Mary Antoinette Aviani v Jennifer Loh

[2022] NSWSC 658

Supreme Court

New South Wales

Medium Neutral Citation:

Mary Antoinette Aviani v Jennifer Loh [2022] NSWSC 658

Hearing dates:

13 May 2022

Decision date:

13 May 2022

Jurisdiction:

Equity

Before:

Hammerschlag CJ in Eq

Decision:

Judgment for the plaintiff against the defendant in the amount of $306,047.00 which is inclusive of interest in accordance with s 100 of the Civil Procedure Act 2005 (NSW)

Catchwords:

PROCEDURE – UCPR (NSW) r 17.7 – judgment on admissions – no issue of principle – HELD – clear admission of debt – judgment given in favour of the plaintiff.

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW)

Civil Procedure Act 2005 (NSW)

Category:

Procedural rulings

Parties:

Mary Antoinette Aviani - Plaintiff
Jennifer Loh - Defendant

Representation:

Counsel:
A. Kaufmann - Plaintiff
A. Murphy - Defendant

Solicitors:
J.S. Pinto & Co - Plaintiff
Compass Lawyers & Associates - Defendant

File Number(s):

2021/344336

JUDGMENT

HIS HONOUR:   Ex tempore JUDGMENT

1. This is a motion filed on 25 March 2022 by which the plaintiff seeks judgment against the defendant for $300,000 based on admissions made by the defendant. The plaintiff relies on Uniform Civil Procedure Rules 2005 (NSW) r 17.7 which provides:

(1) If admissions are made by a party, whether by his or her pleadings or otherwise, the court may, on the application of any other party, give any judgment or make any order to which the other party is entitled on the admissions.

(2) The court may exercise its powers under this rule even if the other questions in the proceedings have not been determined.

2. A brief statement of the factual background will suffice.

3. The parties were in a de facto relationship.

4. Together they bought a property at Wootton NSW comprising of two lots, numbered 21 and 22. 21 was bought in the name of the trustee of a joint superannuation fund for $400,000 of which the plaintiff apparently provided about $320,000. 22 was bought in the name of the defendant for $800,000 of which the plaintiff apparently contributed $690,000.

5. The de facto relationship ended on a sour note. The property was sold in about October 2021 for $2,600,000. The sale completed on 2 December 2021.

6. Of the proceeds of sale, $400,000 was paid into the superannuation fund and the defendant received the remainder at that time. Subsequently, some of the proceeds were paid to the plaintiff.

7. On 3 December 2021, the plaintiff approached Lindsay J, who was sitting as Duty Judge, ex parte, for an injunction restraining the defendant from dealing with the proceeds of sale. Lindsay J granted an injunction upon the usual undertaking as to damages being given by the plaintiff.

8. The matter was stood over to 8 December 2021 before Kunc J. His Honour extended the injunction, modifying it so as to restrain the defendant from dealing with $1,279,000 of the proceeds. By then, the defendant had, with another person, purchased a property at Boambee NSW and needed access to some of the proceeds.

9. The matter was stood over to 16 December 2021 before Kunc J. Both parties were represented by counsel. The transcript of the hearing is in evidence. It is clear, amongst others, from page 17 of the transcript that the defendant acknowledged a debt of $500,000 to the plaintiff. This was reflected in the record of orders and notations made by Kunc J, which it is appropriate to set out in full:

1. Note that the defendant acknowledges a debt of $500,000 to the plaintiff.

2. Note that by her Counsel the defendant undertakes to the Court that she will pay the sum of $200,000 to the plaintiff by close of business on 17 December 2021 in reduction of the debt referred to in order 1.

3. By consent of the defendant order that the defendant by herself, her servants or agents not deal with or encumber her interest in the property at 62 Symons Avenue Boambee (“Boambee”) except for the purpose of refinancing to pay the plaintiff until further order of the Court or agreement between the parties.

4. Note that the purpose of the injunction in order 3 is to preserve any rights of tracing that the plaintiff may be able to demonstrate in these proceedings.

5. Note that order 2 made by Lindsay J on 3 December 2021 and varied by order of Kunc J on 8 December 2021 expires in accordance with its terms today such that the defendant is at liberty on and from 17 December 2021 to proceed with her purchase of Boambee.

6. Direct that the proceedings continue on pleadings.

7. The plaintiff is to file and serve a statement of claim and any further affidavit evidence in chief by 30 January 2022.

8. The defendant is to file and serve a defence and any cross claim by 25 February 2022.

9. The plaintiff is to file any reply and any defence to cross claim by 25 March 2022.

10. The proceedings be listed for directions on 31 March 2022 before the Registrar.

11. There be liberty to any party (including the third party co-purchaser of Boambee, Ms Jasmine Nget Kow) to apply on 3 days’ written notice to the Associate to the Duty Judge.

12. Costs reserved.

10. In accordance with orders 7 and 8, the plaintiff filed and served a statement of claim, paragraphs 16 to 18 of which read as follows:

16. On 16 December 2021, the Court made orders, directions and notations, including to the effect that the defendant acknowledged a debt of $500,000 to the plaintiff and undertook to pay $200,000 towards reduction of that debt by 17 December 2021.

17. On about 17 December 2021, the defendant paid $200,000 to the plaintiff.

18. Accordingly, the defendant remains indebted to the plaintiff, pursuant to the defendant’s admission of debt on 16 December 2021, in the amount of $300,000 (acknowledged debt) and the plaintiff is entitled to judgment against the defendant for that amount.

11. The defendant filed and served her defence on 3 March 2022, pleading as follows in paragraphs 5 and 6:

5. The Defendant admits paragraphs 14, 15, 16, and 17 of the Statement of Claim.

6. With respect to paragraph 18 whilst the Defendant admits agreeing to pay the Plaintiff $300,000 the Defendant denies that the Plaintiff is entitled to a judgment against the Defendant for that amount, whilst these proceedings are pending.

12. It will be readily observed that these are clear admissions of debt.

13. In addition, the defendant paid $200,000 to the plaintiff in part performance of the admitted obligation.

14. Ms Murphy of counsel, who appeared for the defendant on the motion, put that judgment should not be given on these admissions because:

1. the debt is not a commercial debt;

2. this is a “rerun” of what the plaintiff sought before Kunc J which she did not succeed in obtaining;

3. the parties were in a de facto relationship; and

4. the defendant is in difficult financial circumstances.

15. None of these is a reason for withholding judgment in favour of the plaintiff given the clear admissions of debt made by the defendant. None is a defence to an admitted legal obligation. The submission that this is a rerun of a failed claim before Kunc J is, as I understand it, a reference to the fact that his Honour did not give judgment for a money sum. However, whilst the plaintiff did not obtain judgment from Kunc J for a money sum, she obtained an undertaking to pay $200,000 and a clear admission which now properly founds judgment for the unpaid balance. It is accordingly not a rerun of the hearing before Kunc J.

16. The defendant’s impecuniosity might, however, be a factor relevant to a stay application.

17. I made the following orders:

1. Judgment for the plaintiff against the defendant in the amount of $306,047.00 which is inclusive of interest in accordance with s 100 of the Civil Procedure Act 2005 (NSW).

2. The defendant is to pay the plaintiff’s costs of the Motion.

3. I stay the judgment for a period of seven days up to and including 23 May 2022.

4. I give leave to the defendant to make returnable before me on 23 May 2022 an application for a stay provided it is filed and served with supporting material by 18 May 2022.

stay application

18. The defendant brought a stay application by motion filed on 18 May 2022 supported by her affidavit sworn 17 May 2022, which the Court heard on 23 May 2022.

19. The Court ordered that subject to further order of the Court, the judgment be stayed on condition that by 30 June 2022, the defendant pays to the plaintiff not less than $100,000.

20. The Court fixed the principal proceedings for hearing on 8 August 2022 and made procedural directions.

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Decision last updated: 24 May 2022