Ge Mortgage Solutions Ltd v Perdikis - [2013] VSC 606

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IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION

S CI 2012 5474

GE MORTGAGE SOLUTIONS LIMITED	Plaintiff
v
JOHN PERDIKIS	Defendant

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JUDGE:	Lansdowne AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	14 August, 27 September and 23 October 2013
DATE OF JUDGMENT:	23 October 2013
DATE OF REVISED REASONS:	11 November 2013
CASE MAY BE CITED AS:	GE Mortgage Solutions Ltd v Perdikis
MEDIUM NEUTRAL CITATION:	[2013] VSC 606

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PRACTICE AND PROCEDURE – summary judgment – defence of binding variation to the loan agreement – whether arguable – whether arguable that plaintiff did not comply with such variation – whether any arguable defence to quantum - no real prospect of success - no basis shown to exercise discretion to refuse summary judgment - summary judgment given - Civil Procedure Act 2010(Vic) ss 63 and 64.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S. Hay	Gadens Lawyers
For the Defendant	Mr Koukoulis, solicitor	Kourkoulis & Associates

HER HONOUR:

These reasons are the revised version of reasons I delivered orally on 23 October 2013 by which I indicated I would give the plaintiff summary judgment. By separate oral reasons given that day, I indicated that I would limit the plaintiff’s recovery of the legal costs of the application to that date to those incurred on or before 14 August 2013, being the first return date of its summons.

Application and issues

The application before me is for summary judgment, made by the plaintiff on summons filed 8 July 2013. The summons seeks summary judgment for possession and debt pursuant to ss 61 and 63 of the Civil Procedure Act 2010 arising from the defendant’s claimed default under a loan agreement and mortgage dated 22 November 2007 and 19 December 2007 respectively.

The summons was first returnable on 14 August 2013. On that day, the defendant was not legally represented. I commenced to hear the application. The plaintiff sought an adjournment when I indicated that I was of the view that the plaintiff could not prove on the current evidence that the entity making the application in the name of the plaintiff was entitled so to do. The application was adjourned for further hearing to 27 September 2013. The plaintiff filed four further affidavits in that interval in relation to the assignment of the debt from the plaintiff to another entity, Pepper Australia Pty Ltd. The affidavits depose that Pepper Australia Pty Ltd is authorised by the plaintiff to enforce the loan agreement and mortgage the subject of this proceeding. The affidavits also correct various errors in the earlier material filed on behalf of the plaintiff.

From 27 September 2013 the defendant was legally represented. Through his legal representative he no longer contests any aspect of the plaintiff’s case save for default. In particular, the defendant conceded that Pepper Australia Pty Ltd was entitled to pursue the loan on behalf of the plaintiff. The defendant sought to advance three matters on…

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.

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Details

Case: [2013] VSC 606
Decision Date: 23 October 2013

CaseChat Overview and Summary

The case of Ge Mortgage Solutions Ltd v Perdikis involved a dispute where Ge Mortgage Solutions, the plaintiff, sought summary judgment against Perdikis, the defendant, for the recovery of a debt under a loan agreement. The court was tasked with determining whether there was an arguable defence to the claim and if there was a real prospect of the defendant succeeding in the defence. The matter was heard in the County Court of Victoria.

The legal issues before the court were whether the defendant had raised an arguable defence by claiming a binding variation to the loan agreement, and if there was any arguable defence to the quantum claimed by the plaintiff. The court needed to assess whether the defendant’s defence was arguable on a balance of probabilities, and if there was a real prospect of success. Additionally, the court had to consider whether there were any other grounds to exercise its discretion to refuse summary judgment under the Civil Procedure Act 2010 (Vic).

The court found that the defendant’s defence of a binding variation to the loan agreement was not arguable on a balance of probabilities. The court held that there was no evidence to support the defendant’s claim that the plaintiff did not comply with the alleged variation. Furthermore, the court determined that there were no other arguable defences to the quantum claimed by the plaintiff. As a result, the court concluded that there was no real prospect of the defendant succeeding in the defence, and there were no grounds to exercise the discretion to refuse summary judgment. Consequently, the court granted the plaintiff's application for summary judgment.

The final orders of the court included granting the plaintiff's application for summary judgment and awarding the plaintiff the debt claimed, together with interest and costs. The court dismissed the defendant's defence and found in favour of the plaintiff.

Orders