Dianne Gay Oliver v Michael Ian David Neville Kreibig (Also Known As Mike Kreibig) v Lynette Patricia Kreibig [1989] ACTSC 24 (1 June 1989)

SUPREME COURT OF THE ACT

DIANNE GAY OLIVER v. MICHAEL IAN DAVID NEVILLE KREIBIG (Also known as Mike
Kreibig) v. LYNETTE PATRICIA KREIBIG
S.C. No. 209 of 1989
Application for Summary Judgment

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Kelly J.(1)

CATCHWORDS

Application for Summary Judgment - No new question of principle involved.

Theseus Exploration N.L. v. Foyster [1972] HCA 41; (1972) 126 CLR 507

Fancourt v. Mercantile Credits Limited [1983] HCA 25; (1983) 48 ALR 1 at p 10

The Cloverdell Lumber Company Pty Ltd v. Abbott [1924] HCA 4; (1924) 34 CLR 122

Ray v. Barker (1879) 4 Ex D 279 at p 283

Argento v. Cooba Developments Pty Ltd (1987) 53 FCR 579 at p 584

HEARING

CANBERRA
1:6:1989

ORDER

The summons be dismissed.

The cost of the summons be costs in the cause.

The defendants file their defence within fourteen days.

DECISION

The plaintiff sues for specific performance of an agreement for sale of the residue unexpired of a lease then to be registered in respect of Unit 3 of a Units Plan to be registered in respect of Block 1 Section 33 Division of Greenway in the Australian Capital Territory. By sub-clause 2(3) of the agreement it was to be completed within fourteen days of notification to the defendants of the registration of the Units Plan or of the issue of a Certificate of Fitness for Occupancy or Use, whichever was the latest. The Certificate of Fitness issued on 13 March 1989 and on the same day the plaintiff gave notice to the defendants that the Units Plan had been registered and that Unit 3 was registered as Volume 1107 Folio 3. A duly certified copy of Certificate of Title Volume 1107 Folio 3 shows that Unit No. 3 of Units Plan No. 528 was registered on 9 March 1989.

2. The agreement was originally subject to a condition that the defendants should obtain approval of a loan in the sum of $172,000 secured by first mortgage to enable them to complete the purchase. But by letter dated 10 November 1988 the defendants' solicitors confirmed telephone advice of 1 November 1988 that the agreement had become unconditional. I am satisfied that the plaintiff was ready and willing to carry out the agreement so far as it remains to be performed on her part.

3. By summons dated 16 May 1989 the plaintiff sought summary judgment for specific performance and interest as payable under the agreement, damages for breach of contract and interest under s.53A of the Australian Capital Territory Supreme Court Act 1933.

4. The defendants resist the application for summary judgment.

5. In support of that resistance Michael Kreibig gave evidence that one John Sayers of Leader Real Estate Pty. Ltd. had telephoned him to say that he had a range of properties at Greenway fronting Lake Tuggeranong available for sale. He met Mr. Sayers and inspected the properties. He deposed that Mr. Sayers said to him words to the effect of, "Most of the owners in this development are going to hold on to the properties until the lake is filled at which time I believe they will be worth $250,000. There will be no need to pay the stamp duty up front because there is only a twenty percent fine for late payment. You can pay that with the stamp duty when you resell it. All you will have to pay right now is the two and a half percent deposit". Although the agreement provided by a combination of clause 2(1) and item 8 that a deposit of ten percent of the purchase price of $215,000 should be paid, a special condition provided that the plaintiff would accept a deposit of $5,350 upon exchange of agreements with the balance of the deposit being payable upon completion. $5,350 is a little less than two and a half percent of $215,000 but the payment of the lesser deposit accords generally with what Mr. Kreibig said. I note, however, that the agreement when stamped seems to have attracted the normal amount of stamp duty.

6. Mr. Kreibig also deposed to the fact that Mr. Sayers had exercised a degree of pressure on him to persuade him to sign and exchange the agreement, referring again to the potential growth and value of the property when the lake was completed. Amongst other things, Mr. Kreibig said that Mr. Sayers said to him, "I have found another who was said to sell Unit 3 for $215,000. This is a good price". Shortly afterwards the contract was forwarded to the defendants' solicitors. Mr. Sayers kept up the pressure, repeating his earlier statement. The defendants eventually signed the agreement and it was exchanged, it would appear, on 15 September 1988.

7. Mr. Kreibig deposed to some subsequent events as follows:
"After I signed the contract, Mr. Sayers rang me

regularly to tell me of a number of sales and
quoted prices which he said had gone through in
the area, which he said showed that the market
value of the unit upon which I had exchanged
contracts was more than the contract price of
$215,000. I do not now recall the precise
details. I asked him on a number of occasions to
provide me with documentary material to demonstrate
that these sales had occurred. I said to
him words to the effect of: "I need this information
for a valuation of the property, so that I
can raise the necessary finance". Mr. Sayers
said, "I'll get copies for you".
Finally, on 1st November as a result of all the
statements he made to me regarding the value of
the property as soon as the lake was complete,
and in reliance on his promise to provide documentary
evidence of sales to support a higher
valuation than $215,000, I agreed that the
contract should go unconditional, even though I
had not yet secured finance.
Mr. Sayers never supplied the documentary evidence
of comparative sales which he had promised to me.

8. After the contract had become unconditional, Mr. Kreibig learned that the vendor was the wife of one of Mr. Sayers' fellow salesmen in the office of Leader Real Estate Pty. Ltd.

9. In these circumstances the defendants allege that they are entitled to raise defences under s.52 of the Trade Practices Act 1974 and to seek appropriate orders under s.87(2) of that Act.

10. The principles governing the questions of leave to enter summary judgment are not in doubt.

11. In Theseus Exploration N.L. v. Foyster (1972)126 CLR 507 Barwick C.J. said at pp 513-4:

"The ambit of O.18, r.1 of the Rules of the
Supreme Court, of Queensland (the equivalent of
O.15, r.1) in relation to the present proceedings
is not in doubt. The respondent, on the
appellant's application for summary judgment was
'bound to shew' that he had 'some reasonable
ground of defence to the action' (Crump v.
Cavendish (1880) 5 Ex D 211 at p 214, per
Bramwell L.J.) and the appellant was entitled to
summary judgment if there is 'no fairly arguable
point' to be brought forward (Anglo-Italian Bank
v. Wells (1878) 38 LT 197 at 201, per Jessel
M.R.). The jurisdiction to give summary judgment
should not be exercised 'where a difficult
question of law is raised' - see generally the
Supreme Court Practice (1970) vol. 1, pp 126-130.
Perhaps the summary intervention to prevent this
continuance of a plaintiff's action ought to be
much rarer than the giving of summary judgment
but there is sufficient correspondence in the two
situations to make apposite to this case much of
what I said in General Steel Industries Inc. v.
Commissioner for Railways (N.S.W.) (1964) 114
CLR 125, at pp 129-130.
Although I have reached a clear conclusion as to
the lack of validity in the respondent's sub-
mission that the appellant was unable to recover
the amount claimed, I would not be prepared to
hold that the judge erred in the course he took.
Equally, however, I would not have thought him in
error if he had granted the appellant's
application for summary judgment. The case was one
which, in my opinion, could have been disposed of
upon legal argument upon the application. But it
was for the judge to be satisfied that there was
a matter to be tried. Whilst there were no facts
to be decided, it was open to the judge, in my
opinion, to take the view that the extent and
complexity of the matters of law and of argument
thereon warranted a hearing.
At p 514-5 Gibbs J. said:
"... I am of opinion that the learned primary
judge was completely justified in dismissing the
appellant's application for summary judgment.
Indeed, on one view of the law as stated in
Bundock Bros. v. Bergl and Co. (1897) 8 QLJ 106,
he was bound to dismiss it. In that case
Griffith C.J., speaking for the Full Court of the
Supreme Court of Queensland in a case arising
under an earlier rule corresponding to O.18 of
the Rules of the Supreme Court (Q) said (at p 108):
'It is settled that when there is a serious
point of law raised by a defendant, the Judge
in Chambers ought not to decide it, but ought
to give unconditional leave to defend.'"

12. In Fancourt v. Mercantile Credits Limited [1983] HCA 25; (1983) 48 ALR 1 at p 10, the High Court said:

"The power to order summary or final judgment is
one that should be exercised with great care and
should never be exercised unless it is clear that
there is no real question to be tried: see Clark
v. Union Bank of Australia Ltd [1917] HCA 19; (1917) 23 CLR
5; Jones v. Stone (1894) AC 122; Jacobs v.
Booth's Distillery Co (1901) 85 LT 262."

13. In The Cloverdell Lumber Company Pty Ltd v. Abbott [1924] HCA 4; (1924) 34 CLR 122, Isaacs J. said, at p 133:

"All the defendant has to do is to establish a
state of facts that displaces the prima facie
effect of the statement of the mere belief of the
deponent ... that there is no defence in fact or
law."

14. Later, again at p 133, he referred to the judgment of Brett L.J. (as he then was) in Ray v. Barker (1879) 4 Ex D 279 where, at p 283, his Lordship said:

"In this case we have to consider what is the
true construction of Order XIV. When the existence
of the debt has been clearly established
upon the affidavits, the plaintiff is entitled
to an order empowering him to sign judgment. The
defendant, however, is to have leave to defend,
either if he has a good defence upon the merits,
or if he discloses 'such facts as may be deemed
sufficient to entitle him to defend'. If therefore
the defendant shows such a state of facts as
leads to the inference that at the trial of the
action he may be able to establish a defence to
the plaintiff's claim, he ought not to be
debarred of all power to defeat the demand made
upon him: by the very words of the Order the
plaintiff is not to be allowed to sign judgment
merely because the defendant's affidavit does not
show a complete defence."

15. Isaacs J. also referred to the judgment of Cotton L.J. who, in the same case, said, at p 284:

"The affidavit may not make it clear that there
is a defence, but the defendant may be able at
the trial to establish a bona fide defence. I am
not satisfied that in the present case a valid
defence exists; but the defendant may plausibly
argue that he has a good defence."

16. Detailed and exhaustive evidence is not required:
Argento v. Cooba Developments Pty Ltd (1987) 53 FCR 579 at p 584 per Fisher J.

17. One feature of this case strikes me as extraordinary. It is difficult to understand how the defendants should have yielded up the protection of the finance clause, clause 19. Without, of course, making any finding on the matter, it would seem, prima facie, that there must have been some reason which persuaded the defendants to that course. If the reason was that set out by Mr. Kreibig in his affidavit, it would seem to me that there is a real chance that the conduct of Mr. Sayers in this regard might well be held to have been misleading or deceptive or likely to mislead to deceive Mr. Kreibig. That being the case, I think there may be a defence available to the defendants under the Trade Practices Act 1974 and in accordance with the principles concerning applications for summary judgment which I have set out above, the application made by the summons should be refused.

18. I was pressed to deal with the matter on the basis that the defendants would suffer hardship if the orders as sought were made, but I was not, on the material before me, prepared to find that hardship in the relevant sense may have existed. I was also pressed to take into account the fact that the plaintiff's husband worked for the real estate agent through whom Mr. Sayers sold the property. I do not think it appropriate at this stage to make any comment on this aspect.

19. The summons is dismissed. I order that the cost of the summons be costs in the cause. I further order that the defendants file their defence within fourteen days.