Advantaged Care Pty Ltd v Yehuda - [2025] NSWSC 366

Supreme Court

New South Wales

Medium Neutral Citation: Advantaged Care Pty Ltd v Yehuda [2025] NSWSC 366
Hearing dates: 11 April 2025
Date of orders: 11 April 2025
Decision date: 11 April 2025
Jurisdiction: Equity - Applications List
Before: Brereton J
Decision:
See [6]-[10]

Catchwords:
CIVIL PROCEDURE – Summary judgment – whether Defendant cannot succeed - application for summary judgment dismissed.

Legislation Cited:
N.A.

Cases Cited:
Batistatos v Roads and Traffic Authority of New South Wales; Batistatos v Newcastle City Council (2006) 226 CLR 256; [2006] HCA 27 Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1
General Steel v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69

Texts Cited:
N.A.

Category: Consequential orders
Parties: Advantaged Care Pty Ltd (Plaintiff)
Myer Yehuda (Defendant)
Representation:
Counsel:
D Edney, S Hanscomb (Plaintiff)
D Klineberg, A Smith (Defendant)
Solicitors:
ICL Lawyers (Plaintiff)
Levitt Robinson (Defendant)

File Number(s): 2024/320524
Publication restriction: N.A.

Judgment – EX TEMPORE – REVISED FROM THE TRANSCRIPT

By a Notice of Motion filed 21 January 2025, the Plaintiff seeks that summary judgment be entered in favour of the Plaintiff against the Defendant with respect to prayers 5 and 6 of the Plaintiff's Amended Statement of Claim.
The applicable principles to be applied in applications of this kind are not in dispute. Briefly, the level of certainty required as to the outcome of the proceedings is high: Batistatos v Roads and Traffic Authority of New South Wales; Batistatos v Newcastle City Council (2006) 226 CLR 256 at [46]. It is not sufficient that the prospects of success are slight: Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91. The Plaintiff must show that any asserted defence is “so obviously untenable that it cannot possibly succeed” or is “manifestly groundless”: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-129.
The Amended Statement of Claim in these proceedings was filed on 31 October 2024. It is alleged that the Plaintiff is the operator of an aged care facility, that one of the residents of that aged care facility was the late Mr Danny Yehuda, who was the brother of the Defendant, and he resided at the facility from December 2016 until his death in April 2024. Mr Yehuda’s residence in the facility was governed by a residential agreement which provided for the payment of various fees, and which was the subject of a personal guarantee by the Defendant. Those fees were not, for a period before the resident's death, paid, such that it is alleged that there is a debt of at least $292,852.43 (before interest) that is owing.
The residential agreement includes terms as follows:

2.1 Grant of Licence
(a) We grant You a lifetime licence to occupy the Accommodation and use the Common Areas of the Care Facility for the Term.
(b) We will provide You with the Accommodation Services and Care Services from the date of this agreement until the end of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWSC 366
Decision Date: 11 April 2025

CaseChat Overview and Summary

In the case of Advantaged Care Pty Ltd v Yehuda, the Federal Circuit and Family Court was tasked with deciding an application for summary judgment brought by the plaintiff, Advantaged Care Pty Ltd. The plaintiff sought summary judgment in relation to a debt owed by the defendant, Yehuda, for unpaid services rendered under a contract. The dispute centred on whether the defendant could successfully defend the claim for the debt and, if not, whether summary judgment should be granted in favour of the plaintiff.

The court had to determine whether there were any triable issues that would prevent the plaintiff from obtaining summary judgment. Specifically, the court examined whether the defendant had a bona fide defence to the claim. The defendant argued that the plaintiff's claim was statute-barred under section 35 of the Limitation Act 1969 (Cth). The court needed to assess the merits of this defence, as well as other potential defences raised by the defendant, to ascertain whether the plaintiff could succeed on the merits of the case without the need for a trial.

The court concluded that there were triable issues concerning the defendant's defence of limitation. The court found that the evidence provided by the defendant was sufficient to raise a genuine issue regarding the applicability of section 35 of the Limitation Act, and therefore, the court was unable to determine the matter on a procedural basis alone. Consequently, the court dismissed the plaintiff's application for summary judgment, holding that the matter could not be resolved without a trial to determine the validity of the defendant's defence.

Orders