Camberfield Pty Ltd v Foustanis

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IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 6932 of 1999

CAMBERFIELD PTY LTD
(ACN 001 045 355)
Plaintiff
v
PARASKEVI FOUSTANIS AND OTHERS Defendants

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JUDGE:

OSBORN J

WHERE HELD:

MELBOURNE

DATE OF HEARING:

26 AUGUST 2003

DATE OF JUDGMENT:

29 AUGUST 2003

CASE MAY BE CITED AS:

CAMBERFIELD PTY LTD v PARASKEVI FOUSTANIS

MEDIUM NEUTRAL CITATION:

[2003] VSC 313

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Application for summary judgments in favour of defendants – Whether claim is "absolutely hopeless".

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APPEARANCES:

Counsel Solicitors
For the Plaintiff Mr P. Cawthorn Valos Black & Associates
For the Eighth Defendant Mr M. Bevan-John John Dimitropoulos
For the Ninth and Tenth Defendants Mr G. Bloch Rockman & Rockman

HIS HONOUR:

  1. This is an application for summary judgment by the eighth, ninth and tenth defendants ("the applicants").  The applicants seek summary judgment either on the basis that they have a good defence on the merits under r.23.03 or that the claim should be dismissed on the grounds that it does not disclose a cause of action or is vexatious or an abuse of the process of the Court.  The latter alternatives arise both under r.23.01 and in the inherent jurisdiction of the Court.

  1. In substance the defence contends that the claim is "absolutely hopeless", to echo the language of Dixon J in Dey v Victorian Railways Commissioners[1] when he said of the then order XIVA:

"It confers a power summarily dealing with an action which Barton J said should be reserved for exercise as to actions that are absolutely hopeless:  Bayne v Riggall (1908) 6 CLR 382."

Dixon J went on to say:

"The application is really made to the inherent jurisdiction of the court to stop the abuse of its process when it is employed for groundless claims.  The principles upon which that jurisdiction is exercisable are well settled.  A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury.  The fact that a transaction is intricate may not disentitle the courts to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious.  But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process."

  1. In General Steel Industries Inc v Commissioner for Railways (NSW)[2] Barwick CJ referred to the above passage and observed:

"Although I can agree with Latham CJ in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings, in my opinion great care must be…

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Details
Case
[2003] VSC 313
Decision Date

CaseChat Overview and Summary

Camberfield Pty Ltd filed a claim against the defendants, Foustanis and others, seeking damages and other relief in relation to a breach of contract and associated claims. The defendants applied for summary judgments in their favour, arguing that the plaintiff's claims were without merit and absolutely hopeless. The case was heard in the Supreme Court of Victoria.

The court needed to determine whether the plaintiff's claims were indeed so lacking in merit as to warrant a summary judgment. The court considered the standard for granting a summary judgment, which is a high threshold, and whether the plaintiff's claims met this standard. The court also considered the plaintiff's arguments against the summary judgment applications and whether they were sufficient to avoid the applications.

The court found that the plaintiff's claims were indeed without merit and absolutely hopeless. The court noted that the plaintiff had not provided any evidence to support their claims and had failed to demonstrate that there were any genuine issues of fact that needed to be determined. The court held that the plaintiff's claims were speculative and lacked any basis in fact or law. The court granted the defendants' applications for summary judgment.

The court ordered that the plaintiff take nothing by its claim and pay the defendants' costs of the application. The court also ordered that the defendants pay their own costs of the proceeding.

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