Haichkay Pty Ltd v Sacco - [2019] VSC 196

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT
MORTGAGE RECOVERY LIST

S ECI 2018 00868

HAICHKAY PTY LTD (ACN 006 622 199) ATF THE PAUL LITTMANN SUPERANNUATION FUND	Plaintiff
v
DEANNE LOUISE SACCO	Defendant

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JUDICIAL OFFICER:	Matthews JR
WHERE HELD:	Melbourne
DATE OF HEARING:	14 March 2019
DATE OF JUDGMENT:	27 March 2019
CASE MAY BE CITED AS:	Haichkay Pty Ltd v Sacco
MEDIUM NEUTRAL CITATION:	[2019] VSC 196

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PRACTICE AND PROCEDURE – Summary judgment – Plaintiff seeks summary judgment against defendant – Whether defendant has real prospect of success on her defence – Civil Procedure Act (2010) (Vic), ss 61 and 63 – Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27 – National Credit Code (Schedule 1 to the National Consumer Credit Protection Act 2009 (Cth)) does not apply – Jams 2 Pty Ltd & Ors v Stubbings (No 3) [2019] VSC 150 applied – Application granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B. Barr	Consult Solicitors
The Defendant was represented by her husband, Mr A. Sacco

JUDICIAL REGISTRAR:

Background

By summons filed on 12 December 2018, the plaintiff seeks summary judgment pursuant to s 63 of the Civil Procedure Act 2010 (Vic) (‘CPA’).[1] Alternatively, the plaintiff seeks that the defence dated 21 September 2018 be struck out and judgment entered for the plaintiff pursuant to Order 23 of the Rules.
[1]By orders made on the Court’s own motion, the summons was referred to me for hearing and determination, pursuant to r 84.04 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’).

The orders sought by the plaintiff include possession of the land situated in Farrell Street, Frankston, Victoria, more particularly described in Certificate of Title Volume 08182 Folio 534 (‘the Property’). In the alternative, the plaintiff seeks orders for the repayment of $490,000, being the principal advanced to Bayslili Pty Ltd (‘Bayslili’) (a company of which the defendant and her husband are directors) pursuant to two loans, which were secured by registered mortgages over the Property. The plaintiff also seeks orders for the payment of outstanding interest and enforcement costs on the two loans.

The plaintiff relies upon the affidavits affirmed by Paul Bernard Littmann on 12 December 2018 (‘First Littmann Affidavit’) and 12 March 2019 (‘Second Littmann Affidavit’)[2] and the affidavit affirmed by Malcolm Murphy on 8 March 2019 (‘Murphy Affidavit’). The plaintiff’s counsel also provided a written outline of submissions.
[2]This affidavit was originally affirmed on 8 March 2019 but was then re-affirmed on 12 March 2019 so as to comply with the new requirements in the Oaths and Affirmations Act 2018 (Vic).

The defendant filed two affidavits on 15 February 2019. Those affidavits were not served until 25 February 2019, despite the defendant being required to serve any such affidavit on or before 4.00pm on 15 February 2019.[3] One of these affidavits was in response to 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: [2019] VSC 196
Decision Date: 27 March 2019

CaseChat Overview and Summary

Haichkay Pty Ltd brought an application for summary judgment against Sacco, seeking a ruling that Sacco should pay Haichkay's debt as a guarantor. The dispute was heard in the Supreme Court of Victoria. The primary issue was whether Sacco had a genuine prospect of successfully defending the claim against her. The court also needed to consider whether the National Credit Code applied to the case, which would limit the court's powers to grant summary judgment.

The court examined whether Sacco had any real prospect of defending herself successfully, considering the evidence provided and the relevant legal principles. The court noted that the National Credit Code did not apply to this case and referred to previous cases such as Jams 2 Pty Ltd & Ors v Stubbings (No 3) [2019] VSC 150 and Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27 to determine the applicable legal framework. After reviewing the evidence, the court found that Sacco did not have a real prospect of successfully defending the claim and granted Haichkay's application for summary judgment.

The court ordered that Sacco pay Haichkay's debt as per the guarantee agreement, along with interest and costs. This ruling effectively settled the dispute in Haichkay's favour, providing them with a definitive resolution without the need for a full trial.

Orders