LEADER COMPUTERS PTY LTD -v- PANLYN AUSTRALIA PTY LTD [2026] WADC 82

[2026] WADC 82 [2026] WADC 82 [PB] Page 1 JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA IN CHAMBERS LOCATION : PERTH CITATION : LEADER COMPUTERS PTY LTD -v- PANLYN AUSTRALIA PTY LTD [2026] WADC 82 CORAM : REGISTRAR HARMAN HEARD : 21 JULY 2026 DELIVERED : 26 AUGUST 2026 FILE NO/S : CIV 2648 of 2025 BETWEEN : LEADER COMPUTERS PTY LTD Plaintiff AND PANLYN AUSTRALIA PTY LTD First Defendant HONGHUA XAIO Second Defendant Catchwords: Practice - Practice under the Rules of the Supreme Court 1971 (WA) - Application to set aside the writ and for permanent stay - Prior action on the same cause having been dismissed for want of prosecution - Turns on its facts Legislation: Nil -- 1 of 9 -- [2026] WADC 82 [2026] WADC 82 [PB] Page 2 Result: Each application successful Representation: Counsel: Plaintiff : Ms C Horwood First Defendant : Mr M G S Crowley Second Defendant : Mr M G S Crowley Solicitors: Plaintiff : Mark Gustavsson & Associates First Defendant : LJR Legal Second Defendant : LJR Legal Case(s) referred to in decision(s): Brocx v Hughes [2010] WASCA 57 -- 2 of 9 -- [2026] WADC 82 REGISTRAR HARMAN [2026] WADC 82 [PB] Page 3 REGISTRAR HARMAN: 1 The writ was issued with the following indorsement. The Plaintiff's claim against the First Defendant is for payment of $363,186.82 (Debt), being money due and payable for goods and services provided by the Plaintiff to the First Defendant pursuant to a written agreement between them dated 25 May 2018, and invoices issued by the Plaintiff to the First Defendant between 05 November 2019 and 06 January 2020. The Plaintiff's claim against the Second Defendant is for payment of the Debt pursuant to a written agreement between the Plaintiff and the Second Defendant dated 25 May 2018, whereby the Second Defendant guaranteed payment to the Plaintiff of all money which was at the time or at any time in the future, payable to the Plaintiff by the First Defendant. The Plaintiff further claims: 1. Interest from the date of the breach of the written agreement between the Plaintiff and the First Defendant; 2. Legal Costs; and 3. Such further or other relief as this Honourable Court thinks fit. 2 The defendants have applied to set aside the writ, alternatively, for a permanent stay of the action. 3 Originally, the application was listed to coincide with that for an application brought by the defendants in a prior action between the parties for their costs of the action. That application had been made after the action had been dismissed under a rule by which cases designated inactive that retain that status for six months are administratively dismissed. 4 At the hearing, the defendants obtained the order for costs, however, as there was insufficient time to deal with the application, it was listed to be heard later. 5 The defendants characterised a stay as the primary relief sought and proposed that the action be stayed at least until the plaintiff has paid their costs of the prior action. They informed the court that they are presently drafting a bill of costs. -- 3 of 9 -- [2026] WADC 82 REGISTRAR HARMAN [2026] WADC 82 [PB] Page 4 6 The basis upon which the defendants seek to set aside the writ is that the indorsement fails to disclose an actionable cause. 7 Order 6 r 1 of the Rules of the Supreme Court 1971 (WA) provides: (1) Before a writ is issued it must be indorsed with a concise statement of the nature of the claim made, and of the relief or remedy required in the action. 8 According to the terms by which r 1(1) is expressed, an indorsement speaks for itself. That it presents a concise statement of the nature of the claim is mandatory. 9 Characterisation of money due and payable for supply as a cause for recovery of a debt suggests that some feature of the agreement had established more than a liquidated claim. The indorsement does not refer to any feature of the agreement. 10 To the extent that the plaintiff claims under either the agreement or the invoices, it makes no reference to breach of any term or provision. 11 As against the first defendant, the indorsement is insufficient to present a claim for either recovery of debt or breach of agreement. As against the second defendant, it is insufficient to found the proposition that the amount claimed is now recoverable by the plaintiff. The indorsement fails the test expressed by the rule. 12 After the application was filed, but prior to the hearing, the plaintiff filed a statement of claim. It is open to consider that the plaintiff be accommodated by permitting the pleading to stand in substitution for the indorsement. For the reasons that follow, the plaintiff will not be accommodated. 13 The stay sought by the defendants would be established upon the proposition that any cause of action projected by the indorsement is within the scope of the pleading in the prior action. 14 Although no concession is made by the plaintiff, the statement of claim leaves no scope for doubt that the agreement and the invoices had been the subject of the prior action. -- 4 of 9 -- [2026] WADC 82 REGISTRAR HARMAN [2026] WADC 82 [PB] Page 5 15 Because but for an exception to which reference will next be made, the plaintiff has not provided evidence that relates to the context that predated dismissal of the prior action, the defendants are untroubled in presenting submissions that draw upon inferences to the end of establishing their case in the application. 16 The exception is that 10 days after notice had been given to the parties that the action would soon become inactive, the plaintiff had applied for judgment for failure to file a defence, alternatively a springing order. Each part of the application had drawn upon an order of 1 May 2024 by which a period had been established for the defendants to file any amended defence and any amended counterclaim. It had been made upon the fourth amendment of the plaintiff's pleading. 17 The first inference advanced by the defendants is that the reason the plaintiff had not applied to have the prior action removed from the inactive cases list within the period of six months from the date that the parties had been so notified, had been that any commitment it then provided to the court to maintain the action as active would not have been accepted. That prospect is open as such a commitment had been made in the same context on three prior occasions, and after giving each commitment the plaintiff had failed to do so. 18 Because the consequence of taking no such action in the period of six months after the action had become inactive was that the action would be dismissed, the second inference open is that the plaintiff had been aware that dismissal of the action would establish scope for it to then commence another action upon the same cause. 19 The third is that, accordingly, the plaintiff had permitted the action to be dismissed. 20 In reasons for decision published in Brocx v Hughes [2010] WASCA 57, the court considered the prospect that an action be permanently stayed where a prior action brought on the same cause had been dismissed upon operation of a springing order. 21 The reasons reveal that the plaintiff had put insufficient evidence to satisfy the court that commencement of a fresh action did not amount to an abuse of process. -- 5 of 9 -- [2026] WADC 82 REGISTRAR HARMAN [2026] WADC 82 [PB] Page 6 22 For present purposes, on each occasion that the action had been removed from the inactive list, notice had been given of a date by which the action be entered for trial. Upon each subsequent default, notice had been given that at the expiration of 14 days the action would be listed as inactive; and at the expiration of that period, on each occasion notice had been given that the action had been so designated. The period of six months within which the plaintiff had the opportunity to apply to remove the action from that list had then commenced. 23 The applications of the defendants in the prior action for costs and that is now before the court, have each provided an opportunity for the plaintiff to provide evidence. 24 The lack of evidence is projected from a context where upon receipt of each notice that the action had been placed on the inactive cases list, the plaintiff's solicitor had been obliged to so inform the plaintiff. 25 It is open to consider that subsequent dialogue accounted for the result. 26 Newnes JA concluded his reasons in part as follows: 105 The conduct of the appellant's case in the first action reflected an extraordinary disregard of the practices and procedures of the court. … 106 In my view, the only inference reasonably open is that the appellant's conduct was contumacious. No satisfactory explanation has been provided for it. As the conduct has not been explained, the court cannot be satisfied that it will not occur again. … 107 I consider, with respect, that the master was right to conclude that the second action was an abuse of process. The appellant has had a reasonable opportunity to bring her claim. It was dismissed by reason of her contumacious conduct. If the second action were permitted to proceed, … court resources which could be used to resolve the disputes of other litigants would have to be used to give the appellant a further opportunity to bring the claim, and the law would be brought into disrepute. … 108 The appeal raises a point of some significance for the conduct of litigation in this court . -- 6 of 9 -- [2026] WADC 82 REGISTRAR HARMAN [2026] WADC 82 [PB] Page 7 27 Those assessments also respond to features of the context exposed by the application. 28 The mechanism the operation of which accounted for dismissal of the prior action applies equally to this action. As much as the plaintiff did not and has not accounted for its inaction in the prior action, it has made no commitment to conduct itself to the contrary in this action. Unless the plaintiff does so, it will not have moved beyond the position it had established for itself in the period prior to dismissal of the prior action. 29 By re-engaging the jurisdiction of the court, the plaintiff has worked around the consequence of breach of its commitment to maintain the prior action as active. It is open to consider that but for the application, the plaintiff's conduct would not have been exposed. 30 That continuation of the action would be an abuse of process draws upon its commencement as the plaintiff's response to imposition of the most severe consequence for delay in bringing an action on for trial and that given the opportunity to account for delay and to commit to proceeding in a timely manner, the plaintiff has not done so. 31 The prior action had been commenced on 14 May 2020 upon a writ indorsed with a pleading. By the time the action was dismissed the plaintiff had filed a series of amended pleadings; made its second unsuccessful application for summary judgment; and applied to have the action removed from the inactive cases list on three occasions. 32 An overview of the file maintained by the court reveals that prior to the date of the notice of dismissal, 147 documents had been filed. The dates of filing reveal three periods of more than one month between filings. The first from September 2023 to December 2023, the next from November 2024 to February 2025 and the last from June 2025 to September 2025. From that assessment, it is open to consider that there had been reason for the defendants to be in regular contact with their solicitor over the total period of five years and five months. Such contact would inevitably generate costs along with other adverse consequences for them. 33 A feature of the prior action was that the plaintiff had claimed against a third defendant, Austin Computers Pty Ltd. -- 7 of 9 -- [2026] WADC 82 REGISTRAR HARMAN [2026] WADC 82 [PB] Page 8 34 Parts of the reasons for decision given by Registrar Kingsley on 22 June 2022 upon hearing the plaintiff's second application for summary judgment set out the relationships between the parties as follows: 4 … The third defendant … granted, by written franchise agreement, a licence to [the first defendant] to operate the business known as Austin Computers from certain premises. Pursuant to the franchise agreement, [the first defendant] would pay to [the third defendant] a franchising fee. 5 By notice dated 3 December [2019], [the third defendant] gave notice to [the first defendant] that it was in default of its obligations under the Franchise Agreement and demanded payment of $246,420.50. [The first defendant] has failed to pay that amount. 6 On 1 January 2020, [the third defendant] took possession of the various stores operated by [the first defendant], such taking of possession including all computer supplies that were on the premises. … 10 [The third defendant's] taking possession of all stock held by [the first defendant] as security for the debt owed to [the third defendant] by [the first defendant] is the subject of [the plaintiff's] claim against [the third defendant]. … 13 [The third defendant], under the terms of its franchise agreement and the assignment of leases, has taken possession of [the first defendant's] goods that were on the premises. Some of those goods are the goods of [the plaintiff]. [The plaintiff] acknowledges this insomuch as it sues [the third defendant] on the basis that [the third defendant] holds [the plaintiff's] goods on trust. Whilst [the plaintiff] has brought a liquidated claim against [the first defendant] and [the third defendant], the quantification of that claim (whether there can be any mitigation of loss) depends on the extent [the third defendant] is found to be holding some, or all, of [the plaintiff's] goods. 14 It is accepted that [the plaintiff] does not have a duty to mitigate but, in this [instance], [the plaintiff] has identified [the third defendant] as being in possession of some, if not all, of [the plaintiff's] goods. … -- 8 of 9 -- [2026] WADC 82 REGISTRAR HARMAN [2026] WADC 82 [PB] Page 9 35 In early 2025, by order of the Federal Court, Austin Computers Pty Ltd commenced the process of liquidation. It is open to consider that in the process of liquidation of the third defendant, the plaintiff had the opportunity to at least raise the proposition that the beneficiary of supply had been the third defendant. 36 As costs have been awarded for the prior action, it would be appropriate for the court to stay the action until those costs had been paid. That is so as there is no reason to consider that further costs be generated in the hands of the defendants until their costs of the prior action have been met. 37 Ultimately, the court will not overlook the history outlined by these reasons. On the matters canvassed by these reasons, the appropriate result is that the stay be permanent. I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia. EM Registrar's Associate 26 AUGUST 2026 -- 9 of 9 --