Hee v Nyoni

[2014] WASC 44

Supreme Court of Western Australia

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Interrogate

Catchwords

1. Practice and Procedure
2. › Summary judgment
3. › Prima facie entitlement to judgment
4. › Burden on defendant to show arguable defence
5. › Whether matters raised by defendant so clearly untenable that they cannot possibly succeed
6. › Rules of the Supreme Court 1971 (WA), O 14 rr 1, 2, 3
1. Contract
2. › Specific performance
3. › Contract for sale of land
4. › Contract for sale of business
5. › Preconditions to award of specific performance
6. › Whether damages an inadequate remedy
7. › Whether specific performance may be awarded by way of summary judgment
1. Consumer Law
2. › Misleading and deceptive conduct
3. › Australian Consumer Law, s 18
4. › Whether arguable defence established
1. Consumer Law
2. › Unconscionable conduct
3. › Equitable doctrine of unconscionable conduct
4. › Special disadvantage
5. › Whether arguable defence established
6. › Australian Consumer Law, s 20

Quick Take

Specific performance of both a contract for sale of land and a contract for sale of a pharmacy business may be awarded by way of summary judgment where the defendant fails to place before the court any facts capable of supporting an arguable defence. A pharmacy business, with its associated regulatory approvals and location restrictions, is sufficiently unique that damages are an inadequate remedy. The existence of related proceedings in another court does not constitute 'some other reason' for a trial under RSC O 14 r 3(1) where the defendant has failed to establish an arguable case in those proceedings.