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De Saram v Brown

De Saram v Brown

Case [2015] VSCA 142 10 June 2015

Appeal

Summary Judgment

Civil Procedure Act 2010

County Court Civil Procedure Rules

Civil Litigation & Procedure

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2014 0083

JOSEPH SHIHARA RUKSHAN DE SARAM and RHODIUM AUSTRALIA PTY LTD (ACN 123 291 510)	Appellants
V
DAVID ANDREW BROWN and MARGARET TERESA CUNNIFFE	Respondents

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JUDGES:	ASHLEY and TATE JJA and DIGBY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 March 2015
DATE OF JUDGMENT:	10 June 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 142
RULING APPEALED FROM:	Brown v de Saram (Unreported, County Court of Victoria, Judge Lacava, 1 July 2014)

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PRACTICE AND PROCEDURE – Appeal against summary judgment – Whether the defence has a ‘real prospect of success’ – Appeal against strike out of the counterclaim – Failure to comply with court orders – Appeal allowed in part – Counterclaim reinstated – Orders for the expedition of the counterclaim made – Civil Procedure Act 2010 ss 61, 63 and 64 – County Court Civil Procedure Rules 2008 r 24.02.

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Dr N Orow	Marsh & Maher
For the Respondents	Mr M G McNamara	McDonald Slater & Lay

ASHLEY JA:

I agree with Digby AJA that the appeal against judgment for the plaintiffs on the claim should be dismissed, that the appeal against judgment in favour of the defendants to counterclaim should be allowed, and that the Court should make orders designed to facilitate the early trial of the counterclaim.

TATE JA:

I agree with Digby AJA that Grounds 4 and 5 of the Grounds of Appeal should be upheld. The appeal should be allowed and consequential orders made to facilitate the trial of the counterclaim.

DIGBY AJA:

This is an appeal from a decision by the County Court on 1 July 2014 entering judgment for the respondents in the sum of $201,000, with damages by way of interest in the sum of $94,795, and striking out a counterclaim brought by the appellants.

The principal issue in this appeal is whether, on the materials before the judge below he erred in giving judgment on the claim on the basis that the defence thereto had no prospect of success and whether the judge below was justified in striking out the defendants’ counterclaim.

Background

David Andrew Brown (‘Brown’) the plaintiff in the subject proceeding in the County Court issued a Summons dated 21 May 2014 seeking summary judgment on his claim for damages against Joseph Shihara Rukshan de Saram (‘de Saram’), and also bringing an application to strike out the counterclaim brought by de Saram and the second named counterclaimant Rhodium Australia Pty Ltd (‘Rhodium’) against

Brown and Margaret Teresa Cunniffe (‘Cunniffe’).

The gist of Brown’s case was that on or about 1 March 2012, Brown and de Saram entered into an oral agreement whereby Brown lent de Saram the sum of $200,000 (‘the principal sum’) in consideration for which de Saram agreed to make full repayment of the principal sum, plus interest and the sum of $1,000 for associated fees, within 90 days of receiving the principal sum.

On 8 March 2013, de…

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 De Saram v Brown

Details

AGLC: De Saram v Brown [2015] VSCA 142
Case: [2015] VSCA 142
Decision Date: 10 June 2015

CaseChat Overview and Summary

In the matter of De Saram v Brown, the defendant appealed against the granting of summary judgment and the striking out of a counterclaim. The dispute involved an allegation of breach of fiduciary duty and the defendant's counterclaim for damages. The matter was heard in the Supreme Court of Victoria, Court of Appeal.

The legal issues the court was required to decide were whether the defendant's defence had a real prospect of success, and whether the trial judge had correctly exercised his discretion in striking out the counterclaim. The court considered the relevant provisions of the Civil Procedure Act 2010 and the County Court Civil Procedure Rules 2008, particularly in relation to the standard for granting summary judgment and the requirements for a valid counterclaim.

The court found that the trial judge had erred in his assessment of the defendant's defence, and that there was indeed a real prospect of success. The court also found that the trial judge had erred in striking out the counterclaim, as the defendant had not been in contempt of court as found, and there were no grounds for striking out the counterclaim. The appeal was therefore allowed in part, with the counterclaim being reinstated. The court also made orders for the expedition of the counterclaim to ensure that the matter was dealt with as efficiently as possible.

The court ordered that the defendant's counterclaim be reinstated and that the matter be expedited. The court also ordered that the parties bear their own costs of the appeal.

Orders