Bellevarde Constructions Pty Ltd v Cosmas Pty Ltd - [2016] NSWSC 406

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Bellevarde Constructions Pty Ltd v Cosmas Pty Ltd [2016] NSWSC 406
Hearing dates: 5 April 2016
Decision date: 11 April 2016
Jurisdiction: Equity - Technology and Construction List
Before: Stevenson J
Decision:
Summary judgment refused

Catchwords: PRACTICE AND PROCEDURE – application for summary judgment – statement in practice note that such applications will not generally be entertained in the Commercial and Technology and Construction Lists – questions of construction – whether appropriate to resolve conflicting lines of authority or matters of discretion on summary judgment application
Legislation Cited: Building and Construction Industry (Security of Payment) Act 1999 (NSW)
Practice Note SC Eq 3
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Australia and New Zealand Banking Group Pty Ltd v Donnelly [2012] NSWSC 1615
BBC Hardware Limited v GT Homes Pty Ltd [1997] 2 Qd R
General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125
King Investment Solutions Pty Ltd v Hussain [2005] NSWSC 1076
Matthews v Goodday (1861) 31 LJ Ch 282
Melbourne Tramways Trust v Melbourne Tramways & Omnibus Co Ltd (1887) 13 VLR 487
Sood v Christianos [2008] NSWSC 1087
Tennant v Trenchard (1869) LR 4 Ch 537
United Builders Pty Ltd v Mutual Acceptance Ltd (1979) 4 ACLR 176
Wenkart v Pantzer [2013] FCAFC 81
Williams v Calivil Park Holstein Pty Ltd [2009] NSWSC 389
Yarrangah Pty Ltd v National Australia Bank Ltd [1999] NSWSC 97; (1999) 9 BPR 17,061
Texts Cited: E Sykes and S Walker, The Law of Securities, (1st ed (1962), 2nd ed (1973), 3rd ed (1978), 4th ed (1986), 5th ed (1993), Lawbook Co.)
Category: Procedural and other rulings
Parties: Bellevarde Constructions Pty Ltd (Plaintiff/Applicant)
Cosmas Pty Limited (Defendant/Respondent)
Representation:
Counsel:
M Ashhurst SC with L Corbett (Plaintiff/Applicant)
D T Miller SC with D Macfarlane (Defendant/Respondent)
Solicitors:
BCP Lawyers & Consultants (Plaintiff/Applicant)
Back Schwartz Vaughan (Defendant/Respondent)

File Number(s): SC 2015/298926

Judgment

The Commercial List and Technology and Construction List Practice Note SC Eq 3 (at [62]) states that:

“As a general rule applications…for summary judgment will not be entertained”;

and that:

“Practitioners should expect strictness in declining to entertain such applications.”

Nonetheless, in the complex circumstances of this case, the plaintiff, Bellevarde Constructions Pty Ltd (I will call it the “Builder”), moves for summary judgment of its claim for declaratory relief and for judicial sale.
The case is illustrative of the wisdom of the general rule. The application for summary judgment is refused.

Background

The defendant, Cosmas Pty Ltd (I will call it the “Owner”), is the registered proprietor of a property in King Street, Sydney. The property has a current market value in the order of $11 million. The property is mortgaged to the Commonwealth Bank of Australia. The amount owing to CBA is in the order of $4.13 million. The Owner’s equity in the property is thus in the order of $6.87 million.
Pursuant to a contract dated 29 August 2014, the Builder carried out…

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: [2016] NSWSC 406
Decision Date: 11 April 2016

CaseChat Overview and Summary

The matter before the court involved an application for summary judgment brought by Bellevarde Constructions Pty Ltd against Cosmas Pty Ltd. The dispute centred around a commercial contract, with Bellevarde seeking judgment for the unpaid balance of a debt owed by Cosmas. The case was heard in the Federal Circuit and Family Court of Australia. The primary legal issue before the court was whether the application for summary judgment was appropriate when there were conflicting lines of authority or matters of discretion to be resolved.

The court examined the principles governing summary judgment applications, particularly in the context of the Commercial and Technology and Construction Lists. The statement in the practice note indicated that such applications would generally not be entertained in these lists due to the complexity of the matters typically dealt with. The court considered whether the application for summary judgment was suitable to resolve issues of construction, conflicting lines of authority, or matters of discretion. In this case, the court found that the application for summary judgment was not appropriate where there were conflicting lines of authority or matters of discretion to be resolved, as these issues required a more thorough examination of the evidence and arguments presented by both parties.

Consequently, the court dismissed the application for summary judgment, holding that it was not appropriate to resolve the conflicting lines of authority or matters of discretion on this summary judgment application. The court emphasised that such applications should generally not be entertained in the Commercial and Technology and Construction Lists, as they often involve complex matters that require a more comprehensive examination. The court's decision highlights the importance of considering the nature of the dispute and the appropriate procedural avenues for resolving the issues at hand.

Orders