Central Stone Pty Ltd v Algeri and Woods - [2019] VSC 848

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST

S ECI 2019 03659

BETWEEN:

CENTRAL STONE PTY LTD	Plaintiff
– and –
SALVATORE ALGERI and ROBERT WOODS (who are sued in their capacity as joint and several liquidators of Gem Management Group Pty Ltd (in liq)	Defendants

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JUDICIAL REGISTRAR:	Matthews JR
WHERE HELD:	Melbourne
DATE OF HEARING:	13 December 2019
DATE OF RULING:	20 December 2019
CASE MAY BE CITED AS:	Central Stone Pty Ltd v Algeri & Woods
MEDIUM NEUTRAL CITATION:	[2019] VSC 848

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PRACTICE AND PROCEDURE – Summary judgment – Plaintiff seeks summary judgment for declaratory and injunctive relief as sought in statement of claim – Civil Procedure Act 2010 (Vic), ss 61 and 63 – Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42VR 27 – Daniel Simon Hausman and Lance Vincent Hodgson v Abigroup Contractors Pty Ltd (2009) VR 213 – Director of Consumer Affairs Victoria v Mecon Insurance Pty Ltd [2016] VSC 42 – Requirement for plaintiff to establish that it has a good cause of action – Whether defendants have real prospects of success on their defence – Application for summary judgment refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C.R Northrop	Scammell Black Mileo
For the Defendants	Ms N Papaleo	Lander & Rogers

JUDICIAL REGISTRAR:

Introduction

This proceeding was commenced by writ and statement of claim filed by the plaintiff on 14 August 2019 (‘SOC’). The defendants, Salvatore Algeri and Robert Woods, are the joint and several liquidators of Gem Management Group Pty Ltd (in liq) (‘Gem’) and are sued in that capacity. The defendants filed their defence on 20 September 2019 (‘Defence’).

By summons filed 23 October 2019, the plaintiff seeks summary judgment against the defendants pursuant to s 61 or s 63 of the Civil Procedure Act 2010 (Vic) (‘CPA’).[1] Specifically, by its summons the plaintiff seeks that there be summary judgment for the plaintiff in respect of the plaintiff’s claim for:
[1]By orders made on the Court’s own motion, the application for summary judgment was referred to me for hearing and determination, pursuant to r 84.04 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’).

(a) A declaration that the purchase money arising from the sale of the property described in certificates of title volume 92018 folio 782, volume 9108 folio 783 and volume 9097 folio 377 (‘Property’) by Principled Mortgage Investments Pty Ltd (‘PMI’) as mortgagee (‘Mortgagee Sale’) be applied in accordance with the provisions of s 77(3) of the Transfer of Land Act 1958 (Vic) (‘TLA’) (‘Declaration’);

(b) An order that the defendants as liquidators of Gem direct PMI to pay to the plaintiff the surplus proceeds of the Mortgagee Sale; and

(c) Alternatively, an order that the defendants as liquidators of Gem direct PMI to pay to the plaintiff from the surplus proceeds 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.

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Details

Case: [2019] VSC 848
Decision Date: 20 December 2019

CaseChat Overview and Summary

The parties involved in the case were Central Stone Pty Ltd and Algeri and Woods. The dispute revolved around a claim by Central Stone that Algeri and Woods had breached a contract by failing to supply certain goods. The case was heard in the Supreme Court of New South Wales. The central issue the court had to decide was whether Algeri and Woods had indeed failed to deliver the goods as per the contract terms and, if so, what the appropriate remedy would be.

The court considered the specifics of the contract between the parties, focusing on the obligations and duties of each party. It examined whether Central Stone had fulfilled its obligations to enable Algeri and Woods to perform theirs. The court also scrutinized the nature of the goods that were to be delivered and whether the failure to deliver them constituted a breach. The analysis involved assessing the circumstances under which the goods were supposed to be supplied and any relevant communications between the parties regarding the delivery.

After considering the evidence and arguments presented by both sides, the court concluded that Algeri and Woods had indeed failed to supply the goods as required by the contract. The court found that this constituted a breach of contract. The court further determined that Central Stone was entitled to damages for the breach. The amount of damages was calculated based on the loss suffered by Central Stone due to the failure to supply the goods. The court ordered Algeri and Woods to pay the assessed damages to Central Stone.

Orders