Nguyen v Savige

[2022] NSWSC 559

Supreme Court

New South Wales

Medium Neutral Citation:

Nguyen v Savige [2022] NSWSC 559

Hearing dates:

6 April 2022

Date of orders:

6 April 2022

Decision date:

06 April 2022

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

1) Direct the plaintiff to file an amended statement of claim pleading the facts on which she relies in full in accordance with the provisions of Part 14 of the Uniform Civil Procedure rules 2005 other than rule 14.12 by 20 April 2022.

2) If the plaintiff complies with order 1, the defendant is to file a defence to the amended statement of claim by 4 May 2022.

3) List the proceedings before me on 10 May 2022 for the purpose of taking compliance with orders 1 and 2 and considering whether the matter should be transferred to the District Court.

4) Vacate the directions hearing before the Registrar of 13 April 2022.

Catchwords:

CIVIL PROCEDURE – pleadings – form and content of pleading – real issue to be tried

Legislation Cited:

Real Property Act 1900, s 74O

Uniform Civil Procedure Rules 2005, Part 14, rr 13.4, 14.12, 14.28

Cases Cited:

O’Brien v The Bank of Western Australia Limited [2013] NSWCA 71

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Kim Nguyen (Plaintiff)
Nadia Savige (Defendant)

Representation:

Mr Anderson (Son-in-law appeared by leave (Plaintiff))
N Savige (Litigant in Person)

File Number(s):

2021/277651

Extempore Judgment (revised)

1. In this matter the plaintiff sues the defendant in debt. She claims the amount of $304,000 plus interest. The proceedings were commenced by statement of claim filed on 29 September 2021 and the defendant, who disputes the debt, filed her defence on 1 November 2021.

2. The proceedings have some history, in as much as previous proceedings in respect to the same debt were commenced in the District Court of New South Wales, being proceedings number 21/68665. In response to a notice of motion filed by the defendant to dismiss the proceedings her Honour Judge Gibb made the following orders, amongst others:

“3. Dismiss the statement of claim, pursuant to the Uniform Civil Procedure Rule 14.28(1)(a) - discloses no reasonable cause of action.

...

4. Dismissal without prejudice to the plaintiff's right to file a statement of claim in proper form dealing with same/similar subject matter (my emphasis).”

It is apparent to me that her Honour formed the view that the statement of claim was defective, in as much as it did not comply with the requirements of the rules for proper pleading under part 14 of the rules. It is also evident that her Honour was not summarily dismissing the proceedings given order 4.

3. By notice of motion filed on 21 March 2022 the defendant has sought various relief including summary dismissal pursuant to rule 13.4 and, in the alternative, dismissal under rule 14.28(1)(a) on the same ground as appealed to Judge Gibb in respect of the former proceedings.

4. In hearing the defendant's motion, I have received in evidence, over the objection of the plaintiff (who was represented, by leave, by her son-in-law, Mr Chris Anderson), two affidavits of the defendant, Ms Savige. The first is dated 25 January 2022 and the second is dated 28 January 2022. I received, without objection, an affidavit of the plaintiff, apparently affirmed on 31 March 2022 and filed on 1 April 2022.

5. From considering the evidence it is clear that there is a significant dispute between the parties about whether the defendant was ever indebted to the plaintiff, and, if so, in what amount, and how much is presently outstanding, and that dispute adequately appears from a reading of the affidavits to which I have referred. It is clear to me that that dispute cannot be resolved at an interlocutory stage but needs to proceed to trial at which the witnesses will give evidence, be cross-examined and a judge can decide the case on its merits.

6. All of this is clear law, as explained by Macfarlan JA in O'Brien v The Bank of Western Australia Limited [2013] NSWCA 71 at [3]. His Honour pointed out, amongst other things, that on a summary judgment application the real issue is whether there is an underlying cause of action, or defence, not simply whether one is pleaded. A Court can only exercise the power to summarily terminate proceedings with exceptional caution and it must not do so unless the moving party demonstrates that the outcome of the litigation is clear beyond argument. In a case of summary dismissal, the defendant is required to indicate that the outcome is so certainly in her favour that it would be an abuse of the processes of the Court to allow the action to go forward.

7. For the reasons I have given, this is not such a case and I am satisfied, by reference to the evidence I referred to, that there is a real issue to be tried and that the matter must be allowed to proceed to a hearing on the merits subject to the alternative ground of rule 14.28.

8. I think I should set out the whole of the plaintiff's pleading in her statement of claim. It is as follows:

“The defendant has borrowed money from the plaintiff and a few friends of the plaintiff the defendant has been served with a statement of claim already the plaintiff was told to redo the statement of claim in the last Court hearing as it was listed under the wrong Court it was in the District Court not Supreme Court. The defendant agreed to refinance her mortgage or sell her property to repay the plaintiff back and a caveat was put on the property to secure the plaintiff money (sic).

In the relief claimed, the amount of the debt is said to be $304,000 and interest is claimed in the sum of $60,400.

9. I acknowledge that, in accordance with rule 14.12, money lent by the plaintiff to the defendant is a category of case where "it is sufficient to plead the facts concerned in short form (that is, by using the form of words set out in the relevant paragraph above)". The categories referred to in subsection (1) were formerly referred to as common money counts.

10. It may be said that the pleading that the defendant has borrowed money from the plaintiff and a few friends of the plaintiff complies with the requirements of rule 14.12(1)(d), money lent by the plaintiff to the defendant, but it is not entirely clear to me that that is so. Even when the common money counts were employed it was necessary for the plaintiff to provide particulars of the loan including the amount of the money advanced, and the date on which it was advanced, and for that reason the statement of claim does not comply with the requirements of the rules. I should also state that it would have been open to the defendant to have filed and served a notice under rule 14.12(2) requiring the plaintiff to plead the facts on which she relies in full, that is in accordance with the provisions of part 14 other than rule 14.12, and the defendant has not done that.

11. It is apparent from the affidavit evidence that I have read that the defendant has requested particulars directly from the plaintiff and from her former solicitor which have not been provided. The plaintiff does not seem to dispute that. What Mr Anderson says is that the affidavit evidence now filed contains evidence from which the defendant can deduce the nature of the case against her. However, to my mind, given the defendant's application to strike out the pleading as defective, that is not sufficient. The use of common money counts is permitted because often there will be little dispute between the parties about the matter. The ability of the Court to require the plaintiff to plead the facts in full demonstrates that there are cases where that is the appropriate procedure that should be adopted.

12. It is clear from the form of the pleading in any event that the plaintiff purports to have lent money to the plaintiff and few friends of the plaintiff have lent money and it is unclear from that formulation whether the plaintiff has title to sue for the whole of the amount she alleges. Given the history of the matter and the failure of the plaintiff to provide detailed particulars, that the way forward in this case is, rather than striking out the statement of claim pursuant to rule 14.28 which would not foreclose the ability of the plaintiff to start yet again, I should direct that the plaintiff file an amended statement of claim complying with part 14 of the rules as though the defendant had filed a notice under rule 14.12(2) and I will make that order in a moment.

13. Two other matters were discussed in argument before me. The first is whether the proceedings ought to be transferred to the District Court. It is clear from the nature of the dispute it is well within that Court's monetary jurisdiction and no relief is sought in the statement of claim which is of a type which only this Court may grant. It seems to me that the matter should be transferred. However, before that happens, I am of the view that the plaintiff should be required to bring forward the statement of claim in proper form pleading the facts in full so I can be satisfied that the matter is procedurally in order before it is transferred to the District Court.

14. The second matter relates to the caveat which is referred to in the statement of claim. Although that matter is not the subject of any application for interlocutory relief before me today, it is apparent from the affidavit evidence of the defendant that a caveat was lodged against her real property claiming an interest referable to the loan of $304,000. I am not sure whether that adequately encapsulates an interest in land, and I need not enquire further about that.

15. The plaintiff did serve or caused a lapsing notice to be served on the plaintiff and no application was made to this Court for an extension of the operation of a caveat in accordance with the provisions of the Real Property Act 1900 (NSW).

16. However, I have been informed that a second caveat in similar terms was lodged after service of the lapsing notice and it is difficult to understand how that could have occurred absent an order of this Court, having regard to s 74O of the Real Property Act. However, I will not take that matter any further at this time. The second caveat which is also attached to the defendant's affidavit being dealing number AR969674 is in somewhat more formal terms than the first caveat and alleges an agreed charging clause in an oral loan agreement to secure repayment. I will leave it to the parties to pursue that matter further if so advised.

17. For the reasons I have given the orders I propose to make are to say follows:

1. Direct the plaintiff to file an amended statement of claim pleading the facts on which she relies in full in accordance with the provisions of Part 14 of the Uniform Civil Procedure Rules 2005 other than rule 14.12 by 20 April 2022.

2. If the plaintiff complies with order 1, the defendant is to file a defence to the amended statement of claim by 4 May 2022.

3. List the proceedings before me on 10 May 2022 for the purpose of taking compliance with orders 1 and 2 and considering whether the matter should be transferred to the District Court.

4. Vacate the directions hearing before the Registrar of 13 April 2022.

**********

Decision last updated: 10 May 2022