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 RespondentGEOFFREY 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 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(REVISED FROM EX TEMPORE REASONS)JUDGE A KELLY
By application in a proceeding filed on 8 June 2022, the applicant, Canitathos Pty Ltd, seeks summary judgment for monetary relief following the compromise of all issues in dispute in the proceeding being achieved after mediation was conducted on 15 December 2021 following which the parties entered into and executed a Deed of Settlement dated 15 December 2021.
By the terms of that Deed, the parties agreed that the first and second respondents were to pay the applicant a total sum of $80,000 by certain instalments. By the Deed, it was agreed that the respondents by cross-claim would pay the applicant a separate sum of $25,000. Upon the present application no relief is sought against either respondent by cross-claim.
Pursuant to cll 4(b)-(c) and 5 of the Deed, the first and second respondents agreed to pay the applicant the said sum of $80,000 and that they would be jointly and severally liable for each of the instalments. Clauses 11-12 of the Deed provided, as relevant to the first and second respondent, that if default was made in the payment of the settlement sum or any part of it they thereby consented irrevocably to the applicant applying to this Court for the reinstatement of the proceeding and for judgment against them for the unpaid balance together with interest and costs. By par 12(c) of the Deed, the parties further agreed that an affidavit by a solicitor acting for the applicant would serve as sufficient evidence of any failure to receive all or any of the payments provided for and for the applicant applying for costs of and incidental to the present application and of any evidence which might remain outstanding.
I am satisfied on the evidence that the applicant has established its entitlement to summary judgment in terms of the relief claimed. Before me there was no appearance by or on behalf of the first respondent, MKC Repairs Pty Ltd, however, there was an appearance by its director, the second respondent, Mr Kwok. I am satisfied in all the circumstances that it is entirely permissible and appropriate for the applicant to seek to adduce evidence of its communications as embodied in the Deed made between the applicant, the respondents and respondents by cross-claim pursuant to pars 131(2)(f), (h) and (i) of the Evidence Act 1995 (Cth). For similar reasons, I am also satisfied that the applicant is entitled to the grant of leave to amend the application in the terms sought in the proposed amended application being annexure AT-3 to the affidavit of Athos Tsang affirmed on 8 June 2022.
In the circumstance that Mr Kwok is self-represented, a degree of latitude was allowed to him for the purpose of making his submissions on this application. In the absence of any evidence, I note his submission that, as he now says, he was under some pressure at the time of entry into and execution of the Deed. He complains that he was not warned by his then solicitor of the obligations embodied in the Deed and that he did not read it or did not do so sufficiently as to properly understand the terms which it embodied and in particular that he would by cl 5 of the Deed assume joint and several liability with MKC Repairs Pty Ltd for the payments due under paragraphs 4(b) and (c) of that Deed.
As appears from exhibit AT-1 to the affidavit of Athos Tsang, the Deed is initialled on each page and is signed by Mr Kwok in the presence of a witness being an Australian legal practitioner within the meaning of the Legal Profession Uniform Law (Victoria). It also appears from the Deed that Mr Kwok signed it on behalf of MKC Repairs. For completeness, I note that each page of the Deed is also initialled by or on behalf of the other parties. It is trite that absent some impugning conduct, statutory wrong, or equitable entitlement, where a party signs a written instrument or deed he, she or it is thereupon bound by its terms: Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471, [33]-[34] (The Court).
Whether or not Mr Kwok was under any form of pressure or was not adequately warned by his former solicitor or believed that he would be able to raise the funds necessary to perform and observe his joint and several obligation to pay the amounts due under cl 4 (b)-4(c) of the Deed are not matters which suffice in my view to disentitle the applicant to relief in the terms sought.
I accept that the exercise of power to grant summary judgment is to be approached with caution, however, it is not necessary that a claim or defence be considered hopeless or bound to fail before summary judgment may be given: KTC v David [2022] FCAFC 60, [128]-[132] (The Court). In all of the circumstances, orders will be made in substantially the terms set out in paragraphs 1-4 of the application in the proceeding dated 8 June 2022.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of Judge A Kellly. Associate:
Dated: 28 June 2022
0
2
0