Acclaim Holdings Pty. Ltd. v. Vlado Pty. Ltd.

Judges:
Wallace J
Kennedy J
Pidgeon J

Court:
Supreme Court of Western Australia (Full Court)

Judgment date: Judgment handed down 25 October 1989.

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Wallace J.

This is an appeal by leave from a District Court judgment reversing an order of the Deputy Registrar of that Court and setting aside ex debitae justiciae a judgment obtained by the respondent in default of the appellant's filing of a notice of appearance. The respondent's claim against the appellant was endorsed on a writ of summons which reads:

``The plaintiffs claim is for the sum of $56,565.95 being the value of stock in trade of the Tarcoola Tavern as determined by Perth Stocktaking Services on 13th June 1988 in accordance with a written Agreement between the Parties of 14th September 1987 as varied by the Parties on 15th June 1988, payment of which stocktaking sum was due and owing on or before 23rd June 1988

AND

• (a) the Plaintiff claims $56,565.95
• (b) interest thereon at the rate of 14 percentum per annum pursuant to Section 32 of the Supreme Court Act from 28th June 1988 and costs.''

The grounds by which the appellant sought to have the default judgment set aside were that the judgment was irregular in that the respondent relied on an agreement which was and remained unstamped pursuant to the provisions of the Stamp Act and further the writ was not served at the registered office of the respondent. Both of these grounds were rejected by the Deputy Registrar but he upheld the appellant's argument that the judgment was irregular because it was entered for an amount greater than that to which the plaintiff was entitled as disclosed by certain correspondence. That reasoning was successfully challenged before the learned Judge and has not been the subject of argument in this Court.

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ATC 5217

It was however, his Honour's opinion, that sec. 27 of the Stamp Act (the Act) had no application to the respondent's claim endorsed on its writ of summons, and that is the subject of this appeal. That is because the learned Judge reasoned that by referring to the agreement between the parties in the endorsement of claim, the respondent had not pleaded it nor was it required to prove it in order to obtain a default judgment ``and consequently the case does not come within section 27 of the Act''. The grounds of appeal contend that his Honour erred in holding that sec. 27 of the Act had no application.

Section 27(1) of the Act relevantly provides:

``Except as otherwise provided by this Act no instrument chargeable with duty executed in Western Australia, or relating, wheresoever executed, to any property situate or to any matter or thing done or to be done in Western Australia, shall, except in criminal proceedings, be pleaded or given in evidence or admitted to be good, useful, or available in law or equity, unless it is duly stamped in accordance with the law enforced at the time when it was first executed.''

The learned Judge held:

``(a) that an endorsed writ is not a `pleading'; and

(b) that the words `admitted to be good, useful, or available in law or equity' refer to the use in evidence of an unstamped document and as the default judgment procedure does not require the production of the document in evidence, those words in the statute had no application.''

Whilst a generally endorsed writ of summons is not a pleading,
Murray v. Stephenson (1887) 19 Q.B.D. 60 ;
Wallis v. Jackson (1883) 23 Ch. D. 204 ; a statement of claim endorsed on a writ is,
Anlaby v. Praetorius (1888) 20 Q.B.D. 764 ;
Robertson v. Howard (1878) 3 C.P.D. 280 , and so are particulars for some purposes, the term used in the statute is not ``pleading'' but is ``pleaded''. ``Pleading'' is the past participle of the verb to plead, which is defined in the Shorter Oxford English Dictionary in a number of ways, including ``to go to law, sue (a person); to maintain (a plea or cause) by argument in a court of law; to sue for in a court of law''. The Macquarie Dictionary (1982) includes the definition: ``Law... to make any allegation or plea in an action at law''. The word ``plea'' is defined to include: ``An allegation made by, or on behalf of, a party to a legal suit, in support of his claim or defence''. It is my opinion therefore, that the respondent, in suing in the District Court, claimed that by virtue of an unstamped agreement it was entitled to a money sum and thereby ``pleaded'' the agreement in the ordinary and popular sense of the word.

In
Dent v. Moore (1919) 26 C.L.R. 316 it was held in a joint judgment delivered by Isaacs J. that an unstamped instrument is in the eye of the law a nullity, it is struck with sterility: see pp. 324-325 and p. 327. There the Court was considering the New South Wales Stamp Act which was in similar terms to the English Act of 1891 in that it contained the words ``or available or effectual for any purpose whatsoever in law or in equity'' instead of the words ``or admitted to be good, usefully or available in law or equity'' as used in the Act. At pp. 327-331 of the judgment, Isaacs J. reviewed a number of cases relating to the pre-1891 English stamp legislation, identical to the Act. The language employed in those cases highlights the distinction between the ``first branch'' of the enactment (an instrument being inadmissible in evidence) and the second branch (admitted to be good, useful or available in law or equity). Those cases make it clear that an unstamped instrument is a nullity. In
Ash Street Properties Pty. Ltd. & Ors v. Pollnow 87 ATC 4609 at p. 4624; (1987) 9 N.S.W.L.R. 80 at p. 83 , Mahoney J.A. noted that the Court in Dent's case held that, ``until stamp duty was paid there had been in law no such transaction'' see also Priestly J.A. at p. 100E. From this, emerges the clear distinction between the two branches of the section, the first dealing with the inability of the agreement to be put into evidence, and the second dealing with the essential validity or efficacy of the instrument.

Accordingly, in my view, the learned Judge erred when he formed the opinion that the second branch of the enactment referred to the use in evidence of an unstamped instrument.

It affords me no pleasure to reach this conclusion when I am told that it is the appellant's obligation to stamp the document in question. But the Court is required to do justice according to law and as the judgment in Dent v.

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ATC 5218

Moore at p. 330 reveals, ``But private advantage still stands subordinate to public revenue, and an `unstamped instrument' cannot be set up as ever being valid and operative for any civil purpose''. For these reasons I would allow this appeal and set aside the order and judgment of 23 February 1989.