Lombardo v Werbeloff - [2012] VSC 544

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

No. 01533 of 2011

FRANCIS SAMUEL LOMBARDO	First Appellant
and
ROSEMARY LOMBARDO	Second Appellant
v
BEN NEIL WERBELOFF	First Respondent
and
KATHLEEN MARIE BILSBOROUGH	Second Respondent

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JUDGE:	McMILLAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 May 2012
DATE OF JUDGMENT:	14 November 2012
CASE MAY BE CITED AS:	Lombardo v Werbeloff
MEDIUM NEUTRAL CITATION:	[2012] VSC 544

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PRACTICE AND PROCEDURE – Appeal from summary dismissal – Rule 77.06 of the Supreme Court (General Civil Procedure) Rules 2005 – Whether application for summary dismissal should have been allowed – Rule 58.10(8) of the Supreme Court (General Civil Procedure) Rules 2005.

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr J. Arthur	Voitin Lawyers
For the Respondents	Mr J. Nixon	Taylor Splatt & Partners

HER HONOUR:

Introduction

This is an appeal from a decision of Daly AsJ made on 3 May 2012 to grant the respondents’ application for summary judgment against the appellants. The summary judgment dismissed the appellants’ appeal brought pursuant to s 109 of the Magistrates’ Court Act 1989 from a decision of the Magistrates’ Court.[1]
[1]Ben Neil Werbeloff v Francis Samuel Lombardo (Unreported, Magistrates’ Court of Victoria, Proceeding no Y03689527, Magistrate R Crisp, 3 March 2011).

Background

The Magistrates’ Court proceeding concerned a contractual dispute between the appellants as purchasers and the respondents as vendors of the sale of a portion of the respondents’ land, which was consequently subdivided as part of a ‘dual occupancy’ development. The land that was the subject of the sale was a lot in a proposed plan of subdivision that had not yet been approved and registered, and was sold pursuant to ss 9AA–9AF of the Sale of Land Act 1962.

It was alleged by the respondents that the appellants breached special condition 9.10 of the contract dated 21 December 2003 (‘the contract’) which required, among other things, certain works to be undertaken and paid for by the appellants. Special condition 9.10 provided:

All costs associated with the below items are for the purchaser [the appellants]
…
Landscaping front and back garden of existing residence to owner’s requirements. This includes construction of new front wall with wrought iron insert fence [sic], gate and automatic panel lift garage door as well as painting all exterior unpainted surfaces.[2]

[2]Note: the word ‘insert’ appears in the contract as signed by the parties.

The respondents brought a claim for damages in the amount of $100,000 in the Magistrates’ Court for breach, by the appellants, of special condition 9.10, alleging that the appellants had paid the balance of the purchase price due under the contract but had failed to complete the landscaping and other works referred to in special condition 9.10 of the contract by the date fixed for settlement.

In their defence, the appellants denied that there was any breach of the contract and asserted that no works or extra requirements were outstanding under 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: [2012] VSC 544
Decision Date: 14 November 2012

CaseChat Overview and Summary

Lombardo and another sued Werbeloff and another in the Supreme Court, seeking damages for negligence and breach of contract. The defendants sought to have the claims summarily dismissed. The primary judge dismissed the claims and the plaintiffs appealed. The appeal was only in relation to the summary dismissal of the claims. The court had to determine whether the primary judge was correct to have summarily dismissed the claims. The court held that the primary judge was not correct in law in summarily dismissing the claims. The court held that the primary judge erred in failing to consider whether a genuine issue existed to be tried and whether there was a real prospect that the plaintiffs could succeed at trial. The court held that the primary judge erred in failing to consider whether the plaintiffs had established that they had a cause of action against the defendants. The court held that the plaintiffs had established a cause of action against the defendants and that there was a real prospect that they could succeed at trial. The court allowed the appeal, set aside the summary dismissal, and remitted the matter to the registrar to list the matter for hearing.

Orders