JUDICIAL REGISTRAR:	Matthews JR
WHERE HELD:	Melbourne
DATE OF HEARING:	21 August 2020
DATE OF RULING:	27 August 2020
CASE MAY BE CITED AS:	Foster v TW (Vic) Pty Ltd
MEDIUM NEUTRAL CITATION:	[2020] VSC 533

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PRACTICE AND PROCEDURE – Summary judgment – Whether plaintiff has real prospects of success on his statement of claim – Civil Procedure Act 2010 (Vic), ss 62 and 63 – Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27 – Whether agreement was binding – Masters v Cameron (1954) 91 CLR 353 – Application for summary judgment refused.

PRACTICE AND PROCEDURE – Leave to amend statement of claim – Leave granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Noonan	HWL Ebsworth
For the Defendant	Mr T Sowden	Henley Legal

JUDICIAL REGISTRAR:

Introduction

This ruling concerns two applications made in this proceeding:

(a) application made by summons filed 24 July 2020 by the Plaintiff for leave to file and serve an amended statement of claim (‘Amendment Application’); and

(b) application made by summons filed 31 July 2020 by the Defendant for summary judgment (‘SJ Application’).

By orders made on the Court’s own motion, both applications have been referred to me pursuant to r 84.04 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’) for hearing and determination.

The SJ Application has been made pursuant to s 62 of the Civil Procedure Act 2010 (‘CPA’) and r 22 of the Rules. Alternatively, the SJ Application is made pursuant to r 23 of the Rules.

In support of the SJ Application, the Defendant relies on an affidavit of Henry Wong affirmed 31 July 2020 (‘Wong Affidavit’). Mr Wong is the principal of Henley Legal, solicitors for the Defendant.

In opposition to the SJ Application, the Plaintiff relies on an affidavit of Todd Fraser sworn 20 August 2020 (‘Fraser Affidavit’). Mr Fraser is the Plaintiff’s son. In support of the Amendment Application, the Plaintiff relies on the affidavit of Angela Liaskos dated 24 July 2020,[1] to which is exhibited the Plaintiff’s proposed amended statement of claim (‘PASOC’).
[1]The date of swearing as in the jurat is 24 June 2020, but I apprehend that this is an error. In any event, nothing turns on this discrepancy.

Both parties filed written outlines of submissions, the Defendant on 4 August 2020 and the Plaintiff on 13 August 2020.[2] In addition, Counsel for each party made oral submissions at the hearing on 21 August 2020.
[2]Respectively, referred to as the Defendant’s Outline and the Plaintiff’s Outline.

It was common ground that the SJ Application needed to be dealt with first, and that the PASOC was relevant to that application.

For the reasons which follow, I will…

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 Foster v TW (Vic) Pty Ltd

Details

AGLC: Foster v TW (Vic) Pty Ltd [2020] VSC 533
Case: [2020] VSC 533
Decision Date: 27 August 2020

CaseChat Overview and Summary

Foster brought an action against TW (Vic) Pty Ltd in the County Court of Victoria, seeking damages for breach of contract. The plaintiff argued that the defendant had breached a written agreement between the parties. The defendant applied for summary judgment, arguing that the plaintiff had no real prospects of success on his statement of claim. Additionally, the plaintiff sought leave to amend his statement of claim.

The court had to determine whether the plaintiff had a real prospect of success on his statement of claim, and whether the defendant was entitled to summary judgment. Additionally, the court had to decide if the plaintiff should be granted leave to amend his statement of claim. In assessing these issues, the court considered the principles established in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd and Masters v Cameron.

The court found that the plaintiff's statement of claim disclosed a real prospect of success because there was a triable issue as to whether the agreement was binding. The court held that the evidence provided by the plaintiff was sufficient to establish a prima facie case that a binding agreement existed between the parties. The court further held that the defendant was not entitled to summary judgment because there was a genuine dispute as to whether the agreement was binding. Additionally, the court granted the plaintiff leave to amend his statement of claim to clarify the terms of the agreement and to provide further particulars.

The court refused the defendant’s application for summary judgment and granted the plaintiff leave to amend his statement of claim.

Orders