BT Securities Limited v Lobel - [2011] NSWSC 335

Supreme Court

New South Wales

Medium Neutral Citation: BT Securities Limited v Lobel [2011] NSWSC 335
Hearing dates: 15 April 2011
Decision date: 21 April 2011
Jurisdiction: Common Law
Before: Harrison J
Decision:
1. First plaintiff is entitled to summary judgment.
2. Parties to bring in short minutes of order.

Catchwords: PRACTICE & PROCEDURE - UCPR 13.1 - summary judgment - where plaintiffs advanced money to the defendant - where defences so obviously untenable that they cannot possibly succeed - summary judgment ordered
Legislation Cited: Powers of Attorney Act 2003
Cases Cited: Gibbons v Pozzan [2007] SASC 99; (2007) 209 FLR 233
MYT Engineering Pty Ltd v Mulcon Pty Ltd [1999] HCA 24; (1999) 195 CLR 636
Powell v London and Provincial Bank [1893] 2 Ch 555
Windsor Refrigerator Co. Ltd v Branch Nominees Ltd [1961] Ch 375
Category: Procedural and other rulings
Parties: BT Securities Limited (First plaintiff)
Westpac Banking Corporation (Second plaintiff)
Brent Calvin Lobel (Defendant)
Representation: Counsel:
J Hynes (Plaintiffs)
S Ipp (Defendant)
Solicitors:
Minter Ellison (Plaintiffs)
Watson Mangioni Lawyers Pty Ltd (Defendant)

File Number(s): 2010/28280

Judgment

On 29 August 2006, BT Securities Limited provided financial accommodation to Mr Lobel. They entered into what was described as an Absolute Investment Facility. On 1 February 2010 BTS commenced these proceedings by statement of claim alleging that Mr Lobel had defaulted under the terms of the loan and that he owed BTS $540,559.56. Mr Lobel filed a defence in which he put in issue the fact that the loan application form was not a deed. He also declined to admit that he had executed a power of attorney in favour of the person who purported to exercise the power when executing the loan agreement or, to similar effect, that BTS was thereby authorised to execute it. Mr Lobel maintained that he was not in these circumstances liable to pay BTS any of the money that it had advanced to him and which it now claimed.

BTS contended that these matters do not amount to a defence to its claim and by its motion filed on 20 January 2011 applied for summary judgment pursuant to UCPR 13.1. For the reasons that appear below, I consider that Mr Lobel has no defence to BTS's claim and that BTS is entitled to the relief that it seeks.

Background

Paragraph 4 of Mr Lobel's defence is as follows:

"4 In relation to paragraph 4 of the Statement of Claim, the defendant:

(a) admits that on 28 August 2006 he signed a document styled 'EBBIII Absolute Investment Loan Application Form';

(b) says that the Absolute Loan Application Form is not a deed;

(c) does not admit that he executed a power of attorney in favour of Clare Munnelly;

(d) does not admit that [the] plaintiff was authorised to execute the BT Absolute Investment Loan Facility Agreement dated 29 July 2006 on behalf of the defendant as it purported to do; and

(e) otherwise denies the matters pleaded therein."

By paragraph 5 of…

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: [2011] NSWSC 335
Decision Date: 21 April 2011

CaseChat Overview and Summary

In the matter of BT Securities Limited versus Lobel, the Federal Court of Australia was tasked with adjudicating upon a dispute concerning the repayment of funds. BT Securities Limited sought to recover the sum of money advanced to Lobel, asserting that the defendant had failed to repay the amount as agreed. The case proceeded on an application for summary judgment under UCPR 13.1, with the plaintiffs contending that the defendant's defences were so obviously untenable that they had no reasonable prospect of success.

The court was required to determine whether the defendant's defences were indeed untenable, rendering the application for summary judgment appropriate. The primary legal issue centred on whether the defences presented by the defendant could withstand scrutiny in light of the evidence and the law applicable to the matter. Specifically, the court needed to assess whether the defences raised by the defendant could potentially succeed or if they were so deficient as to warrant the entry of summary judgment in favour of the plaintiffs.

In delivering its judgment, the court found that the defences put forward by the defendant were manifestly untenable and lacked any reasonable prospect of success. The evidence presented by the plaintiffs, coupled with the absence of any credible counterarguments from the defendant, led the court to conclude that summary judgment was warranted. The court highlighted that the defences raised by the defendant were not supported by any plausible legal or factual basis and were, therefore, unlikely to succeed if the matter proceeded to a full hearing. Consequently, the application for summary judgment was granted, and judgment was entered in favour of the plaintiffs.

Orders