Asquith Leaf Pty Ltd and Banc Developments Pty Ltd v Madrid - [2023] NSWDC 102

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Asquith Leaf Pty Ltd and Banc Developments Pty Ltd v Madrid [2023] NSWDC 102
Hearing dates: 17 March and 14 April 2023
Date of orders: 14 April 2023
Decision date: 14 April 2023
Jurisdiction: Civil
Before: Strathdee DCJ
Decision:
(1) I make an order in accordance with prayer 1 of the motion and pursuant to rule 13.1 of the Uniform Civil Procedure Rules 2005 (NSW) there will be summary judgment entered for the plaintiffs against Hugo Madrid in the amount of $200,155.33 inclusive of interest.
(2) I make an order in accordance with prayer 1 of the motion and pursuant to rule 13.1 of the Uniform Civil Procedure Rules 2005 (NSW) there will be summary judgment entered for the plaintiffs against Pascale Madrid in the amount of $198,684.80 inclusive of interest.
(3) The defendants are to pay the plaintiffs’ costs of the proceedings as agreed or assessed.

Catchwords:
PRACTICE AND PROCEDURE – summary judgment – pleading general issues – triable issues – plaintiffs’ application for summary judgment – no arguable defence to claim – summary judgment granted

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Commonwealth Bank of Australia v Susan Hannaford Pty Limited [2012] NSWSC 1094
Cosmos E-C Commerce Pty Ltd v Sue Bidwell & Associates Pty Ltd [2005] NSWCA 81
Westpac Banking Corporation v Corry [2011] NSWSC 1014

Category: Procedural rulings
Parties: Asquith Leaf Pty Ltd and Banc Developments Pty Ltd v Hugo Madrid; Asquith Leaf Pty Ltd and Banc Developments Pty Ltd v Pascale Audrey Madrid
Representation:
Counsel: Mr Harker appeared for the plaintiffs

Solicitors: HWL Ebsworth Lawyers
On 17 March 2023, both defendants appeared in person, unrepresented.
On 14 April 2023, Mrs Madrid appeared in person unrepresented and Mr Madrid appeared via AVL unrepresented.

File Number(s): 2021/00305015 and 2021/00305064
Publication restriction: None

Judgment

By Notices of Motion filed 12 December 2022, the plaintiffs, Asquith Leaf Pty Ltd (‘Asquith’) and Banc Developments (Bankstown) Pty Ltd (‘Banc’)in each matter seek summary judgment against the defendants Hugo Madrid (‘Mr Madrid’) and Pascale Audrey Madrid (‘Mrs Madrid’) or, in the alternative, orders that the defences be struck out in whole and default judgment be entered. The two matters have travelled together and the Court is hearing the Motions concurrently.

BACKGROUND

Asquith and Banc Developments (Bankstown) Pty Ltd ('the plaintiffs') were incorporated for the purposes of developing property at 190-194 Stacey Street in Bankstown, New South Wales ('the site').
The plaintiffs planned to construct a multi-story residential block of units at the site with Asquith as the developer and Banc providing project management services.
The plaintiffs allege that the defendants each entered into contracts for the sale of two 'off the plan' units to be constructed as part of the development at the site.
On 15 June 2016, Mr Madrid entered into a contract with the plaintiffs whereby the plaintiffs agreed to sell and Mr Madrid agreed…

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: [2023] NSWDC 102
Decision Date: 14 April 2023

CaseChat Overview and Summary

In the case of Asquith Leaf Pty Ltd and Banc Developments Pty Ltd v Madrid, the dispute was primarily over the payment of a debt. The plaintiffs sought summary judgment against the defendants, Hugo and Pascale Madrid, for the outstanding amount of $200,155.33 and $198,684.80 respectively, inclusive of interest. The case was heard by the Supreme Court of New South Wales.

The central legal issue before the court was whether there existed an arguable defence that would justify a trial, or if the claims were so uncontentious that the plaintiffs were entitled to a summary judgment. The plaintiffs argued that the defendants had no valid defence to the claims, and therefore, the matter should be resolved without the need for a trial. The defendants did not provide any evidence or argument to counter the claims, thereby leaving the court to consider if there were any triable issues.

In delivering the judgment, the court examined the evidence presented and found that the defendants had not raised any arguable defence to the claims. The court concluded that there were no triable issues and that the plaintiffs had established their claims clearly and without dispute. Consequently, the court granted the plaintiffs' applications for summary judgment against both defendants, awarding the full amounts claimed, inclusive of interest. The court also ordered that the defendants were to pay the plaintiffs’ costs of the proceedings as agreed or assessed.

The orders made by the court included the entry of summary judgment in favour of the plaintiffs against both Hugo and Pascale Madrid for the specified amounts. Additionally, the court ordered that the defendants would bear the costs of the proceedings, either as agreed upon or as assessed by the court.

Orders

Orders of the court

(1) I make an order in accordance with prayer 1 of the motion and pursuant to rule 13.1 of the Uniform Civil Procedure Rules 2005 (NSW) there will be summary judgment entered for the plaintiffs against Hugo Madrid in the amount of $200,155.33 inclusive of interest.

(2) I make an order in accordance with prayer 1 of the motion and pursuant to rule 13.1 of the Uniform Civil Procedure Rules 2005 (NSW) there will be summary judgment entered for the plaintiffs against Pascale Madrid in the amount of $198,684.80 inclusive of interest.

(3) The defendants are to pay the plaintiffs’ costs of the proceedings as agreed or assessed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Asquith Leaf Pty Ltd and Banc Developments Pty Ltd v Madrid [2023] NSWDC 102
Hearing dates:	17 March and 14 April 2023
Date of orders:	14 April 2023
Decision date:	14 April 2023
Jurisdiction:	Civil
Before:	Strathdee DCJ
Decision:	(1) I make an order in accordance with prayer 1 of the motion and pursuant to rule 13.1 of the Uniform Civil Procedure Rules 2005 (NSW) there will be summary judgment entered for the plaintiffs against Hugo Madrid in the amount of $200,155.33 inclusive of interest. (2) I make an order in accordance with prayer 1 of the motion and pursuant to rule 13.1 of the Uniform Civil Procedure Rules 2005 (NSW) there will be summary judgment entered for the plaintiffs against Pascale Madrid in the amount of $198,684.80 inclusive of interest. (3) The defendants are to pay the plaintiffs’ costs of the proceedings as agreed or assessed.
Catchwords:	PRACTICE AND PROCEDURE – summary judgment – pleading general issues – triable issues – plaintiffs’ application for summary judgment – no arguable defence to claim – summary judgment granted
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Commonwealth Bank of Australia v Susan Hannaford Pty Limited [2012] NSWSC 1094 Cosmos E-C Commerce Pty Ltd v Sue Bidwell & Associates Pty Ltd [2005] NSWCA 81 Westpac Banking Corporation v Corry [2011] NSWSC 1014
Category:	Procedural rulings
Parties:	Asquith Leaf Pty Ltd and Banc Developments Pty Ltd v Hugo Madrid; Asquith Leaf Pty Ltd and Banc Developments Pty Ltd v Pascale Audrey Madrid
Representation:	Counsel: Mr Harker appeared for the plaintiffs Solicitors: HWL Ebsworth Lawyers On 17 March 2023, both defendants appeared in person, unrepresented. On 14 April 2023, Mrs Madrid appeared in person unrepresented and Mr Madrid appeared via AVL unrepresented.
File Number(s):	2021/00305015 and 2021/00305064
Publication restriction:	None