Australian Loan Company Pty Ltd v Urbano

[2010] VCC 717

IN THE COUNTY COURT OF VICTORIA Revised

Unrestricted

AT MELBOURNE
COMMERCIAL LIST

GENERAL DIVISION

Case No. CI-08-02245

AUSTRALIAN LOAN COMPANY PTY LTD	Plaintiff
v
ANDREW JOHN URBANO	Defendant

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JUDGE:	HIS HONOUR JUDGE ANDERSON
WHERE HELD:	Melbourne
DATE OF HEARING:	22 June 2010
DATE OF JUDGMENT:	22 June 2010 (Revised 23 June 2010)
CASE MAY BE CITED AS:	Australian Loan Company Pty Ltd v Urbano
MEDIUM NEUTRAL CITATION:	[2010] VCC 0717

REASONS FOR JUDGMENT

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Catchwords:  Practice and procedure – Summary judgment application – adjournment
application by defendant – Alleged that summons and first supporting affidavit
not served – Sufficient evidence that summons and subsequent supporting
affidavit received by defendant’s lawyers – Defendant consented to judgment
if loan not repaid – Adjournment refused, summary judgment entered

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S. Stuckey	Dawes & Vary
For the Defendant	Mr R. Seifman	Valos Black & Associates
COUNTY COURT OF VICTORIA 250 William Street, Melbourne

HIS HONOUR:

1        The plaintiff seeks possession of three parcels of land secured by a mortgage, alleging that there has been a default under the loan agreement secured by the mortgage.

2        The summons was issued on 15 December 2009 and, according to an affidavit of service of Jaclyn Cameron sworn 22 June 2010, the summons was served together with an affidavit in support sworn by John Neal on 11 December 2009 (and exhibits), in January 2010.

3 the summons whilst, I was informed by Mr Seifman defendant’s counsel, the
parties directly negotiated. Today, Mr Seifman applied for a short
adjournment of the summary judgment application on the basis of instructions
Mr Seifman had received from his instructing solicitor that neither the

Since that time, there have been a number of adjournments of the hearing of by his solicitors. I was informed by Mr Seifman that his solicitor was, because of commitments to other matters, unable to swear an affidavit today in relation to the non-receipt of the documents.

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It appears that the statement about non-receipt of the summons is not correct. minutes of consent of orders adjourning the summons on a number of occasions, that they would have done so if they had not received a copy of the summons.

5        The most significant matter, however, is a matter contained in an affidavit of Davina Angela Pugliese sworn 3 May 2010. Mr Seifman informed me that he had received a copy of the affidavit sometime in May 2010. The affidavit deposes to the following facts:

a.	On about 1 February 2010, the parties agreed to further adjourn the summary judgment application to give the defendant the opportunity to pay the money that was owing;
b.	The defendant agreed that, if the outstanding moneys were not paid, there would be a consent to summary judgment;
c.	The agreement was evidenced by the defendant’s solicitors

countersigning a letter containing the terms of the agreement and

returning it to the plaintiff’s solicitors and also signing and returning

minutes of consent orders to give effect to the adjournment; and

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d. No payment was made by the defendant in accordance with the agreement.

6        One of the documents sent to the defendant’s solicitors as part of a bundle was a copy of the summons seeking summary judgement. This is further confirmation that at least the summons had been received by the defendant’s solicitors on about 1 February 2010.

7        The plaintiff does not need to rely upon the affidavit of Mr Neal, sworn in support of the summons, in order to succeed in its application for summary judgment. It can rely upon the affidavit of Ms Pugliese and the letter dated 1 February 2010 countersigned by the defendant’s solicitors, which indicates that the letter “may be annexed to any affidavit in support of such application

to enter judgment as evidence of the consent of A. J. Urbano to such

application for summary judgment”.

8        I consider, in the circumstances, there is little point in adjourning the application as it is clear that the summons seeking summary judgment was received by the defendant’s solicitors. The supplementary affidavit of Ms Pugliese sworn 3 May 2010, upon which the plaintiff relies in support of summary judgment, was also received by defendant’s counsel during May 2010. Whether or not the defendant received the affidavit of Mr Neal is of little consequences in those circumstances.

9        The relief sought by the plaintiff in its statement of claim included possession of the land comprised of the three certificates of title and costs on a solicitor/client basis pursuant to the mortgage. In the circumstances, it is appropriate that judgment be entered for possession of the land and for the plaintiff’s costs to be taxed on a solicitor/own client basis. I have reserved liberty to apply in case any issue arises, for example, in relation to costs.

Certificate

I certify that the previous 2 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 22 June 2010 and revised on 23 June 2010. Dated: 23 June 2010.

Hannah Christensen

Associate to His Honour Judge Anderson

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