Mittag and Teware Pty Ltd v Alan Patrick Pty Limited
[2012] VCC 1182
•20 September 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
COMMERCIAL
GENERAL DIVISION
Case No. CI-11-06253
| ROBERT MITTAG | First Plaintiff |
| and | |
| TEWARE PTY LTD | Second Plaintiff |
| v | |
| ALAN PATRICK PTY LIMITED | Defendant |
---
JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 August 2012 | |
DATE OF JUDGMENT: | 20 September 2012 | |
CASE MAY BE CITED AS: | Mittag & Teware Pty Ltd v Alan Patrick Pty Limited | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1182 | |
REASONS FOR JUDGMENT
---
SUBJECT – PRACTICE AND PROCEDURE
CATCHWORDS – Application for summary judgment – no real prospects of successful defence
LEGISLATION CITED – Civil Procedure Act 2010, s63 and s64 – County Court County Court Civil Procedure Rules 2008, order 23.01
JUDGMENT – Summary judgment for the first-named plaintiff.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr C King | Coopers Lawyers (Aust) Pty Ltd |
| For the Defendant | No appearance | - |
HIS HONOUR:
1 The first plaintiff, Robert Mittag, and the second plaintiff, Teware Pty Ltd, a company owned or controlled by the first plaintiff, have sued Alan Patrick Pty Limited (“Patrick”) in respect of alleged breaches of four different loan agreements, together with a number of claims alleging unjust enrichment on the part of Patrick.
2 Of the four loan agreements, Mr Mittag alone seeks summary judgment in respect of his claim in respect of one of them. He alleges that on or about 4 June 2008, he loaned Patrick the sum of $150,000 interest free for a period of four months. He alleges that the sum of $150,000 was repayable on 1 October 2008, and that no part of it has been repaid.
3 In a document entitled Notice of Defence filed in the proceeding and dated 23 January 2012, Patrick indicates that paragraphs 4 and 5 of the Statement of Claim dealing with the debt in question are “in part or totally denied”. The Defence contains no other reference to the alleged debt.
4 Counsel for Mr Mittag advised me at the outset of the hearing that summary judgment was only sought in relation to the loan of $150,000 to Patrick. There were other monies alleged to have been owed by Patrick to Mr Mittag or to the second plaintiff, Teware Pty Ltd, a company owned or controlled by Mr Mittag. In addition, other causes of action alleging undue enrichment on the part of Patrick were alleged. This summary judgment application does not relate to those other debts and causes of action. It only relates to the loan agreement in respect of the sum of $150,000.
5 In support of the application for summary judgment in respect of that debt, Mr Mittag tendered an affidavit sworn by him on 15 August 2012.[1] In his affidavit, Mr Mittag deposes that he loaned that sum to Patrick on or about 4 June 2008. He exhibited a written agreement dated 4 June 2008 (“the Written Agreement”) to his affidavit.[2]
[1]Exhibit A
[2]Exhibit RM-5
6 The Written Agreement is headed with the name of the defendant and with the words “Loan Agreement” and “Sale of Interest”. It is signed by Mr Mittag and by one Robert Harrison.
7 Paragraph 1 of the Written Agreement is as follows:
“1 Loan:
Robert Mittag (‘RM’) will loan to Alan Patrick Pty Limited (‘AP’) the sum of $150,000 interest free for a period of four months. Repayment will be due on 1st October 2008.”
8 Exhibit RM-2 to Mr Mittag’s affidavit is a company search document relating to Patrick which discloses that Robert Frank Harrison was, at that time, the holder of one of two issued shares in Patrick and the sole director and company secretary of Patrick.
9 In his affidavit, Mr Mittag deposes that he transferred the sum of $150,000 into Patrick’s bank account. Exhibit RM-6 is a copy of an extract from Mr Mittag’s mother’s bank statement showing a withdrawal from her bank account on 4 June 2008 in the sum of $150,000.
10 Exhibit RM-7 to Mr Mittag’s affidavit is deposed by him to be a copy of a page from the Patrick general ledger. An entry dated 4 June 2008 is a credit in the sum of $150,000. It is described in the ledger as “Rob Mittag Loan”.
11 In paragraph 19 of his affidavit, Mr Mittag deposes that, in breach of the agreement, the loan of $150,000 from him to Patrick was not repaid on 1 October 2008 and that the whole sum of $150,000 is still unpaid.
12 No affidavit material was filed by or on behalf of Patrick in opposition to Mr Mittag’s application for summary judgment in respect of that loan.
13 When the matter came on for hearing on 23 August 2012, Mr Harrison attended at Court. There were two proceedings listed for hearing before me on that day. In addition to this matter, there was also proceeding number CI‑10-05802[3] in which Robert Mittag and Teware Pty Ltd were plaintiffs and Mr Harrison was the defendant. I shall refer to this proceeding as the second proceeding. In the second proceeding, Ms O’Brien, Senior Counsel, appeared on behalf of Mr Harrison. She informed the Court that she was not briefed to appear on behalf of Patrick in the proceeding in which it was defendant. The two proceedings were heard together. Ms O’Brien was at all times in Court, as was Mr Harrison. During the course of the hearing, Mr Harrison and Ms O’Brien consulted on a number of occasions. At one stage, the hearing was adjourned for a short time to enable Ms O’Brien to speak with Mr Harrison outside the Court.
[3][2012] VCC 1228
14 No application was made by Patrick or by Mr Harrison for an adjournment of the hearing of this application for summary judgment to enable Patrick to file any answering material. No application was made for Mr Harrison to appear on behalf of Patrick.
15 The end result is that Patrick put no answering material relating to the alleged debt claimed by Mr Mittag.
16 I consider that the banking documents tendered in evidence establish that Mr Mittag transferred the sum of $150,000 from his mother’s account to Patrick and that the Patrick general ledger accurately described that sum as a loan from Mr Mittag.
17 Accordingly, I am satisfied that the alleged loan was made to Patrick and I am satisfied that it has not been repaid and is due and owing.
18 Although the summons seeking summary judgment does not expressly say so, I understand that the order sought by Mr Mittag is made under Rule 23.01 of the County Court Civil Procedure Rules 2008 and, in the alternative, pursuant to s61 of the Civil Procedure Act 2010 (“the Act”).
19 Rule 23.01(2) provides that:
“(2) Where the defence to any claim in a proceeding—
(a) does not disclose an answer; or
(b) is scandalous, frivolous or vexatious—
the Court may give judgment in the proceeding generally or in relation to any claim.”
20 The Court will not make an order under this rule unless it is clear on the pleadings or from extrinsic evidence that the defence is unsustainable in fact or in law. The burden lies on the party impeaching the defence; in this case, on Mr Mittag.
21 Section 61 of the Act provides as follows:
“A plaintiff in a civil proceeding may apply to the court for summary judgment in the proceeding on the ground that a defendant's defence or part of that defence has no real prospect of success.”
22 Section 63 of the Act provides:
“(1)Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has no real prospect of success.
(2)… .”
23 Section 64 of the Act provides:
“Despite anything to the contrary in this Part or any rules of court, a court may order that a civil proceeding proceed to trial if the court is satisfied that, despite there being no real prospect of success the civil proceeding should not be disposed of summarily because—
(a) it is not in the interests of justice to do so; or
(b)the dispute is of such a nature that only a full hearing on the merits is appropriate.”
24 The Defence filed on behalf of Patrick does not disclose any basis for the denial of the claim. No other material was filed by Patrick in opposition to the application for summary judgment in respect of the loan. Accordingly, I am satisfied that the Defence does not disclose an answer to the plaintiffs’ claim. Further, I am satisfied that the Defence in respect of the claim has no real prospect of success. There was no submission made by or on behalf of Patrick that s64 of the Act should be applied. I find that there is no cause to apply it.
25 I am conscious of decisions of courts emphasising that the power to order summary judgment or dismissal of a claim must be exercised with caution.[4] I am satisfied that this is an appropriate case in which summary judgment in respect of the loan should be given.
[4]Spencer v Commonwealth of Australia (2010) 241 CLR 118; Matthews v SPI Electricity Pty Ltd & Anor (Ruling No 2) [2011] VSC 168
26 Accordingly, there will be summary judgment for the first plaintiff, Robert Mittag, against the defendant, Alan Patrick Pty Limited, in the sum of ONE HUNDRED AND FIFTY THOUSAND DOLLARS ($150,000.00).
27 I will hear submissions in relation to interest and costs.
- - -
0
2
0