NAB v Lawrence - [2011] VSC 690

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading NAB v Lawrence

Details

AGLC: NAB v Lawrence [2011] VSC 690
Case: [2011] VSC 690
Decision Date: 24 March 2011

CaseChat Overview and Summary

The matter of NAB v Lawrence involved the appellant, National Australia Bank (NAB), seeking summary judgment against the respondent, Lawrence. The dispute centred around a claim for the recovery of monies owed under a loan agreement. The case was initially heard by an associate justice, who dismissed NAB's application for summary judgment. NAB subsequently appealed the associate justice's decision to the Supreme Court, seeking a review of the refusal to grant summary judgment.

The primary legal issue before the court was whether the associate justice had erred in law in dismissing NAB's application for summary judgment. The court was required to consider whether the respondent had raised a valid defence that defeated NAB's claim. The court also had to determine whether the associate justice correctly applied the criteria for summary judgment under the Civil Procedure Act 2010 and the relevant rules. The appeal hinged on the interpretation of the evidence and the respondent's defence, and whether these factors were sufficient to warrant a full trial.

In dismissing the appeal, the court held that the associate justice had correctly exercised their discretion in dismissing the application for summary judgment. The court found that the respondent had raised a valid defence that required consideration at a trial, and that there were genuine issues of fact that needed to be resolved. The court concluded that the associate justice had not erred in law and that the appeal was without merit. The court emphasised the importance of the respondent's opportunity to have their defence heard and determined at a trial. The appeal was therefore dismissed, and the decision of the associate justice was upheld.

No further orders were made by the court.

Orders