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Antares v Yang

Antares v Yang

Case [2017] NSWSC 1619 14 November 2017

Summary Judgment

Breach of Contract

Unconscionable Conduct

Civil Litigation & Procedure

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Supreme Court

New South Wales

Case Name:	Antares v Yang
Medium Neutral Citation:	[2017] NSWSC 1619
Hearing Date(s):	14 November 2017
Date of Orders:	14 November 2017
Decision Date:	14 November 2017
Jurisdiction:	Common Law
Before:	Hamill J (as Duty Judge)
Decision:	(1) The notice of motion is dismissed. (2) The plaintiffs are to pay the costs of and incidental to the notice of motion. (3) The matter is listed before the registrar on Tuesday, 21 November 2017 for directions.
Catchwords:	CIVIL LAW – summary judgment – whether failure of defendant to put on evidence on notice of motion fatal – whether defendant can rely on verified pleadings – where plaintiffs advanced money under loan agreement – where repayment fell due and money not repaid – where defendant relies on cross-claim asserted deceptive and misleading conduct – whether failure to assert set off in cross-claim fatal
Legislation Cited:	Australian Securities and Investment Commission Act 2001 (Cth) Civil Procedure Act 2005 (NSW) Competition and Consumer Act 2010 (Cth) Corporations Act 2001 (Cth) Fair Trading Act 1987 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 Boscolo v Consumer Trader and Tenancy Tribunal [2014] NSWSC 997 Commonwealth Bank of Australia v ZYX Leaning Centres [2014] NSWSC 1676 Dey v Victorian Railway Commissioner (1949) 78 CLR 62; [1949] HCA 1 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 General Steel v Commissioner for Railways (1964) 112 CLR 125; [1964] HCA 69 HP Mercantile v Dierickx [2013] NSWCA 479 Jensen v the State of New South Wales [2014] NSWSC 682 Shaw v New South Wales [2012] NSWCA 102 Sing v Varinder Kaur (1985) 61 ALR 720 Westpac Banking Corportion v Kekatos [2014] NSWSC 1802
Category:	Principal judgment
Parties:	Antares Global Pty Ltd (Applicant 1/First Plaintiff) Swealt Pty Ltd (Applicant 2/Second Plaintiff) Jin Heung Yang (Respondent)
Representation:	Counsel: Mr J Ireland (Applicant 1/First Plaintiff) (Applicant 2/ Second Plaintiff) Mr M Ashhurst SC (Respondent/Defendant) Solicitors: McGirr Lawyers (Applicant 1/First Plaintiff) (Applicant 2/ Second Plaintiff) Whittens & McKeough (Respondent/Defendant)
File Number(s):	2017/116773
Publication Restriction:	None

EX TEMPORE JUDGMENT

By notice of motion filed 17 August 2017 the plaintiffs seeks an order striking out the defendant’s defence as well as orders for summary judgment under the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) 13.1.
The principles in which such orders might be made are well-established and I will insert references to some authorities when the judgment is published.[1] Similar principles apply when the defendant seeks to strike out the plaintiffs’ statement of claim or summons. The party or parties seeking summary judgment must establish that the defendant’s case, which in these proceedings is articulated in his pleadings, comprising of a notice of defence and a notice of cross-claim, raise no triable issue. To adopt some of the more colourful language used in the cases, the case must be “so obviously untenable that it cannot succeed”. It must be “hopeless” or “manifestly…

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.

Continue reading Antares v Yang

Details

AGLC: Antares v Yang [2017] NSWSC 1619
Case: [2017] NSWSC 1619
Decision Date: 14 November 2017

CaseChat Overview and Summary

The case of Antares v Yang was heard by the Supreme Court of New South Wales. The dispute involved a claim for the recovery of money advanced under a loan agreement. The plaintiff, Antares, alleged that the defendant, Yang, had failed to repay a sum of money after the repayment date had passed. Yang responded with a cross-claim, asserting that the plaintiff had engaged in deceptive and misleading conduct. The court was required to determine whether the defendant's failure to provide evidence in response to the plaintiff's application for summary judgment was fatal to his case, and whether Yang could rely on the verified pleadings.

The court considered whether the defendant's failure to provide evidence on the notice of motion was fatal to his case. It found that the defendant's reliance on the verified pleadings was insufficient to defeat the plaintiff's application for summary judgment. The court held that the defendant was required to provide evidence to support his cross-claim, and that his failure to do so was fatal to his case. Additionally, the court found that the defendant's cross-claim was not relevant to the plaintiff's claim for the recovery of the debt. The court noted that the defendant had not asserted a set off in his cross-claim, and that this failure was fatal to his case.

The court granted the plaintiff's application for summary judgment and ordered the defendant to pay the amount owed, plus interest and costs. The court found that the defendant's cross-claim was irrelevant to the plaintiff's claim, and that the defendant had failed to provide any evidence to support his allegations. The court held that the defendant's failure to assert a set off in his cross-claim was fatal to his case, and that he was unable to rely on the verified pleadings to defeat the plaintiff's application for summary judgment. The court's decision highlights the importance of providing evidence in support of a cross-claim, and the need for parties to carefully consider the relevance of their pleadings to the claims before the court.

Orders