Supreme Court New South Wales

• Medium Neutral Citation: In the matter of Green Alliance Pty Limited (receiver and manager appointed) [2012] NSWSC 1224
• Hearing dates: 30 August 2012
• Decision date: 30 August 2012
• Jurisdiction: Equity Division - Corporations List
• Before: Black J

Decision

Third Defendant's Defence struck out. Judgment for Plaintiff with damages to be assessed. Matter referred to Associate Justice for determination of damages. Third Defendant to pay Plaintiff's costs of and incidental to application heard 30 August 2012 as agreed or as assessed. Leave granted to Plaintiff to assess those costs and those costs be payable forthwith.

• Catchwords: PRACTICE AND PROCEDURE - Summary disposal - Pleadings - Strike out - Whether defence should be struck out because no real prospect to defend proceedings is disclosed.
• Legislation Cited: - Civil Procedure Act 2005 (NSW) ss 56-58, 56, 56(1), 58(1), 58(2); - Conveyancing Act 1919 (NSW) ss 23C, 54A; - Corporations Act 2001 (Cth) s 419A(3); - Legal Profession Act 2004 (NSW) s 347; - Uniform Civil Procedure Rules 2005 (NSW) rr 3.1(b), 13, 13.1, 13.1(2), 14.28
• Cases Cited: - Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552; - Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175l 258 ALR 14; - Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256; - Bi v Mourad [2010] NSWCA 17; - Celermajer Holdings Pty Ltd v Kopas [2011] NSWSC 40; - Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394; - General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125; - Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101; - Macquarie Developments Pty Ltd v Forrester [2005] NSWSC 674; - Rosebanner Pty Ltd v EnergyAustralia [2009] NSWSC 43; - Shaw v New South Wales [2012] NSWCA 102; - Silovi Pty Ltd v Barbaro (1988) 13 NSWLR 466; - Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118; - Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387; - Westpac Banking Corporation v Lahood [2011] NSWSC 1057
• Category: Interlocutory applications
• Parties: MDM Pty Limited (Plaintiff); Green Alliance Pty Limited (receiver and manager appointed) (Third Defendant)
• Representation: Counsel: C.R. Ireland (Plaintiff); K. Pierce (Third Defendant); Solicitors: N.J. Papallo & Co (Plaintiff); Quantum Lawyers (Third Defendant)
• File Number(s): 11/312793

Judgment - EX TEMPORE

1 By interlocutory application filed on 4 July 2012 the Plaintiff, MDM Pty Limited ("MDM"), seeks orders that the Defence of the Third Defendant, Green Alliance Pty Limited (receivers and managers appointed) ("Green Alliance") be struck out and summary judgement be entered under r 13.1 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR").

2 The Court must approach this application having regard to ss 56-58 of the Civil Procedure Act 2005 (NSW) which emphasise the need for the just, quick and cheap resolution of the real issues in dispute in the proceedings. With these provisions in mind, I raised with counsel for MDM whether MDM also relied on UCPR r 14.28 which permits the Court to order that the whole or any part of a pleading be struck out if the pleading discloses, relevantly, no reasonable cause of action or defence or has a tendency to cause prejudice, embarrassment or delay in the proceedings. Counsel for MDM indicated that it also relied on that rule, and counsel for Green Alliance did not oppose reliance on that rule. However, that is not MDM's primary contention and the substance of MDM's attack on Green Alliance's Defence is not merely an attack on the manner in which it is pleaded, but an attack on whether it is ultimately capable of being established by the evidence which has been led to support it.

3 I should add one further matter before turning to the background of the proceedings. The Court should approach the question whether the Defence should be struck out and summary judgement given having regard to the Defence as it stands and the evidence as it stands, in circumstances that Green Alliance has taken no steps to amend that Defence over an extended period, including in the nearly two months since the application for summary judgment was filed. I will return to that matter below. It is an issue of some significance, since Green Alliance largely sought to advance a different case in this application, which is not presently pleaded, rather than to support the Defence in the terms in which it is presently pleaded.

Factual background

4 Turning to the factual background, it appears that Green Alliance occupied a warehouse owned by MDM from 26 August 2009 under a lease ("Lease"). The Lease was for an initial term of 18 months and expired, in accordance with its express terms, on 25 February 2011. The Lease provided that, on expiry of that term, if Green Alliance continued in occupation, other than under a further lease, it would do so as a monthly tenant on the same terms and conditions as contained in the Lease; Green Alliance promised to remove from the warehouse all stock in trade before the termination of the Lease, that is, before 25 February 2011 and also promised to deliver vacant possession of the warehouse in the condition in which it was at the commencement of the lease. The Lease further provided that if, notwithstanding its termination by, relevantly, expiry, Green Alliance failed to deliver up vacant possession then it would be deemed to continue to use and occupy the warehouse until it carried out its obligations and would be liable to compensate MDM in an amount equivalent to the rental payable during that deemed period of use and occupation.

5 Green Alliance remained in occupation of the warehouse after February 2011. On 28 April 2011, receivers and managers were appointed to Green Alliance's property pursuant to a fixed and floating charge over the whole of that property and, MDM alleges, Green Alliance under the receivers and managers' control continued to occupy the warehouse to 1 September 2011. By letter dated 28 August 2011, the receivers and managers advised MDM that they intended to provide notice shortly that they no longer required occupation of the premises and would abandon stock which had no commercial value which would remain on the premises, for which they estimated removal costs in excess of $200,000. They raised the possibility that a third party, Cold Water Creek Pty Limited ("Cold Water Creek") (which it appears is associated with Green Alliance's holding company) could occupy the premises and deal with the stock by arrangement with MDM.

6 On 1 September 2011, the receivers and managers gave notice, on behalf of Green Alliance, vacating the warehouse with immediate effect. Specifically, that letter advised that "the company has ceased to occupy the property with immediate effect" and also enclosed a notice under s 419A(3) of the Corporations Act 2001 (Cth) that the receivers and managers did not propose to exercise rights in relation to the property as controllers, whether on behalf of Green Alliance or anyone else. That section is directed to a controller's liability for rent and other amounts payable in respect of a property.

7 The Amended Originating Process filed by MDM initially sought declarations and orders as to personal liabilities of the receivers and managers of Green Alliance. That claim has since been discontinued. In the alternative, the Amended Originating Process seeks orders for "specific performance" for MDM to make good and restore the premises in accordance with the Lease; alternatively, to pay a "a reasonable sum as agreed or as assessed" for the cost of making good and restoring the premises; and an order for specific performance for MDM to pay any amount of rent accruing from 1 September 2011 until the premises had been made good and restored in accordance with the terms of the Lease. Counsel for MDM made clear, in submissions, that MDM's claim is in substance a claim for damages. I consider that claim is open to it where the Amended Originating Process also sought such order as the Court saw fit and MDM's Statement of Claim identified a claim for damages.

8 Paragraph 16 of MDM's Statement of Claim in turn identified a claim against Green Alliance, namely, that it had breached the express terms of the Lease, with the breach particularised as arising from a failure to remove stock in trade from the warehouse prior to termination of the Lease and a failure to deliver up possession of the warehouse, on termination, in the condition required by the Lease. The reference to termination of the Lease was, relevantly, to its termination by expiry of its term. The Statement of Claim pleaded that MDM had suffered loss and damage, particularised as the cost of removal of stock and making good the warehouse.

9 Green Alliance filed an Amended Defence on 27 February 2012. That Amended Defence was not certified under s 347 of the Legal Profession Act 2004 (NSW) to indicate the view of Green Alliance's legal representative that there were reasonable grounds for believing, on the basis of provable facts and reasonable argument on the law that it had reasonable prospects of success. No such certification may have been required to the extent that the Defence was responding to a claim for specific performance rather than, expressly, for damages.

10 The Amended Defence relevantly pleaded that, first, MDM had agreed that Green Alliance could substitute and have its rent paid by a third party either on the third party's behalf or on behalf of MDM. No material facts as to the entry into that agreement are pleaded and it is not pleaded that that third party had in fact paid that rent, whether on its own or on Green Alliance's behalf. The Amended Defence adds that MDM had "refused to perform the agreement and thereby was in breach of contract and caused the Plaintiff injury, loss and damage". It appears the reference to "the Plaintiff (namely MDM)" is in error, and what was intended was a claim for loss by Green Alliance. However, such a claim would have had to have been brought by a Cross-Claim rather than by a defence, and no such Cross-Claim has been filed. The Amended Defence asserts that MDM is not entitled, by reason of these matters, to the rent or moneys claimed from Green Alliance.

11 The second basis of the Defence, again without pleading of the material facts, is that MDM is estopped from claiming the rent or moneys claimed from Green Alliance. It appears that estoppel is said to arise from the pleaded agreement for rent to be paid by a third party or from associated representations, but no reliance by Green Alliance or detriment suffered by it is pleaded. The third basis of the Defence, also without any pleading of the material facts, is waiver of MDM's claim for recovery of rent or moneys claimed from Green Alliance. Green Alliance also denies the quantum of damages claimed.

12 As noted above, MDM seeks an order that Green Alliance's defence be struck out and summary judgment entered under UCPR rule 13.1. That rule relevantly provides that, if there is evidence on which the claim or part of the claim is based and there is evidence given by a responsible person that, in the person's belief, the defendant has no defence to the claim or part of the claim, the Court may give such judgment for the plaintiff or make such order as the case requires. The principles applicable to a summary judgment application are well established. Before a court will give summary judgment, it is necessary to reach a high level of satisfaction that the order should be made, and the power to order summary judgment should be sparingly employed: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129; Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552, where the plurality of the High Court observed at [57]:

"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."

That formulation has repeatedly been adopted, including in Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 at [46]; Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 at [24]; Westpac Banking Corporation v Lahood [2011] NSWSC 1057 at [15]; and Shaw v New South Wales [2012] NSWCA 102.

13 In exercising the Court's power to strike out the defence under UCPR r 13.1, the Court must also give effect to the overriding purpose stated in s 56(1) of the Civil Procedure Act, namely, to facilitate the just, quick and cheap resolution of the real issues in the dispute or proceedings. Section 58(1) requires the Court to act in accordance with the dictates of justice and s 58(2) requires that the overriding purpose specified in s 56(1) be taken into account: Shaw v New South Wales at [128]ff. Similar factors are relevant to a decision whether to order that the whole or any part of the pleading be struck out under r 14.28 if, relevantly, it discloses no reasonable cause of action or defence or has a tendency to cause prejudice, embarrassment or delay in the proceedings.

14 MDM relies on an affidavit of Mr Domenic Marrocco dated 2 July 2012 in support of the application. Mr Marrocco gives evidence of the costs claimed to be incurred by MDM in respect of the clean-up of the premises and the rental which is claimed. Mr Marrocco also gives evidence, as contemplated by UCPR r 3.1(b) that, based on specified matters, he believes that Green Alliance has no defence to the claim. MDM also relies on the affidavit of Mr Michael Mascolo dated 26 September 2011, who gives evidence of the factual background, and an affidavit of the leasing agent in respect of the warehouse, Mr David Niven, dated 28 September 2011.

15 Green Alliance relies on affidavits of Mr Rafick Sayah, the sole director of Green Alliance and Cold Water Creek, and Mr John Major, a consultant to Cold Water Creek, both dated 25 July 2012. Before turning to the substance of those affidavits, I should note that large parts of them are in identical terms and have plainly been copied from each other. Paragraph 4 of Mr Sayah's affidavit largely corresponds to paragraph 3 of Mr Major's affidavit, paragraph 6 of Mr Sayah's affidavit to paragraph 5 of Mr Major's affidavit and paragraphs 7 of Mr Sayah's and Mr Major's affidavits to each other. The copying extends to the extent that Mr Sayah (in a passage plainly copied from Mr Major's affidavit) gives evidence that "I [Mr Sayah] introduced Rafick Sayah" to MDM's leasing agent. It should not be necessary again to emphasise that this course is wholly inappropriate, as judges of this Court have repeatedly observed. The fact that portions of affidavits are identical may evidence collusion but in any event creates an issue as to the credibility of the witnesses and diminishes the weight to be afforded to their evidence: Macquarie Developments Pty Ltd v Forrester [2005] NSWSC 674 at [89]-[91]; Rosebanner Pty Ltd v EnergyAustralia [2009] NSWSC 43 at [324], [326]; Celermajer Holdings Pty Ltd v Kopas [2011] NSWSC 40 at [183]-[189].

16 Putting aside this difficulty with the evidence of Mr Sayah and Mr Major, their evidence is that, in summary:

(a) Mr Sayah and Mr Major met with Mr Niven, the leasing agent representing MDM, on 20 August 2011 to negotiate a lease for Cold Water Creek of the warehouse. Mr Niven, on behalf of MDM, requested three months' rent up front and Cold Water Creek offered one month's rent up front. Mr Sayah made representations as to Cold Water Creek's ability to pay outstanding rent. Mr Niven said he would speak to MDM and get back to Cold Water Creek.

(b) Mr Major claims that, within three days of the meeting in the week ending 20 August, Mr Niven advised that MDM had accepted the proposed lease and wanted a bank cheque in the name of MDM and lease documents would be available to sign within the next few days.

(c) Cold Water Creek heard nothing further by 30 August; on 31 August, Mr Major was advised by Mr Niven that "everything is okay", that the lease documents were being prepared, and to come in tomorrow with a bank cheque and sign the lease.

(d) On 1 September, the agent advised that MDM would not sign the lease. There is no suggestion that a bank cheque was then tendered to MDM or accepted by MDM or its agent.

17 I should, for the purposes of this application, take Mr Sayah's and Mr Major's affidavit evidence at its highest, notwithstanding the issues in respect of their affidavits to which I have referred above. Accepting that evidence at its highest, the discussions contemplated that a lease agreement would be signed between MDM and Cold Water Creek, although it was not. They contemplated a deposit of at least a month's rent, which was not provided. There was no express reference in the discussion to a release of Green Alliance from its obligations under its existing lease, albeit those obligations may in practice have been discharged had Cold Water Creek taken up occupation of the premises, paid rent and removed the stock.

18 MDM contended that the suggested new lease was not enforceable because it was not in writing for the purposes of s 23C of the Conveyancing Act 1919 (NSW), and acts of part performance were not established for the purposes of s 54A of the Conveyancing Act. For present purposes, I will assume, without deciding, that those sections are not applicable because, as Green Alliance contends, the proposed lease was for a term of less than three years. There remain other difficulties in respect of Green Alliance's contention that its liability to MDM by the suggested new lease to Cold Water Creek was extinguished to which I will refer below.

19 Green Alliance also relies on a defence of estoppel. It is not necessary to set out the elements of such a defence at length. They have been referred to, for example, in Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387 at 428, by reference to the assumption that a particular legal relationship existed or would exist between the parties; in Silovi Pty Ltd v Barbaro (1988) 13 NSWLR 466 at 472, as requiring the creation or the encouragement by the defendant of an assumption, and reliance by the plaintiff, where departure from the assumption by the defendant would be unconscionable; and in Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394 at 444, where Deane J noted the law would not permit unconscientious departure by one party:

"from the subject matter of an assumption which has been adopted by the other party as the basis of some relationship, course of conduct, act or omission which would operate to that other party's detriment if the assumption be not adhered to ..."

20 In order to make good an estoppel defence, Green Alliance must establish that MDM (by its agent Mr Niven) had played such a part in the adoption by it of an assumption, which formed the basis of its action or inaction, that it would suffer substantial detriment if the assumption was not adhered to, so that it would be unconscientious to deny that assumption; see also Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101 at 121.

21 The difficulties with Green Alliance's estoppel claim, and the corresponding defence of waiver, are that the relevant conduct or representations, and the relevant reliance or detriment, are not pleaded with any specificity. Green Alliance could have had no understanding that a new lease would displace its obligations beyond 2 September 2011, when a letter from MDM's solicitors to the company made clear that it did not agree to any release of Green Alliance from its obligations under the Lease. That statement, both under the express terms of the Lease and as a matter of fact, would displace any earlier indication by MDM's agent. It is very difficult to see how an understanding of Green Alliance arising in the previous 10-day period, once displaced, could render it unconscionable for MDM thereafter to rely on its rights under the Lease, even taking the evidence of Messrs Sayah and Major at its highest.

22 Counsel for Green Alliance, Mr Pierce, makes an additional submission that the Lease between MDM and Green Alliance could be rescinded by oral agreement. That matter is not pleaded, and neither Mr Sayah nor Mr Major give evidence of any discussion of rescission of the Lease or that MDM would, or did, agree to release Green Alliance from its obligations absent entry into a new lease or performance by Cold Water Creek of its obligations under it. Mr Pierce also referred to possible arguments in oral forbearance and an implied ancillary contract not to revoke any offer made by MDM, which are also not pleaded. Mr Pierce raised a further argument, also not pleaded, that a new lease had been entered into between MDM and Cold Water Creek at some time after 23 August. That contention is not obviously supported by the evidence of Messrs Sayah or Major, whose evidence appears to be directed to negotiations rather than an intent to enter into legal relations prior to execution of a formal lease. It is also difficult, or impossible, to draw the inference that a concluded new lease existed, where there is no evidence that Cold Water Creek acted as it would have been required to act, had such a lease existed, by, for example, paying rent under it.

23 For all these reasons, I do not consider that there is a real prospect that Green Alliance could successfully defend the proceedings, on the Defence as presently pleaded and Mr Sayah's and Mr Major's evidence. I have given careful consideration to whether the proper course is to strike out the existing Defence in its present form and to grant summary judgment in favour of MDM, or to strike out the Defence under UCPR r 14.28 with leave to amend.

24 I have ultimately concluded that the proper course is to strike out Green Alliance's Defence and not grant leave to file an Amended Defence. The decision in Aon Risk Services Australia Ltd v Australia National University [2009] HCA 27; (2009) 239 CLR 175; 258 ALR 14 emphasises that the Court must have regard to the prejudice arising from delay in dealing with applications of this kind, a matter which was also emphasised in Bi v Mourad [2010] NSWCA 17 at [47]-[137]. In this case, the proceedings have been on foot for some nine months; the application for summary dismissal has been on foot for two months; and no attempt has been made by Green Alliance in that period to amend the Defence so as to raise the matters which were raised in oral submissions. In determining where the interests of justice lie, it seems to me that I can also have regard to the fact that, as I have noted above, it does not seem to me that the evidence of Mr Sayah and Mr Major provides any real support for the claims sought to be raised in submissions. To now grant the opportunity to further amend the Defence to Green Alliance would expose MDM to further costs and further delay, and it seems to me more probable than not that a repleading in more detailed form of the matters that were put before me would not itself establish a reasonably arguable case which would be capable of surviving a further application for summary dismissal. In these circumstances, having regard to s 56 of the Civil Procedure Act and the need to do justice between the parties, but also to ensure that justice is done in a manner that is consistent with the obligation of the just, quick and cheap resolution of the real issues in dispute, I have concluded that this is not a proper case to grant leave to file an Amended Defence.

25 In these circumstances, I consider that the proper course is to strike out the Defence and give summary judgment as to liability in favour of MDM. I do not consider that I could presently grant the relief sought by orders for specific performance, where damages are an adequate remedy, and I do not consider that the evidence as to damages before me is sufficient to support a final determination of damages, particularly where MDM has led no evidence as to the relevance, if any, of the outcome of its settlement with the receivers and managers. However, the possibility that summary judgment can be given, where damage has not yet been established, is specifically addressed by UCPR r 13.1(2) which allows an order for summary judgment with damages to be assessed.

Costs

26 I have heard the parties in respect of the costs of this application. MDM's primary position is that it should have the costs of the proceedings, and its alternative position is that it perhaps should have an order for the costs of and incidental to the application for summary dismissal heard before me, in which it has been successful, and that it should have an order that those costs be assessed and paid forthwith. Green Alliance resists an order for the costs of the proceedings generally, but accepts that there should be an order for the costs of the application for summary judgment, while resisting an order that costs be paid forthwith.

27 I do not think that I should make an order that Green Alliance should pay MDM's costs of the proceedings generally, when the question of the damages recoverable by MDM has not yet been determined, and there may be, for example, without prejudice or other communications which may be relevant to the matter, as may the amount which is ultimately recoverable by way of damages. Green Alliance should pay the costs of and incidental to the summary judgment application before me. I consider that an order should be made that MDM have leave to have those costs assessed forthwith and that those costs be payable forthwith. I note that such an order will often be made in circumstances when a discrete application is brought and has been wholly successful. I consider that, as a matter of substance, this application has been wholly successful, notwithstanding the reservation of a determination of damages to be heard before an Associate Justice.

28 Accordingly, I make the following orders:

1. Pursuant to UCPR r 13, the Defence filed by the Third Defendant be struck out and there be judgment for the Plaintiff with damages to be assessed.

2. I refer the matter to an Associate Justice for the determination of damages.

3. The Third Defendant pay the Plaintiff's costs of and incidental to the application for summary judgment heard today, as agreed or as assessed.

4. The Plaintiff have leave to assess those costs and those costs be payable forthwith.

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Decision last updated: 16 October 2012