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[2001] WASC 38
defendant. Summary judgment entered for the defendant. The plaintiff's claim dismissed against WRS Pacific Pty Ltd on the basis that the plaintiff executed a valid waiver in June 1995 supported by...
The plaintiff sued his former company for $652,900 allegedly owing under a consultancy agreement. The defendant successfully applied for summary judgment. The court found the consultancy agreement was not a deed, that a 20 June 1995 letter by Mr Briggs acknowledged the company's liability and stopped the six year limitation running, and that the plaintiff had executed a written waiver on 23 June 1995, supported by consideration (Briggs' undertaking to pay and the company's reliance in preparing accounts). A later $135,000 payment by the company was ambiguous and did not revive the waived debt. Summary judgment was entered for the company; the plaintiff was directed to pursue Briggs if he wishes to recover (see [3]–[18]).
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1,830 words · generated 28/07/2026
WRS Pacific Pty Ltd applied for summary judgment under Order 16 of the Rules of the Supreme Court in a claim brought by William Trevor Lunt for $652,900 said to be owing under a consultancy agreement. The key factual matrix was:
1 cited instrument linked from this judgment.
Three principal lines of reasoning decided the matter.
Formal character of the consultancy agreement (limitation point): The court held the consultancy agreement was not a deed within the Property Law Act 1969 (WA) because, although the company signed under seal and Lunt signed under hand, the document was not expressed as an indenture, deed or agreement under seal as required by s 9(4) of the Act. Consequently the shorter, six-year limitation period for simple contracts applied rather than twenty years for deeds (see [3]).
Interruption of limitation by acknowledgement: The Briggs letter of 20 June 1995 was a contemporaneous written acknowledgement that the company was indebted to Lunt for $652,900. Mr Briggs had a close company connection: he had been a director before and after that date and was a major shareholder. The Master held that the letter constituted an acknowledgement by the company for the purposes of s 44(3) of the Limitation Act 1935 (WA), and so time had not run (see [4]). That disposed of the defendant's limitation defence.
Valid defence by waiver and undertaking: The court read the 20 June and 23 June letters together and inferred a commercial bargain: Lunt waived his claim against the company in consideration of Briggs' promise to pay the fees and of the company relying on that waiver in its accounts. The waiver was in express terms and contained an estoppel promise. The contemporaneous company accounts, the management accounts, and the conduct of directors supported the inference. The court considered the subsequent $135,000 payment by the company to be equivocal and not clearly referable to the pre-30 June 1994 debt, so that the payment did not revive the waived debt (see [10]–[17]). Given the documentary matrix, the court found that Briggs' later denials (about authenticity) and any contrary oral evidence lacked credibility; the documents made the contrary account inherently incredible (see [5], [9]). On that basis the defendant had established a defence sufficient to allow summary judgment (see [18]).
Before this decision:
This decision applied those principles to the particular facts:
Practitioners should see this case as a practical demonstration of how documentary contemporaneity and surrounding commercial context determine whether a waiver/assignment is effective and whether the limitation period has been interrupted.
Paragraph [3]:
Paragraph [4]:
Paragraphs [10]–[11]:
Paragraph [16]:
Paragraph [18]:
This judgment is most applicable where:
In such scenarios this decision supports a defendant company seeking summary judgment where the documents establish waiver and third-party undertaking, and where later payments are equivocal.
This judgment is unreported in higher appellate lists within this text. It cites other authorities (Eng Mee Yong v Letchumanan [1980] AC 331; Forsayth NL v Northern Gold NL (unreported); Kimberley NZI Finance Ltd v O'Sullivan [1999] WASC 82), but Master Bredmeyer's reasoning is grounded in the documentary matrix and statutory provisions. Where cited later, practitioners should expect courts to consider it as an application of well-settled principles: formalities for deeds, operation of acknowledgements under limitation statutes, and the weight of contemporaneous documents in determining waiver/assignment and credibility on summary judgment. This judgment demonstrates that courts will resolve credibility against a party where contemporaneous documents make an alternative account inherently incredible (see [5], [9]).
Several factual and legal nuances remain for future proceedings and litigation:
Overall, Lunt v WRS Pacific Pty Ltd is a useful, document-focussed statement about how acknowledgements, waivers, and contemporaneous commercial documents interact with limitation and the efficacy of summary judgment. Practitioners should ensure documentary clarity when structuring waiver/assignment arrangements and when relying on later payments to assert revival of previously waived claims.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : LUNT -v- WRS PACIFIC PTY LTD [2001] WASC 38
Application for summary judgment by a defendant - Written waiver of debt
Limitation Act 1935 (WA), s 44(3)
Property Law Act 1969 (WA), s 9, s 10
Eng Mee Yong v Letchumanan [1980] AC 331
Forsayth NL v Northern Gold NL, unreported; FCt SCt of WA; Library No 940012; 20 January 1994
Kimberley NZI Finance Ltd v O'Sullivan & Anor [1999] WASC 82
1 MASTER BREDMEYER: This is an application by the defendant for summary judgment under O 16 of the Rules of the Supreme Court.
2 The plaintiff says the defendant was indebted to him for $652,900 immediately prior to 30 June 1995 and that on 26 June 1996 he was paid $135,000 off this debt by the company, leaving $517,900 owing.
3 The defendant says this claim is time barred, that the money is claimed under a consultancy agreement which, on the plaintiff's evidence, was due on 30 June 1994. The writ herein was issued on 25 September 2000, more than six years later. I consider the claim is not time barred. The plaintiff's counsel said that the consultancy agreement was arguably a deed and hence the limitation period for suing on a specialty debt is 20 years and hence has not expired. I do not consider that the consultancy agreement is arguably a deed under s 9 or s 10 of the Property Law Act 1969 (WA). It was signed by the defendant company under seal and signed by Mr Lunt under hand. The reason why it is not a deed is that it is not expressed to be an indenture, or a deed, or to be an agreement under seal: s 9(4)
4 The claim is not time barred because, by a letter dated 20 June 1995, Mr Briggs acknowledged that the sum of $652,900 was owing by the defendant. Mr Briggs was not then a director of the company but was a director before and after that time and was a major shareholder of the company. His wife was a director at the time. Mr Briggs had a close involvement with the company. The admission part of the letter is in these terms:
"As at the 30th June 1994 WRS Pacific Limited (WRS) is indebted to William Trevor Lunt (Lunt) personally for consulting services and expense reimbursement in the sum of $652,900 (the debt) rendered and due pursuant to his Consultancy Agreement."
Mr Briggs was a director of the company in 1994. The letter was also signed by Mr Kevin Bond as a witness, but I note that he also was a director of the company at the time. He would have been remiss as a director to have signed an acknowledgement of such a large debt if it was not true. That letter is an acknowledgment of the debt by the company within the six year limitation period and that stops time from running: Limitation Act 1935 (WA) s 44(3).
5 Mr Briggs has challenged the "authenticity" of that letter. Those are his words in his affidavit. Mr Briggs says he has not seen the original letter, although he has called for it. That is a fair comment. At trial and prior to that, in the discovery process, he should be shown the original. He says he has no recollection of ever writing the letter. That is a neutral statement. It may only mean that his memory is not good. He said he can "see no reason for having signed it". That is an argument. A good commercial reason is given when the letter is read with the letter of Mr Lunt of 23 June 1995. The two go together. Lunt waived his claim against the company for $652,900 fees under the consultancy agreement, in return for a written undertaking from Briggs that he would pay the debt himself. A company debt owed to Mr Skidmore was acknowledged and then assigned to one of Mr Briggs' companies, in the same way. What was the commercial purpose of that? Lunt says it was to move these large internal debts off the balance sheet to make the company more attractive to sell, which the company was trying to do.
6 Lunt's evidence is supported by a comparison of the 1994 management accounts with the 1994 signed accounts. The debt of $652,900 is shown in the management accounts and shown as "nil" in the signed accounts. The signed accounts are signed by two directors - Mr Lunt (the plaintiff) and Mr Kevin Bond. The report which goes with them is made "in accordance with the resolution of the directors". Mr Briggs was a director at that time, as was Mr Skidmore. At page 4 of the report, just above the signatures of the two directors, appears this:
"Mr W T Lunt has received or become entitled to receive fees pursuant to a consultancy agreement with the chief entity.
Mr R M J Skidmore has received or become entitled to receive fees pursuant to a consultancy agreement with the chief entity."
Information relating to specific types of transactions with directors is set out in the following notes :-
Messrs W T Lunt and RMJ Skidmore have consultancy agreements with the chief entity for the provision of consultancy services to the company. The agreements provide for payments based on normal commercial terms and conditions. During the year the following payments were made pursuant to the agreements:
No further amounts are payable for the year ended 30 June 1994 pursuant to the agreements as all such amounts have been waived by Messrs WT Lunt and RMJ Skidmore.
Details of the amounts payable in future years are set out in note 17 - Commitments."
7 One of the reasons Mr Briggs challenges the authenticity of the letter of 20 June 1995, which acknowledges the debt of $652,900, is that he says he uses letterhead and it was not on letterhead. At the top of the letter is the imprint of a rubber stamp: "Peter Briggs, 5 Ocean Court, City Beach, WA". On the same day, Mr Briggs and his wife signed a similar letter acknowledging a debt owed to R M J Skidmore for consultancy services under his consultancy agreement. That letter was signed on behalf of Essex Properties Pty Ltd, a company controlled by Mr Briggs. That letter was on letterhead and its authenticity is also challenged by Mr Briggs. The authenticity of both letters is confirmed by the 1994 signed accounts. These two men were owed sums by the company under their consultancy agreements but they waived their debts. This was done so that the company's annual accounts to 30 June 1994 could be signed showing their liabilities as gone. Prior to getting Lunt's affidavit, Mr Briggs said he had not seen those letters before.
8 As stated above, the fact that consultancy debts were owed by the company to the plaintiff and Mr Skidmore, and were waived, is in the signed annual accounts for 30 June 1994. It is reasonable to infer that Mr Lunt would not waive a debt of $652,900 for nothing.
9 Mr Briggs is entitled to see the original of the letter of 20 June 1995, but the statement that he had no reason to sign it is contradicted heavily by the contemporary documents and - without any other evidence supporting his view - is, in my view, inherently incredible.
10 I consider the waiver letter signed by Mr Lunt on 23 June 1995 provides a defence to the plaintiff's claim. The relevant part of that letter reads as follows:
"As at the 30th June 1994 WRS Pacific Limited ('WRS') is indebted to William Trevor Lunt ('Lunt') personally for consulting services rendered pursuant to the Consultancy Agreement dated 12th April 1990 ('the Debt').
I hereby confirm that the Debt has been forgiven by me absolutely.
I am aware that the Directors of WRS are relying on this letter of waiver as being legally effective as at the 30th June 1994 in signing the annual accounts of WRS and incurring further liabilities and obligations on behalf of WRS. Accordingly I acknowledge that I will be legally estopped from trying to revoke this waiver or to make any claim for repayment of the Debt or any other part."
11 The plaintiff says there is no consideration for that waiver and that a person cannot waive his rights without consideration unless it is done by deed. I think there is consideration for the waiver in this case. The two letters of 20 June and 23 June must be read together and doing that the agreement reached was as follows:
1. WRS owed Lunt $652,900 under the consultancy agreement.
2. In consideration of Briggs offering to pay those fees to Lunt, Lunt waived his claim against the company.
3. Briggs undertook to pay the fees and agreed to make no claim for reimbursement on the company.
The express purpose of the waiver was so the directors could sign off the accounts to 30 June 1994 showing this debt as waived. Those accounts are signed 15 November 1994, although the waiver letter is dated 23 June 1995. I suspect that the accounts may have been backdated.
12 The commercial purpose behind this arrangement was to make the balance sheet look healthier and the company more attractive to sell. The company sold all its then assets in May 1997 to Max Resources, a New Zealand company, for 5 million fully paid shares in that company allocated at 75 cents per share.
13 Prima facie, Lunt's letter of waiver of 23 June 1995, signed three days after Briggs took over his debt by assignment, is good and valid and is a defence to this claim. He should sue Mr Briggs.
14 The plaintiff's counsel says $135,000 was paid off the debt in 1996 by WRS and that this confirmed or revived the company's liability to pay the debt. Lunt says that Mr Briggs verbally authorised that payment by the company in discussions with him.
15 That payment is supported in general terms by minutes of a meeting of directors held on 1 June 1996. Those present were Mr Lunt, Mr Bond and Mr Skidmore (by telephone). In those minutes Mr Lunt is one of five major creditors listed at item 5. His debt is shown there as $303,320. The minutes include the following:
"In respect of item 5, William T Lunt the Chairman expressed his considerable concern that he was not receiving reasonable remuneration for his work despite the existence of a formal agreement with the company."
He then stood down and the other two directors resolved that:
"Mr and Mrs Lunt be paid from the proceeds of the Indian letter of credit."
(Mrs Lunt, and any debt to her, is not mentioned elsewhere in the minutes.) $135,000 was paid to Lunt. He was the executive director and the chairman of the board of the company and arranged the payment.
16 Mr Briggs denied that he authorised the payment or that he was aware of it. I have no doubt that this sum was paid by the company but there is no documentary evidence that it was in payment of the $652,900 debt, that is, of the pre 30 June 1994 debt. It may have been in payment of consultancy fees due to Mr Lunt for work done in 1995 and 1996, that is, in the two financial years since 30 June 1994. The consultancy agreement was still running and, as stated above, the 1994 accounts referred to the future obligation to pay consultancy fees to him. The rate of fees in the agreement was $90 per hour for work in Australia and $1,000 per day for work outside Australia.
17 I consider the payment of $135,000 is equivocal. There is no documentary evidence that it was in payment of the $652,900 debt. Lunt says it was, and that is an admission against interest, but his oral evidence on that is not sufficient to satisfy me that the company took back to itself the obligation to pay this debt which had been assigned to Mr Briggs. The minutes mentioned showed that a debt of $303,320 was owed to Mr Lunt. If this was for the pre 30 June 1994 consultancy fees, why was it not $652,900? On Mr Lunt's evidence, nothing had been paid off that debt in the meantime. On his evidence, he was fobbed off by promises that he would be paid out of the proceeds of the sale of the assets of the company.
18 I consider the defendant has established to the requisite standard of proof required for a summary judgment application that the plaintiff waived his claim in June 1995 in return for a written undertaking that Mr Briggs would pay the debt. I propose to give summary judgment for the defendant.
Lunt
Wrs Pacific Pty Ltd [2001] WASC 38
Summary judgment entered for the defendant. The plaintiff's claim dismissed against WRS Pacific Pty Ltd on the basis that the plaintiff executed a valid waiver in June 1995 supported by consideration and contemporaneous documents; plaintiff to pursue Mr Briggs as appropriate (see [13], [18]).