Pepper Finance Corporation Limited v Waranga Constructions and Earthmoving Pty Ltd (in liq)
[2020] VSC 452
•24 July 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
MORTGAGE RECOVERY LIST
S CI 2017 00946
| PEPPER FINANCE CORPORATION LIMITED (ACN 094 317 647) | Plaintiff |
| v | |
| WARANGA CONSTRUCTIONS AND EARTHMOVING PTY LTD (IN LIQUIDATION) (ACN 601 018 875) | First Defendant |
| FAYE JENNIFER THOMPSON | Second Defendant |
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JUDICIAL REGISTRAR: | Matthews JR |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 July 2020 |
DATE OF RULING: | 24 July 2020 |
CASE MAY BE CITED AS: | Pepper Finance Corporation Limited v Waranga Constructions and Earthmoving Pty Ltd (in liq) & Anor |
MEDIUM NEUTRAL CITATION: | [2020] VSC 452 |
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PRACTICE AND PROCEDURE – Application for summary judgment against second defendant – ss 61 and 63, Civil Procedure Act 2010 - Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27 – Application to enforce terms of settlement – Summary judgment granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Hawes, solicitor | Thomson Geer |
| For the Second Defendant’s husband on her behalf |
JUDICIAL REGISTRAR:
Introduction
By summons filed 20 June 2019 (‘Summons’), the Plaintiff seeks (inter alia) summary judgment against the Defendants pursuant to ss 61 and 63 of the Civil Procedure Act 2010. Pursuant to r 84.04 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’), that application has been referred to me for hearing and determination, by order made on the Court’s own motion. By the time of the hearing on 17 July 2020, it remained for the Court to deal with the application as against the Second Defendant, as the application against the First Defendant had been dealt with some time ago, as will be explained.
At the conclusion of the hearing of the Summons on 17 July 2020, I reserved my decision and made orders permitting the Second Defendant to provide any additional submissions in writing and for the Plaintiff to provide any reply, and listed the proceeding for 24 July 2020 for delivery of my ruling and the making of orders.
For the reasons set out below, orders will be made granting the Plaintiff’s application for summary judgment against the Second Defendant.
The pleadings
The Plaintiff alleges that:
(a) in accordance with a loan agreement dated 18 March 2015 between the Plaintiff and the First Defendant, the Plaintiff advanced monies to the First Defendant (‘Loan Agreement’);
(b) the First Defendant is the registered proprietor of the land described in certificate of title volume 10721 folio 718 being the land known as 94-102 George Street Kilmore (‘Property’);
(c) the First Defendant gave a mortgage over the Property as security for the loan, which is registered instrument number AL799008G (‘Mortgage’);
(d) the Second Defendant provided a guarantee and indemnity to the Plaintiff as security for the loan (‘Guarantee’);
(e) as at 11 January 2017, the Defendants had failed to make payments due under the Loan Agreement and Guarantee (‘Default’) in the amount of $5,012.96 (‘Arrears’);
(f) the Plaintiff provided notice in writing dated 12 January 2017 to each of the Defendants of the Default, whereby demands were made that the Default be remedied by payment of the Arrears within 31 days of service of the notices (‘Notices’), failing which the entire unpaid balance and any other monies owing under the Loan Agreement and Guarantee would immediately become due and payable;
(g) the Defendants did not remedy the Default and hence the entire amount owing became immediately due and payable and the Plaintiff became entitled to possession of the Property;
(h) the First Defendant is in possession of the Property;
(i) on or about 17 February 2017 and in breach of the Loan Agreement and Guarantee, the First Defendant was placed under external administration by order of the Supreme Court of Queensland appointing Glenn Anthony Crisp as liquidator of the First Defendant; and
(j) as at 20 February 2017, the amount outstanding by the Defendants to the Plaintiff under the Loan Agreement, Mortgage and Guarantee was in the sum of $384,453.09 with interest continuing to accrue at the rate of 7.89%, being $83 per day.
In the Statement of Claim filed 17 March 2017 (‘SOC’), the Plaintiff seeks possession of the Property, payment of $384,453.09 being the amount owing as at 20 February 2017, plus interest pursuant to the Loan Agreement (that is, interest calculated at the rate of 7.89% per annum, being $83 per day from 23 February 2017 to the date of payment) and costs.
The Second Defendant’s Defence, filed 29 May 2017, is little more than what is commonly referred to as a ‘holding defence’. In her Defence, prepared by her then solicitor, the Second Defendant:
(a) admits that the First Defendant is in liquidation and that it is in possession of the Property; and
(b) does not admit any of the other allegations made in the SOC as summarised in paragraph A of these reasons.
Background
It is necessary to explain the main events in this proceeding since the Summons was issued:
(a) on the return of the Summons, at a hearing on 20 October 2017 at which the Second Defendant was represented by Counsel, I made orders that (inter alia) the Plaintiff recover possession of the Property. The liquidator of the First Defendant had confirmed in correspondence that he did not oppose an order for possession being made. I also made orders that day by consent between the Plaintiff and the Second Defendant that the Second Defendant provide vacant possession of the Property within 28 days, and adjourning the application for summary judgment against the Second Defendant to 17 November 2017 (which was subsequently adjourned by consent to 2 February 2018);
(b) a warrant of possession in respect of the Property was issued on 17 November 2017;
(c) on 1 February 2018, the Plaintiff’s solicitor informed the Court that it wished to adjourn the Summons against the Second Defendant, so as to enable it to sell the Property after obtaining possession of it. If the sale of the Property satisfied the indebtedness of the First Defendant, then the Plaintiff wished to avoid the parties incurring unnecessary costs;
(d) a number of adjournments then ensued, with the Plaintiff experiencing difficulty in obtaining possession due to the Property being occupied by person/s claiming to do so under lease arrangements. Eventually, after proceedings in VCAT (involving at least two hearings) and an application in the Supreme Court for leave to appeal the VCAT orders, the Plaintiff obtained possession and the Property was sold, however there was a shortfall in the amounts owing to the Plaintiff, and the Plaintiff informed the Court on 5 March 2020 that it pressed the Summons against the Second Defendant.
The Court has read the affidavit of Khurram Abbas affirmed 17 August 2017 (‘Abbas Affidavit’), and the affidavits of Joshua Kyle Hawes sworn 12 October 2017 (‘First Hawes Affidavit’) and 13 March 2020 (‘Second Hawes Affidavit’). The Plaintiff relies upon, and the Court has read, its written outline of submissions filed 2 April 2020 (‘Plaintiff’s Outline’).
Since 30 April 2019 when a notice of ceasing to act was filed, the Second Defendant has not been represented in these proceedings by a solicitor.
As at the hearing on 17 July 2020, the Second Defendant had not filed any affidavits in opposition to the Plaintiff’s application for summary judgment. Nor had she filed any outline of submissions. The Second Defendant has been given multiple opportunities to do so: at her request, twice scheduled hearings were adjourned and extensions of time given in respect of previously ordered and extended dates for the provision of affidavits. Those extensions, the Court’s reasons for granting them, and the Court’s expectations in respect of the Second Defendant meeting the Court’s orders are set out in the ‘other matters’ section of the orders made on 16 April 2020 and 21 May 2020. These orders followed orders made by consent on 6 March 2020 for the filing and serving of affidavits and submissions by both parties.
In the ‘other matters’ section of the orders made on 21 May 2020, I indicated that the extension of the time for the Second Defendant to file and serve her affidavits and submissions, along with the adjournment of the hearing of the Summons to 17 July 2020, was a final indulgence being granted to her and that the Court intended to proceed to determine the Summons in the timeframe contained in the orders made that day. Under those orders:
(a) the Second Defendant was to file and serve any affidavits relied on by 19 June 2020;
(b) the Plaintiff was to file and serve any affidavits in reply and any further written submissions by 26 June 2020;
(c) the Second Defendant was to file and serve any written submissions by 7 July 2020; and
(d) the Plaintiff was to file and serve any written submissions in reply by 14 July 2020.
The Second Defendant did not file and serve any affidavits or submissions in accordance with the 21 May 2020 orders. On 15 July 2020, the Plaintiff’s solicitor informed the Court that as the Second Defendant had not done so, it had not filed any reply affidavits or further submissions.
On 16 July 2020 at approximately 11.37am, my Associate received an email from the Second Defendant, which was copied to the Plaintiff’s solicitor. In that email, the Second Defendant stated that she had not lodged any material due to her ill health and that of her husband, Mr Norman Thompson. It was said that an affidavit would be lodged with the Court and that there would be material before the Associate that day. The Second Defendant also referred to a number of matters concerning the Plaintiff’s claims against her and the sale of the Property, which I will refer to later.
At 9.35am on the morning of the hearing, 17 July 2020, my Associate received an email from Mr Thompson, copied to the Plaintiff’s solicitor. That email attached a letter from Mr Thompson, in which he sought an adjournment of the hearing of the Summons and set out reasons why the application for summary judgment should be refused (‘Thompson Letter’). Attached to the Thompson Letter were medical certificates in respect of Mr Thompson and the Second Defendant.
This was followed by a further email from Mr Thompson at 9.47am in which he informed my Associate and the Plaintiff’s solicitor of the name of a solicitor he had spoken to and who was to take instructions from the Second Defendant in the coming week.
At the hearing on 17 July 2020, the Plaintiff did not object to Mr Thompson appearing for the Second Defendant and in the circumstances I allowed him to do so. Mr Thompson sought an adjournment of the Summons for reasons set out in the correspondence referred to in paragraphs 13 to 16 above, which was opposed by the Plaintiff. After hearing and considering the submissions, I refused the adjournment for reasons given ex tempore and recorded in the transcript of the hearing.
I then proceeded to hear the Summons. The Plaintiff relied on its written submissions dated 2 April 2020 and Mr Thompson relied on the correspondence referred to in paragraphs 13 to 16 above and his oral submissions.
It was readily apparent that Mr Thompson was experiencing physical difficulties in speaking due to a health problem with his throat. The Court indicated that the correspondence referred to in paragraphs 13 to 16 above would be taken into account, despite its unconventional presentation, so as to avoid Mr Thompson having to make the same submissions orally. Mr Thompson made oral submissions, which despite his evident difficulties, were able to be heard and understood by the Court.
At the conclusion of the hearing, I indicated that I would reserve my decision and would list the proceeding for 24 July 2020 to deliver a ruling on the application for summary judgment and make orders. I stated that given the matters referred to in the previous paragraph, I would provide Mr Thompson (and the Second Defendant) with an opportunity to put any other submission in writing provided that it was received by my Associate by no later than 4.00pm on 21 July 2020. Such submission could be made via email to my Associate. I also afforded the Plaintiff an opportunity to put in a written reply, which was to be done by 12.00pm on 23 July 2020.
Within the timeframe stipulated, Mr Thompson sent an affidavit sworn by him on 21 July 2020 (‘NT Affidavit’). It was stated in the NT Affidavit that Mr Thompson was making the affidavit in order to make submissions on behalf of the Second Defendant in accordance with the orders I had made on 17 July 2020. It is fair to say that the content of the NT Affidavit is more in the way of submissions than evidence. The Plaintiff filed a short reply submission dated 23 July 2020 within the required timeframe.
Both of these additional filings have been taken into account in reaching this decision.
Applicable principles
The principles applicable to applications for summary judgment are well known and were set out by the Court of Appeal in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd.[1] I have previously summarised the principles applicable to summary judgment in Padella Pty Ltd v Elliott,[2] as adopted by Sloss J in Israfoods (2006) Ltd v J & D Consortium Pty Ltd.[3] There is no need for me to repeat these here: suffice to say, this is the approach I have followed.
[1](2013) 42 VR 27, 40 [35].
[2][2018] VSC 301, [19]-[28].
[3][2019] VSC 323, [41].
Under those principles, once the Plaintiff has verified the facts necessary to establish a good cause of action, then there is something akin to a shifting of the evidential burden to the Defendants: Daniel Simon Hausman and Lance Vincent Hodgkinson v Abigroup Contractors Pty Ltd.[4] The Defendants are required to put before the Court the evidence relied on by them in their Defence.[5]
[4](2009) 29 VR 213, [60] (‘Hausman v Abigroup’).
[5]Hausman v Abigroup [63]-[65].
The Second Defendant is now no longer represented by solicitors in this proceeding and in respect of the Summons. There are principles which guide the hearing and determination of proceedings which involve persons who are self-represented, which were recently summarised by Derham AsJ in Daher v Bell.[6] I respectfully adopt that summary and I have followed the principles set out therein in determining the Summons.
[6][2020] VSC 346.
Consideration
The Court is satisfied, based on the Abbas Affidavit, that the Plaintiff has established its cause of action against the Second Defendant. In particular, I am satisfied that:
(a) the Plaintiff and the First Defendant entered into the Loan Agreement, for the sum of $374,840, which was subject to an interest rate of 7.99% per annum;
(b) the Mortgage over the Property secured the loan;
(c) the Second Defendant entered into the Guarantee, by which she agreed to guarantee the payment of the debt due to the Plaintiff by the First Defendant under the Loan Agreement and indemnify the Plaintiff in respect of any expenses incurred by it as a consequence of any default under the Loan Agreement or Guarantee;
(d) the Plaintiff advanced the loan amount to the First Defendant;
(e) the First Defendant defaulted under the Loan Agreement; and
(f) the Second Defendant defaulted under the Guarantee.
The certificate of indebtedness, referred to below, is conclusive evidence of the amount owing by the Second Defendant to the Plaintiff pursuant to the Guarantee.
As the Second Defendant has not filed any substantive affidavits in respect of the Summons, there is no evidence before the Court upon which the Court could be satisfied that her Defence, being a series of non-admissions, has any real prospect of success. Even if the materials now relied on by the Second Defendant, including the NT Affidavit, were to be treated as evidence, they are little more than assertions or allegations for which no actual evidence is provided.
The correspondence referred to in paragraphs 13 to 16 above, together with Mr Thompson’s oral submissions at the hearing on 17 July 2020 and the NT Affidavit (together, the ‘Second Defendant’s Submissions’) refers to a number of matters in opposition to the Plaintiff’s Summons which are said to constitute a defence to the Plaintiff’s claims in the proceeding. In particular:
(a) it is said that at the time the writ and SOC were issued, the Plaintiff did not have a crystallised claim against the Second Defendant;
(b) this was said to be the case because it was not until the Property had been sold and there was a shortfall in the amount owing to the Plaintiff by the First Defendant that a claim could arise against the Second Defendant;
(c) there was a considerable delay in the sale of the Property in a declining market, which increased the amount owing and costs as well as reducing the likely return on the mortgagee sale, which was unfairly being sought under the Guarantee against the Second Defendant;
(d) offers to buy the Property above the ultimate sale price were put to the Plaintiff which would have paid it out but were refused by the Plaintiff, resulting in the alleged claim against the Second Defendant. It is said that the Plaintiff refused an offer from a Mario Cacha to purchase the Property for $680,000,[7] made “earlier in time” to 10 December 2019. Had they been accepted, no claim would arise against the Second Defendant;
[7]There was a typographical error in the amount stated in the NT Affidavit: Mr Thompson subsequently sent an email to my Associate, correcting this to $680,000.
(e) the sale process occurred without a proper sale program or an auction, resulting a poor sale process. Had a proper sale program been undertaken, no claim against the Second Defendant would arise;
(f) the Plaintiff failed in its duties to the Second Defendant, being those arising under s 420A of the Corporations Act 2001 (Cth) and s 77 of the Transfer of Land Act 1958 (Vic);
(g) the Plaintiff’s several adjournments of the Summons increased the legal costs and therefore increased the alleged shortfall;
(h) this proceeding should not be dealt with summarily and should go to trial, where each of these points can be determined to assess whether there is any claim against the Second Defendant and, if so, the true amount of such a claim;
(i) the Second Defendant was entitled to an itemised breakdown of the amount owing, the sale costs, and the legal costs;
(j) it would be harsh to grant summary judgment when the Second Defendant has made arrangements to consult a solicitor in the week after the hearing; and
(k) under s 64 of the CPA, this dispute is of such a nature that only a full hearing on the merits is appropriate and it is not in the interests of justice for it to be disposed of summarily.
There has been no evidence filed by the Second Defendant to support any of these contentions. Even though most of these contentions have now been made in the NT Affidavit, rather than in the Thompson Letter or in oral submissions, contentions alone without evidence to support them are not an answer to the Summons. As is set out in paragraph 23 above, evidence is required to support the elements of the defence.
Even so, the Second Defendant’s contentions are not capable of constituting a defence which would have a real prospect of success.
The contentions are, in large part, based on a fundamental misconception of the Second Defendant’s obligations and the Plaintiff’s rights under the Guarantee. The Second Defendant was obliged under the Guarantee to pay the debt owing by the First Defendant immediately on demand by the Plaintiff if it was not paid on the due date by the First Defendant. The First Defendant was in arrears on the loan, and the Second Defendant’s obligation to pay arose when the Notice addressed to her was given.[8] The Arrears not being paid by either Defendant, the entirety of the amount outstanding under the Loan Agreement was due and payable by both Defendants.[9] To the extent that the Second Defendant submits that no claim arose against her until after the sale of the Property resulted in a shortfall to the Plaintiff, such a defence has no real prospect of success.
[8]See paragraph 4(f) above.
[9]See paragraph 4(g) above.
This misconception permeates a number of the matters raised by the Second Defendant as set out in paragraph 28 above.
The Second Defendant’s Submissions also seem to contend that the Plaintiff has failed in its duties to her and make a number of complaints about the sale process and the legal costs. To the extent that these are proffered as a defence to the Plaintiff’s claims, they have no real prospect of success, as:
(a) there is no evidence to support the Second Defendant’s complaints;
(b) based on the evidence before the Court, the reasons for the delay in selling the Property are clear and cannot be said to be the fault of the Plaintiff. The Second Defendant did not, as she had consented to do, give vacant possession within 28 days of 20 October 2017. The Plaintiff issued a warrant of possession which, when the Sheriff sought to execute it, was met with an occupant of the Property claiming to occupy it pursuant to a lease. The Plaintiff then took proceedings in VCAT where the tenant did not appear and orders were made for the tenant to vacate the Property, there was a subsequent VCAT hearing initiated by the tenant seeking a review of those orders, following which a further order for possession in favour of the Plaintiff was made. The tenant, who is the daughter of Mr Thompson and the Second Defendant, then initiated proceedings in the Supreme Court seeking to appeal the VCAT orders. On 11 September 2019 orders were made by Justice Cameron by consent discontinuing the application for leave to appeal and ordering indemnity costs in favour of the Plaintiff. The Plaintiff took possession of the Property on 21 September 2019 and the sale contract was entered into on 10 December 2019. Thus any complaint based on delay in the Plaintiff selling the Property have no real prospect of success;
(c) as the Plaintiff submits, the Second Defendant’s allegation that it failed to accept a greater sum for the Property are problematic. There is no evidence of this other offer and Mr Thompson does not say when it was made, other than before 10 December 2019. It is therefore not apparent that the Plaintiff was in any position to accept the offer at the time it was made, if indeed it was. I accept that submission;
(d) there is no evidence to support the allegation that the advertising campaign did not last long enough and was at a time when the Property would not achieve its market value;
(e) to the extent it is said that the Property was not sold for market value, which allegation does not appear to have been put squarely in those terms, there is no evidence to support that allegation;
(f) not having a detailed and itemised breakdown of the amounts giving rise to the amount owing is not a defence to the Plaintiff’s claims, even if that was accurate. The Plaintiff submitted that exhibits JHK-24 and JHK-27 to the Second Hawes Affidavit provided a statement of adjustments upon the settlement of the sale contract and loan transaction statements since the inception of the loan, which provide that breakdown. The Plaintiff also referred to the certificate of indebtedness dated 4 March 2020 as contained in exhibit JHK-26 to the Second Hawes Affidavit;
(g) the matters referred to in the preceding sub-paragraph would also explain, I expect, the legal costs associated with the Plaintiff enforcing the Loan Agreement, the Mortgage and the Guarantee; and
(h) these matters do not constitute a defence to the Plaintiff’s claims against the Second Defendant.
Therefore, I reject the Second Defendant’s submission as stated in the NT Affidavit that at the time she filed her defence, the Property had not been sold and the Plaintiff had not yet breached its duties, so that she should be given leave to file an amended defence now that these defences are supposedly open to her.
In any event, even if the Second Defendant has a valid claim against the Plaintiff in respect of the conduct of the sale of the Property, which is able to be supported by proper evidence, granting the Plaintiff’s application for summary judgment does not preclude the Second Defendant from pursuing such claims. At the hearing on 17 July 2020, the Plaintiff’s solicitor expressly acknowledged that if the Second Defendant has a valid claim to make, she is not prevented from doing so in a separate proceeding.
I do not accept the Second Defendant’s Submissions that it would be harsh to grant summary judgment when she has arranged to consult a solicitor next week. First, accepting that submission is akin to granting an adjournment, which I already refused. Second, I have no reason to expect that involving a solicitor will change the matters put by the Second Defendant. I have given broad latitude to the Second Defendant to present her case, and my views as to whether the matters relied upon are capable of constituting a defence with real prospects of success is unlikely to change if presented by a solicitor. I have, as I am obliged to do, considered the Second Defendant’s Submissions so as to discern whether such a defence exists, rather than simply rely on the pleaded Defence.
I do not accept the Second Defendant’s submission that pursuant to s 64 of the CPA in the interests of justice the proceeding should not be disposed of summarily or that it should be permitted to go to trial because a full hearing on the merits is appropriate. As set out above, the Second Defendant has no real prospect of succeeding on her defence to the Plaintiff’s claims in the proceeding (even if amendments were permitted) and there is no reason why summary judgment should be granted.
In the Second Hawes Affidavit, Mr Hawes deposes that the Plaintiff consented to the orders made by consent on 20 October 2017 in respect of the Second Defendant providing vacant possession of the Property within 28 days and the adjournment of the Summons against the Second Defendant in consideration for the Second Defendant providing her consent to future orders in the Proceeding. The future orders were contingent upon the outcome of the Plaintiff’s sale of the Property to be held in escrow by the Plaintiff’s solicitors pending the sale of the Property. The future orders were:
(a) consent orders providing for the Summons and the Proceeding to be discontinued with no order as to costs in the event that the net proceeds from the sale of the Property were sufficient to satisfy the debt owed to the Plaintiff by the First Defendant (‘Minute of Consent to Discontinue’); or alternatively
(b) consent for the Court to enter judgment for debt as against the Second Defendant in the event that the net proceeds from the sale of the Property were not sufficient to satisfy the debt owed to the Plaintiff by the First Defendant (‘Minute of Consent to Judgment’).
Paragraph 2 of the Minute of Consent to Judgment provided for several alternative methods for calculating the extent of the Second Defendant’s liability under the Guarantee, including a certificate signed by an employee of the Plaintiff whose job title includes the word ‘manager’ or ‘director’ or any solicitor engaged by the Plaintiff as to the balance of the judgment debt or the amount owing after the net proceeds of the sale of the Property had been applied.
According to the Second Hawes Affidavit:
(a) the Plaintiff entered into a contract for the sale of the Property on or about 10 December 2019 for the amount of $620,000;
(b) settlement under the contract of sale was completed on or about 31 January 2020. The proceeds of sale of the Property were insufficient to discharge the debt owing by the First Defendant to the Plaintiff in full;
(c) subsequent to the sale and settlement of the Property, the Plaintiff paid the tax invoice dated 17 February 2020 issued by the liquidator of the First Defendant on account of costs described as being associated with the preservation and care of the Property;
(d) as at 27 February 2020, the balance of the indebtedness of the First Defendant to the Plaintiff and, in turn, the balance of the guarantee liability of the Second Defendant to the Plaintiff was $84,006.69. A certificate of indebtedness dated 4 March 2020 and signed by Mr Abbas was exhibited to the Second Hawes Affidavit; and
(e) loan account reconciliation statements for the period 31 March 2015 to 11 March 2020 were exhibited to the Second Hawes Affidavit.
The Guarantee provides that a certificate signed on behalf of the Plaintiff is conclusive evidence of the amount owing to it. Such certificates are recognised by Courts as performing that function.[10]
[10]Dobbs v National Bank of Australasia (1935) 53 CLR 643.
On 15 July 2020, the Court and the Second Defendant were provided with a certificate of indebtedness dated 13 July 2020 and signed by Annorah Hannan, senior manager – enforcement and support services, of the Plaintiff. That certificate of indebtedness stated that the amount owing under the Loan Agreement and Mortgage by the First Defendant to the Plaintiff as at 17 July 2020 is $103,018.57, and that the amount owing by the Second Defendant to the Plaintiff pursuant to the Guarantee as at 17 July 2020 is $103,018.57.
There being no evidence to the contrary, the Court is satisfied that the amount owing by the Second Defendant to the Plaintiff pursuant to the Guarantee as at 18 July 2020 is $103,018.57.
For the above reasons, I am satisfied that it is appropriate to grant summary judgment to the Plaintiff against the Second Defendant.
The Plaintiff submits that it is entitled to rely upon the Minute of Consent to Judgment in addition to its right to summary judgment.
The Second Defendant submits, by way of the NT Affidavit, that the Minute of Consent to Judgment “was premised on the fact that the Plaintiff would properly discharge its duties as mortgagee owed to the Second Defendant in its power of sale which it failed to do.” There is no evidence given for this submission.
I have previously summarised the principles applicable to a summary procedure to enforce terms of settlement in Rigoni Private Finance Pty Ltd & Anor v Sarar Australia and NZ Pty Ltd & Anor.[11]
[11][2019]VSC 539, [69]-[74].
I am satisfied that the Plaintiff is entitled to rely upon the Minute of Consent to Judgment and that justice can be done by making those orders to give effect to the agreement reached between the Plaintiff and the Second Defendant through a summary procedure. Given the conclusion reached in paragraph 44 above, it is not necessary to rely upon the summary procedure to enforce terms of settlement, however I indicate here that if it were necessary, I would have made the orders sought in accordance with that procedure. There is nothing in the NT Affidavit or the Second Defendant’s submissions to dissuade me from that course.
Conclusion
For the above reasons, orders will be made granting the Plaintiff’s application for summary judgment.
I will hear from the parties as to the form of orders and as to costs.
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