Canitathos Pty Ltd v MKC Repairs Pty Ltd - [2022] FedCFamC2G 521

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Canitathos Pty Ltd v MKC Repairs Pty Ltd [2022] FedCFamC2G 521

File number(s): MLG 4283 of 2020

Judgment of: JUDGE A KELLY

Date of judgment: 28 June 2022

Catchwords: CONSUMER LAW – summary judgment – where mediation was conducted – where Deed of Settlement was agreed and executed – where the first and second respondents were jointly and severally liable for payments under the Deed – where cross-claim respondents were co-signatories to the Deed and fulfilled their obligations – where default of payment occurred – where application was filed seeking summary judgment for monetary relief – application allowed.

Legislation: Evidence Act 1995 (Cth), s 131

Cases cited:
Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471

KTC v David [2022] FCAFC 60

Division: Division 2 General Federal Law

Number of paragraphs: 8

Date of last submission/s: 21 June 2022

Date of hearing: 21 June 2022

Place: Melbourne

Counsel for the Applicant: Mr D Shirrefs

Solicitor for the Applicant APAC Litigators

First Respondent: No appearance

Second Respondent: In person

First Cross-respondent: No appearance

Second Cross-respondent: No appearance

ORDERS

MLG 4283 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
CANITATHOS PTY LTD (ACN 626 794 027)

Applicant

AND:
MKC REPAIRS PTY LTD (ACN 160 044 431)

First Respondent

JAMES KWOK

Second Respondent

GEOFF DILLON & CO COMMERCIAL LAWYERS
First Cross Respondent

GEOFFREY DILLON
Second Cross Respondent

ORDER MADE BY:

JUDGE A KELLY

DATE OF ORDER:

21 JUNE 2022

THE COURT ORDERS THAT:
1.Pursuant to ss 202-203 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), direct that the parties be allowed to appear and to make submissions before the Court by video and audio link.
2.Pursuant to pars 131(2)(f), (h) and (i) of the Evidence Act 1995 (Cth), evidence of communications between the Applicant and the Respondents and Respondents by Cross Claim may be produced to the Court.
3.Pursuant to rule 7.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Rules), the applicant be granted leave to amend the application in the terms of the proposed amended application being exhibit AT-3 to the affidavit of Athos Tsang sworn on 8 June 2022.
4.Pursuant to rule 13.10 of the Rules, order that the first respondent and second respondent, jointly and severally, do pay to the applicant $80,000.00 together with interest thereon, in the total sum of $83,184.08.
5.The first respondent and second respondent pay the applicant’s costs of and incidental to this application in the sum of $3,500.00.
6.There be a stay on execution of paragraphs 4-5 of this Order for 30 days.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules…

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: [2022] FedCFamC2G 521
Decision Date

CaseChat Overview and Summary

Canitathos Pty Ltd (the applicant) filed an application seeking summary judgment against MKC Repairs Pty Ltd and James Kwok (the respondents) for monetary relief after mediation achieved a compromise of the issues in dispute. The parties entered into and executed a Deed of Settlement on 15 December 2021. The first and second respondents were to pay the applicant a total of $80,000 by certain instalments. The first and second respondents agreed to be jointly and severally liable for the payments. If default was made in the payment of the settlement sum or any part of it, the respondents consented to the applicant applying to the Court for judgment against them for the unpaid balance together with interest and costs. The applicant filed the present application seeking summary judgment for monetary relief. The Court was required to decide whether the applicant was entitled to the grant of summary judgment in the terms sought.

The Court found that the applicant had established its entitlement to summary judgment in the terms of the relief claimed. The Court was satisfied that the applicant was entitled to the grant of leave to amend the application in the terms sought. The Court was also satisfied that the applicant was entitled to adduce evidence of its communications as embodied in the Deed made between the applicant, the respondents and respondents by cross-claim pursuant to the Evidence Act 1995 (Cth). The Court found that the exercise of power to grant summary judgment is to be approached with caution but it is not necessary that a claim or defence be considered hopeless or bound to fail before summary judgment may be given. The Court found that the applicant was entitled to relief in the terms sought. The Court ordered that the first and second respondents, jointly and severally, pay to the applicant $80,000.00 together with interest thereon, in the total sum of $83,184.08. The Court also ordered that the first and second respondents pay the applicant’s costs of and incidental to this application in the sum of $3,500.00. There was a stay on execution of these orders for 30 days.

Orders