CEG Direct Securities Pty Ltd v Schnapper Point Plaster Pty Ltd - [2020] VSC 319

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
MORTGAGE RECOVERY LIST

S ECI 2019 04713

CEG DIRECT SECURITIES PTY LTD (ACN 150 878 587)	Plaintiff/Defendant by Counterclaim
v
SCHNAPPER POINT PLASTER PTY LTD (ACN 088 910 454)	First Defendant/First Plaintiff by Counterclaim

- and -

NORMAN MURRAY BLACKMORE

Second Defendant/Second Plaintiff by Counterclaim

---

JUDICIAL OFFICER:	Matthews JR
WHERE HELD:	Melbourne
DATE OF HEARING:	21 April 2020
DATE OF RULING:	5 June 2020
CASE MAY BE CITED AS:	CEG Direct Securities Pty Ltd v Schnapper Point Plaster Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2020] VSC 319

---

PRACTICE AND PROCEDURE – Summary judgment – Plaintiff seeks summary judgment on claim and counterclaim – Civil Procedure Act 2010 (Vic), ss 61, 62, 63 and 64 – Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42VR 27 – Padella Pty Ltd v Elliott [2018] VSC 301 – Israfoods (2006) Ltd v J & D Consortium Pty Ltd [2019] VSC 323 – Application for summary judgment refused.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff/Defendant by Counterclaim	Mr I Hristovski	Ronayne Owens Lawyers
For the Defendants/Plaintiffs by Counterclaim	Ms AV M Carruthers	Mornington Legal

JUDICIAL REGISTRAR:

Introduction

By summons filed 2 March 2020, the plaintiff/defendant by counterclaim, CEG Direct Securities Pty Ltd (‘CEG’), applies for summary judgment on both its claim and the counterclaim (‘Application’).[1] The Application is made pursuant to ss 61, 62 and 63 of the Civil Procedure Act 2010 (‘CPA’), alternatively rr 22.03 and 22.16 of the Rules.
[1]By order made on the Court’s own motion, pursuant to r 84.04 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’) the Application has been referred to me for hearing and determination.

CEG relies on the affidavit of Lynette Doreen Dent sworn 27 February 2020 (‘Dent Affidavit’). Ms Dent is the chief financial officer of CEG.

The defendants/plaintiffs by counterclaim, Schnapper Point Plaster Pty Ltd (‘SPP’) and Norman Murray Blackmore, oppose the Application.

SPP and Mr Blackmore rely on the affidavit of Mr Blackmore sworn 30 March 2020 (‘Blackmore Affidavit’).

Pursuant to directions made by me on 21 February 2020 in respect of the (then foreshadowed) Application, both parties filed and served outlines of submissions.

For the reasons set out below, I will refuse the Application.

Background
The pleadings
The Statement of Claim

By this proceeding, CEG seeks to enforce a loan it entered into with SPP, a guarantee given to it by Mr Blackmore, and a mortgage given by Mr Blackmore over a property at 12 Vivian Way, Mount Martha, described in certificate of title volume 9884 folio 727 (‘Land’).

By its statement of claim dated 16 October 2019 (‘SOC’), CEG alleges that:

(a) It entered into a loan agreement dated 13 April 2018 by which it agreed to lend a sum of $50,000 to SPP (‘Loan Agreement’).

(b) The key terms of the…

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.

Keep reading for free

Create a free CaseChat account to read CEG Direct Securities Pty Ltd v Schnapper Point Plaster Pty... and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] VSC 319
Decision Date: 5 June 2020

CaseChat Overview and Summary

CEG Direct Securities Pty Ltd sought summary judgment against Schnapper Point Plaster Pty Ltd in relation to a claim and a counterclaim. The matter was heard in the Supreme Court of Victoria. The plaintiff alleged that the defendant owed money for services rendered and materials supplied, while the defendant counterclaimed for damages due to the plaintiff's alleged breach of contract. The court had to determine whether the plaintiff's claim and counterclaim were so uncontroversial that the matter could be decided without a trial.

The court considered the statutory provisions under the Civil Procedure Act 2010 (Vic), specifically sections 61, 62, 63, and 64, which provide the criteria for granting summary judgment. The court also examined relevant case law, including Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd, Padella Pty Ltd v Elliott, and Israfoods (2006) Ltd v J & D Consortium Pty Ltd. The court found that the facts of the case did not meet the threshold for summary judgment, as there were genuine disputes over the amount owed and the validity of the counterclaim.

The court concluded that the application for summary judgment was not appropriate, given the disputed issues of fact and law. The court found that a trial was necessary to resolve the conflicting claims and counterclaims between the parties. The application for summary judgment was therefore refused. The parties were directed to proceed with the preparation for a trial.

Orders