Permanent Custodians Limited v Sanders - [2017] VSC 516

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

S CI 2016 04291

BETWEEN

PERMANENT CUSTODIANS LIMITED (ACN 001 426 384)	Plaintiff
- and -
WARREN BRUCE SANDERS	Defendant

AND BETWEEN
WARREN BRUCE SANDERS	Plaintiff by counterclaim
- and -
PERMANENT CUSTODIANS LIMITED (ACN 001 426 384) AND ORS (according to the attached schedule)	Defendants by counterclaim

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JUDGE:	Matthews JR
WHERE HELD:	Melbourne
DATE OF HEARING:	22, 28 June 2017
DATE OF JUDGMENT:	1 September 2017
CASE MAY BE CITED AS:	Permanent Custodians Limited v Sanders
MEDIUM NEUTRAL CITATION:	[2017] VSC 516

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PRACTICE AND PROCEDURE – Summary judgment – Whether defence and counterclaim disclose a reasonable defence and cause of action and the defect cannot be cured by amendment – Defendant has no real prospect of success – Civil Procedure Act 2010 ss 61, 62 and 63 – Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27 – Effect of promissory note proffered by defendant – Australian and New Zealand Banking Group Limited v Evans, Evans v Esanda Finance Corporation Limited [2016] NSWSC 1742 – Application for summary judgment allowed – Court’s approach where defendant is unrepresented – Trkulja v Markovic [2015] VSCA 298.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S D Hay	Gadens Lawyers
For the Defendant	In person

JUDICIAL REGISTRAR MATTHEWS:

Introduction

This is an application made by summons filed on 18 May 2017 by the plaintiff (‘PCL’) and defendants by counterclaim (collectively, ‘the Applicants’) for summary judgment in respect of PCL’s statement of claim filed with the writ on 24 October 2016 and in respect of the defendant’s notice of defence and counterclaim dated 22 February 2017 (‘the Application’). The Application is made pursuant to ss 61, 62 and 63 of the Civil Procedure Act 2010 (Vic) (‘the CPA’).

For the reasons set out below, the Application for summary judgment will be granted.

I shall refer to this proceeding as the PCL Proceeding.

The Applicants rely on the following materials:

(a) The affidavit of Mark Lee Laurence sworn 15 May 2017 (‘Principal Affidavit’);

(b) The affidavit of Richard Conti sworn 2 May 2017 (‘First Conti Affidavit’);

(c) The affidavit of Trayce Grippo sworn 18 May 2017;

(d) The affidavit of Steven Edward Dover sworn 22 May 2017;

(e) The affidavit of Sonia Apikian sworn 23 May 2017;

(f) The affidavit of Richard Conti sworn 25 May 2017; and

(g) The affidavit of Mark Laurence Lee sworn 27 June 2017.

A written outline of submissions in support of the Application from Counsel for the Applicants was filed on 20 June 2017.

The defendant and plaintiff by counterclaim (hereafter referred to as the defendant) opposes the application.

I am satisfied, from the affidavit of Richard Conti sworn 25 May 2017, that the defendant was served with the summons and affidavits and exhibits relied upon by the Applicants referred to in paragraphs 4(a) to (e) above…

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.

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Details

Case: [2017] VSC 516
Decision Date: 1 September 2017

CaseChat Overview and Summary

In the matter of Permanent Custodians Limited versus Sanders, the dispute arose from the defendant's counterclaim regarding a promissory note which was disputed by the plaintiff. The case was heard in the Supreme Court of Victoria. The plaintiff sought summary judgment, arguing that the defendant's defence and counterclaim did not disclose a reasonable defence or cause of action and that any defects could not be cured by amendment. The plaintiff contended that the defendant had no real prospect of success.

The court had to determine whether the defence and counterclaim raised by the defendant disclosed a reasonable cause of action and defence, and whether the defect could be cured by amendment. The court also considered whether the defendant had a real prospect of success and whether there were other compelling reasons why the case should be determined at a trial. The effect of the promissory note proffered by the defendant and the principles in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd and Australian and New Zealand Banking Group Limited v Evans, Evans v Esanda Finance Corporation Limited were also considered.

The court found that the defendant's defence and counterclaim did not disclose a reasonable defence or cause of action, and that the defects could not be cured by amendment. The court also found that the defendant had no real prospect of success and that there were no other compelling reasons why the case should be determined at a trial. The court referred to Trkulja v Markovic in its consideration of the appropriate approach where the defendant was unrepresented. The application for summary judgment was therefore allowed.

The court ordered that the defendant pay the plaintiff's costs of the application on the standard basis. The court also ordered that the defendant pay the plaintiff's costs of any further proceedings on the indemnity basis if the defendant commenced any further proceedings without first obtaining the leave of the court.

Orders