NAB v Lawrence
[2011] VSC 690
•24 March 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
S CI 2009 5152
| NATIONAL AUSTRALIA BANK LTD (ABN 12 004 044 937) | Plaintiff |
| v | |
| TESS PATRICIA LAWRENCE | Defendant |
| TESS PATRICIA LAWRENCE | Plaintiff by Counterclaim |
| v | |
| NATIONAL AUSTRALIA BANK LTD (ABN 12 004 044 937) | Defendant by Counterclaim |
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JUDGE: | BEACH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24 March 2011 |
DATE OF JUDGMENT: | 24 March 2011 |
CASE MAY BE CITED AS: | NAB v Lawrence |
MEDIUM NEUTRAL CITATION: | [2011] VSC 690 |
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PRACTICE AND PROCEDURE – Summary judgment – Appeal – Associate justice dismissed application for summary judgment – Appeal from associate judge’s refusal to give summary judgment – Appeal dismissed – Civil Procedure Act 2010, s 64 – Supreme Court (General Civil Procedure) Rules 2005, rr 22.02 and 22.06(1)(b).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff/ Defendant by Counterclaim | Mr G J McEwen with Mr A A Segal | Turks Legal |
| For the Defendant/ Plaintiff by Counterclaim | In person |
HIS HONOUR:
On 3 March 2009 the plaintiff issued a writ against the defendant seeking:
(a) possession of five properties described as ‘the first land’, ‘the second land’, ‘the third land’, ‘the fourth land’ and ‘the fifth land’;
(b) the sum of $2,831,323.92, pursuant to an agreement to advance moneys, described as ‘the first facility’;
(c) the sum of $67,092.96, pursuant to an agreement to advance moneys described as ‘the second facility’;
(d) interest pursuant to the facilities and/or pursuant to statute; and
(e) costs.
By an amended defence and amended counterclaim, the defendant puts in issue the plaintiff’s entitlement to the relief sought and counterclaims, amongst other things, for:
(a) a declaration that each and every mortgage relied upon by the plaintiff is void, voidable and liable to be set aside;
(b) damages, alleging losses of (amongst others) $350,000, $3.5 million and $4 million.
The amended defence and amended counterclaim is no mere traversal of the plaintiff’s allegations. Allegations are made concerning representations made on behalf of the plaintiff which led to the entering into of agreements between the plaintiff and the defendant. Further, the defence and counterclaim contains various allegations of conversations with representatives of the plaintiff and circumstances said to make some of the documents entered into between the plaintiff and the defendant of no effect.
It must be said that the defendant’s case is significantly burdened by the fact that she is unrepresented. That said, the material discloses a real dispute between the parties, whatever might be shown to be its ultimate merits.
On 20 October 2010 (some 19 months after the proceeding was commenced), the plaintiff issued a summons seeking summary judgment under r 22.02 for possession of the five properties, the sums of $2,831,323.92 and $67,092.96, together with interest. Additionally, the plaintiff sought the dismissal or striking out of the defendant’s amended counterclaim pursuant to rr 23.01 and/or 23.02.
This proceeding has been the subject of significant appearances before Associate Justices. The plaintiff’s summons came on for hearing before Mukhtar AsJ on 29 November 2010. During the course of a ruling made on that day his Honour said:
The first thing I would say is that it is technically open, that is open as a matter of procedural availability, for the bank to now apply for summary judgment. The second thing I am bound to say is that the orders made by the court on 17 August 2010 proceeded on the manifest basis that the case ought to go to trial, particularly as directions hearings have become prolonged and intensive and productive of delay and expense. It was not said to the court back then that there was a prospect, in any event, of the bank moving for summary judgment. Indeed, faithful to the intention to advance the matter to trial, the court ordered the preparation by the bank of a draft index for the proposed court book and the delivery of the court book to the court today for this court’s examination. Arguments may be put about whether there is a procedural election or an acquiescence or some sort of preclusion operating to prevent the bank from moving for summary judgment.
On 29 November 2010, Mukhtar AsJ dismissed the plaintiff’s application for summary judgment, ordering it to be dismissed without an adjudication on its merits. His Honour took the view that a trial of the claim and counterclaim was the more appropriate course to take.
By notice of appeal filed 1 December 2010 the plaintiff appeals from the orders made by Mukhtar AsJ. This is the hearing of that appeal. The appeal is a rehearing de novo of the defendant’s application before Mukhtar AsJ.
On this appeal, the plaintiff relies on the following principal affidavits:
(a) an affidavit of James Wallace Wyatt sworn 8 September 2010;
(b) affidavits of Thomas Charles Edward Stanley sworn 12 and 27 October 2010;.
(c) an affidavit of Trevor John Watson sworn 19 October 2010; and
(d) a further affidavit of James Wallace Wyatt sworn 23 March 2011 exhibiting a certificate showing an amount owing under the mortgages as at 23 March 2011, being $3,195,804.50 in respect of the first facility and $83,466.58 in respect of the second facility.
The plaintiff also relies on affidavits of service as to the demands and default notices referred to in the pleadings and affidavits. Ultimately, a book of 17 affidavits was put before me by the solicitors for the plaintiff.
Whilst it would appear that the defendant did not rely on any affidavit before Mukhtar AsJ, on 23 March 2011 the defendant filed an affidavit in opposition to the plaintiff’s claim for summary judgment. The plaintiff requires special leave in order to rely on that affidavit. However, sensibly, if I may say with respect, senior counsel for the bank took no point on this issue during this hearing.
The affidavit is not easy to follow. It, like the amended defence and amended counterclaim, suffers from having been prepared by a person without legal qualifications, albeit that the original defence and counterclaim upon which the amended defence and counterclaim was based was in fact prepared by lawyers. However, in any event, the affidavit makes plain the fact that this proceeding is a heavily contested proceeding between the parties.
Whilst I have read the bank’s material (including the detailed 13 page outline of submissions prepared by its counsel), it is not necessary to go into any of this material or the submissions in detail. Having examined the matter I have reached the same conclusion as Mukhtar AsJ (to some extent I have been assisted by the reasoning of the Court of Appeal in re Klement [2011] VSCA 40).
There is a residual discretion under the rules not to grant summary judgment in cases where the court thinks that the matter ought to be the subject of a trial (cf r 22.06(1)(b)). That residual discretion now finds expression in s 64 of the Civil Procedure Act 2010 which 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 that 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.
It is not necessary for me to determine whether or not special leave should be granted to the plaintiff to rely upon her affidavit filed yesterday. Even without that affidavit I have formed the view that this is a case where there should be a trial of the claim and counterclaim. At the hearing before Mukhtar AsJ it was said that the trial of this proceeding will take five to eight days. I have spoken to the associate justice responsible for listing. The first available trial date is 26 September this year.
In the circumstances, I propose to dismiss the plaintiff’s appeal and fix the trial for this proceeding on 26 September 2011 on an estimate of eight days. Additionally I propose to refer the proceeding back to Mukhtar AsJ who is familiar with the matter for any necessary pretrial management. Accordingly, the orders of the court will be:
1. Appeal dismissed.
2.The proceeding is fixed for trial on 26 September 2011 on an estimate of eight days.
3.The proceeding be referred to Mukhtar AsJ for any further necessary management.
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