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Dandaloo Pty Ltd v Iali

Dandaloo Pty Ltd v Iali

Case [2017] NSWSC 1738 13 December 2017

Summary Judgment

Specific Performance

Default Judgment

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Dandaloo Pty Ltd v Iali [2017] NSWSC 1738
Hearing dates: On the papers
Date of orders: 13 December 2017
Decision date: 13 December 2017
Jurisdiction: Equity
Before: Darke J
Decision:
See paragraph [50].

Catchwords:
CIVIL PROCEDURE – summary judgment – proceedings for specific performance – whether it is clear that there is no real question to be tried – summary judgment not appropriate in light of potential defences that could be raised
CIVIL PROCEDURE – default judgment – proceedings for specific performance – no defences filed by defendants – Uniform Civil Procedure Rules (2005) (NSW), r 16.10 – whether plaintiff entitled to judgment on its statement of claim – default judgment entered
Legislation Cited: Bankruptcy Act 1966 (Cth), s 58
Uniform Civil Procedure Rules 2005 (NSW), rr 13.1, 14.11, 16.2, 16.3
Cases Cited: Andrews v Australia and New Zealand Banking Group Ltd (2012) 247 CLR 205; [2012] HCA 30
Australia Capital Financial Management Pty Ltd v Lindfield Developments Pty Ltd (2017) 18 BPR 36,683; [2017] NSWCA 99
Dalswinton Pastoral Company Pty Ltd v Cole [2006] NSWSC 570
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Evans & Tate Premium Wines Pty Ltd v Australian Beverage Distributors Pty Ltd (2006) 230 ALR 184; [2006] NSWSC 560
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Miller v Director of Public Prosecutions (No 2) [2004] NSWCA 249
New South Wales v Hamod [2011] NSWCA 376
Origin Energy Ltd v Smart [2016] NSWSC 1858
Paciocco v Australia and New Zealand Banking Group Ltd (2016) 258 CLR 525; [2016] HCA 28
Rawson v Samuel (1841) Cr & Ph 161; 41 ER 451
Re Just Juice Corporation Pty Ltd (1992) 37 FCR 445
Ringrow Pty Ltd v BP Australia Pty Ltd (2005) 224 CLR 656; [2005] HCA 71
Termijtelen v Van Arkel [1974] 1 NSWLR 525
Wentworth v Wentworth (Supreme Court (NSW), Young J, 12 December 1994, unrep)
Wentworth v Wentworth (Court of Appeal (NSW), Priestley and Clarke JJA, Grove AJA, 21 February 1996, unrep)
Category: Principal judgment
Parties: Dandaloo Pty Ltd (Plaintiff)
Feras Iali (First Defendant)
Commonwealth Bank of Australia (Second Defendant)
Stewart Free as the Official Trustee for the Bankrupt Estate of Feras Iali (Third Defendant)
Representation:
Counsel:
Mr M Bennett (Plaintiff)
Solicitors:
Marsdens Law Group (Plaintiff)
Dentons Australia (Second Defendant)

File Number(s): 2017/64333
Publication restriction: None

Judgment

Introduction

By Further Amended Notice of Motion filed on 30 November 2017 the plaintiff in these proceedings seeks summary judgment, and, in the alternative, default judgment, on its Further Amended Statement of Claim filed on the same day. By that Further Amended Statement of Claim the plaintiff seeks specific performance and ancillary relief in respect of a contract for the sale of land at Harrington Park (“the land”). The plaintiff claims that that contract was made between itself and the first defendant on 24 April 2017, or alternatively…

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.

Continue reading Dandaloo Pty Ltd v Iali

Details

AGLC: Dandaloo Pty Ltd v Iali [2017] NSWSC 1738
Case: [2017] NSWSC 1738
Decision Date: 13 December 2017

CaseChat Overview and Summary

The plaintiff, Dandaloo Pty Ltd, sought summary judgment in proceedings against the defendant, Iali, for specific performance of a contract for the sale of land. The matter was heard in the Supreme Court of New South Wales. The primary issue before the court was whether it was appropriate to grant summary judgment in light of the potential defences that could be raised by the defendant. Specifically, the court had to determine if there was any real question to be tried that would prevent the plaintiff from being entitled to judgment as a matter of law.

In deciding the matter, the court considered the evidence provided by the parties and the potential defences that could be raised by the defendant. The court held that there were potential defences that could be raised, including the possibility of the defendant contesting the validity of the contract or seeking to set it aside on grounds such as misrepresentation or mistake. Given the potential for these defences, the court found that there was a real question to be tried and that summary judgment was not appropriate in this case. The court further noted that the plaintiff had not demonstrated that there was no real prospect of the defences succeeding.

Ultimately, the court dismissed the plaintiff's application for summary judgment and directed that the matter proceed to trial. In the meantime, the plaintiff sought a default judgment on its statement of claim, as no defences had been filed by the defendant. The court considered the relevant provisions of the Uniform Civil Procedure Rules (2005) (NSW), specifically rule 16.10, and found that the plaintiff was entitled to judgment on its statement of claim. Consequently, the court entered a default judgment in favour of the plaintiff.

Orders