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Padella Pty Ltd v Elliott

Padella Pty Ltd v Elliott

Case [2018] VSC 301 6 June 2018

Summary Judgment

Standing

Compensatory Damages

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST

S CI 2017 04753

PADELLA PTY LTD (ACN 005 248 091)	Plaintiff
v
RICHARD ELLIOTT	Defendant

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JUDICIAL REGISTRAR:	MATTHEWS JR
WHERE HELD:	Melbourne
DATE OF HEARING:	25 May 2018
DATE OF JUDGMENT:	6 June 2018
CASE MAY BE CITED AS:	Padella Pty Ltd v Elliott
MEDIUM NEUTRAL CITATION:	[2018] VSC 301

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PRACTICE AND PROCEDURE – Summary judgment – Plaintiff seeks summary judgment on claims for possession and for mesne profits – Whether defendant has real prospects of success on his defence – Civil Procedure Act 2010 (Vic), ss 61 and 63 – Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27 – Daniel Simon Hausman and Lance Vincent Hodgkinson v Abigroup Contractors Pty Ltd (2009) 29 VR 213 – Application for summary judgment allowed – Mesne profits payable for damages from the date of defendant’s occupation of the land without lawful entitlement – Mesne profits calculated by reference to the previous rent payable for the land – Wilson v Kelly (1957) VR 142 – Lollis v Loulatzis [2007] VSC 547.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D P McCredden	Sinclair & May
The Defendant appeared in person

JUDICIAL REGISTRAR MATTHEWS:

Introduction

The plaintiff, Padella Pty Ltd (‘Padella’), applies by summons dated 11 April 2018 for orders pursuant to s 61 of the Civil Procedure Act 2010 (‘CPA’) for summary judgment. Padella seeks orders that:

(a) Padella recover possession of the land situate at and known as (Rear) 1 Wood Street, Avondale Heights, Victoria, being the rear yard and shed comprising part of the land more particularly described in Certificate of Title Volume 07579 Folio 064 (‘Premises’);

(b) The defendant, Mr Elliott, pay to Padella mesne profits, in an amount calculated at the rate of $92 per week from 10 October 2015 until the date that possession is delivered up to Padella;

(c) Mr Elliott pay interest on the amount of mesne profits awarded in accordance with s 60 of the Supreme Court Act 1986 (Vic); and

(d) Mr Elliott pay Padella’s costs of and incidental to the summary judgment application

(‘Application’).[1]

[1]The Application has been referred to me for hearing and determination, by orders made on the Court’s own motion, pursuant to R 84.04 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’).

I heard the Application on 25 May 2018 and gave brief oral reasons on that day when I granted the Application and made orders. I indicated at that time that I would publish my reasons later, and these are those reasons.

The Application is supported by the affidavit of Joseph Augello sworn 11 April 2018, who is one of Padella’s directors (‘Augello Affidavit’).

On 23 March 2018, I held a directions hearing in relation to the proceeding. Mr Elliott attended that hearing and represented himself. Padella was represented by counsel.…

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 Padella Pty Ltd v Elliott

Details

AGLC: Padella Pty Ltd v Elliott [2018] VSC 301
Case: [2018] VSC 301
Decision Date: 6 June 2018

CaseChat Overview and Summary

Padella Pty Ltd sought summary judgment against Elliott, claiming possession of premises and mesne profits. The matter was heard in the County Court of Victoria. The legal issues before the court were whether Elliott had any real prospect of successfully defending the claims for possession and mesne profits, and if not, whether Padella was entitled to summary judgment on those claims.

The court considered the relevant statutory provisions under the Civil Procedure Act 2010 (Vic), and applicable case law, particularly Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd and Daniel Simon Hausman and Lance Vincent Hodgkinson v Abigroup Contractors Pty Ltd. The court determined that Elliott had no real prospect of successfully defending the claim for possession as there was no evidence to support any defence to the claim. For the claim for mesne profits, the court found that Elliott's defence did not have real prospects of success because he had no lawful entitlement to occupy the premises. The court noted that the mesne profits should be calculated by reference to the previous rent payable for the land, as established in Wilson v Kelly and Lollis v Loulatzis.

The application for summary judgment was allowed. The court ordered that mesne profits be paid to Padella as damages from the date of Elliott's occupation of the land without lawful entitlement, calculated by reference to the previous rent payable for the land. The court did not make any order as to costs.

Orders