Grebnev v Perpetual Corporate Trust Limited - [2022] SASC 154

Supreme Court of South Australia
(Appeal to a Single Judge)
GREBNEV v PERPETUAL CORPORATE TRUST LIMITED
[2022] SASC 154
Judgment of the Honourable Justice Blue
20 December 2022
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES
CONSUMER CREDIT - CREDIT PROTECTION - GENERAL - OPERATION OF CREDIT LEGISLATION - INTERPRETATION AND DEFINITIONS - LOAN CONTRACT
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - FORMATION OF CONTRACTUAL RELATIONS - GENERAL OFFERS AND THEIR ACCEPTANCE
Appeal against summary judgment granted by a Magistrate in favour of the respondent against the appellant for the balance of a loan found to have been made by Australian Executor Trustee Limited, which loan was found to have been assigned by Australian Executor Trustee to the respondent. The Magistrate also dismissed the appellant’s application for summary judgment dismissing the respondent’s claim.
Held:
1The Magistrate erred in granting summary judgment in favour of the respondent against the appellant because the appellant failed to prove:
(a)    entry into a loan contract (at [104]);
(b)    assignment of the debt (at [121]); or
(c)     the giving of notice of assignment (at [130]).
2The Magistrate did not err in refusing summary judgment in favour of the appellant against the respondent because:
(a)    the appellant failed to prove entry into a private settlement agreement or any other agreement precluding the appellant’s claim (at [140]);
(b)    the discontinuance by the appellant of an earlier action in the Local Court of New South Wales for the same cause of action did not preclude institution of the action in the Magistrates Court (at [142]); and
(c)     the Magistrate did not make the procedural errors alleged by the appellant (at [149], [153], [156], [164]).
3Appeal allowed. Orders relating to summary judgment in favour of the respondent set aside. Matter remitted to the Magistrates Court (at [166]).

Conveyancing Act 1919 (NSW) s 12; Legal Practitioners Act 1981 (SA) s 5(1), s 21(1); National Consumer Credit Protection Act 2009 (Cth) s 35, s 37, referred to.

GREBNEV v PERPETUAL CORPORATE TRUST LIMITED
[2022] SASC 154
Single Judge Appeal: Civil

BLUE J: A Magistrate granted summary judgment in favour of the respondent Perpetual Corporate Trust Limited (Perpetual) against the appellant Nikolay Grebnev (Nikolay) for $23,555.30 as the balance of a loan found to have been made by Australian Executor Trustees Limited (AET), which loan was found to have been assigned by AET to Perpetual. The Magistrate also dismissed Nikolay’s application for summary judgment dismissing Perpetual’s claim.
Nikolay appeals against the summary judgment in favour of Perpetual and the dismissal of his own summary judgment application.
Background
Plenti RE Limited was in 2019 called RateSetter Australia RE Ltd. I refer to the company variously as RateSetter RE or Plenti RE, primarily having regard to the period when it was using each name. Benjamin Milsom was the Director and Chief Commercial Officer of the company.
RateSetter RE was (and still is), amongst other things, the responsible entity for a managed investment scheme (the RateSetter Platform) that in 2019 was called the RateSetter Retail Lending Platform and is now called the Plenti Retail Lending Platform. The custodian for the RateSetter Platform was AET in 2019.
The RateSetter Platform provided credit to consumers. RateSetter RE provided credit assistance to potential borrowers from the RateSetter Platform and other entities.
RateSetter RE held an Australian Credit Licence (a Licence) issued by the Australian Securities and Investments Commission under sections 35 and 37 of the National Consumer Credit Protection Act 2009 (Cth) (the Credit Act).
Since at least March 2019 RateSetter RE (either in its own right or as the responsible entity of the RateSetter Platform) has maintained a public website (the Website). The purpose of the Website is, amongst others, to enable consumers to apply for the provision of credit.
On 23 March 2019 Lachlan Fursman at “RateSetter” sent an email addressed to an email address in the name of Nikolay (the Grebnev email address). Mr Fursman said that RateSetter had received Nikolay’s bank statements but required evidence of his income and salary credits for assessment under its credit policy. He requested bank statements for another account showing evidence of income.
Between 23 March 2019 and 26 March 2019 there were a series of emails between Mr Fursman or Glenn Clissold of “RateSetter” on the one hand and the Grebnev email address on the other hand referring to the provision of bank statements by Nikolay.
Mr Milson in his affidavit made on 13 May 2022 said that on 27 March 2019 Plenti RE provided a quote to Nikolay for a loan. Perpetual in its statement of claim pleaded that on 27 March 2019 Plenti RE provided a quote to Nikolay entitled “RateSetter Pre-Contractual Disclosure and Loan Contract” (the 27 March Quote). Perpetual pleaded that the loan contract was comprised by three communications: the 27 March Quote, an Offer by Nikolay on 29 March 2019 and an Acceptance by AET on 29 March 2019. Perpetual did not tender the 27 March 2019 Quote.
On 28 March 2019 Mr Clissold received an email from the Grebnev email address inquiring if there was any news yet. Tahlia Smith at “RateSetter” responded saying that the application had been passed to RateSetter’s credit team to be assessed.
Perpetual tendered at the summary judgment hearing exhibit 11 to Mr Milsom’s affidavit being a schedule setting out details of communications said to have been made between RateSetter RE and Nikolay (Exhibit 11 or the Schedule). Exhibit 11 comprised a date and time column, type of communication column, template column, addressee column, status column, delivered column, message column and resend column. The communications ranged from 29 March 2019 at 11.02 am to 4 June 2019 at 10.30 am. Mr Milsom did not describe how Exhibit 11 was compiled or the sources of information for it. The delivered column is blank for each row in the document.
The Schedule recorded several emails that had attachments. The emails themselves were not tendered with or without their attachments.
The first entry in the Schedule records that on 29 March 2019 at 11.02 am an SMS was sent to a mobile phone number ending 749 (full number redacted for privacy reasons) (the 749 phone number) addressed “Dear Nikolay” and stating that his application had been approved and inviting him to visit a webpage via a link to confirm his loan.
The next entry in the Schedule records that on 29 March 2019 at 11.14 am a second SMS was sent to the 749 phone number addressed “Dear Nikolay” providing a six digit code.
The next entry records that on 29 March 2019 at 11.16 am an email was sent to the Grebnev email address thanking him for borrowing with RateSetter and providing a link to access the direct debit request service agreement to which it said he had agreed.
The next entry records that on 29 March 2019 at 11.16 am a second email was sent to the Grebnev email address. The Schedule records that the email provided:
Dear Nikolay Grebnev. For your records, please find attached to this email a copy of your credit proposal and loan pre-contractual disclosure documents. You will also be able to download these documents at any time via your RateSetter account once your account has been set up – simply login and click “Your Documents”. The credit proposal disclosure is an important document and you must read it. It describes the fees, charges and other features of your proposed loan. The loan pre-contractual disclosure is an important document and you must read it. It describes interest rates, fees, charges and other features of your proposed loan. You should only submit your loan offer if you have read the pre-contractual disclosure. Important: we are required to submit the direct debit instruction for your loan payments to our bank one business day before the payment date specified in your loan contract. Your bank may process this instruction on that day, or up to two working days later. We highly recommend that you have the necessary funds available in your nominated bank account one business day before each date specified in your loan contract. If you have any questions or comments please don’t hesitate to contact us on 1300 768 710 or simply reply to this email. We thank you again for borrowing with RateSetter.[1]
[1] Emphasis in original.
Although the email itself and its attachments were not tendered, Perpetual tendered a document entitled RateSetter Pre-Contractual Disclosure and Unsecured Loan Contract being Exhibit 4 to Mr Milson’s affidavit (Exhibit 4). Mr Milsom said that “On 29 March 2019, Plenti … provided to Mr Grebnev a Pre-Contractual Disclosure and Unsecured Loan Contract” but he did not say how it was provided or at what time. It is possible that this document was an attachment to the email. However, after saying that the document was provided to Nikolay. Mr Milson went on to say that the Schedule showed that “subsequent emails enclosing documents including the Credit Proposal and loan pre-contractual documents were sent at 11.16 am”. His use of the description “loan pre-contractual documents” rather than the term he had already used “Pre-Contractual Disclosure and Unsecured Loan Contract” tends to suggest that the document sent with the email did not comprise that document.
Exhibit 4 comprised three parts:
1A “Schedule”;
2A notice entitled “Important”; and
3A “RateSetter Loan Contact” .
The RateSetter Loan Contact in turn contained three components:
(a)A table of contents (which commenced with the words “Effective 29/03/2019”);
(b)Terms and conditions (the Standard Terms) comprising Part A General Terms and Conditions and Part B Meaning of words;
(c)Information Statement (the Information Statement).
The Standard Terms referred to “we” and “you” and included the following terms:
·Clause 1 addressed provision of a loan;
·Clause 2 addressed payment obligations; clause 3 addressed interest charges; clause 4 addressed default and its consequences; and clause 5 addressed general matters;
·Clause 6 addressed “your” acknowledgements.
Clauses 1.1 and 6 provided:
1      Your Loan
1.1We will provide a loan by paying the Amount of Credit (less any fees we have deducted) into your nominated account, but only if we have received all documents and information we require, including a completed Direct Debit Request, in a form satisfactory to us. We may terminate this Contract if you have not provided us with such documents within 1 month from the date we accept your offer.
…
6      Your acknowledgements
6.1By placing an order on the Platform, you offer to borrow the Amount of Credit from us, subject to this Contract.
6.2By placing an order on the Platform, you also:
(a)agree to be bound by the terms of this Contract;
(b)     acknowledge that before agreeing to this Contract you received a copy of this Contract, including the Schedule;
(c)     acknowledge that this Contract forms part of your offer to borrow the Amount of Credit from us;
(d)     declare that all the information you have given is accurate and not misleading and you are aware that we are relying on it; and
(e)     agree to notify us promptly in writing if you change your address.
The Information Statement was generic. It included the following provisions:
1How can I get details of my proposed credit Contract?
Your credit provider must give you a pre contractual statement containing certain information about your Contract. The pre contractual statement, and this document, must be given to you before –
· your Contract is entered into; or
· you make an offer to enter into the Contract;
whichever happens first.
2How can I get a copy of the final Contract?
If the Contract document is to be signed by you and returned to the credit provider, you must be given a copy to keep. Also, the credit provider must give you a copy of the final Contract within 14 days after it is made. This rule does not, however, apply, if the credit provider has previously given you a copy of the Contract document to keep.
The “Schedule” contained variables which were generically referred to (often as defined terms) in the Standard Terms (numbered herein for convenient reference only):
1The Borrower as Nikolay Grebnev with an Adelaide metropolitan address (the borrower address).
2The Application Number as NG 44527430.
3The Total Amount of Credit as $23,524.
4The annual percentage rate as 14.72 per cent unless “we advise you of a lower annual percentage rate”.
5That percentage rate comprising three components:
(a)    the RateSetter Rate of 9 per cent per annum (Primary Interest);
(b)    the Platform Servicing Rate of 1.2 per cent per annum payable to RateSetter RE (Service Interest);
(c)    the Risk Assurance Rate of 4.52 per cent per annum payable to the Trust Company (Australia) Limited (as trustee of the RateSetter Provision Fund) (Risk Assurance Interest).
6The loan term as 48 months.
7Repayments as $651.35 (comprising principal and interest) due every 30 days commencing on 30 April 2019 and ending on 30 March 2023.
8The following fees as (potentially) payable:
(a)    RateSetter Credit Assistance Fee payable to RateSetter RE;
(b)    Arrears Fee of $20 per week payable while the loan account is in arrears;
(c)    Direct Debit Dishonour Fee of $25 per dishonour;
(d)    Variation Fee of $30 per agreed deferral of a monthly repayment date.
The Notice provided:
BEFORE YOU ACCEPT
·    READ THIS CONTRACT DOCUMENT so that you know exactly what contract you are entering into and what you will have to do under the contract.
·    You should also read the information statement…
·    Get a copy of this contract document.
·    Do not click the “Sign and Submit Offer ” button if there is anything you do not understand.
THINGS YOU MUST KNOW
·    Once you click the “Sign and Submit Offer ” button you are making an offer to borrow and, if such offer is accepted by the credit provider, you will be bound by this contract document. However, you may end the contract before you obtain credit by telling the credit provider in writing, but you will still be liable for any fees or charges already incurred.
·    If this contract document says so, the credit provider can vary the annual percentage rate (the interest rate), the repayments and the fees and charges and can add new fees and charges without your consent.
All of the documents comprising Exhibit 4 contained “Rate%Setter” at the top of each page and “Credit provided by Australian Executor Trustees Limited ACN 007 869 794, Australian credit licence 240023, as custodian of the RateSetter Lending Platform” at the foot of each page.
The next entry in the Schedule records that on 29 March 2019 at 1.19 pm a third email was sent to the Grebnev email address stating that Nikolay’s loan offer had been fully matched to RateSetter lenders and they were ready to transfer loan funds to his nominated bank account.
The next entry records that on 29 March 2019 at 1.19 pm a fourth email was sent to the Grebnev email address stating that his RateSetter loan had been matched at a lower rate, being 14.65%. It said that it attached a disclosure document specifying an updated loan payment schedule.
Perpetual contended at the summary judgment hearing that it tendered evidence proving that on 29 March 2019 Nikolay electronically submitted an offer to borrow funds. This is in issue and is addressed below.
Perpetual contended at the summary judgment hearing that it tendered evidence proving that on 29 March 2019 RateSetter RE, on behalf of AET, accepted Nikolay’s offer. This is in issue and is addressed below.
Perpetual contended at the summary judgment hearing that it tendered evidence proving that on 29 March 2019 $23,000 was paid into Nikolay’s bank account ending with 547 (full number redacted for privacy reasons). This is in issue and is addressed below.
Mr Milsom in his affidavit said that since March 2019 RateSetter RE changed its operation in some ways. He said that in particular it appointed Perpetual to replace AET as the sole custodian of the RateSetter Platform.
Mr Milsom in his affidavit said that on about 24 June 2020 AET and Perpetual entered into an arrangement by which AET assigned its rights and entitlements to Perpetual under the loan to Nikolay. He did not explain what he meant by “an arrangement” nor exhibit any document comprising an assignment.
Perpetual tendered a letter dated 24 June 2020 addressed “Hi Nikolay” from Ben Milsom, Director, RateSetter Australia RE Ltd (the 2020 notice). The letter said that certain RateSetter loan contracts had been assigned to Perpetual as at 24 June 2020 and this included Nikolay’s loan. Perpetual does not rely on this letter as such as notice of assignment.
On 30 July 2020 RateSetter RE sent an email to an email address other than the Grebnev email address, being an email address from which RateSetter RE had received emails from “Nikolay Grebnev” on 10 December 2019 and subsequently. The body of the email was addressed to Nikolay and stated that he was in default under his loan contract because he had not paid repayment amounts due in February 2020 and March 2020 totalling $800.34 nor other arrears fees of $962.23. It said that, if he did not remedy his default by 3 September 2020, the total amount payable under the loan contract would become immediately due and payable.
On 5 March 2021 Nikolay sent by registered post a letter to Plenti RE (the Request Notice). He queried account L352858277346 enquiring whether Plenti RE claimed a debt from him and requesting documentation verifying its claim, providing a copy of the contract signed by the parties and a copy of the accounting that brought the account into being. He requested that the information and documentation be provided within 28 days. He said that failure to do so would constitute Plenti RE’s agreement that there was no debt and the matter was settled, finalised and closed.
On 9 April 2021 Nikolay sent by registered post a second letter to Plenti RE (the Request Reminder Notice). He gave Plenti RE a further 14 days to provide the information and documents requested in the Request Notice and said that failure to do so would constitute its agreement that that there was no debt and the matter was settled, finalised and closed.
On 29 April 2021 Nikolay sent by registered post a third letter dated 27 April 2021 to Plenti RE entitled Notice of Default (the Default Notice). He said that, due to its default by failure to respond to his earlier letters, it had now agreed that there was no debt and the matter was formally settled, finalised and closed.
On 25 May 2021 Nikolay sent by registered post a fourth document to Plenti RE entitled Notice of Private Settlement Agreement (the Private Settlement Agreement Notice). It said that the matter between Nikolay Grebnev and Plenti RE had now been settled, closed and finalised by way of private agreement between the parties (the Private Settlement Agreement[2]).
[2] I use this term without implying that there was in fact an agreement, this being in issue.
Perpetual tendered a letter dated 3 June 2021 addressed to Nikolay at the address shown in Exhibit 4 from Ben Milsom, Director, Plenti RE Ltd (the 2021 notice). The letter said that on or around 24 June 2020 RateSetter RE provided to Nikolay the enclosed notice by email to his last known email address. It said that in the event that he was unaware of the former notice, it now provided a further copy.

Mr Milsom in his affidavit said that on 3 June 2021 he became aware that the 2020 notice may not have been provided to Nikolay. He said that he caused a further notice of assignment to be “provided” to Nikolay on 3 June 2021 by letter attaching the earlier notice of assignment. He did not identify how the further letter and its attachment were sent. The giving of notice of assignment is in dispute and I address this below.
On 13 July 2021 Plenti RE produced a loan statement showing Nikolay’s name and address as shown on Exhibit 4 for the period beginning on 29 March 2019 and ending on 13 July 2021 (the Loan Statement).
The Loan Statement showed:
·a loan withdrawal of $23,000 and credit assistance fee of $549 as credits, and a borrower fee rebate of $25 as a debit on 29 March 2019;
·a series of approximately monthly credits showing Primary Interest, Service Interest and Risk Assurance Interest;
·various arrears fee and some direct debit dishonour fee credits;
·payment debits;
·failed payment credits and recovered payment debits;
·a balance outstanding as at 13 July 2021 of $20,956.24.
On 29 July 2021 Perpetual instituted an action against Nikolay in the Local Court of New South Wales claiming $21,260.71 plus interest and costs (the NSW action). Nikolay filed a defence to the action.
The NSW action was referred to an arbitrator.
Subsequently Perpetual’s solicitor wrote to the arbitrator stating that Perpetual proposed to discontinue the NSW action “to make further inquiries about matters raised by the defendant”, attaching a proposed notice of discontinuance, saying that it wished to discontinue the action on the basis that there be no order as to costs and saying that they understood that the defendant did not consent to that term. Later, Perpetual indicated to the arbitrator that it would submit to the discontinuance on the term that it pay Nikolay’s costs, if any, of the action.
On 2 November 2021 the arbitrator delivered reasons for granting leave to Perpetual to file a notice of discontinuance on the term that it pay Nikolay’s costs of the action (the Arbitrator’s reasons).
On 19 November 2021 Perpetual discontinued the NSW action.
On 2 February 2022 Perpetual instituted the action against Nikolay in the Magistrates Court by filing a Claim supported by a statement of claim. It claimed $21,449.75 being the claimed outstanding balance (principal, interest and fees) of a loan as at 25 January 2022.
On 24 February 2021 Nikolay sent by registered post a letter to the solicitor for Perpetual described as a Notice of Conditional Acceptance (the Notice of Conditional Acceptance). He said that he conditionally accepted the claim, conditional upon provision within seven days of a valid contract signed by the parties, an audit trail of the account and an affidavit or invoice verifying the claim. He said that failure to substantiate the claim within seven days would constitute an accord and satisfaction settling and closing the alleged claims. He said that it would constitute agreement by the solicitor to payment of seven sums of money set out in a Compensation Schedule totalling $1,019,000 (the Compensation Schedule).
On 4 March 2022 Nikolay filed a defence. In broad terms, he did not admit almost all of the paragraphs of the statement of claim and said that, without documentary evidence, he did not know whether the allegations were true or false. He also pleaded the alleged Private Settlement Agreement. He also said that he conditionally accepted the orders sought on a series of conditions, including production of documentary evidence and verification by affidavit of the claim.
On 7 March 2022 Nikolay sent by registered post a letter to Plenti’s solicitor described as a Reminder Notice (the Reminder Notice). He referred to the Notice of Conditional Acceptance, to which he had received no response. He gave a further 14 days to either substantiate the claim or discontinue the proceeding. He said that failure to respond would constitute agreement to payment of monies set out in the Compensation Schedule.
On 25 March 2022 Nikolay filed an affidavit sworn on that date. He said that he had received no verification of the alleged debt and no material evidence of the claim. He said that he had received no response to his Notice of Conditional Acceptance and the Reminder Notice. He said that the matter was settled, finalised and closed by Private Agreement dated 25 March 2021. He did not exhibit the documents to which he referred but he filed them in the next document referred to in the next paragraph.
On 11 April 2022 Nikolay filed a document entitled List of Documents being FDN13 (FDN13). FDN13 was not a list of documents in accordance with rule 73.3 of the Uniform Civil Rules 2020 (SA) (the Rules). Rather, it contained copies of documents including the Request Notice, the Request Reminder Notice, the Default Notice, the Private Settlement Agreement Notice, the Notice of Conditional Acceptance, the Reminder Notice and the Arbitrator’s reasons.
On 13 April 2022 Nikolay issued a Notice of Default (the Notice of Default) referring to the Notice of Conditional Acceptance and the Reminder Notice and stating that Perpetual’s solicitor was now in default and had agreed to the Compensation Schedule.
On 22 April 2022 there was a listing conference before the Magistrate (the listing conference). The Magistrate made orders in relation to discovery and subpoenas. The Magistrate listed Nikolay’s foreshadowed summary judgement application for hearing on 27 May 2022.
On 28 April 2022 Nikolay filed an interlocutory application seeking summary judgment pursuant to rule 144.2 of the Rules.
On 28 April 2022 Nikolay filed an affidavit sworn by him on that day in support of his summary judgment application. He said that the application was made on the ground, amongst others, that there was no cause of action. He also relied on the Notice of Conditional Acceptance and Reminder Notice contained in FDN 13 and the Notice of Default which he exhibited to his affidavit. He also relied on the Private Settlement Agreement Notice which he exhibited to his affidavit.
On 17 May 2022 Perpetual filed an interlocutory application seeking summary judgment pursuant to rule 144.2 of the Rules (and alternative orders).
On 17 May 2022 Perpetual filed an affidavit sworn by Mr Milsom (Mr Milsom’s affidavit) on 13 May 2022 in support of its summary judgment application. The affidavit deposed to various background facts and exhibited documents most of which are referred to above. The affidavit also deposed to matters not admitted by Nikolay, to which I refer below.
On 17 May 2022 Perpetual filed an affidavit sworn by Nicholas Maley (Mr Maley’s affidavit) on 17 May 2022 in further support of its summary judgment application. Mr Maley is Perpetual’s New South Wales solicitor. Mr Maley exhibited text messages passing between Mr Maley and Nikolay’s mobile phone ending in 749 (full number redacted for privacy reasons) between 8 September 2021 and 4 February 2022. Mr Maley also deposed to a telephone conversation, details of which he recorded in a file note, that he said occurred on 29 October 2021 with Nikolay in which Nikolay admitted that he received $23,000 into his bank account on about 29 March 2019. Mr Maley said that he exhibited a file note of the telephone conversation on 29 October 2021 but the file note exhibited referred to a conversation (to the same effect) on 8 September 2021.
On 17 May 2022 the Magistrates Court, at the request of Perpetual, issued a subpoena to produce documents addressed to The Proper Officer, Commonwealth Bank of Australia, for production of an account statement for the account number ending with 547 (full number redacted for privacy reasons) (the Subpoena). The Subpoena was returnable on 10 June 2022.
On 26 May 2022 Nikolay filed an affidavit sworn by him on that day. He said that Perpetual had not produced evidence proving its claim. He also relied on the Private Settlement Agreement.
On 27 May 2022 the Magistrate heard the summary judgment applications (the summary judgment hearing). The Magistrate delivered ex tempore reasons for granting summary judgement in favour of Perpetual and dismissing Nikolay’s summary judgment application.
On 10 June 2022 the Commonwealth Bank produced to the Registry documents in answer to the Subpoena.
The summary judgment hearing
The Magistrate did not at the outset receive evidence or invite the parties to identify the evidentiary material on which they relied. The Magistrate heard submissions by Nikolay. Towards the start of submissions by Perpetual’s counsel, the Magistrate said that he had read the affidavits of Mr Milsom and Mr Maley and the affidavits of Nikolay.
The Magistrate did not refer to the documents in FDN 13. However, Nikolay’s affidavits and submissions referred to some of those documents and it was plain that he relied on them. Further, the Magistrate could not have rejected Nikolay’s defence based on the Private Settlement Agreement if he did not have those documents before him. It should be inferred that the Magistrate treated those documents as before him for the purpose of the applications. If he had not, he would have erred in not asking Nikolay about them and ruling on them.
The Magistrate delivered ex tempore reasons for judgment.[3]
[3] The reasons were delivered on 27 May 2022. However, the Magistrate subsequently produced reasons for judgment in formal form on 17 August 2022.
The Magistrate’s reasons for judgment
The Magistrate addressed the legal principles applying to summary judgment and summarised the background.
The Magistrate said that Nikolay denied the debt, submitted that Perpetual had failed to prove the debt and relied on the Private Settlement Agreement.
The Magistrate first addressed Nikolay’s summary judgment application. The Magistrate accepted that Perpetual had a reasonable cause of action. The Magistrate held that the Private Settlement Agreement was not relevant and did not bind Perpetual because it was alleged to be between Nikolay and Plenti RE, which was not a party to the proceeding.
The Magistrate then addressed Perpetual’s summary judgment application. The Magistrate referred to the Milsom affidavit.
The Magistrate said:
In summary, the Milsom Affidavit exhibits a number of significant and contemporary documents, which confirm that on or about 27 March 2019, the Respondent obtained a quote for a personal loan. The original about sought was $40,000.00.
…
The documents in the Milsom Affidavit confirmed the contract for the loan would be between Australian Executive Trustee Limited and the Respondent, and that Plenti was simply the credit provider. In this regard, see document 4 of the Milsom affidavit.[4]
After finalisation of the paperwork (see paras.12-18 of the Milsom Affidavit) and on 29 March 2019, the sum of $23,000.00 was distributed to the Respondent. This is supported by the Milsom affidavit in document 5 being the loan statement issued for the loan.[5]
…
The Milsom Affidavit further indicates the loan was assigned on or about 24 March 2020 to the current Applicant. The Respondent was given notice by letter dated 24 June 2020 (see document 7)[6] and further letter dated 3 June 2008 (see document 8 of the Milsom affidavit).[7]
…
Based on the Mr Milsom Affidavit, the Applicant submits there is no positive denial in the Respondent’s defence. The defence merely is seeking to put the Applicant to proof.
I accept the Applicant’s submissions that in view and in light of the Milsom Affidavit, the defence of the Agreement between Plenti and the Respondent has no reasonable basis to defend the claim and further, all other grounds in the defence cannot possibly succeed and are groundless.
Further, the Applicant submits this is supported by the admission made by the Respondent to Mr Maley on 29 October 2021 (and supported by Annexure C file note).[8]
As such, I grant the Applicant’s Application pursuant to rule 144.2(1)(a) on the basis that the Respondent has no reasonable basis for a defence and find that the Milsom and Maley Affidavits support a judgement being entered against the Respondent in the amount of $23,555.30 as at 16 May 2022.
[4] This is the Exhibit 4 referred to at [12] above.
[5] This is the loan statement dated 13 July 2021 referred to at [42] above.
[6] This is the letter referred to at [34] above.
[7] This is the letter dated 3 June 2021 referred to at [40] above.
[8] This is the file note dated 8 September 2021 referred to at [61] above.
The appeal hearing
Nikolay relies on the documents that he filed in FDN 13. Perpetual objects to their being considered on appeal on the ground that they were not before the Magistrate. I reject that contention. For the reasons given above, they were before the Magistrate.
Perpetual contends that the documents are irrelevant because they do not establish an agreement between Nikolay and it as alleged by Nikolay. However, that is the very issue that arises from, and can only be determined on a consideration of, the documents. I take them into account on the appeal.
Perpetual relies on the bank statement produced by the Commonwealth Bank on 10 June 2022 in response to the subpoena issued by Perpetual. This document was only produced after the Magistrate heard the summary judgment applications and made final orders. The appeal is by way of rehearing and prima facie proceeds on the material before the Magistrate. Although the Court has a discretion to receive new evidence on appeal, there is no reason to do so in respect of the Commonwealth Bank subpoena material.
Nikolay indicated at the appeal hearing that in his culture he is known by his first names Nikolay Yurievich rather than the family name Grebnev/Grebneva, to which he referred as the “House of Grebnev”. As a result of his preference, I refer in these reasons for judgment to him as Nikolay. Nikolay does not contend on appeal that he is not the Nikolay Grebnev who is the respondent in the Magistrates Court action or the person with whom RateSetter RE dealt. In any event, the documents tendered by Perpetual show the provision to RateSetter of Nikolay’s address as the borrower’s address and his mobile phone number as the borrower’s mobile phone number.
Proof of claim
Nikolay’s contentions on appeal do not precisely match his grounds of appeal.
Grounds 4 and 5 include contentions that Perpetual “refused to verify/proof a claim without a deed of assignment and without broken contract pursuing a hopeless case” and the Magistrate “when ruling considered unsworn evidences, hersay [sic] and screenshots from” Perpetual.
As argued, Nikolay contends, as he had contended in documents filed in the Magistrates Court and argued before the Magistrate, that Perpetual failed to prove its claim, and in particular failed to prove entry into the alleged contract, payment of money into his bank account, the assignment of the alleged debt or the giving of notice of the assignment. I address each of these in turn.
Entry into contract
Perpetual pleaded in its statement of claim that:
1on 27 March 2019 RateSetter RE provided a quote (the 27 May Quote) entitled “RateSetter Pre-Contractual Disclosure and Loan Contract” to Nikolay for provision of a credit facility in the amount of $23,000 together with fees and disbursements (paragraphs 5 and 6);
2it was the obligation of Nikolay under the terms of the 27 May Quote to submit an offer to borrow funds on the terms of the Quote if he wished to proceed by clicking the sign and submit offer button (paragraph 7);
3on 29 March 2019 Nikolay made an offer (“the Offer”) to borrow funds from AET in the terms specified in the 27 May Quote (paragraph 8); and
4on 29 March 2019 AET accepted the Offer (“the Acceptance”) (paragraph 9).
The pleaded loan contract comprised:
(a)the 27 March Quote, being an invitation to treat;
(b)the Offer, being an offer by Nikolay; and
(c) the Acceptance, being acceptance by AET.
In relation to the 27 March Quote pleaded at paragraphs 5 and 6 of the statement of claim, in paragraph 9 of his affidavit Mr Milsom said:
On 27 March 2019, Mr Grebnev obtained a quote for a personal loan through Plenti’s website. Following this quote, Mr Grebnev completed an application for a loan for the amount of $40,000 (excluding fees).
Mr Milsom did not exhibit the 27 March Quote. Given that it was pleaded as part of the formation of the contract, it was incumbent on Perpetual not only to tender the Quote but also to the prove how and when it was communicated by RateSetter RE to Nikolay. Perpetual failed to do this.
Mr Milsom exhibited Exhibit 4 but it is not the 27 March Quote because it is dated 29 March and Mr Milsom addresses Exhibit 4 in paragraph 9 in contrast to the 27 March Quote addressed at paragraph 7.
On appeal, Perpetual contends that Exhibit 4 was provided to Nikolay on 29 March 2019 and it, rather than the 27 March Quote, formed part of the loan contract. However, this is not how Perpetual ran its case in the Magistrates Court. Perpetual did not plead Exhibit 4 being provided on 29 March 2019 as comprising part of the formation of the contract. At the summary judgment hearing, Perpetual relied only on the 27 March Quote being provided to Nikolay on 27 March 2019. If it wished to rely on Exhibit 4 being provided on 29 March, it needed to amend its pleading.
The issue is whether the Magistrate erred in granting summary judgment based on Perpetual’s pleading and its case at the summary judgment hearing: it is not whether Perpetual might now be able to establish a different case on appeal. In any event, Perpetual failed to prove how Exhibit 4 was provided to Nikolay on 29 March 2019. While it is possible that it was an attachment to an email sent at 11.16 am on that date, Perpetual did not tender that email with its attachments or prove that Exhibit 4 was sent to the Grebnev email address with an email sent on 29 March 2019 at 11.16 am.
In relation to the Acceptance pleaded at paragraph 9 of the statement of claim, in his affidavit Mr Milsom said:
12On review of the records, I can see that Mr Grebnev electronically submitted an offer to Plenti to borrow funds on the terms contained in the Pre-Contractual Disclosure and Unsecured Loan Contract on 29 March 2019.
13 Plenti, on behalf of AET, accepted that offer.
14I annex to this Affidavit the following documents showing this process of offer by Mr Grebnev, and response by Plenti:
…
(b) Document number 12 evidencing date and time of acceptance of offer dated 29 March 2019 at 11:19:01;
Exhibit 12 to Mr Milsom’s affidavit is as follows:
RSAccountNumber LoanNumber Date and Time Accepted
NG44527430 L352858277346 2019-03-29 11:19:01 . 160
Mr Milsom did not describe how Exhibit 12 was generated other than that it was generated by Plenti’s computer system. He did not describe the program that recorded or generated the document, what were the inputs into the system and what did the output represent. Nor did he describe what was the acceptance that Exhibit 12 evidenced.
Given that the Acceptance was pleaded as part of the formation of the contract, it was incumbent on Perpetual to prove communication of the Acceptance by RateSetter RE to Nikolay. Perpetual failed to do this.
On appeal, Perpetual contends that acceptance was communicated to Nikolay by email sent on 29 March 2019 at 1.19 pm. However, this is not how Perpetual ran its case in the Magistrates Court. Perpetual relied only on acceptance said to be evidenced by Exhibit 12. The issue is whether the Magistrate erred in granting summary judgment based on Perpetual’s case at the summary judgment hearing: it is not whether Perpetual might now be able to establish a different case on appeal. In any event, Perpetual did not tender the email said to have been sent to Nikolay on 29 March 2019 at 1.19 pm.

In relation to the Offer pleaded at paragraph 8, in his affidavit Mr Milsom said:
12On review of the records, I can see that Mr Grebnev electronically submitted an offer to Plenti to borrow funds on the terms contained in the Pre-Contractual Disclosure and Unsecured Loan Contract on 29 March 2019.
13    Plenti, on behalf of AET, accepted that offer.
14I annex to this Affidavit the following documents showing this process of offer by Mr Grebnev, and response by Plenti:
(a)     Document number 11, Schedule of Communications by email sent to mobile telephone number [the 749 phone number] and emails to [the Grebnev email address] in the period 25 March 2019 to 4 June 2019;
(b)     Document number 12 evidencing date and time of acceptance of offer dated 29 March 2019 at 11:19:01;
(c)     Document number 13 [emails between 23 March 2019 and 28 March 2019].
…
17Document 12 is a computer generated time stamp, generated by Plenti’s systems, showing that at 11.19.01 on 29 March 2019 the Respondent submitted the approved loan request for funding.
Paragraph 17 purportedly states that Exhibit 12 shows Nikolay’s offer. However, paragraph 14(b) says that Exhibit 12 shows Plenti’s acceptance of Nikolay’s offer. Exhibit 12 itself plainly refers to date and time of acceptance and not date and time of offer. Exhibit 12 cannot constitute a record of the Offer. Mr Milsom did not produce any evidence of communication of the Offer by Nikolay to RateSetter RE.
Given that the Offer was pleaded as part of the formation of the contract, it was incumbent on Perpetual to prove communication of the Offer by Nikolay to RateSetter RE. If this was done electronically, Perpetual needed to explain what Nikolay did and saw on RateSetter’s website and needed to produce electronic evidence that this occurred. Perpetual failed to do this.
Nikolay consistently contended that the loan contract could only be comprised by a written contract signed by both parties. He invited Perpetual to provide such contract to him.
On the one hand, subject to any relevant statutory provision, at common law, a loan contract is not required to be in writing signed by the parties but may be created by electronic communication of offer and acceptance. Nikolay did not plead or identify any statutory provision requiring this alleged loan contract to be in writing or signed by the parties. Accordingly, the mere fact that there was no signed contract was not in itself a bar to Perpetual succeeding in the action.
On the other hand, if a party sues on a contract said to be created by electronic communications, that party must prove the communications amounting to offer and acceptance.
If the electronic communications are effected by email, the lender is required to tender the emails (and not merely secondary evidence of them). If they are effected by operations on the lender’s website, the vendor is required to describe and explain the operation of the website from the perspective of the borrower, adduce evidence of what the borrower sees and does on the website, and prove the electronic communications amounting to offer and acceptance.
For example, if Perpetual’s case were that Nikolay clicked on a “sign and submit button”, it needed to adduce evidence describing that button, what appeared on the webpage containing that button, what Nikolay saw before he clicked on the button, what loan details and conditions were referenced by the button, and what happened in terms of signing and submitting after he clicked on the button as well as proving that what Nikolay did comprised communication of an offer to AET and the terms of that offer.
Perpetual failed to prove communication of an offer by Nikolay to AET.
Perpetual points to the fact that the Magistrate heard an interlocutory application (summary judgment) in respect of a claim for approximately $23,000. Perpetual contends that the standard of proof applicable to a trial of a claim for a large amount is different to the standard of proof applicable to a claim for summary judgment for a relatively small amount. However, Perpetual was seeking final judgment. Regardless of the amount, it was incumbent on Perpetual to prove entry by the parties into the alleged loan contract. It failed to prove the invitation to treat, the offer or the acceptance upon which it relied as the formation of the contract. The Magistrate erred in finding that the contract had been proved and in granting summary judgment. The summary judgment must be set aside and the matter remitted to the Magistrates Court.
I note for completeness that Nikolay also contends that Perpetual could only prove its claim by tendering an original promissory note. I reject that contention. Perpetual does not claim, and does not need, to have a promissory note. It would have been sufficient if it had proved the existence of a contract.
This aspect of the grounds of appeal is established.
Advance of $23,000
Perpetual at paragraph 12 of its statement of claim pleaded that on 29 March 2019 $23,000 was deposited into Nikolay’s bank account by RateSetter RE as agent of AET.
Mr Milsom exhibited as Exhibit 9 to his affidavit a document entitled “Direct Credit” showing Nikolay’s name as drawer, an amount as $23,000 and bank account details . Exhibit 9 does not contain a date. Mr Milsom did not explain the nature of the document or how or by whom it was generated. At most, it appears to be an instruction by RateSetter to AET, or perhaps its bank, to transfer funds.
Mr Milsom also exhibited as Exhibit 10 to his affidavit a document entitled “Overnight – ABA File” dated 1 April 2019 referring to account details with an account name AETL ACF RateSetter Lending Platform Trust Account bearing two authorised signatory signatures and an attached listing of numerous entries including one for $23,000 narrated with Nikolay’s name. Mr Milsom did not explain the nature of the document nor how or by whom it was generated. At most, it appears to be an instruction by AET to its bank to transfer funds.
Mr Milsom did not exhibit, and Perpetual did not tender, a bank statement showing the transfer of funds out of AET’s bank account.
Exhibits 9 and 10 did not prove the making of the advance.
However, Mr Maley his affidavit deposed to a conversation with Nikolay in which Nikolay expressly agreed that he received $23,000 in March 2019. That evidence was not challenged or contradicted by Nikolay at the summary judgment hearing. That evidence amounted to sufficient prima facie evidence of the advance.
On appeal, Nikolay contends that he did not admit to Mr Maley that he received $23,000. He contends that he did not have an opportunity to contradict Mr Maley’s evidence at the summary judgment hearing. I reject that contention. The transcript of the summary judgment hearing shows that Nikolay was given an opportunity to make submissions and he did not address Mr Maley’s affidavit.
This aspect of the grounds of appeal is not established.
Assignment of loan
Perpetual pleaded at paragraph 16 of its statement of claim that on or about 24 June 2020 AET entered into an agreement by which it assigned its rights and entitlements under the loan contract to Perpetual. It did not plead whether the assignment was express (and if so in writing or oral) or implied.
Mr Milsom at paragraph 27 in his affidavit said:
…AET and Perpetual, entered into an arrangement by which AET assigned its rights and entitlements under this loan to Perpetual.
Mr Milsom did not explain what he meant by “arrangement”. He did not say if it was express (and if so in writing or oral) or implied. Mr Milsom did not exhibit, and Perpetual did not tender, any document comprising an assignment by AET to Perpetual under the hand of AET assigning Nikolay’s debt or debts including Nikolay’s debt, to Perpetual.
It was necessary for Perpetual to prove that AET’s rights and entitlements under the loan contract with Nikolay (if proved) were assigned by AET to Perpetual. It failed to prove this.
Perpetual contends on appeal that it did not need to prove the assignment. It contends that under section 12 of the Conveyancing Act 1919 (NSW), it only needed to prove that it gave notice of assignment to Nikolay and not that there was an assignment.
Section 12 provides:
12 Assignments of debts and choses in action
Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal chose in action, of which express notice in writing has been given to the debtor, trustee, or other person from whom the assignor would have been entitled to receive or claim such debt or chose in action, shall be, and be deemed to have been effectual in law (subject to all equities which would have been entitled to priority over the right of the assignee if this Act had not passed) to pass and transfer the legal right to such debt or chose in action from the date of such notice, and all legal and other remedies for the same, and the power to give a good discharge for the same without the concurrence of the assignor: Provided always that if the debtor, trustee, or other person liable in respect of such debt or chose in action has had notice that such assignment is disputed by the assignor or anyone claiming under the assignor, or of any other opposing or conflicting claims to such debt or chose in action, the debtor, trustee or other person liable shall be entitled, if he or she thinks fit, to call upon the several persons making claim thereto to interplead concerning the same, or he or she may, if he or she thinks fit, pay the same into court under and in conformity with the provisions of the Acts for the relief of trustees.
Section 12 requires in respect of a debt:
(a)an absolute assignment by writing under the hand of the assignor of the debt; and
(b)express notice in writing given to the debtor.
An assignee who sues a debtor for an assigned debt must prove that there has been an assignment. Mere notice to the debtor of assignment will not suffice: there must be an assignment in writing by the assignor to the assignee under the hand of the assignor.
This aspect of the grounds of appeal is established.
Notice of assignment
Perpetual pleaded at paragraph 17 of its statement of claim that notice of the assignment was given to Nikolay in writing on or about 3 June 2021.
Mr Milsom at paragraph 29 of his affidavit said:
On 3 June 2021, I became aware that the notice dated 24 June 2020 may not have been provided to Mr Grebnev. I caused a further notice to be provided to him on 3 June 2021 by letter attaching the earlier notice of assignment.
Mr Milsom exhibited a letter from him dated 3 June 2021 addressed to Nikolay at the address shown in Exhibit 4. That letter attached a copy of the 24 June 2020 letter which said that Nikolay’s loan had been assigned to Perpetual.
Mr Milsom did not identify how the further letter and its attachment were “provided” to Nikolay. For example, he did not say that it was sent by email, by post or otherwise.
Perpetual did not prove that notice was given to Nikolay of assignment to Perpetual of AET’s rights and entitlements under his loan contract (if proved).
Perpetual contends that it was not required to prove that it gave notice of assignment to Nikolay because he admitted receipt of the notice in his defence. At paragraph 16 of its statement of claim, Perpetual pleaded an assignment by AET to Perpetual on or about 24 June 2020 and at paragraph 17 it pleaded that notice of the assignment was given to Nikolay on or about 3 June 2021. At paragraph 16 of his defence, Nikolay pleaded that he did not admit paragraph 16 of the statement of claim and at paragraph 17 he pleaded that he did not deny paragraph 17 of the statement of claim. Perpetual contends that that non-denial amounts to an admission.
At the summary judgment hearing, Perpetual relied only on Mr Milsom’s affidavit to prove notice of assignment. It did not rely on any admission by Nikolay in his defence. The Magistrate therefore erred in finding that the giving of notice of assignment was proved.
In paragraph 2 of his defence, Nikolay admitted paragraph 2 of the statement of claim, which demonstrates that he was aware that, to admit an allegation, he simply pleaded that he admitted it. Throughout his defence, Nikolay did not deny any paragraph of the statement of claim. He was putting Perpetual to proof on its allegations (as well as raising affirmative defences). He expressly did not admit the assignment pleaded at paragraph 16 of the statement of claim and this tends to suggest that he was not admitting notice of the assignment. The default position under rule 67.6 of the Uniform Civil Rules 2020 (SA) is that, if the defence does not address an allegation of fact in the statement of claim, it is taken to be denied. In the circumstances, and also taking into account the fact that Nikolay was self-represented, on its proper construction paragraph 17 of the defence does not comprise an admission of paragraph 17 of the statement of claim.
This aspect of the grounds of appeal is established.
Conclusion
Perpetual failed to prove creation of the alleged contract, assignment by AET to Perpetual of its rights and entitlements under such a contract or the giving of notice to Nikolay of such an assignment.
The Magistrate erred by not addressing these questions. The Magistrate ought to have dismissed Perpetual’s summary judgment application due to its failure to prove these essential elements of its cause of action.
Settlement
Ground 1 is effectively that the Magistrate erred by rejecting Nikolay’s contention that the claim by Perpetual against him was settled by the Private Settlement Agreement. Ground 7 in part is effectively that the Magistrate erred by rejecting Nikolay’s contention that the claim by Perpetual against him was settled by an agreement resulting from his letters sent to its solicitors between 24 February 2022 and 13 April 2022.
The Magistrate rejected Nikolay’s contention in reliance on the Private Settlement Agreement based on privity: the Magistrate held that the Private Settlement Agreement was alleged to be between Nikolay and Plenti RE, which was not a party to the proceeding.
All of the communications and dealings between Nikolay and the lender were with RateSetter SE. No evidence was adduced as to the legal relationship between RateSetter SE and the custodian (AET/Perpetual). It is clear from RateSetter SE’s communications that it acted as agent for the custodian with virtually plenary authority. In turn, the custodian must have been trustee and/or agent for RateSetter RE (as the responsible entity for the RateSetter Platform) and no evidence was adduced as to which it was. In these circumstances, it could not be determined at the summary judgment hearing that, if there was a Private Settlement Agreement, the custodian was not a party to the agreement on the basis either that the custodian was the principal of RateSetter RE or that RateSetter RE was the principal of the custodian.
However, Nikolay failed to prove the creation of any contract. He tendered four unilateral communications that he sent to RateSetter RE between 5 March 2021 and 25 May 2021. He did not tender any response from RateSetter RE accepting the offers contained in his communications. It is axiomatic that, absent special circumstances, silence in response to an offer does not amount to acceptance of it so as to create a contract. Nikolay did not identify any special circumstances.
Nikolay also tendered three unilateral communications that he sent to Perpetual’s solicitors between 24 February 2022 and 13 April 2022. He did not tender any response from them accepting the offers contained in his communications. Again, he failed to prove the creation of a contract.
This ground of appeal is not established.
Effect of NSW discontinuance
Ground 3 is effectively that, by reason of having brought and discontinued the NSW action, Perpetual was precluded from suing on the same cause of action in the Magistrates Court.
Rule 12.3 of the Uniform Civil Procedure Rules 2005 (NSW) provides:
12.3 Effect of discontinuance
(1)A discontinuance of proceedings with respect to a plaintiff's claim for relief does not prevent the plaintiff from claiming the same relief in fresh proceedings.
(2)Subrule (1) is subject to the terms of any consent to the discontinuance or of any leave to discontinue.
Nikolay did not adduce any evidence of the terms of his consent to Perpetual’s discontinuance of the NSW action. The arbitrator’s reasons do not refer to any term that precluded Perpetual from claiming the same relief in a fresh proceeding.
This ground of appeal is not established.
Procedural errors
Nikolay contends that a number of procedural errors were made.
The listing conference
Ground 2 is expressed to be “Failure to prove the jurisdiction over the private matter where the Magistrate has abandoned the bench during the listing conference”.
At the listing conference on 22 April 2022, the Magistrate listed the summary judgment application for hearing on 27 May 2022.
On appeal, Nikolay contends that the Magistrate left the bench without having dealt with his contention that the Magistrate did not have jurisdiction over him.
The Magistrate’s Court does not produce transcripts of directions hearings and no transcript was produced for the listing conference. However, the record of outcome includes under the heading “Remarks”:
The respondent objects to the production of [documents by way of discovery] on the basis of jurisdiction. This court considers that it has jurisdiction to deal with the matter.
Nikolay does not contend on appeal that the Magistrates Court did not have jurisdiction to deal with the matter. Any such contention would be inconsistent with his contention that the Magistrate ought to have granted summary judgment in his favour. In any event, the Magistrates Court clearly had jurisdiction over the matter.
This ground of appeal is not established.
Transcripts of hearing
Ground 6 is that “no transcripts are available after a written request made to the Clerks Branch of the Adelaide Magistrates Court”.
The transcript of the hearing on 27 May 2022 was prepared by the Magistrates Court as a result of the appeal (in accordance with normal practice) and has been provided to the parties.
Transcripts of the directions hearing on 29 March 2022 and listing conference on 22 April 2022 were not produced. Nikolay’s substantive contentions on appeal do not raise any issue as to what occurred at the directions hearing on 29 March 22 and, leaving aside ground 2 (which I have already rejected), as to what occurred at the listing conference on 22 April 2022.
This ground of appeal is not established.
Solicitors’ indemnity insurance
Ground 7 in part is that Perpetual’s solicitors refused to provide details of their indemnity insurance or bond.
Perpetual’s solicitors had no obligation to provide to Nikolay information about their indemnity insurance. Even if they did have such an obligation and breached it, it could not disentitle Perpetual to judgment if it was otherwise entitled to it. Nor could it give rise to any entitlement of Nikolay to summary judgement.
This ground of appeal is not established.
Solicitor’s right to appear
Ground 7 in part is that Perpetual’s solicitor (Mr Maley) was not entitled to appear at the summary judgment hearing because he is a New South Wales practitioner and did not file a notice of acting.
In relation to Nikolay’s contention about Mr Maley being a New South Wales practitioner, at the outset of the hearing on 27 May 2022 Mr Maley sought from the Magistrate, and was granted, leave to appear for Perpetual on the basis that he was an interstate legal practitioner.
Under the Legal Practitioners Act 1981 (SA), a legal practitioner admitted and holding a practising certificate in another State has the same right of practice (including right to appear at a court hearing) as a local legal practitioner provided that their principal place of legal practice is not South Australia.

Subsection 21(1) of that Act provides:
21—Entitlement to practise
(1)A natural person must not practise the profession of the law, or hold himself or herself out, or permit another to hold him or her out, as being entitled to practise the profession of the law unless the person—
(a)is a local legal practitioner; or
(b)is an interstate legal practitioner.
Maximum penalty: $50 000.
Subsection 5(1) defines an interstate legal practitioner as follows:
interstate legal practitioner means a natural person—
(a)who has been admitted as a legal practitioner in a participating State; and
(b)who holds an interstate practising certificate issued or given by a regulatory authority in that State or is entitled by admission or otherwise to practise the profession of the law in that State; and
(c)who is not a local legal practitioner; and
(d)whose principal place of legal practice is not this State;
Mr Maley was, on the face of the hearing, an interstate legal practitioner who was entitled to appear in the Magistrates Court.
In relation to Nikolay’s contention about filing a notice of acting, Holman Webb Lawyers were shown as Perpetual’s solicitors on the Claim, with Caroline Knight as the responsible solicitor. They remained Perpetual’s solicitors throughout the proceeding. Mr Maley appeared as counsel at the Court hearings. This did not require the filing of a notice of acting by Mr Maley.
This ground of appeal is not established.
Conclusion
The Magistrate erred in granting summary judgment in favour of Perpetual against Nikolay. The Magistrate did not err in dismissing Nikolay’s summary judgment application.
I will make the following orders:
1Appeal allowed.
2The orders made by the Magistrate on 27 May 2022, except for the orders relating to the dismissal of Nikolay’s interlocutory application (FDN 18) dated 28 April 2022, are set aside.
3The matter is remitted to the Magistrates Court to hear and determine the action.
I will hear the parties concerning costs and any other orders sought.