GI 451 Pty Ltd v Collins - [2024] VSC 610

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

MORTGAGE RECOVERY LIST

S ECI 2024 00126

GI 451 PTY LTD (ACN 662 577 791)	Plaintiff
v
TONI LEE COLLINS	Defendant

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JUDGE:	Goulden AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	7 August 2024
DATE OF RULING:	7 October 2024
CASE MAY BE CITED AS:	GI 451 Pty Ltd v Collins
MEDIUM NEUTRAL CITATION:	[2024] VSC 610

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PRACTICE AND PROCEDURE — Application for summary judgment pursuant to ss 61 and 63 of the Civil Procedure Act 2010 (Vic) — Whether the defendant’s defence enjoys no real prospect of success — Defendant to show cause against the application under r 22.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) — Evidence sufficient to show cause against application emerged during the course of the hearing – Application dismissed.

PRACTICE AND PROCEDURE — Defendant’s defence struck out on the basis that it is scandalous, frivolous or vexatious, may embarrass or delay a fair trial —Leave to re-plead.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms K Wangmann of Counsel	ERA Legal
The Defendant in person

HER HONOUR:

By summons filed on 12 April 2024, the plaintiff seeks summary judgment against the defendant pursuant to ss 61 and 63 of the Civil Procedure Act 2010 (‘CPA’). The procedure for such applications is governed by Order 22 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’).

Background

In its statement of claim, the plaintiff claims as follows.

(a) On 31 October 2022, the plaintiff advanced $911,199.10 to Thoona ECO Resort Pty Ltd (‘Thoona’) under a Loan Deed.

(b) The defendant is the sole director of Thoona, and owns the real property situated at 147 Amery South Road, Thoona, being the whole of the land comprised in Certificates of Title, Volume 10922 Folio 272 and Volume 10901 Folio 199 (‘Property’).

(c) The defendant guaranteed the obligations of Thoona under the Loan Deed pursuant to a Deed of Guarantee and Indemnity dated 31 October 2022 (‘Guarantee’).

(d) As security for her obligations under the Guarantee, the defendant mortgaged the Property in favour of the plaintiff. The mortgage was registered (dealing number AW221530Y) (‘Mortgage’).

(e) Thoona failed to repay the amounts due under the Loan Deed by the repayment date.

(f) On 24 October 2023, the plaintiff issued a default notice to the defendant under the Guarantee demanding payment of the sum of $938,576.88.

(g) The defendant did not comply with the demand, and under the terms of the Mortgage, the plaintiff is entitled to possession of the Property.

Accordingly, the plaintiff seeks orders for possession of the Property as mortgagee.

The defendant, who until very recently has represented herself, filed a defence on 16 April 2024. By that defence, the defendant:

(a) seeks damages ‘under [s] 46 of the Commonwealth Constitution or in the alternative, from the substituted Act’;[1]
[1]Defence filed on 16 April 2024, [5] (‘Defence’).

(b) alleges that the plaintiff has breached provisions of the

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: [2024] VSC 610
Decision Date: 7 October 2024

CaseChat Overview and Summary

GI 451 Pty Ltd filed an application for summary judgment against Collins, seeking to conclude the proceedings without a full trial. The case was heard in the Supreme Court of Victoria, where the dispute centred around contractual obligations and associated damages. The crux of the matter was whether Collins’ defence could be dismissed as having no real prospect of success, thus allowing the plaintiff’s application for summary judgment to be granted.

The court had to determine whether the evidence presented by Collins during the course of the hearing was sufficient to counter the plaintiff’s application. The legal issue was whether Collins' defence, initially considered to lack prospects of success, actually had merit when all evidence was considered. The court assessed the strength of the defence based on the evolving evidence, ultimately concluding that the defendant’s evidence was compelling enough to warrant a full hearing.

After considering the evidence and arguments presented by both parties, the court found that Collins’ defence was not as weak as initially perceived. The court dismissed the plaintiff’s application for summary judgment and struck out the defence on the basis it was scandalous, frivolous, or vexatious. The court also granted Collins leave to re-plead, allowing them to amend their defence to reflect the evidence presented during the hearing.

The court's final order dismissed the plaintiff’s application for summary judgment, and granted the defendant leave to re-plead, indicating that the matter would proceed to a full trial.

Orders