sale Agreement be reduced by the amount of compensation payable to the Land Purchasers pursuant to cl 4.2 and cl 4.3 of the General Conditions (which terms are incorporated in the Land Sale Agreement).
The amount of costs fixed pursuant to order 31 below be brought to account in determining the amounts due by the Land Purchasers to the first defendant under the Land Sale Agreement.
Not less than 21 days prior to the Settlement Date the Land Purchasers shall cause the Purchasers' Agent to serve on the First Defendant's Agent a draft settlement statement for the Land Sale Agreement.
In the event of a dispute as to the amounts that are due to the first defendant under the Land Sale Agreement either party be at liberty to request a registrar of this honourable court to inquire pursuant to RSC O 67 r 17 to ascertain the monies that are due to the first defendant under the Land Sale Agreement.
The Land Purchasers must cause the Purchasers' Agent to, by not later than 10 business days prior to the Settlement Date, serve on the First Defendant's Agent:

(a) a signed registrable transfer of the Property completed in accordance with these orders; and
>
> (b) any other document which the first defendant is required to sign to give effect to the sale of the Property to the Land Purchasers.

The first defendant must execute any documents provided to him by the Purchasers' Agent to give effect to the sale of the Property to the Land Purchasers.
The first defendant must cause the First Defendant's Agent to, by not later than five business days prior to the Settlement Date, serve on the Purchasers a signed registrable transfer of the Property completed in accordance with these orders.
The first defendant must transfer the Property to the Land Purchasers (as tenants in common in equal shares) on the Settlement Date, pursuant to Transfer of Land Act 1893 (WA), s 242(1A).
On the Settlement Date, the first defendant must deliver vacant possession of the Property and the following documents:

(a) all documents of title to the Property (specifically including the duplicate certificate of title);
>
> (b) discharges of all encumbrances (if any) lodged against the Property as at the said date;
>
> (c) withdrawals of all caveats lodged against the Property as at the said date; and
>
> (d) all other documents that may be necessary to enable the Land Purchasers to become the registered proprietors of the Property,

in exchange for payment by the Purchasers of the amount ascertained to be due by them to the first defendant under the Land Sale Agreement.

Judgment be entered for the second plaintiff against the first defendant pursuant to RSC O 14 r 3 that the Business Sale Agreement being attachment CKH 6 to the affidavit of C K Hee sworn 1 November 2013, as varied by the agreement in attachment CKH 12 (page 92) of that affidavit, be specifically performed to effect the sale of the business the subject of the Business Sale Agreement, being Kellerberrin Pharmacy which operates from the Property (Business), to the second plaintiff on the Settlement Date.
The value of the stock of the Business be determined in accordance with cl 3 of the Business Sale Agreement.
Within 14 days of the date of this order, the first defendant serve on the plaintiffs a typewritten list of the stock of the Business and an offer in writing in relation to the value of the stock of the Business.
In the event that the value of the stock of the Business is not agreed within 21 days of the date of this order, the plaintiffs and the first defendant are to confer on the appointment of an independent valuer or stock‑taker.
In the event that parties have not retained an independent valuer or stock‑taker within 28 days of the date of this order, the second plaintiff is to request the President of the Real Estate Institute of Western Australia to appoint a valuer or stock‑taker.
The second plaintiff and the first defendant are to do all acts necessary to enable the stock of the Business to be valued pursuant to cl 3 of the Business Sale Agreement.
Not less than 21 days prior to the Settlement Date the second plaintiff must serve on the First Defendant's Agent a draft settlement statement for the Business Sale Agreement.
In the event of a dispute as to the amounts that are due to the first defendant under the Business Sale Agreement either party be at liberty to request a registrar of this honourable court to inquire pursuant to RSC O 67 r 17 to ascertain the monies that are due to the first defendant under the Business Sale Agreement.
By no later than 10 business days prior to the Settlement Date, the second plaintiff must deliver to the First Defendant's Agent an original of any document necessary for him to sign to give effect to the order in par 14.
By no later than five business days prior to the Settlement Date the first defendant must serve on the second plaintiff a typewritten list all property and assets of the business as defined in cl 1 of the Business Sale Agreement.
By no later than three business days prior to the Settlement Date, the first defendant must execute any documents delivered to the First Defendant's Agent pursuant to the order in par 22.
On the Settlement Date, the first defendant must:

(a) by the First Defendant's Agent, deliver to the second plaintiff the documents in order 22 above executed pursuant to order 24 above;
>
> (b) deliver up possession of the property and assets of the Business as set out in the list in order 23, which possession is to be given by leaving the property and assets at the Premises.

in exchange for payment by the second plaintiff of the amount ascertained to be due by it by the first defendant under the Business Sale Agreement.

Without limiting the generality of order 22, the first defendant is to execute all documents and perform all acts required of him in order to effect the requisite approvals needed under the Pharmacy Act 2010 (WA), Pharmacy Regulations 2010 (WA), and associated guidelines and National Health Act 1953 (Cth), or any requisite approvals required by the Pharmacy Registration Board of Western Australia, the Health Insurance Commission, the Health Department of Western Australia or the Pharmaceutical Defence Ltd to enable the second plaintiff to carry on the Business at the Property.
There be liberty to any party to apply in relation to the implementation of the orders set out above.
Any liberty to apply pursuant to this order be exercised by letter to the Principal Registrar, copied to the other parties, accompanied by an affidavit setting out the relevant facts, the relevant documents and the extent of conferral between the parties, and a minute of proposed orders.
Any costs awarded by a the court pursuant to the exercise of a liberty to apply, or by a registrar following an inquiry pursuant RSC O 67 r 17, prior to the Settlement Date may by fixed by the court or registrar and brought to account in the settlements set out in this order.
The first defendant's application dated 25 October 2013 be dismissed.
[Costs of the action, including the application]

58 I have not included alternatives (for example, signature pursuant to Transfer of Land Act s 242(1B)) as this would make the orders even more complex, and can be dealt with pursuant to the liberty to apply.

59 I will hear from the parties as to the final form of these orders as well as costs. My preference is to fix the costs of the action and application based on Supreme Court Consolidated Practice Direction, s 4.7.1.1. I have published these reasons ahead of a hearing to finalise the orders so as to give the parties time to consider the detail of the orders to be made and confer on costs.

Court of Australia Act 1976

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