Iacullo v Hillam - [2014] NSWSC 624

Supreme Court

New South Wales

Medium Neutral Citation: Iacullo v Hillam [2014] NSWSC 624
Hearing dates: 15/05/2014
Decision date: 15 May 2014
Jurisdiction: Equity Division - Commercial List
Before: McDougall J
Decision:
See at [24]

Catchwords: PROCEDURE - judgments and orders - judgment on admissions - whether appropriate case to grant judgment on admissions - whether to grant leave to move for summary judgment
Legislation Cited: Civil Procedure Act 2005 (NSW)
Evidence Act 1995 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: In the Matter of the Trade Marks Act 1955-1958 and In the Matter of Registered Trade Marks "Certina" and "Certina DS" (1970) 44 ALJR 191
Nominal Defendant v Gabriel (2007) 71 NSWLR 150
Category: Procedural and other rulings
Parties: Dominic Iacullo (First Plaintiff)
Lillian Iacullo (Second Plaintiff)
John Hillam (Defendant)
Representation: Counsel:
D A Smallbone (Plaintiffs)
D Neggo (Defendant)
Solicitors:
I E Duffield (Plaintiffs)
Mills Oakley Lawyers (Defendant)

File Number(s): 2014/66418

Judgment (ex tempore - revised 15 May 2014)

HIS HONOUR: The plaintiffs, Mrs and Mrs Iacullo, sue the defendant, Mr Hillam, on various counts. Among the causes of action are claims for repayment of debts owing under two loan agreements. Although the total indebtedness is said to exceed $355,000, Mr and Mrs Iacullo seek relief today only on two advances: one said to have been made on 12 July 2011, in the sum of $200,000; and the other said to have been made a fortnight later, on 26 July 2011, in the sum of $155,000.

Mr Hillam acknowledges his liability for the loan of $155,000 made on 26 July 2011 and has tendered payment of that sum to Mr and Mrs Iacullo, I was informed this morning. It may be that the actual offer of payment was made somewhat earlier, but that is now relevant only to the question of costs.

As to the sum of $200,000, the sole "pleaded" defence is that Mr Hillam does not admit that the advance was made. It appears, from some material to which I am about to refer, that the non-admission (which on the face of it is somewhat surprising) arises because the loan may have been advanced not to Mr Hillam personally but to a solicitor then acting for him in some connection.

Mr and Mrs Iacullo moved pursuant to UCPR r 17.7 for judgment on admissions. The admissions in question were said to have been made in various documents signed by Mr Hillam. There is no need to deal with the admissions in respect of $155,000, for the reason I have indicated.

As to the sum of $200,000, Mr and Mrs Iacullo rely on three documents. One is a loan agreement dated 26 July 2011. The next is an email chain, on a printout of which Mr Hillam wrote and signed certain words. The third is a Loan agreement dated 15 August 2011.

In the first of those documents, which it is uncontested was signed by Mr Hillam, the expression "Loan" is defined to mean $355,000. Clause…

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.

Continue reading Iacullo v Hillam

Details

AGLC: Iacullo v Hillam [2014] NSWSC 624
Case: [2014] NSWSC 624
Decision Date: 15 May 2014

CaseChat Overview and Summary

The case of Iacullo v Hillam was heard in the Supreme Court of Queensland. The plaintiff, Iacullo, sought to obtain a judgment on admissions against the defendant, Hillam, in relation to a property settlement agreement. Hillam had admitted to various facts, but refused to accept liability for the debts claimed by Iacullo. The court was required to determine whether it was appropriate to grant a judgment on the admissions and whether leave should be granted for Iacullo to move for summary judgment.

The court considered the relevant legal principles and procedures applicable to granting a judgment on admissions. The court noted that a judgment on admissions is an appropriate course where the admissions made by a party are sufficient to entitle the other party to judgment. However, the court also noted that the granting of such a judgment is discretionary, and the court must consider whether it is just and convenient to do so in the circumstances. In relation to the application for leave to move for summary judgment, the court considered the criteria for granting such leave, including whether there was no real prospect of the defendant succeeding at trial.

The court concluded that it was appropriate to grant a judgment on the admissions, as Hillam's admissions were sufficient to entitle Iacullo to judgment. The court also granted leave for Iacullo to move for summary judgment, as it was satisfied that there was no real prospect of Hillam succeeding at trial. The court found that Hillam's defence was without merit and that Iacullo was entitled to judgment in the amount claimed. The court ordered that Hillam pay Iacullo the sum of $396,150.00, together with interest and costs.

Orders