Malander v Papadakis
[2017] VCC 961
•19 July 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-16-03630
| TERRY MALANDER |
| Plaintiff |
| v |
| DEMITRA PAPADAKIS |
| Defendant |
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JUDGE: | His Honour Judge Cosgrave | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 July 2017 | |
DATE OF RULING: | 19 July 2017 | |
CASE MAY BE CITED AS: | Malander v Papadakis | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 961 | |
REASONS FOR RULING
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Subject:PRACTICE AND PROCEDURE
Catchwords: Summary judgment – no real prospect of success – plaintiff failed to comply with default notice – plaintiff failed to make discovery
Legislation Cited: Civil Procedure Act 2010 (Vic), County Court Civil Procedure Rules 2008 (Vic)
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr M Radebe (solicitor) | Radebe & Associates |
| For the Defendants | Ms C Tan (solicitor) | RNG Lawyers |
HIS HONOUR:
Summary
1 This is an application by the defendant to summarily dismiss the plaintiff’s claim on the basis that it has no real prospect of success.
Application
2 The defendant relies upon section 62 of the Civil Procedure Act 2010 (Vic) (“Civil Procedure Act”) and rules 23.02, 24.02, 24.05, 29.12.1(3)(a) of the County Court Civil Procedure Rules 2008 (Vic) (‘the Rules’). Rule 23.02 is invoked in relation to the plaintiff’s Statement of Claim. Rules 24.02 and 24.05 are called upon in respect of the plaintiff’s failure to comply with order 6 of the orders made by Judicial Registrar Tran on 28 February 2017. Rule 29.12.1(3)(a) is relied upon in respect of the plaintiff’s failure to comply with the defendant’s form 29D default notice dated 29 March 2017.
3 The defendant relies upon an affidavit sworn by Simon Heaney on 15 June 2017. Heaney is the solicitor acting for the defendant. The affidavit, in summary, alleges the following:
(a) the plaintiff’s failure to respond comprehensively to the defendant’s notice to admit dated 14 March 2017;
(b) the plaintiff’s failure to make discovery in accordance with the Rules and orders made by the court;
(c) the plaintiff’s failure to provide an address for service;
(d) the plaintiff’s failure to pay the setting down fee;
(e) the plaintiff’s breach of certain provisions of the Civil Procedure Act.
In the present context, the first two matters are the most important.
4 The plaintiff filed an affidavit by his solicitor, Mduduzi Radebe, sworn on 12 July 2017. In that affidavit, Radebe swore that:
(a) the plaintiff served an affidavit of documents on the defendant on or about 29 November 2016. Radebe noted that, at paragraphs 2 and 4 of the said affidavit, the plaintiff stated that he had never had in his possession, custody or power any document relating to this litigation.
(b) on 12 April 2017, Radebe sent an email to the defendant’s solicitor advising them that the plaintiff did not have any documents relating to the proceeding. Radebe exhibited the email where he said that, “…our client left all documents at the former matrimonial home when he left”.
(c) on 24 November 2016, Radebe sent an email to a person at the office of the defendant’s solicitors alerting them to Radebe’s new address.
(d) the notice of denial responding to the defendant’s notice to admit was supposed to be served on 28 March 2017 but was served late due to an error by Radebe.
Notice to admit / notice of denial and effect on plaintiff’s claim
5 On 14 March 2017, Heaney sent to the plaintiff’s solicitor a notice to admit in which the plaintiff was asked to admit the following facts:
1. The plaintiff and the defendant were not in a relationship between January 2004 and January 2008.
2. The defendant solely purchased the property situate at 2 Fernwood Avenue, Ringwood East in the State of Victoria (the Property) and has been the registered proprietor since 27 October 1997.
3. The plaintiff has not contributed to the payment of the mortgage of the Property.
4. The date of separation of the plaintiff and defendant was in or about April 1999.
5. There was no agreement made between the plaintiff and the defendant in or about January 2008 with respect to the Property as defined in the plaintiff’s statement of claim as the ‘Agreement’ or otherwise.
6 On 3 April 2017, Radebe served the defendant’s solicitors with a notice of denial which, so far as material, read as follows:
TAKE NOTICE that the plaintiff disputes/denies the following facts:
1. The plaintiff denies that the defendant solely purchased the property situate at 2 Fernwood Avenue, Ringwood East in the State of Victoria.
2. The plaintiff denies that he has not contributed to the payment of the mortgage of the property.
3. The plaintiff denies that there was no agreement made between the plaintiff and the defendant in or about January 2008 with respect to the property as defined in the plaintiff’s statement of claim.
7 Thus, the plaintiff did not dispute paragraphs 1 and 4 of the defendant’s notice to admit.
8 During the hearing, I understood Radebe to say in open court that:
(a) the property the subject of the litigation was purchased in 2005;
(b) there was a relationship between the plaintiff and defendant from 2004 to 2008;
(c) there were two daughters from that relationship and the younger one was no longer attending school.
9 The plaintiff’s statement of claim alleges that the plaintiff and defendant lived in a de facto relationship between January 2004 and their separation in January 2008. During the existence of the de facto relationship, they bought the property at 2 Fernwood Avenue, Ringwood East (‘the Property’). By an agreement made in January 2008, the parties agreed that when the youngest (sic)[1] child turned eighteen, the Property would be sold and the proceeds divided equally between plaintiff and defendant. When the younger daughter turned eighteen, the plaintiff asked for the Property to be sold but the defendant refused to sell and thereby repudiated the alleged agreement. Alternatively, the plaintiff says that the defendant is estopped from acting inconsistently with the agreement because the time has now expired for the plaintiff to file proceedings seeking a property settlement.
[1]Mr Radebe said there were only two children so the reference to the “youngest” is presumably intended as a reference to the “younger”.
10 By failing to deny paragraphs 1 and 4 of the notice to admit, the plaintiff is taken to have admitted the facts alleged by the defendant. I note that, at the hearing before me, Radebe did not contend that there was any error or mistake, nor did he apply for leave to amend the notice of denial or to file a new notice of denial. He made no specific reference to the point. In that event, it is difficult to see how the plaintiff could now prove paragraph 1 of the statement of claim.
11 The same situation obtains in relation to the separation taking place in April 1999. Although Radebe said that the Property was purchased in 2005 during the currency of the de facto relationship, a title search which he handed up during the hearing shows that the defendant became the registered proprietor of the Property on 27 October 1997. So, even if there were a de facto relationship, the defendant had owned the Property for more than 6 years before the relationship began (assuming the plaintiff was correct to allege that the relationship ran between 2004 and 2008). Again, in view of the concession made by the plaintiff, it is difficult to see how he could prove paragraph 2 of the statement of claim, at least insofar as it related to the deposit. As referred to in paragraph 10 hereof, Radebe did not say that there was any error or mistake in the notice of denial nor did he apply for leave to amend the notice of denial or to file a new notice of denial.
12 The plaintiff relies upon an agreement between the parties. Radebe said that there were two children from the relationship, both girls. If the relationship began as alleged in 2004, the older girl could be about thirteen at the oldest and the younger girl could be no older than about twelve. In so finding, I am taking judicial notice of the usual length of a pregnancy. I asked Radebe to tell me the girls’ ages but he could not. I asked Radebe why the plaintiff sought to enforce the alleged agreement now when it seemed that the younger daughter could not be aged eighteen. He said that the plaintiff sued because the younger child had left school. I inferred that the plaintiff thought that the child was now independent and thus able to live as an adult and hence, there was no need to provide a house for that child to live in. Radebe did not explain how his comment relating to the younger daughter having left school sat with the claim alleged in the plaintiff’s statement of claim. The allegation relies upon a quite different basis or rationale from that currently pleaded. It was not clear from anything which Radebe said how I was to reconcile the different bases of the alleged agreement.
13 In my view, the plaintiff has a major difficulty when the claim he makes assumes a state of affairs, namely, that the younger daughter is aged eighteen, which appears not to exist. Radebe did not dispute these facts in relation to the age of the girls. He did not ask for time to clarify matters, seek further instructions, or file further material. He simply left me to deal with the inconsistency.
14 At its highest, I consider that the younger daughter could not turn eighteen before 2023. This means that the plaintiff faces a significant problem:
(a) the claim pleaded relies upon proof of allegations that the plaintiff and defendant lived in a de facto relationship between January 2004 and January 2008; that between those dates, the plaintiff and defendant purchased the Property; and they agreed that when the youngest child turned eighteen, the Property would be sold.
(b) the plaintiff now admits in effect that there was no de facto relationship between January 2004 and January 2008 and that the plaintiff and defendant separated in April 1999. Radebe handed up a title search showing the defendant became registered proprietor of the Property in October 1997. Thus, part of the factual basis for the plaintiff’s case has disappeared. Also, because the pleaded case requires the younger daughter to have turned eighteen and this cannot happen before 2023, the plaintiff has no cause of action until then and so the claim is premature.
(c) in addition, the plaintiff appears to now assert that he can require the sale of the Property because the younger child has left school, even though she is not eighteen. The claim alleged makes no reference to this possibility. Again, Radebe did not ask for time to get instructions or foreshadow the desire or need to amend the claim.
15 The defendant’s application is made pursuant to section 62 of the Civil Procedure Act and Rules 23.02, 24.02, 24.05 and 29.12.1(3)(a). Section 62 provides as follows:
A defendant in a civil proceeding may apply to the court for summary judgment in the proceeding on the ground that a plaintiff's claim or part of that claim has no real prospect of success.
The aim of section 62 is to prevent a plaintiff proceeding with a case which is unsustainable and ought not be launched. On the material put before me at the hearing without objection, I consider that this is such a case.
16 Although the defendant’s application with respect to this part of the case referred in the summons to rule 23.02, the defendant filed a supporting affidavit without objection. The plaintiff too introduced facts and a document into the application without objection. To that extent, the parties conducted the application more like an application under Rule 23.01. This was also consistent with the defendant’s reference in its summons to obtaining summary judgment against the plaintiff. Under Rule 23.02, the court can strike out all or part of a pleading but not give judgment in the proceeding to the defendant. However, under rule 23.01, the court does have power to give judgment in the proceeding generally.
17 In circumstances where:
(a) the plaintiff has made factual admissions which contradict or are inconsistent with his pleaded case;
(b) the plaintiff has produced in court a document regarding the time at which the defendant became registered proprietor of the property and this document contradicts or is inconsistent with the plaintiff’s pleaded case;
(c) the plaintiff appears unable to prove various facts in the presently pleaded claim;
(d) the plaintiff cannot establish his cause of action because the younger daughter will not turn eighteen before 2023;
(e) the plaintiff relies upon a different basis from that pleaded to justify his claim that the defendant should have sold the Property, namely the fact that the younger daughter has left school;
(f) the plaintiff did not seek the time or opportunity to amend his statement of claim or to clarify his position or obtain advice,
I consider that the plaintiff’s claim as alleged has ‘no real prospect of success’, as that expression has been discussed and explained in the recent authorities.
Discovery
18 By an exhibit to Radebe’s affidavit sworn on 12 July 2017, the plaintiff has produced an affidavit of documents which is undated, not filed with the court, and disclosed no documents. The defendant contended that the plaintiff had no documents to substantiate the claims he made in the statement of claim.
19 As noted, Radebe swore in his affidavit that he sent the email exhibited to his affidavit to the defendant’s solicitor on 12 April 2017. Notwithstanding that Radebe alleges in the email that the plaintiff contributed towards the deposit for the purchase of the property and mortgage repayments during the relationship, and paid for the building of a wardrobe and new furniture, no documents are discovered. I note that the email exhibited is addressed to Radebe’s own client and not the defendant’s solicitor. It is therefore not apparent on its face that the email was sent to the defendant’s solicitor.
20 During the hearing of this application, Radebe drew my attention to the affidavit of documents where the plaintiff said that he had never had in his possession, custody or power documents relating to any mortgages or loan application regarding the purchase of the Property.
21 There appears to be an inconsistency between the email of 12 April 2017 and the affidavit of documents. On the one hand, the plaintiff says he never had any relevant documents. On the other hand, he says that the documents which he had, he left at the property.
22 In answer to a question from me, Radebe said that the plaintiff had a job and a bank account at the time of his relationship with the defendant but he kept no records from the bank or his employer. Radebe said further that his client had not sought to obtain records from either of them. But he later qualified this to a degree, by saying that the plaintiff had contacted the bank but was told that, after the bank had retained the records for a period of time, it destroyed them. Radebe was not sure which bank held the plaintiff’s account.
23 What the affidavit of discovery suggests is that, not only did the plaintiff have no relevant documents at the time he swore the affidavit, but that he had no relevant documents at any time before then. It is not entirely clear when the affidavit of documents was sworn because Radebe has not completed the attestation section of the affidavit. I assume from the words printed in the attestation on the affidavit that the affidavit was sworn in November 2016. The fact that a later order for discovery was made suggests that the Judicial Registrar was not satisfied that discovery was adequate and hence, she ordered on 28 February 2017 that discovery take place by 28 March 2017. The plaintiff filed no further affidavit – either of discovery or explaining why no further affidavit was filed.
24 In the circumstances, if I were not already prepared to grant the defendant summary judgment, I would have been prepared to make a self-executing order for discovery requiring the plaintiff both to make discovery within 14 days or otherwise have the proceeding dismissed, and to pay the defendant’s costs of the proceeding including reserved costs.
Other matters
25 Having regard to the matter discussed to date in this ruling, there is no utility in addressing the other matters raised.
Conclusion
26 In my view the plaintiff’s claim has no real prospect of success and there should be judgment for the defendant against the plaintiff. Further, subject to hearing any submissions to the contrary from the parties, the plaintiff should pay the defendant’s costs of the proceeding and this application, such costs to be taxed on a standard basis in default of agreement.
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