Ge Mortgage Solutions Ltd v Perdikis
[2013] VSC 606
•23 October 2013
| Send for Reporting | ||
| 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 that date, two of which were said to be sufficiently arguable defences to defeat the application for summary judgment, and the third of which was said to be a reason why the Court should, in the exercise of its discretion under s 64 of the Civil Procedure Act 2010, refuse the application even there is no real prospect of success in relation to any defence.
These three matters are as follows:
(1)The assertion by the defendant that the original loan agreement was varied after he went into initial default, that he has complied with the agreement as varied, and so he is no longer in default. This is said to be a sufficiently arguable defence to defeat the application for summary judgment.
(2)If the Court is against the defendant on this submission, the defendant further asserts that the quantum of the debt is either not proved, or there is a defence to it in part on the basis that the debt had increased due to the very considerable delay on the part of the Credit Ombudsman Service Limited in resolving the defendant’s complaint and that the plaintiff had contributed to this delay.
(3)If the Court is against the defendant on both of these matters, the defendant submits that as a matter of discretion summary judgment should be refused under s 64 of the Civil Procedure Act on the basis of the personal circumstances of the defendant and his family.
The plaintiff responded to each of these matters on 27 September 2013 but sought further adjournment to make further enquiries in relation to the factual matters asserted on the variation argument. That adjournment was consented to and the matter was further adjourned to 23 October 2013.
On 23 October 2013 three further affidavits were relied upon by the plaintiff, each sworn by Mr Abbas. The first two give updated certificates as to the amount owing in various forms. The third and critical affidavit exhibits a statement and other documents that go to the question of variation and whether, if there was a variation, when that variation came to an end. The defendant maintained his earlier contentions on 23 October 2013, and advanced some further matters. The additional matter by way of claimed defence is that the figure given in the certificates issued pursuant to the mortgage as being the figure outstanding is incorrect, or may be so. This arises because it is conceded that the figure includes default fees and the defendant says that he was not in default at least for a period due to the variation, even if now in default. The defendant also put further submissions in relation to the exercise of the Court’s discretion.
Test for summary judgment
The test for summary judgment is set out in s 63 of the Civil Procedure Act. That section provides that summary judgment may be given in favour of a plaintiff where the defence has no real prospect of success. The test has been interpreted most recently by the Court of Appeal in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd[1]. The Court by majority held that:
[1][2013] VSCA 158
the test for summary judgment under s 63 of the Civil Procedure Act2010 is whether the respondent to the application for summary judgment has a ‘real’ as opposed to a ‘fanciful’ chance of success…
the test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail’ test (which formerly applied)
… 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…[2]
[2]Ibid, per Warren CJ and Nettle JA at [35].
In short, what the Court there said is that although the test for summary judgment is a more liberal test than used to be the case, the Court still needs to be very careful in giving summary judgment and should only do so if there is no real question to be tried. It is with that high threshold that I have approached the question before me. I now turn to the arguments that were advanced.
Variation
In support of his contention that the repayment obligation under the loan was varied, the defendant relies principally on a email dated 23 December 2008 from the solicitors for the plaintiff, Gadens, to Irene Sofos, who is his sister and was, in his negotiations with the bank and at times during these proceedings, his lay representative. The defendant says this email evidences the variation. It appears as J-15 to his affidavit.
I drew the parties’ attention in the course of argument to Ms Sofos’ reply email of the same day to Gadens, which appears as part of exhibit KA-11 to Mr Abbas’ affidavit of 25 July 2013. The plaintiff also relies on letter dated 3 September 2008 from Gadens to the defendant (part of J-6) and letter dated 15 May 2009 from the plaintiff to the defendant which is part of KA-13. The plaintiff relies on this correspondence to support its contention that the December 2008 arrangement was time limited and came to an end on the sale of the investment properties also secured by the mortgage which were surrendered for sale by the defendant.
The defendant’s contention, as developed in the course of argument and discussion, at its highest is as follows. The defendant asserted that the arrangement entered into in December 2008 was a contractually binding variation to the pre‑existing loan contract. He says that it was a term of this variation that payment of $400 per month only was required and that this was to continue until the plaintiff advised the defendant of the new repayment due following settlement of the sale of the investment properties. The defendant asserts that the plaintiff did not at any time after the settlement of those sales provide him with a new repayment figure and that he continued to comply with his side of the bargain, in that payments of $400 per month were made. As a consequence, the defendant says that he is not in default under the loan as varied.
The plaintiff’s response is as follows. First, the plaintiff says that the arrangement in December 2008 was just a forbearance, not a contractually binding variation. The plaintiff says the arrangement was not contractually binding because there was no valuable consideration moving from the defendant to the plaintiff. Next, the plaintiff says that the plaintiff only agreed to accept $400 per month by way of regular repayment pursuant to the arrangement (however characterised) until the settlement of the sale of the investment properties. The plaintiff also denies that it was a term of the arrangement that the plaintiff was required to notify the defendant of the new repayment amount. The plaintiff conceded on 23 October 2013 that if the arrangement was contractually binding (or, for the purposes of this application, arguably so) then it is also arguable that it contained a term that the plaintiff was required to notify the defendant of the new amount.
The plaintiff says that the further evidence obtained for 23 October 2013 shows that, if it was a term of a contractually binding variation that it notify the defendant of the new repayment amount, it discharged that obligation.
Given this evidence, it may no longer have been necessary to consider the nature of the arrangement entered into in December 2008, because even if it was contractually binding, and contained a term that the plaintiff must notify the defendant of the new amount, the plaintiff asserts it can show that it did so. As these reasons had been prepared in draft before that day, and I referred to my consideration of the variation/forbearance issue in my oral reasons, indicating I would do so in full in writing, I set out below my reasons in respect of this issue.
Variation or forbearance?
What consideration is required for the arrangement arrived at in December 2008 to be contractually binding is not by any means a straightforward issue of law. It has been the subject of recent consideration by Associate Justice Zammit in Wolfe v Permanent Custodians Limited[3]. That case is now on appeal before the Court of Appeal at the instance of the unsuccessful borrower, and I am informed by counsel for the plaintiff, who was also counsel for the lender in Wolfe, that the issue of forbearance may be the subject of determination in that appeal, by virtue of a notice of contention.
[3][2012] VSC 275
The issue was considered but not decided by Judd J in MP Investments Nominees Pty Ltd and anor v Bank of Western Australia Limited.[4] In that discussion, Judd J refers to authority in the Court of Appeal of Queensland. The question of characterisation of an arrangement as a forbearance or as contractually binding turns on whether the traditional strict approach to consideration, as identified in Foakes v Beer,[5] has been replaced in Australia by a test of practical benefit or avoidance of prejudice.
[4][2012] VSC 43.
[5][1884] UK HL 1 (1884) 9 App Cas 605.
The plaintiff says that the defendant provided no consideration by surrender of part of the secured property because he was already in default and so the plaintiff was entitled to go into possession of those properties in any event.
Even accepting that the plaintiff may have been so entitled, in my view it is arguable that there may still have been some practical benefit to the plaintiff by virtue of the surrender. Such practical benefit could, for example, have been the avoidance of the further delay, cost and inconvenience that would attend the obtaining of judgment. This would particularly have been the case if enforcement action by the plaintiff was already stayed by complaint made to its external dispute resolution provider. On the material before me it is not entirely clear when this complaint was made for the purpose of that stay coming into force, but it may, according to paragraph 17 of Mr Perdikis’ affidavit, have been lodged on 12 December 2008, which was prior to the entry by the parties into the arrangement.
In short, I consider that both resolution of the question of law as to the test to apply, and resolution of the question of fact as to whether there was any practical benefit or avoidance of prejudice to the plaintiff if that is the test, require more detailed consideration than is possible or appropriate in an application for summary judgment. I do not think it can be said that the argument that in December 2008 the parties entered into a binding variation of the loan agreement has no real prospect of success.
Terms of the agreement
Assuming there to have been a binding variation, what were its terms? For the limited purposes of a summary judgment application I will consider all the documentation to which the parties have drawn my attention or which I have drawn to theirs, without determination at this stage as to which of those documents (if only some of them) contains the terms. The defendant relied solely on the email contained within J‑15 but did so without the benefit of legal advice. That email itself refers to an earlier email from the defendant to Gadens of 16 December 2008. If that email is in evidence my attention was not drawn to it. It may also be the case that the reply to Gaden’s email by Ms Sofos also forms part of the terms.
On the basis of the email from Gadens to the defendant which is J‑15, there is no doubt in my view that it was contemplated in the arrangement that the required repayment may increase from $400 per month once the investments properties had been sold. That the required repayment was to be recalculated is also consistent with both earlier and subsequent correspondence to which the parties have drawn my attention. The letter of 3 September 2008 from Gadens to the defendant refers on p.2 to recalculation of the required payment after sale. Similarly, the subsequent correspondence directly from the plaintiff to the defendant of 15 May 2009, i.e. after the sales, which is contained within KA‑13, states that it was a term of the arrangement that after sale “you would need to maintain the recalculated repayments”.
The real issue is whether it was a term of the agreement that the plaintiff was to notify the defendant of the required new repayment. On the last day of hearing, 23 October 2013, the plaintiff conceded that it was arguable that the arrangement, if contractually binding, contained a term that the plaintiff notify the defendant of the required new repayment, and so it is not necessary to consider this issue further.
Compliance with the terms
The plaintiff did not dispute before me that the defendant had continued to pay $400 per month. Accordingly, the issue resolves to whether there is any real prospect of success in the defendant’s factual assertion, made on 27 September 2013, that the plaintiff did not notify him of the new repayment amount. For the reasons set out below, I do not consider there is any real prospect of success in this contention.
I reach this conclusion on the basis of the subsequent affidavit of Mr Abbas, sworn 23 October 2013, and the documents exhibited thereto; the document produced by the defendant pursuant to the Notice to Produce and tendered into evidence as Exhibit A by the plaintiff; and the documents tendered by the defendant without objection as Exhibit 1.
The further affidavit of Mr Abbas sworn 23 October 2013 exhibits what the plaintiff says was a request by the defendant to the plaintiff to be advised of the new repayment figure. That request is contained in a letter dated 27 August 2009 from the defendant to Gadens, which is exhibited as part of KA-22. The defendant concedes that he attended an office of GE Money and signed that letter, which includes the words “I authorise any sale proceeds to be allocated to the loan account/s and for GE to provide an updated loan balance and new monthly repayment amount”. I observe that that letter is also consistent with the defendant’s contention that it was a term of the arrangement entered into in December 2008 that the plaintiff notify the defendant of the new repayment figure.
The plaintiff says that the defendant’s request was answered by supply to him of a document headed “Interim Statement” in respect of the loan for the period 20 June 2009 to 25 September 2009. A copy of that statement appears exhibited to Mr Abbas’ affidavit and also in its original form as exhibit A, being a document produced by the defendant in response to the Notice to Produce. The plaintiff says that, if it was a term of a contractually binding variation that it notify the defendant of the new repayment amount, that term was satisfied by supply of this Interim Statement. Exhibit A, being the original Interim Statement, shows that it was received by the defendant.
The Interim Statement is addressed to the defendant and contains entries on its front page to the effect that the “Scheduled Repayment Amount” is $2,347 and the “Available Funds for Redraw” are zero. These entries compare with the corresponding entries for the same items on earlier statements, copies of which are also exhibited to Mr Abbas’ affidavit. The plaintiff says the clear implication is that all redraw funds have now been applied to reduce the outstanding balance and the required repayment has been recalculated. On page 2 of the Interim Statement, which contains an itemisation of transactions on the account, an item appears dated 19 September 2013 in these terms “Payment recalc from $4,125 to $2,347”. There is no dispute that $4,125 was the earlier required repayment. The plaintiff says that that entry was sufficient communication of the recalculated figure in discharge of any obligation to do so.
The defendant says it is arguable that supply to him of the Interim Statement containing these entries was not sufficient communication of the new figure, because the communication was not in the form of a direct communication by way of letter to him. In support of this contention, the defendant relies on other letters that he received from the plaintiff commencing 12 October 2009, tendered without objection as Exhibit 1. The implication of the defendant’s submission may be that because he received these letters, communication of the new repayment figure should also have been by letter.
While these letters are expressed to relate to a particular account, I think it would be fair to describe them as pro-forma letters because they are headed “Reserve Bank Interest Rate Change” and they each advise of an interest rate change that is consequential on a change by the Reserve Bank. Each of these letters includes these words “Please note that the Loan Summary does not reflect details of any individual agreement made with us to vary your scheduled repayment amount”. The defendant says that, on the basis of those words, he read the letters as not affecting what he considered to be his individual agreement with the lender, being the individual agreement to pay only $400 per month.
In my view, there is no real prospect of success in that argument and I say so because of the sequence of events. The first of those letters is dated 12 October 2009. The solicitor for the defendant conceded that it is a fair inference that it was received by the defendant after the Interim Statement and covering letter dated 25 September 2009 to the defendant. The Interim Statement, as set out above, contained a new figure for the scheduled repayment amount. The Interim Statement, unlike the pro-forma letters, was specific to the defendant. I do not consider there is any real prospect of success in a defence that would require the defendant to show he reasonably still believed that there was an agreement on foot for $400 per month when he had already received a communication by way of individual statement of the rescheduled figure of $2,347. In other words, by the time the letter of 12 October 2009, the first of the general pro-forma letters contained in Exhibit 1 was received, the individual agreement, if the December 2008 arrangement was contractually binding, had already come to an end to the extent that it required payment of $400 per month only.
Examination of the correspondence and statements exhibited to Mr Abbas’ affidavit provides further support for this analysis. The next statement exhibited in KA-23 after the Interim Statement is for the period 20 June 2009 to 2 November 2009, apparently sent by covering letter dated 2 November 2009. It contains entries confirming that the scheduled repayment amount is $2,347, recalculated on 19 September. It reflects, however, the interest rate change advised by the pro-forma letter of 12 October 2009 to 11.09% by entry dated 16 October. Indeed, comparison of the statements contained in KA-23 and the pro-forma letters contained in Exhibit 1, shows that, each time one of the pro forma letters was received, the statement for that period, also sent to the defendant, shows a corresponding change in interest rates and repayment amount.
The next pro-forma letters in relation to interest rates are dated 6 November 2009 and 10 December 2009. The first states that the interest rate has changed to 11.34% and the new repayment amount (reflecting this rate change) will be $2,451 (i.e. an increase from $2,347) effective 19 December 2009. The pro forma letter dated 10 December 2009 states an interest rate increase to 11.74% and new repayment figure of $2,526 effective 19 January 2010. The next statement exhibited by Mr Abbas is for the period 20 June 2009 to 19 December 2009 i.e. it covers the period of both rate changes and both these pro forma letters. This statement contains entries dated 13 November and 17 December reflecting both interest rate changes. That statement shows on the front page a Scheduled Repayment Amount of $2,451 i.e. as per the pro forma letter of 6 November 2009, the increased repayment figure advised by the pro forma letter dated 10 December 2009 not yet having become effective by the end date of the statement.
The final pro forma letter forming part of Exhibit 1 is dated 11 April 2010. It states an interest rate increase to 12.24%, which in turn is reflected by entries in the statements covering that period exhibited by Mr Abbas.
Nor do I think there is any real prospect of success in the defendant’s broader argument, that communication of the recalculated repayment amount to him by way of entry in a statement as opposed to letter specifically directed to that question, was insufficient, assuming communication to be a term of a binding variation. The defendant’s submission on this point was put without supporting evidence on oath, but even assuming this to be what the defendant subjectively expected would occur, the sufficiency of any required communication would be judged objectively. The defendant in his affidavit deposes to receiving a letter dated 20 July 2009 from Gadens (exhibited as J-10) which sets out that the investment properties had been sold earlier that year and requests that he contact GE to consent to allocation of the sale proceeds to the outstanding loan account. The defendant concedes he attended an office of GE and signed the letter dated 27 August 2009 giving this consent, and requesting an updated loan balance and new monthly repayment. The Interim Statement containing an entry as to the new repayment figure was sent to him not long thereafter by letter dated 25 September 2009. I do not consider that communication in this way, given this time sequence and sequence of events, would objectively be viewed as insufficient.
Conclusion in relation to asserted defence of variation
For these reasons, while I conclude that it is arguable that there was a contractually binding variation to $400 per month, I do not consider it arguable that the variation continued beyond the supply of the statement which is exhibit A. That statement showed a recalculated figure communicated by the plaintiff to the defendant. There is no dispute that the defendant has not met that figure or subsequent repayment figures as communicated. I do not consider that there is any real prospect of success in an argument that he was not, at least from the time the first repayment of the new figure as advised by Exhibit A was due, again in default.
I turn now to the other matters advanced by the defendant.
Defences to quantum
The first of these defences, relates to the delay by COSL in finalising the defendant’s complaint. I accept the submission on behalf of the plaintiff that this asserted defence has no real prospect of success, whether by way of defence or counterclaim, and so is insufficient to defeat the application for summary judgment.
I accept the plaintiff’s submissions that the contention fails on both legal and factual grounds. First, no defence or cause of action known to the law against the plaintiff is articulated that arises by any contribution by the plaintiff to the delay in investigation by COSL of the complaint.
Secondly, there is no sufficient evidence before me that the plaintiff did materially contribute to the delay. On the defendant’s own time line as set out in his affidavit the plaintiff contributed at most to a relatively small component of the delay. There are two aspects of delay in the hands of the plaintiff there identified. The first is the period between approximately 26 March 2009 (the day after the 21 days first allowed by COSL to the plaintiff to respond to the complaint) and the date of the plaintiff’s response, which appears to have been in the period between 6 and 19 May 2009. There is a further period of delay at the hands of the plaintiff identified as being an extra period of three months and one week in the period from 20 July 2009 when further information was sought of the plaintiff by COSL and the reply by the plaintiff on 27 November 2009.
Further, on the basis of that time line, it could appear that the defendant himself may not have prosecuted the complaint or followed it up with vigour. The solicitor for the defendant said from the Bar table on instructions that there were additional attempts at follow‑up by way of telephone which are not there recorded, and I accept that that may have been the case.
Most compellingly, COSL itself appears to have accepted that it was responsible for the inordinate delay. This is conceded in the letter dated 30 August 2012 from the Ombudsman which is part of J‑17.
The defendant has asserted in his affidavit, which was prepared before he was represented, that he should not be penalised for the circumstances beyond his control, being the length of the COSL investigation. I understand that grievance and I accept that the defendant, having made the complaint could not then compel COSL to determinate it within any particular time frame. I do make the observation, however, that it was the defendant’s choice to make the complaint and that he, unlike the lender, was not prevented by the complaint from taking action while it was being investigated by way of finalising the debt. That point was also made by COSL in its letter of 30 August 2012.
In summary, I do not consider the argument based on delay at the hands of COSL to be a sufficient reason to defeat the application for summary judgment.
There was a further argument in relation to quantum that was advanced on 23 October 2013, based on the defendant’s belief that the figure shown in the certificates exhibited to Mr Abbas’ affidavits was higher than it should be at least because it included default fees. The plaintiff says two things in response. First, that the onus is on the defendant, in accordance with the contractual agreement between them under the mortgage, to show that a certificate is incorrect. Secondly, that the defendant has failed to discharge that onus. A mere concern that the figure is too high, or higher than expected, is not sufficient and to the extent the figure represents default fees there was no term in the variation, even if contractually binding, that default fees would not be charged.
In relation to that contention the plaintiff relies on earlier correspondence between the parties, being a letter from Gadens to the defendant of 3 September 2008 (exhibited as KA-11). This letter preceded the December arrangement, but the plaintiff says it provides the contextual framework for that arrangement. That letter states in the fourth paragraph on page 2 : “Please note that whilst the loans remain in default the arrears will continue to increase and monthly late fees will be incurred which John Perdikis is liable for under the terms of his Loan Agreements and Mortgage”. The defendant says that was said at an earlier point in time, but the difficulty for the defendant is that there is no express reference to monthly late fees in the two emails said to constitute the December arrangement. I do not consider that the quantum argument advanced on 23 October 2013 has any real prospect of success given these earlier discussions in September, which indicated that late fees would continue to be charged; the absence of express change to that arrangement; and the onus on the defendant to establish positively that a statement in a certificate is incorrect.
Discretion
On 27 September 2013 the defendant advanced his personal circumstances as reason for the Court to refuse summary judgment. In his affidavit at paragraph 35 the defendant sets out the adverse impact on his parents if summary judgment is given and the particular hardship occasioned recently by the death of a sibling. It is conceded by the solicitor for the defendant that these matters do not constitute a defence, but he asserts that they are a sufficient basis for refusal of summary judgment in the Court’s discretion pursuant to s 64 of the Civil Procedure Act.
Section 64 provides as follows:
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.
The plaintiff says that personal circumstances such as those advanced by the defendant, while distressing, do not fall within the ambit of matters addressed by s 64. I consider that submission correct. Without seeking to set out an exhaustive list of the circumstances that may be contemplated by s 64, I consider that its wording makes it clear that it is directed to matters relating to the administration of justice or the nature of the dispute rather than the personal circumstances of or hardship to the parties. The matters on which the defendant relies show personal hardship, but in my view do not constitute a basis for refusal of summary judgment in the Court’s discretion pursuant to s 64.
The solicitor for the defendant on 23 October 2013 made an additional and more conventional submission in relation to the exercise of the discretion to refuse summary judgment. The defendant submits that the dispute between the parties is of such a factual nature that it needs the full process of pre-trial preparation and examination at trial. The Court always considers when an application for summary judgment is made whether the usual processes of discovery, mediation and other interlocutory processes and oral evidence at trial are required or more appropriate than summary determination. In my view this is not such a case. The parties have essentially relied on documentary evidence and given the route that the matter has taken, there is substantial documentary evidence before me, including most particularly the statements on which the plaintiff relies and exhibit A. The defendant has not identified any particular further material that may be obtained by way of interlocutory process and I consider that the plaintiff’s submission, that I have now before me the critical documents in relation to the variation argument, is broadly correct.
Additional matters
The defendant’s affidavit contains some additional matters, including his assertion that the plaintiff allocated the proceeds of sale of the investment properties incorrectly as between the two loan accounts, or failed to quarantine the remaining security property (which is the family home) as it should have done, or as the defendant understood it would do. These matters were not pursued once the defendant became represented.
Conclusion
For these reasons I will accede to the plaintiff’s application for summary judgment. The matter is adjourned to enable the plaintiff to obtain a certified figure for the debt which is exclusive of legal costs incurred after 14 August 2013 to 23 October 2013, and for the parties to endeavour to reach agreement as to the form of orders to give effect to these reasons and my separate reasons in relation to the costs of the application.
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