Matheson v Spark

[2011] VSC 378

IN THE SUPREME COURT OF VICTORIA

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 10423 of 2009

DEBBIE MARION MATHESON and RAYMOND JAMES POST (in his capacity as the executor of the will and trustee of the estate of THYIJS (THEO) POST (deceased))	Plaintiffs
v
PHILLIP GREGORY SPARK and JOLIMONT GRANGE PTY LTD (ACN 052 144 055)	Defendants

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JUDGE:	Pagone J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 August 2011
DATE OF JUDGMENT:	10 August 2011
CASE MAY BE CITED AS:	Matheson & Anor v Spark & Anor
MEDIUM NEUTRAL CITATION:	[2011] VSC 378

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PRACTICE & PROCEDURE – Summary judgment – Loan agreement – Whether ‘no real prospect of success’ – Existence of a real question to be tried.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr R Garratt QC with Mr J Graham	Browne & Co Solicitors and Consultants Pty Ltd
For the Defendants	Mr D Collins SC with Mr J Tsalanidis	Mills Oakley Lawyers

HIS HONOUR:

1. This is an appeal from orders made by Zammit AsJ on the return of the plaintiffs’ amended summons filed 25 March 2011 seeking summary judgment pursuant to rule 22.02(1) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) and, alternatively, ss 61 and 63 of the Civil Procedure Act 2010 (Vic). It is unnecessary to set out the facts in any great detail as they are adequately contained for the purposes of these reasons in the reasons of her Honour and in the several written submissions filed by the parties.

1. The plaintiffs’ principal contention is that the defendants are bound by a loan agreement pursuant to which the plaintiffs are entitled to judgment for $1.25 million plus interest of either $1,050,727.30 or $1,118,864.71 (dependent upon the basis upon which interest is to be calculated).  On 1 July 2002 a loan agreement was entered into between the late Theo Post as lendor and Jolimont Grange Pty Ltd and Phillip G. Spark & Associates, as borrowers, and Phillip Gregory Spark as guarantor.  The firm described as Phillip G. Spark & Associates, one of the borrowers, was the firm name of Mr Spark’s legal practice of which he was the sole member.  Mr Spark was, therefore, both borrower and guarantor under the loan agreement. A further $172,500 was paid to a company of which Mr Spark and Mr Matthew Matheson were directors. Mr Matheson is the late Mr Post’s grandson and was also Mr Spark’s articled clerk at about the time of the making of the loan agreement.

1. The plaintiffs’ statement of claim pleads the loan agreement against the defendants and maintains that the defendants were indebted to the deceased as lendor.  The defendants maintain that no debt under the loan agreement has been established and that such debt as may currently have been proven is a debt to Finton Properties Pty Ltd (“Finton Properties”, a defendant by counterclaim in the proceeding).  Finton Properties is pleaded by the defendants (being the plaintiffs in the counterclaim) to have been the trustee of two trusts…