Crawley Investments Pty Ltd v Elman

[2014] WASC 233

Supreme Court of Western Australia

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Interrogate

Catchwords

1. Practice and Procedure
2. › Service out of jurisdiction
3. › Application to set aside writ and service
4. › Chancery-derived rules
5. › Test to be applied
6. › Whether same test as summary judgment
7. › Rules of the Supreme Court 1971 (WA), O 5 r 9, O 10, O 12 r 7
1. Contract
2. › Parties to contract
3. › Whether individual acting as agent personally a party
4. › Objective assessment of intention to create legal relations
5. › Whether director of company became party to agreement by inference or implication
1. Contract
2. › Implied terms
3. › BP Refinery conditions for implication
4. › Whether term that director would procure company's performance could be implied
5. › Whether term necessary for business efficacy
6. › Whether reasonable and equitable
1. Practice and Procedure
2. › Costs
3. › Special costs orders
4. › Whether ceiling in costs determination should be raised
5. › Unusual difficulty, complexity or importance
6. › Allowance for senior counsel
7. › Legal Profession Act 2008 (WA), s 280(2)

Quick Take

Under the Western Australian Chancery-derived rules for service out of the jurisdiction, the discretionary limb applies the same test as summary judgment — if a foreign defendant could obtain summary judgment after entering an appearance, the writ and service should be set aside. A director of a company will not be found to be personally a party to a company's contract merely by inference from the director's role in negotiating the contract on behalf of the company, particularly where the company is a large listed entity, the director's unilateral power to bind the company is not established, and the contract would be effective without the director's personal involvement.