Port v Alexopoulos (No 2) - [2011] TASSC 37

[2011] TASSC 37

COURT: SUPREME COURT OF TASMANIA

CITATION: Port v Alexopoulos (No 2) [2011] TASSC 37

PORT, Draga by her lawful attorney
TASMANIAN PERPETUAL TRUSTEES LIMITED
(ABN 97 009 475 629)

v
ALEXOPOULOS, Dina Louise

FILE NO: 79/2010
JUDGMENT

APPEALED FROM: Port v Alexopoulos [2011] TASSC 8

DELIVERED ON:  25 July 2011
DELIVERED AT:  Hobart
HEARING DATES:  18 July 2011
JUDGMENT OF:  Crawford CJ

CATCHWORDS:

Procedure – Supreme Court procedure – Tasmania – Practice under rules of court – Summary judgment – Leave to defend – No viable prospect of the claim being successfully defended demonstrated.

Aust Dig Procedure [270]
Australia & New Zealand Banking Group Ltd v Barry [1992] 2 Qd R 12; Cloverdell Lumber Co Pty Ltd v Abbott (1924) 34 CLR 122; Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99; Agar v Hyde (2000) 201 CLR 552; Spencer v Commonwealth (2010) 241 CLR 118, applied.

REPRESENTATION:

Counsel:
             Plaintiff/Respondent:  D F M Zeeman
             Defendant/Plaintiff:  In person
Solicitors:
             Plaintiff/Respondent:  Butler McIntyre & Butler
             Defendant/Plaintiff:  In person

Judgment Number: [2011] TASSC 37
Number of paragraphs: 25

Serial No 37/2011
File No 79/2010

DRAGA PORT by her lawful attorney TASMANIAN PERPETUAL
TRUSTEES LIMITED (ABN 97 009 475 629)
v DINA LOUISE ALEXOPOULOS

REASONS FOR JUDGMENT CRAWFORD CJ

25 July 2011

In this action it was ordered by Holt AsJ that there be summary judgment for the plaintiff, Mrs Port, against the defendant, Ms Alexopoulos, for possession of the plaintiff's house and land in Sandy Bay together with certain costs. The defendant appealed against the orders.

Summary judgment should only be ordered if there is no reasonable doubt that the plaintiff is entitled to judgment. Jones v Stone [1894] AC 122 at 124. The plaintiff must show a clear case against the defendant which the latter cannot possibly answer. Roberts v Plant [1895] 1 QB 597 at 603. It must be clear there is no real question to be tried. Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99. Another way of expressing it is that there must be a high degree of certainty about the outcome of the proceedings being adverse to the defendant. Agar v Hyde (2000) 201 CLR 552 at par[57]. There is little distinction between those approaches. Spencer v Commonwealth (2010) 241 CLR 118 at par[24].

However, in the usual case all the plaintiff has to do is to support the application for summary judgment with an affidavit verifying the facts on which the claim is based and stating that in the deponent's belief there is no defence to the claim. Supreme Court Rules 2000, r357(1). Once the plaintiff has complied with that rule, it is up to the defendant to show cause why the summary judgment should not be ordered.

As argued, the appeal does not raise the need for the plaintiff to comply with r357(1). Although there were several grounds in the notice of appeal, by the conclusion of the hearing, she maintained only one. It was…

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 Port v Alexopoulos (No 2)

Details

AGLC: Port v Alexopoulos (No 2) [2011] TASSC 37
Case: [2011] TASSC 37
Decision Date: 25 July 2011

CaseChat Overview and Summary

In Port v Alexopoulos (No 2), the plaintiff sought summary judgment against the defendant for outstanding debts. The case was heard in the Supreme Court of Tasmania, where the defendant, Alexopoulos, sought leave to defend the claim. The primary dispute centred on whether Alexopoulos had any valid defences that could be successfully argued against the plaintiff's claim for payment of debts.

The court had to determine whether Alexopoulos demonstrated a viable prospect of successfully defending the claim. This involved examining the evidence presented by Alexopoulos and assessing whether there were any genuine issues of fact or law that would warrant a full hearing of the case. The court was also required to consider whether the defendant had provided sufficient grounds to justify setting aside the summary judgment application.

The court found that Alexopoulos had not demonstrated a viable prospect of successfully defending the claim. The evidence presented did not establish any valid defences or genuine issues of fact that would counter the plaintiff's claim. Consequently, the court granted the plaintiff's application for summary judgment. The court ruled that there was no need for a full hearing as the defendant's defence was insufficient to warrant one. As a result, the court ordered that the plaintiff recover the outstanding debts from the defendant, along with interest and costs.

Orders