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 17,061Texts 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:
Solicitors:
M Ashhurst SC with L Corbett (Plaintiff/Applicant)
D T Miller SC with D Macfarlane (Defendant/Respondent)
BCP Lawyers & Consultants (Plaintiff/Applicant)
Back Schwartz Vaughan (Defendant/Respondent)
File Number(s): SC 2015/298926
Judgment
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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.”
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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.
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The case is illustrative of the wisdom of the general rule. The application for summary judgment is refused.
Background
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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.
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Pursuant to a contract dated 29 August 2014, the Builder carried out…
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- Case
- [2016] NSWSC 406
- Decision Date
CaseChat Overview and Summary
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.
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Background
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Evidence
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Decision
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