Enpresionante Pty Ltd v Australian Securities Ltd
[2018] VSC 87
•28 February 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
S CI 2016 02479
| ENPRESIONANTE PTY LTD (ACN 160 690 979) | Plaintiff |
| v | |
| AUSTRALIAN SECURITIES LTD (ACN 005 428 231) & ANOR (according to the attached schedule) | Defendants |
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JUDICIAL REGISTRAR: | Matthews JR |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 February 2018 |
DATE OF JUDGMENT: | 28 February 2018 |
CASE MAY BE CITED AS: | Enpresionante Pty Ltd v Australian Securities Ltd & Anor |
MEDIUM NEUTRAL CITATION: | [2018] VSC 87 |
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PRACTICE AND PROCEDURE – Summary judgment – Whether plaintiff has real prospects of success on its statement of claim – Where events subsequent to the filing of the statement of claim mean that the plaintiff has no real prospects of success – Civil Procedure Act 2010 (Vic), ss 62 and 63 – Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27 – Application for summary judgment allowed.
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APPEARANCES: | Counsel | Solicitors |
| No appearance for or on behalf of the Plaintiff | ||
| For the First Defendant | Mr A Kirby | Nicholas O’Donohue & Co |
| No appearance for or on behalf of the Second Defendant |
JUDICIAL REGISTRAR MATTHEWS:
Introduction
The first defendant, Australian Securities Ltd (‘ASL’), applies by summons issued 21 December 2017 for:
(a) orders pursuant to sections 62 and 63 of the Civil Procedure Act 2010 (‘CPA’), alternatively pursuant to Rules 23.01 and 23.03 of the Supreme Court General Civil Procedure Rules 2015 (‘Rules’), for judgment for ASL against the plaintiff, Enpresionante Pty Ltd (‘Enpresionante’), on its claims in its statement of claim dated 8 August 2016 (‘SOC’);
(b) further and alternatively, orders pursuant to R 23.02 that the SOC be struck out on the grounds that it does not disclose a cause of action or defence; it may prejudice, embarrass or delay the fair trial of the proceeding; or is otherwise an abuse of the process of the Court;
(c) orders that Enpresionante pay ASL’s costs of this application and the proceeding
(‘Application’).[1]
[1]The Application has been referred to me for hearing and determination, by orders made on the Court’s own motion, pursuant to R 84.04 of the Rules.
ASL’s application is supported by the affidavit of Kenneth Chai, a solicitor employed by the solicitors for ASL, sworn 21 December 2017 (‘Chai Affidavit’). ASL also relies on affidavits sworn by Mr Chai on 6 July 2016, 13, 15 and 24 February 2017, and the affidavit sworn by Michael John Clarebrough (a director of ASL) on 7 July 2016 (‘First Clarebrough Affidavit’). In addition, ASL relies on an affidavit sworn by Mr Clarebrough on 22 February 2018 (‘Second Clarebrough Affidavit’).
Enpresionante did not appear on the adjourned date of 27 February 2018 and it has not filed any material in opposition to the Application. Mr Eugene Chen of Starke Westwood lawyers, who appeared on the previous occasion, attended the hearing on 27 February as a courtesy to the Court, having in the interim filed a notice of ceasing to act.
For the reasons set out below, judgment will be given for ASL against Enpresionante on the SOC.
Background
The claims, defences and interim injunctions granted
Enpresionante was the registered proprietor of the property situated at and known as 11 Iramoo Street Balwyn, Victoria, described in certificate of title volume 06583 folio 456 (‘Property’). It makes several allegations against the defendants. On or about 14 October 2014, Enpresionante entered into a building contract with Ridgecon Pty Ltd (‘Ridgecon’) to build three townhouses on the Property. On or about 9 October 2015, Enpresionante and ASL entered into an agreement or agreements whereby ASL agreed to provide finance to Enpresionante to complete the building works and ASL took a registered mortgage over the Property. By notices dated 4 May 2016, ASL gave notice to Enpresionante that it was in default of the finance agreement and to Ridgecon that it was in default under the building contract and the finance agreement, as a result of not completing the works under the building contract within a reasonable time or in accordance with the plans and specifications. Enpresionante also alleges that on or about 23 June 2016, Ridgecon was excluded from the Property and that the second defendant, Erfanian Developments Pty Ltd (‘Erfanian’)[2] purported to enter into possession of the Property, such that Erfanian and ASL had trespassed on the Property.
[2]Erfanian was a builder engaged by ASL to take over the building works.
Enpresionante commenced these proceedings by writ and general endorsement filed 27 June 2016. At the same time, Enpresionante filed a summons seeking interim injunctive relief preventing ASL and Erfanian from entering into possession of or trespassing on the Property, alternatively orders that ASL and Erfanian vacate and deliver up possession of the Property to Enpresionante and Ridgecon, and that ASL and Erfanian not prevent or interfere with any settlement of contracts of sale for lots in the Property.
Interim orders were made by Justice Keogh on 27 June 2016 that until further order, the defendants be restrained from: carrying out any construction or demolition work on the Property; preventing Enpresionante and Ridgecon from having access to the Property on reasonable notice to ASL; and further interfering with contracts of sale entered into by Enpresionante for sale of lots in the Property.
On 14 July 2016, Justice Riordan made orders that until further order, ASL (and its officers, servants, agents, employees or proxies) vacate and deliver up possession of the Property to Enpresionante by no later than 15 July 2016, not seek to enter into possession of the Property in reliance on its 4 May 2016 notice, not trespass on the Property, and not prevent or interfere with the settlement of the contracts of sale for the lots in the Property (‘July Injunction’). Enpresionante gave the usual undertaking as to damages when obtaining the July Injunction.
Enpresionante filed the SOC on 8 August 2016. By that time, it had resolved its claims against Erfanian and sought no further relief against it.[3] As well as the claims summarised in paragraph 5 above, Enpresionante alleged that ASL’s possession of the Property and its exclusion of Enpresionante from the Property in the period 23 June 2016 to 16 July 2016 was wrongful and a trespass,[4] and that it had suffered loss and damage as the building works were suspended for that 27 day period and it was charged interest by ASL for that period of approximately $22,085.[5]
[3]SOC [3].
[4]SOC [10], [11].
[5]SOC [12].
Enpresionante sought a declaration that ASL had trespassed on the Property, specific performance of the finance agreement, injunctions to similar effect as those granted on an interim basis, and damages.
In its defence filed 5 September 2016 (‘Defence’), amongst other things, ASL pleads the content of the finance agreement, including provisions as to obligations regarding timely completion of the project in a competent, proper and workmanlike manner, maintenance of a facility to security ratio at no more than 65.59%, and preventing Enpresionante from mortgaging or encumbering the Property without ASL’s prior written consent.[6] There were terms of the mortgage whereby Enpresionante could not grant any charge or other security over the Property without ASL’s prior written consent, and it was an event of default under the mortgage if Enpresionante failed to comply with any of its obligations or covenants under the mortgage or the finance agreement.[7] ASL alleges that Enpresionante breached the provisions I have just described and that it was entitled to serve the 4 May 2016 default notices in respect of those breaches.[8] Other breaches are also alleged by ASL. ASL admits that Erfanian entered into physical possession of the Property and alleges that ASL as registered mortgagee was entitled to take possession.[9] ASL states that it did not trespass on the Property and due to the resolution of the proceeding as between Erfanian and Enpresionante, it cannot now be sued in respect of any alleged trespass.[10] Further, ASL says that even if it did commit a trespass, Enpresionante did not suffer any loss by reason of it.[11]
[6]Defence [5], [5A], [5C].
[7]Defence [5B].
[8]Defence [5G], [5H], [6], [6A], [7].
[9]Defence [10], [11].
[10]Defence [11].
[11]Defence [12].
ASL has also made a counterclaim against Enpresionante, filed 5 September 2016. It seeks declarations that it was entitled to take possession of the Property and that it remains entitled to possession, and seeks orders that the July Injunction be dissolved or revoked. Further, ASL seeks costs on an indemnity basis against Enpresionante under the finance agreement and the mortgage.
In its reply and defence to counterclaim filed 24 October 2016, Enpresionante denies most of ASL’s allegations.
Dissolving the July Injunction
On the application of ASL, orders were made on 24 February 2017 by Justice Riordan by consent dissolving the July Injunction insofar as it affected ASL and declaring that ASL was entitled to possession of the Property (‘February 2017 Orders’). The operation of those orders was suspended until 21 March 2017.
Procedural history
Until 5 July 2017, Enpresionante had been represented in this proceeding by solicitors. Best Hooper were originally the solicitors on the record but filed a notice of ceasing to act on 14 February 2017. The same day, Ian G Hone filed a notice of change of solicitor, indicating that he now acted for Enpresionante. Mr Hone filed a notice of ceasing to act on 5 July 2017, giving the last known address of Enpresionante as Level 13, 50 Market Street, Melbourne (‘Registered Office’).
Since the February 2017 orders were made dissolving the July Injunction and granting ASL possession of the Property, I have been case managing this proceeding. A procedural chronology is required:
(a) By consent, a directions hearing listed for 28 February 2017 was adjourned on the papers to 24 March 2017;
(b) On 24 March 2017, the solicitors for both Enpresionante and ASL attended a directions hearing and by consent the directions hearing was adjourned to 7 April 2017. At that time, I noted in ‘Other Matters’ that:
The parties are currently engaged in discussions, the first defendant having taken possession of the subject property as mortgagee. They seek a short adjournment to enable those discussions to continue.
(c) On 7 April 2017, the solicitors for both Enpresionante and ASL attended a directions hearing and by consent the directions hearing was adjourned to 12 May 2017;
(d) On 12 May 2017, the solicitors for both Enpresionante and ASL attended a directions hearing and the directions hearing was adjourned to 16 June 2017;
(e) The basis for the adjournments referred to above was that the first defendant was completing the building works at the Property with a sales campaign to follow, and both parties were awaiting the outcome of that process before determining how the proceeding may progress after that;
(f) On 16 June 2017, the proceeding was listed for directions, where I adjourned the directions hearing to 8 December 2017 and made orders that Enpresionante pay ASL’s costs of and incidental to the appearance on a standard basis. I noted the following in ‘Other Matters’:
A.The solicitor for the first defendant informed the Court that the plaintiff’s solicitor has indicated he would be filing a notice of ceasing to act.
B.After I had commenced hearing the matter, Mr Hone, who had been acting for the plaintiff, appeared in Court and informed the Court, as a matter of courtesy, that he was ceasing to act.
C.A lengthy adjournment was sought by the first defendant on the basis that the subject property is still under development with completion expected in September and a sales campaign shortly after. The Court has reluctantly agreed to this so that the parties can avoid incurring unnecessary costs, however on the next occasion the plaintiff will need to be in a position to advise the Court how it intends to deal with its case in a timely manner.
D.Mr Hone will, when serving a copy of the notice of ceasing to act on the plaintiff, also provide a copy of these orders as authenticated. He will also ask the plaintiff to provide the defendant’s solicitors and the Court with any updated address for service if it is different to that contained in the notice.
(g) Prior to the directions hearing on 8 December 2017, my Associate sent a letter to Enpresionante at the Registered Office, referring to the upcoming directions hearing and requesting an update, and enclosed a copy of the orders I had made on the previous occasion. Enpresionante did not appear at the directions hearing on 8 December 2017, and no communication as to that non-attendance was received from Enpresionante. Nor has the Court received any explanation by Enpresionante for its failure to appear. On that day, I made orders for any application by ASL to dismiss the proceeding, or strike out the SOC, or for judgment, to be made on summons, returnable on 9 February 2018. I also adjourned the directions hearing to that same date and made orders that Enpresionante pay ASL’s costs of and incidental to the appearance on 8 December on an indemnity basis;
(h) When the Application came on for hearing on 9 February 2018, Enpresionante appeared through a solicitor, Mr Eugene Chen of Starke Westwood lawyers. Mr Chen informed the Court that he had just received instructions at 8.00am that morning from Enpresionante and that he was instructed to seek an adjournment so as to be able to advise his client in relation to the Application. There was no affidavit for Enpresionante explaining the request for an adjournment or setting out any basis for opposing the Application. Mr Chen or his firm had not filed a notice of appearance and so were not on the record as the solicitors for Enpresionante. In the circumstances, I granted the application for an adjournment and made orders for the further timetabling of the Application. At that time, I made it very clear to Enpresionante that the Court would be most concerned by any further delay. I noted in ‘Other Matters’ that Mr Chen will file a notice of appearance as soon as practicable. The orders which I made on that day included the following:
(i) Enpresionante’s solicitor is to inform ASL’s solicitor by 4.00pm on 16 February 2018 whether Enpresionante consents to orders dismissing the proceeding or whether it intends to oppose the Application;
(ii) If Enpresionante intends to oppose the Application, then:
· It is to file and serve any affidavits relied upon and an outline of submissions by 4.00pm on 20 February 2018; and
· ASL shall file and serve any further affidavits relied upon and any responsive outline of submissions by 4.00pm on 23 February 2018.
(i) On 12 February 2018, ASL’s solicitors sent a letter to Enpresionante’s solicitors which attached a schedule showing ASL’s expected shortfall upon realising the Property.[12] This had been canvassed at the hearing on 9 February 2018;
[12]Second Clarebrough Affidavit [9], ex ‘MJC-2’.
(j) Enpresionante’s solicitors did not inform ASL’s solicitors by 16 February 2018 as to whether Enpresionante consented to the proceeding being dismissed or whether it intended to oppose the application;[13]
[13]Second Clarebrough Affidavit [12].
(k) Mr Chai contacted Mr Chen on 19 February 2018 and was informed that Mr Chen had not filed a notice of appearance and that he had not been able to contact Enpresionante for any instructions since 9 February 2018;[14]
[14]Second Clarebrough Affidavit [13].
(l) On 20 February 2018, Mr Chen sent an email to Mr Chai in which he stated the following:[15]
[15]Second Clarebrough Affidavit [14], ex ‘MJC-4’.
Further to our telephone conversation yesterday, I advise that I have successfully had a conference with my client today.
We advise that our client intends to contest the summons for summary dismissal.
Provided that our firm is in a position to continue to act, we will revert with the relevant Response and Affidavit as soon as possible.
(m)A search of the Court file reveals that Starke Westwood filed a notice of appointment as solicitors in the proceeding for Enpresionante at 1.47pm on 22 February 2018, and that Starke Westwood filed a notice of ceasing to act at 2.29pm on the same day;
(n) Enpresionante did not file or serve any affidavit in opposition to the summons or an outline of submissions by the date and time ordered, being 4.00pm on 20 February 2018.[16] Enpresionante has still not filed any such material; and
(o) When the application came on for hearing on 27 February 2018, as noted in paragraph 3 above there was no appearance by Enpresionante. Mr Chen attended as a courtesy to the Court. He informed the Court, when asked, that he had handed a copy of the orders made on 9 February 2018 to Mr Shady Elmahmoud, who Enpresionante’s director had authorised to instruct Mr Chen on Enpresionante’s behalf. In addition, Mr Chen confirmed that a shareholder of Enpresionante had been present in Court on 9 February 2018.
[16]Second Clarebrough Affidavit [16].
Applicable principles
Section 62 of the CPA permits a defendant to make an application for summary judgment on the ground that the plaintiff’s claim or part of that claim has no real prospect of success. Section 63 of the CPA provides that the Court may give summary judgment in a civil proceeding if it is satisfied that a claim, defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has ‘no real prospect of success’.
The Court of Appeal has set out the test to be applied in this context in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd.[17] Upon the present state of authority:
(a)The test for summary judgment under s 63 of the [CPA] is whether the respondent to the application for summary judgment has a ‘real’ as opposed to a ‘fanciful’ chance of success;
(b)The test is to be applied by reference to its own language and without paraphrase or comparison with the ‘hopeless’ or ‘bound to fail test’ essayed in General Steel;
(c)It should be understood, however, that the test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail’ test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent’s case is not hopeless or bound to fail, it does not have a real prospect of success;
(d)At the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.
[17](2013) 42 VR 27, 40 [35] (citations omitted).
Section 64 of the CPA provides that:
Despite anything to the contrary in this Part or any rules of court, a court may order that a civil proceeding proceed to trial if the court is satisfied that, despite there being no real prospect of success the civil proceeding should not be disposed of summarily because—
(a) it is not in the interests of justice to do so; or
(b)the dispute is of such a nature that only a full hearing on the merits is appropriate.
Section 7(1) of the CPA sets out its overarching purpose, being to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. Section 9 of the CPA requires the Court to have regard to these purposes in making any order or giving any direction in a civil proceeding.
An application made pursuant to s 62 of the CPA is to be made in accordance with Part 3 of Order 22 of the Rules.
Rule 22.18 of the Rules provides:
(1)If the defendant intends to reply on an affidavit in support of the application, the affidavit shall be filed with the summons.
(2)Where a statement in a document tends to establish a fact upon which the defendant relies and at the trial of the proceeding the document would be admissible by or under the Evidence (Miscellaneous Provisions) Act 1958, the Evidence Act 2008 or any other Act to verify the fact, the affidavit may set forth the statement.
(3)An affidavit relied upon by the defendant may contain a statement of fact based on information and belief if the grounds are set out and, having regard to all the circumstances, the Court considers that the statement ought to be permitted.
(4)The defendant shall serve the summons and a copy of any affidavit in support and of any exhibit referred to in the affidavit on the plaintiff not less than 14 days before the day for hearing named in the summons.
Rule 22.19 of the Rules provides:
(1)The plaintiff may show cause against the application by affidavit or otherwise to the satisfaction of the Court.
(2)An affidavit under paragraph (1) may contain a statement of fact based on information and belief if the grounds are set out.
(3)Unless the Court otherwise orders, the plaintiff shall serve a copy of any affidavit and of any exhibit referred to in the affidavit on the defendant not less than three days before the day for hearing named in the summons.
Consideration
Does Enpresionante have a real prospect of success on the statement of claim?
ASL submits that the nub of this case was the initial dispute in 2016 wherein Enpresionante sought injunctive relief to regain possession of the Property. The July Injunction was dissolved in February 2017 and ASL has had possession of the Property, as a result of orders made by consent in February 2017, since around 21 March 2017. ASL submits that the proceeding has been ‘rendered otiose and the plaintiff by its conduct clearly does not wish to prosecute any aspect of the case’, so that the proceeding should be dismissed.
An analysis of the claims made by Enpresionante in the proceeding so as to determine whether any of them have a real prospect of success is required.
In the SOC, Enpresionante seeks a declaration that ASL’s possession of the Property and its exclusion from the Property in the period 23 June 2016 to 16 July 2016 was wrongful and a trespass, and injunctions to similar effect as those granted on an interim basis. Leaving the damages claim aside for one moment, I accept ASL’s submission that Enpresionante’s claims in these respects have been overtaken by subsequent events. There is self-evidently no real prospect of Enpresionante succeeding on those claims should they be permitted to proceed to trial.
In the SOC, Enpresionante also seeks specific performance of the finance agreement. ASL is in possession of the Property. Again, the changed circumstances since the SOC was filed means that this claim has no prospect of success.
Enpresionante also sought damages in the SOC. However, the only loss and damage pleaded by Enpresionante[18] is in connection with ASL’s possession of the Property and exclusion of Enpresionante and Ridgecon from it for the period 23 June 2016 to 16 July 2016.[19] As noted in paragraph 9 above, that loss and damage is particularised as the interest charged to Enpresionante by ASL for that period during which building works were suspended, approximately in the amount of $22,085.[20]
[18]SOC [12].
[19]SOC [10].
[20]Particulars to SOC [12].
ASL has adduced evidence, via the Second Clarebrough Affidavit, as to the anticipated shortfall on the amount owing by Enpresionante pursuant to the finance agreement after ASL has finished the building works and sold all units which comprise the Property. The shortfall as at 9 February 2018 is estimated to be $963,515 (‘Shortfall’).[21] Mr Clarebrough deposes that ASL prepared the estimate of the Shortfall and it was ASL’s best estimate as at 9 February 2018. This estimate contains a detailed breakdown of the Shortfall. It lists the principal and interest owing, the construction and selling costs, ASL’s costs, ASL’s legal fees, other expenses such as valuation, search and security fees, and utilities. The estimated amount owing is $5,657,515 and the sale proceeds are $4,694,000, leading to the Shortfall figure of $963,515.[22]
[21]Second Clarebrough Affidavit [10], Ex ‘MJC-2’.
[22]Second Clarebrough Affidavit [10], Ex ‘MJC-2’.
The information about the Shortfall, including the detailed breakdown summarised above, was provided to Starke Westwood by ASL’s solicitors on 12 February 2018.[23] Enpresionante has therefore had an opportunity to produce evidence refuting this, but has not done so.
[23]Second Clarebrough Affidavit [9].
In circumstances where the only loss and damage pleaded is that said to have arisen by reason of the allegedly wrongful occupation of the Property and exclusion of Enpresionante during the period 23 June 2016 to 16 July 2016, which is particularised in the amount of approximately $22,085, it is readily apparent that this is eclipsed by the Shortfall. Therefore, there is no real prospect of Enpresionante succeeding to recover damages on the SOC, once the Shortfall is taken into account.
The matters referred to in paragraphs 24 to 31 above justify the conclusion that Enpresionante has no real prospects of success on its claims in the SOC and that it should be summarily dismissed. For the reasons referred to in paragraph 39 below, that course is also consistent with s 7(1) of the CPA.
Enpresionante’s conduct of the proceeding
While it is not determinative of the Application, there is substance to ASL’s submissions that Enpresionante by its conduct has shown that it does not wish to prosecute its case or sees little point in doing so. The matters referred to below are also relevant to the issue of costs.
The Chai Affidavit sets out, in considerable detail, the efforts made by ASL over several months to have Enpresionante engage with it regarding the proceeding. This includes a letter from ASL’s solicitors dated 24 November 2017 updating Enpresionante as to the outcome of the sales process for the Property and the likely shortfall, and providing a reminder about the directions hearing scheduled for 8 December 2017.[24] There is also a lengthy letter from Mr Chai to Enpresionante dated 1 December 2017 summarising the proceeding and the events to that date, which also gave notice that ASL would be seeking summary dismissal of the proceeding and explaining the reasons for that. At that stage, the shortfall was estimated to be around $700,000.[25]
[24]Chai Affidavit [5], exhibit ‘KC-9’.
[25]Chai Affidavit [6], exhibit ‘KC-10’.
Enpresionante is the plaintiff in this proceeding. It has obligations under the CPA to prosecute its claim with due diligence. It has not done so. It did not appear at the directions hearing on 8 December 2017, despite it being specifically noted at the previous directions hearing on 16 June 2017 that Enpresionante would need to be in a position to advise the Court on that date as to how it intended to deal with its case in a timely manner. Enpresionante has also failed to abide by the orders made on 9 February 2018. It was granted an indulgence on that date, in the form of an adjournment, so as to enable it to deal with the Application (even though it had had ample time prior to that date to do so). For Enpresionante then to ignore the orders made on 9 February 2018 is indicative of its cavalier attitude to this proceeding.
Enpresionante waited until the morning of the hearing of the Application on 9 February 2018 to instruct solicitors to appear. It then did not make itself available to those solicitors after that date until around 20 February 2018 so as to enable the solicitors to take proper instructions. It has been reminded on a number of occasions that a company is required to be appear in this Court via a solicitor,[26] yet the Court is again placed in the situation where there is no solicitor on the record for Enpresionante. Starke Westwood were on the record in the proceeding for 42 minutes. If Enpresionante was serious about its opposition to the Application and its intention to prosecute its claims, one would expect that it would have taken advantage of the indulgence granted on 9 February 2018, complied with the orders, and retained solicitors to act for it in relation to the Application and the proceeding generally.
[26]R 1.17 of the Rules.
Although on notice of the adjourned date of 27 February 2018, which adjournment was obtained on its application, Enpresionante failed to appear at the hearing.
Enpresionante has had ample opportunity to ‘show cause’ within the meaning of R 22.19, but has not done so.
Conclusion
There is no reason within the meaning of s 64 of the CPA why the Court should order the proceeding to proceed to trial. As I am satisfied that the relevant tests in respect of ss 62 and 63 of the CPA have been met, there will be summary judgment for ASL on the SOC. Such a course is consistent with the overarching purpose as set out in s 7(1) of the CPA to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. For the reasons set out above the real issues in dispute at the time of filing the SOC and the Defence have been overtaken or resolved through the subsequent events I have referred to.
I will hear the parties on the appropriate form of orders and as to costs.
SCHEDULE OF PARTIES
S CI 2016 02479 BETWEEN: ENPRESIONANTE PTY LTD (ACN 160 690 979) Plaintiff - v - AUSTRALIAN SECURITIES LTD (ACN 005 428 231) First Defendant ERFANIAN DEVELOPMENTS PTY LTD
(ACN 140 457 601)Second Defendant AND BETWEEN: AUSTRALIAN SECURITIES LTD (ACN 005 428 231) Plaintiff by Counterclaim - v - ENPRESIONANTE PTY LTD
(ACN 160 690 979)Defendant by Counterclaim
0
2
0