Pemberton v Chappell CA123/86, 12 December 1986
- Court
- Court of Appeal
- Judgment
- 12 December 1986
Areas of law
Judgment analysis
AI-generated summary
It can misstate holdings, facts, or citations. Always confirm against the judgment PDF.
Facts
In May 1982, Mr Pemberton purchased a kiwifruit farm from Mr Chappell for $350,000, with the balance secured by a second mortgage to Mr Chappell. Mr Pemberton later alleged that misrepresentations were made about the quality of the planting of the kiwifruit vines, which led to poor production and prevented him from syndicating the property for a profit. In April 1986, the first mortgagee sold the property under its power of sale for $150,000. This constituted a default under the second mortgage, and Mr Chappell sued Mr Pemberton for the outstanding debt. Mr Pemberton defended the claim, arguing he had an equitable set-off or counterclaim for over $250,000 based on misrepresentation. Mr Chappell applied for summary judgment. In the High Court, Doogue J granted summary judgment, finding Mr Pemberton's defence lacked bona fides due to a four-year delay in raising the complaint and inadequate supporting evidence. Mr Pemberton appealed to the Court of Appeal, adducing further evidence.
Held
- Under Rule 136 of the High Court Rules, the plaintiff bears the onus of satisfying the Court that the defendant has no defence. This onus is not discharged where the defendant, despite raising issues of credibility, adduces evidence (particularly independent evidence) that establishes a genuinely arguable defence on a question of fact.
- Even if a defendant's own evidence is dubious, if the 'essential core of his complaint is shown to have some independent support', the Court cannot be satisfied that there is no defence, and the matter should proceed to trial rather than be determined by summary judgment.
Somers J concurring; Hillyer J concurring.
Orders
The appeal is allowed. The judgment in the High Court is set aside and the case is remitted to the High Court for such directions as ought to be given under Rule 142. No order as to costs. The sums paid by the appellant to the Registrar of the High Court are to be repaid to him.
Key passages3
Under Rule 136 of the High Court Rules, the onus of establishing that there is no defence is cast on the plaintiff.
“The outstanding feature of this provision is that the onus of establishing that there is no defence is cast on the plaintiff.”
If a defendant wishes to resist summary judgment he must file an affidavit raising an issue of fact or law and give reasonable particulars of the matters which he claims ought to be put in issue.
“If a defence is not evident on the plaintiff's pleading I am of opinion that if the defendant wishes to resist summary judgment he must file an affidavit raising an issue of fact or law and give reasonable particulars of the matters which he claims ought to be put in issue.”
The term 'no defence' in Rule 136 refers to the absence of any real question to be tried, such as 'no bona fide defence' or 'no fairly arguable defence'.
“In this context the words 'no defence' have reference to the absence of any real question to be tried. That notion has been expressed in a variety of ways, as for example, no bona fide defence, no reasonable-ground of defence, no fairly arguable defence.”
Cases mentioned in judgment
Legislation mentioned
- High Court Rules, r 135, r 136, r 137, r 138, r 139, r 140, r 141, r 142, r 151(2), r 534, r 535
- Contractual Remedies Act 1979, s.6
- Credit Contracts Act 1981, s.31, s.32, Second Schedule, Cl.5