Commonwealth Bank of Australia v Anastasopolios

[2014] NSWSC 294

Supreme Court

New South Wales

Medium Neutral Citation:

Commonwealth Bank of Australia v Anastasopolios [2014] NSWSC 294

Hearing dates:

05/02/2014

Decision date:

05 February 2014

Jurisdiction:

Common Law

Before:

Garling J

Decision:

(1) Judgment for the plaintiff against the defendant in the sum of $443,600.21.

(2) Order the defendant to pay the plaintiff's costs of the proceedings including the notice of motion for summary judgment.

Catchwords:

PROCEDURE - civil - summary disposal - summary judgment; application for - whether summary judgment be entered - Uniform Civil Procedure Rules 2005; r 13.1

COSTS - general rule that costs follow event

Legislation Cited:

Uniform Civil Procedure Rules 2005

Cases Cited:

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125

Category:

Principal judgment

Parties:

Commonwealth Bank of Australia (P)
Vasilius Anastasopoulos (D)

Representation:

Counsel:
Mr B Koch (P)
Mr Levitt (D)
Solicitors:
Turks Legal (P)
Simmons & McCartney Lawyers (D)

File Number(s):

2013/143900

EX TEMPORE Judgment

1. This is a matter in which the Commonwealth Bank commenced proceedings against the defendant by a Statement of Claim filed on 9 May 2013.

1. In that matter, the Bank claimed judgment for possession of two properties at Sylvania, a monetary judgment arising from a portfolio loan facility which had fallen into default and the overdraft balance of a cheque account.

1. The evidence satisfies me that since the commencement of proceedings, the two properties have been sold and the proceeds of sale paid to the Commonwealth Bank. However, the evidence also satisfies me that as at today, there is a sum outstanding pursuant to each facility totalling $443,600.21.

1. The Bank by Motion filed on 11 December 2013, seeks an order pursuant to r 13.1 of the Uniform Civil Procedure Rules 2005 ("UCPR") for summary judgment on its monetary claim against the defendant. It seeks an order for costs of both the Motion and the proceedings and other orders, expressed in the alternative.

1. The substance of the Defence filed by the defendant, Mr Anastasopoulos, is that it does not dispute that the original loans were made but asserts that he was the trustee of a family trust and that he entered into the agreements with the Bank solely in his capacity as trustee of that trust and not in a personal capacity.

1. He also pleads that at the time he filed the Defence, 14 October 2013, he was no longer a trustee of that family trust having been replaced by a corporation. Accordingly, it seems that he asserts that he can have no ongoing liability.

1. The Commonwealth Bank submits the law is clear that even though the defendant entered into the transactions as trustee of a family trust, he is, in the absence of any specific agreement with the Bank, personally liable for the entirety of the debt. It notes that he may well be entitled to be indemnified from the assets of the trust.

1. The Commonwealth Bank submits that unless there is a specific agreement which limits the liability of the defendant in some way or other with respect to his role as trustee of the trust, he remains personally liable.

1. Mr Levitt who appears for the defendant, accepts that that necessarily brief summary is a correct summary of the law.

1. The Commonwealth Bank submits, and Mr Levitt does not dispute, that the contractual documents evidencing the arrangements between the Bank and the defendant, Mr Anastasopoulos, do not contain any clause which in any way limits the defendant's liability by reason of his entering into the transactions as trustee of the family trust.

1. In those circumstances, the Commonwealth Bank submits, such defence as is set out in paragraph 4 of the Defence of 14 October 2013, which it submits is the only defence of any substance, is not a good defence. And that there being no other defence to the claim, it ought have summary judgment.

1. The authorities provide that summary judgment ought not be entered against a party and that a party ought not be deprived of a full and final hearing of any defence unless the Court is satisfied that the defence in this case is "... so obviously untenable that it cannot possibly succeed": see General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8] per Barwick CJ.

1. Put another way, I would need to be satisfied that the plaintiff's claim is unarguably correct. In formulating the test in that way, I do not aim to set out any fresh test but merely to encapsulate the existing well-known authorities on the restriction on the Court entering a summary judgment in accordance with r 13.1 of the UCPR.

1. I am abundantly satisfied on the material put before me that the defendant has no defence to the monetary claim made by the Bank. I am satisfied that the defence which is filed on 14 October 2013, does not contain any legally available defence or reasonably arguable defence. I am accordingly satisfied that the Commonwealth Bank should have summary judgment.

1. It is appropriate that I note that in expressing the views which I have in this judgment and making the findings which I have in this judgment, I say nothing at all, because the issue is not before me as to what rights the defendant may have against the Anastasopoulos family trust which is the trust of which he was the trustee at the time he entered into the transaction. Nothing in this judgment is intended in any way to adversely affect any such rights that the defendant may have.

1. In those circumstances I will make the following orders:

(1)   Judgment for the plaintiff against the defendant in the sum of $443,600.21.

(2)   Order the defendant to pay the plaintiff's costs of the proceedings including the Notice of Motion for Summary Judgment.

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Decision last updated: 21 March 2014