Omicron Mortgages Pty Ltd v Thientosapol - [2023] VSC 563

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
MORTGAGE RECOVERY LIST

S ECI 2022 04990

BETWEEN:

OMICRON MORTGAGES PTY LTD (ACN 603 479 205)	Plaintiff
v
DANAI THIENTOSAPOL	Defendant

---

JUDICIAL REGISTRAR:	Englefield JR
WHERE HELD:	Melbourne
DATE OF HEARING:	24 July 2023
DATE OF JUDGMENT:	22 September 2023
CASE MAY BE CITED AS:	Omicron Mortgages Pty Ltd v Thientosapol
MEDIUM NEUTRAL CITATION:	[2023] VSC 563

---

PRACTICE AND PROCEDURE — Application for summary judgment under s 63 of the Civil Procedure Act 2010 (Vic) — Anomalies in the pleading and material in support — Where plaintiff alleges the defendant is sued as guarantor — Plaintiff must verify its cause of action by r 22.04 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) — Where the plaintiff is ‘lender on the record’ for another entity and the plaintiff’s directors are its solicitors.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Donovan	Bransgroves Lawyers
For the Defendant	Mr D Thientosapol	Self-Represented Litigant

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Outline of the Proceeding................................................................................................................ 1

The First Material in Support...................................................................................................... 2
The First Hearing.......................................................................................................................... 4
The Further Material in Support................................................................................................. 6
Solicitor’s Affidavit....................................................................................................................... 7

Submissions........................................................................................................................................ 8

Discussion......................................................................................................................................... 11

The Plaintiff Must Verify Its Cause of Action......................................................................... 11
The Plaintiff Is Only the ‘Lender on the Record’.................................................................... 13
Position of the Broker................................................................................................................. 15
Notice of Default......................................................................................................................... 15
Position of the Solicitors in this Proceeding............................................................................ 16
Discretion to Refuse Summary Judgment............................................................................... 18

Conclusion......................................................................................................................................... 18

JUDICIAL REGISTRAR:

Introduction

By its statement of claim in this proceeding, the plaintiff seeks possession of two properties from the defendant, relying on a guarantee given by the defendant, secured by mortgage on title to the properties, in respect of a loan made by the plaintiff to a non-party.

By summons filed 9 June 2023 (‘summons’), the plaintiff makes application for summary judgment against the defendant under s 63 of the Civil Procedure Act 2010 (Vic) (‘CPA’).

The plaintiff’s statement of claim and material in support of its application raise the question of whether it asserts the defendant had a primary obligation to repay the loan, rather than guaranteeing an obligation of another to repay the loan. It also transpires that the plaintiff is a mere ‘lender on the record’ and the source of the loan funds (and potentially the entitlement to repayment) vests in another ‘true’, ‘actual’ or ‘beneficial’ lender. Further, the solicitors who act for the plaintiff in this proceeding are the plaintiff’s directors and the plaintiff is bound to the instructions of the ‘true’ lender.

I will expand on these issues and provide reasons for my decision to dismiss the plaintiff’s application below.

Outline of the Proceeding

By writ and statement of claim filed on 2 December 2022, the plaintiff essentially alleges that:

(a) it lent money to a private company (‘borrower’);

(b) the defendant guaranteed the loan and mortgaged the subject properties (then a single property, later subdivided into two ‘units’ on separate titles) as…

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.

Keep reading for free

Create a free CaseChat account to read Omicron Mortgages Pty Ltd v Thientosapol and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] VSC 563
Decision Date: 22 September 2023

CaseChat Overview and Summary

Omicron Mortgages Pty Ltd brought an application for summary judgment against Thientosapol, seeking a judgment for the principal sum, interest, costs and other charges. The case was heard in the Supreme Court of Victoria. Omicron Mortgages is the ‘lender on the record’ for a different entity and its directors are also the solicitors for the company. The dispute centred on whether Omicron Mortgages could validly bring an application for summary judgment in its capacity as the lender on the record for another entity. The court was required to determine whether Omicron Mortgages had properly verified its cause of action as required by rule 22.04 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).

The court found that Omicron Mortgages had not adequately verified its cause of action as required by rule 22.04 of the Rules. The court held that rule 22.04 requires a party to verify its cause of action by a person who is a party to the proceeding and is not a solicitor for the party. As Omicron Mortgages’ directors were both solicitors for the company and parties to the proceeding, the court found that the verification of the cause of action was invalid. The court further held that the anomalies in the pleading and material in support of the application for summary judgment were significant enough to warrant dismissal of the application.

The court dismissed Omicron Mortgages’ application for summary judgment. The court found that Omicron Mortgages had not properly verified its cause of action, and the anomalies in the pleading and material in support of the application were significant enough to warrant dismissal. The court made no orders as to costs.

Orders