Ramvek Pty Ltd v Visioneer Builders Pty Ltd (Ruling)
[2025] VCC 496
•24 April 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-24-06028
| RAMVEK PTY LTD (ACN 006 920 529) | Plaintiff |
| v | |
| VISIONEER BUILDERS PTY LTD (ACN 126 263 287) | Defendant |
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JUDGE: | Her Honour Judge Kirton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 December 2025 | |
DATE OF RULING: | 24 April 2025 | |
CASE MAY BE CITED AS: | Ramvek Pty Ltd v Visioneer Builders Pty Ltd (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 496 | |
RULING
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Subject:CIVIL PROCEDURE – SUMMARY JUDGMENT - Building and Construction Industry Security of Payment Act 2002 (Vic)
Catchwords: Building and Construction Industry Security of Payment Act 2002 (Vic) – summary judgment procedure – power to dispense with requirements of the Rules
Legislation Cited: Building and Construction Industry Security of Payment Act 2002 (Vic); County Court Civil Procedure Rules 2018 (Vic); Civil Procedure Act 2010 (Vic); Supreme Court (General Civil Procedure) Rules 2015;
Cases Cited:John Beever v Roads Corporation [2018] VSC 635; Bay Marine v Clayton Country Properties Pty Ltd (1986) 8 NSWLR 104; Hickory Developments Pty Ltd v Schiavello (Vic) Pty Ltd (2009) 26 VR 112;
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | M Sharkey | Hendersons Legal |
| For the Defendant | B Reid | Moray & Agnew Lawyers |
HER HONOUR:
By summons on Originating Motion dated 11 October 2024 (the Summons), the plaintiff (Ramvek) seeks judgment against the defendant (Visioneer) pursuant to sections 16(2) and 17(2) of the Building and Construction Industry Security of Payment Act 2002 (Vic) (SOPAct).
The application was originally listed for hearing on 16 December 2024 and each party filed affidavits and submissions. At the commencement of that hearing, Visioneer’s Counsel Mr Reid raised a preliminary procedural issue that had to be resolved before the hearing could proceed.
The issue identified by Visioneer was that Ramvek’s affidavits in support of its Summons did not satisfy, nor even purport to satisfy, or even try to satisfy, rule 22 of the County Court Civil Procedure Rules 2018 (the Rules), because nowhere in its affidavits did Ramvek include the verification and statements required by rule 22.04(1).
Ramvek’s Counsel Mr Sharkey conceded that was the case, and I adjourned the hearing of the Summons to 30 January 2025, to allow the plaintiff time to attempt remedy the issue. Ramvek then filed a further affidavit of its director, the third affidavit of David John Sims dated 16 December 2024 (the third Sims affidavit) but did not issue a new summons.
In the third Sims affidavit Mr Sims deposed:[1]
It is my belief that Visioneer’s defences to Ramvek’s claims have no real prospect of success.
[1]Affidavit of David John Sims dated 16 December 2024, 1 [4].
At the resumed hearing, Mr Reid submitted that the third affidavit had not solved the issue and the application still failed to comply with rule 22.04(1). Mr Sharkey disputed that contention, but said in the alternative that if Visioneer is correct, the Court should exercise its power under rule 2.04 of the Rules to dispense with compliance with that aspect of rule 22.04.
The requirement for the deponent to state a belief that the defence has no real prospect of success
Ramvek’s application is made under s 16(2)(a)(i) and s 17(2)(a)(i) of the SOP Act. There is no dispute that such an application is an application for summary judgment and Ramvek must demonstrate that Visioneer’s defence to the application has no real prospect of success.
Both parties agreed that the decision of Digby J in John Beever v Roads Corporation[2] (Beever) is relevant and apposite. His Honour held that for applications made under s 16 of the SOP Act, sections 61 and 63 of the Civil Procedure Act 2010 (Vic) (CPA) and rule 22 of the Supreme Court (General Civil Procedure) Rules 2015 (SC Rules) provide the sole procedural mechanism and test to determine whether summary judgment can be entered in respect of a cause of action.[3] Rule 22 of the SC Rules is substantially the same as rule 22 of the Rules.
[2][2018] VSC 635 (‘Beever’).
[3]Ibid, 18 [59].
Section 61 of the CPA provides that:[4]
A plaintiff in a civil proceeding may apply to the court for summary judgment in the proceeding on the ground that a defendant's defence or part of that defence has no real prospect of success.
[4]Civil Procedure Act2010 s 61 (emphasis added) (‘Civil Procedure Act’).
Section 63 of the CPA provides that:[5]
Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has no real prospect of success.
[5]Ibid s 63 (emphasis added).
Rule 22.04 of the Rules provides that an application by a plaintiff for summary judgment must be made by summons supported by an affidavit:[6]
(a) verifying the facts on which the claim or the part of the claim to which the application relates is based; and
(b) stating that in the belief of the deponent the defence to the claim or the defence to the relevant part of the claim:
(i)has no real prospect of success; or
(ii)has no real propose of success except as to the amount of the claim or as to the amount of the relevant part of the claim.
[6]County Court Civil Procedure Rules 2018 r 22.04 (emphasis added) (‘County Court Civil Procedure Rules’).
Therefore, in accordance with r 22.04, an affidavit in support of a summons is required to include, among other things, the stated belief of the defendant that the defence to the claim or the defence to the relevant part of the claim has no real prospect of success or has no real prospect of success except as to the amount of the claim or as to the amount of the relevant part of the claim.
Ramvek did not provide any such statement of belief when it issued its summons, supported by the first Sims affidavit (on 11 October 2024), nor in the second Sims affidavit (on 2 December 2024). At the first return of the summons on 16 December 2024, Ramvek properly conceded that the Court could not award summary judgment in its favour on the basis of the material filed, as it had not complied with the requirements of rule 22.04.
After the hearing was adjourned, Ramvek filed the third Sims affidavit, in an attempt to cure the non-compliance. As noted above, Mr Sims deposed in the third Sims affidavit:[7]
It is my belief that Visioneer’s defences to Ramvek’s claims have no real prospect of success.
[7]Affidavit of David John Sims dated 16 December 2024, 1 [4].
Mr Sharkey conceded that based on the evidence, he could not make any submissions about the date on which Mr Sims had formed the belief.
Mr Reid submitted that notwithstanding the third Sims affidavit, the application remains non-compliant with r 22.04. He contended that the belief required by r 22.04(1) must be present upon the issuing of the summons. That is, the time for the forming of the relevant belief for the purpose of r 22.04(1) is at the date of the summons. A belief formed after the filing of the summons does not satisfy the rule. Such a belief cannot be formed after the filing of Ramvek’s summons and or after its affidavit in support and/or after the filing of Visioneer’s affidavits and submissions in response to Ramvek’s application.
Mr Reid suggested that it was open to Ramvek to have withdrawn the current summons, and to make a new application by summons supported by a new affidavit expressing the required belief, however Ramvek elected not to do so.
Mr Sharkey disputed that interpretation of r 22.04. He did not concede that there is a temporal requirement for the formation of the belief, being that the rule required the belief to have been formed at the time the summons was issued.
Instead, Mr Sharkey submitted that the only temporal requirement in the rule relates to service. Rule 22.04(4) requires a plaintiff to serve the summons and a copy of the affidavit or affidavits and any exhibits on the defendant not less than 14 days before the day for hearing named in the summons.
Neither Counsel were able to locate any authority which have considered this aspect of rule 22.04. The learned author David Bailey notes in his commentary in Williams, Civil Procedure Victoria:[8]
Rule 22.04(1) requires that the application for summary judgment be supported by affidavit. An affidavit complying with the rule is essential: Lagos v Grunwaldt [1908-10] All ER Rep 939; [1910] 1 KB 41 at 46; [1909] WN 216 ; Symon & Co v Palmer's Stores (1903) Ltd [1912] 1 KB 259; (1911) 81 LJKB 439; 106 LT 176 . Under the previous rule this required an affidavit verifying the facts on which the claim is based and stating that in the belief of the plaintiff there is no defence to the claim; Hausman v Abigroup Contractors Pty Ltd (2009) 29 VR 213; [2009] VSCA 288; BC200911069 (Hausman). Under the present rule the deponent must state their belief that the defence has no real prospect of success r 22.04(1)(b). Unless the plaintiff makes a proper affidavit the defendant is not required to answer the application for judgment: Suburban Homes Pty Ltd v Ward [1928] VLR 267; (1928) 34 ALR 160. A proper affidavit is a condition precedent to the exercise of the power conferred by the order to give judgment without a trial.
[8]Neil J Williams, Civil Procedure: Victoria (Lexis Nexis Butterworths, 2025) [22.04.20].
None of the authorities referred to in that Commentary address the timing of the formation of the belief. Does the rule require a plaintiff to form a belief that the defence has no real prospect of success at the time a plaintiff issues its summons? Or, does it require a plaintiff to file its affidavit stating its belief at the same time as the summons is issued? Or, can the belief be formed and/or the affidavit be filed at a later date but prior to the hearing?
For the purposes of this application, for the reasons below, I do not need to determine the appropriate interpretation of rule 22.04. As I discuss below, the wording of the rule is inconsistent with the procedures which the SOP Act prescribes must be followed. A reconciliation of the two will involve a more detailed consideration than is necessary to determine this application.
The Court’s discretion under rule 2.04
Whatever may be the correct interpretation of the temporal requirement in rule 22.04 (if there is any), both parties agreed that the Court has the power under rule 2.04 to waive compliance with the rule. There is no dispute that compliance with the rule is a procedural issue, and non-compliance does not make the proceeding a nullity. The relevant question therefore becomes whether the Court should exercise its discretion to waive compliance and to accept the third Sims affidavit as the required statement of belief.
Again, Counsel was unable to locate any authority which has considered whether the court’s discretion should be exercised in a case such as this. The history of the rule was set out by the NSW Court of Appeal where President Kirby in Bay Marine v Clayton Country Properties Pty Ltd[9] noted the following:
However, the Rules of Court may be dispensed with by the Court in appropriate circumstances: see Supreme Court Rules, Pt 1, r 12. The last-mentioned rule was designed to bring into the general practice of the Court the approach of courts of equity to their rules. It was long ago said that “the rules must be the servant not the master of the Court”: see Clune v Watson (1882) Tarl 75. It is all too easy for those whose lives are daily engaged in the administration of rules to overlook the fact that they exist and are designed, not as an end in themselves but as a means to the end of the attainment of justice. There is no necessary justice in the inflexible and unthinking application of rules for neatness' sake, especially when the rules themselves contain ample powers of dispensation which may be utilised in appropriate cases.
…
It would be undesirable for that beneficial rule for dispensation to be given a narrow construction. Its language, the history which preceded it in courts of equity, its position in the first part of the rules and the utility of such a provision to promote the interests of justice all suggest that a meaning should be given to the rule which permits the Court to dispense with the requirements…
[9](1986) 8 NSWLR 104, 108-109.
The learned author David Bailey notes in his Commentary in Williams, Civil Procedure Victoria:[10]
[Rule 2.04] gives the court power to dispense with any of the requirements of the rules, either before or after the time for compliance arises.
Where an application under r 2.04 relates to past failure to comply with the rules, strictly the relief sought by the party in default is leave to carry on with the proceeding notwithstanding the failure. The party will need to satisfy the court that justice requires that the default should be overlooked, and that there is a reasonable explanation for the failure to observe the rules: …. Since failure to comply with the rules is an irregularity, an order under r 2.04 dispensing with compliance is a way of dealing with the irregularity additional to the ways mentioned in r 2.01(2):
…
… in modern times a feature of the administration of justice in the case of statutory preconditions of a procedural character has been a general disfavour towards procedural rigidities and a preference for a somewhat more flexible approach….
[10]Neil J Williams, Civil Procedure: Victoria (Lexis Nexis Butterworths, 2025) [I 2.04.0]; [I 2.04.5]; [I 2.04.10] (citations omitted).
Mr Sharkey pointed to the purpose and intent of the SOP Act, and that Parliament intended for sections 16 and 17 to provide a quick and efficient method for a subcontractor to be paid, while leaving the substance of a dispute to be argued later. This is often described as the “pay now, argue later” policy underpinning the SOP Act.[11]
[11]Hickory Developments Pty Ltd v Schiavello (Vic) Pty Ltd (2009) 26 VR 112, 121 [44]; cited in Beever (n 2) [26].
Similarly, the intention of the CPA is to “provide for an overarching purpose in relation to the conduct of civil proceedings to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute”.[12]
[12]Civil Procedure Act 2010 (Vic) s 1(1)(c).
Mr Sharkey submitted that accordingly, it would be consistent with the purpose of those two acts for the Court to waive strict compliance with rule 22.04.
Further, he said that the unique mechanism set up by the SOP Act is a relevant factor to consider in the exercise of the Court’s discretion. This mechanism makes it impossible in practice to comply with the literal reading of the rule. At the time a plaintiff issues a summons for orders under sections 16 or 17, there is usually no proceeding on foot. Applications under s 16(2)(a)(i) of the SOP Act must be commenced by way of originating motion (rule 4.05 of the Rules, as discussed in Beever[13]). The application for summary judgment application is made by summons usually before any pleadings have been filed.
[13]Beever (n 2) 10 – 11, [31]-[36].
At that point in time, the plaintiff cannot meaningfully depose to a belief that the defendant has no defence, as the plaintiff has not seen the defendant’s defence. If there has been correspondence between the parties they may be aware of some arguments the defendant may raise. However, s 16 operates where a defendant has not responded to a payment claim, and s 17 operates where a defendant has not paid what it has agreed to in a payment schedule. In those circumstances, it is often the case that there has been no correspondence and no reason given by the defendant for its non-compliance. Accordingly, any belief held by a plaintiff at the time of issuing the proceeding and the summons will be uninformed. In those circumstances, the Court should exercise its discretion to waive compliance with a rule which cannot meaningfully be complied with.
Mr Reid submitted that the Court should be slow to allow a plaintiff to cure its failure by waiving compliance, and instead should dismiss the summary judgment application. He suggested that Ramvek will suffer only a minor prejudice if the application is dismissed as there is nothing preventing Ramvek from issuing a fresh application, one that includes a supporting affidavit that complies with rule 22.04 of the Rules. This approach would not be inconsistent with the purposes of the SOP Act or the CPA, as Ramvek could have issued its new application in December when the issue first arose. Very little court time or the parties’ time would have been lost.
In response, Ramvek disputed that the prejudice it would suffer would be only minor. If it were to withdraw the present summons, there would be costs consequences. There would also be an impact on the Court and other litigants in the waste of resources and time spent on the present proceeding.
I accept Mr Sharkey’s submissions. In my view, the appropriate course to take in order to give effect to the purpose and intention of the SOP Act and the CPA is to waive compliance with any temporal element in rule 22.04. I do not dispute that a plaintiff must depose to holding a belief that any defence has no real prospect of success. However, the time it makes that deposition, and the time it forms that belief, are not fundamental to the operation of the rule.
I agree with the author of Williams that procedural rigidities should be discarded in favour of a more flexible approach. This is particularly so in the present case, where strict compliance with the rule is not possible. A defendant’s grounds of defence are likely to be unknown until after the defendant is served with the originating motion and the summons for summary judgment. In fact, to require the belief to be held and to be deposed to at a time before any defence is known is illogical and meaningless. A plaintiff will be in a better position to form a belief and to make the required statement just prior to its application being heard, by which time, if it is opposed, the defendant will have notified the plaintiff of its grounds of defence.
Further, a literal reading of the wording of the rule itself produces an unworkable result. Rule 22.04 states that, “an application shall be made by summons supported by an affidavit … stating that in the belief of the deponent the defence to the claim … has no real prospect of success…”[14] This wording assumes that a defence has been filed, as it refers to “the defence”, rather than a defence. As discussed above, that is inconsistent with the procedure established by the SOP Act.
[14]County Court Civil Procedure Rules 2018 r 22.04 (emphasis added).
Although it was open to Ramvek to discontinue or withdraw the present application, and to issue a new summons for summary judgment, I do not consider that approach to be consistent with the aims and procedures of the CPA and the SOP Act.
Conclusion
As I have noted above, for the purposes of this application I do not need to determine the appropriate interpretation of rule 22.04. As all parties are agreed that the Court has the power to waive compliance with the rule, and as I have determined that it is appropriate to exercise my discretion to do so for the reasons set out above, I propose to make the orders below.
In respect of the substance of the application, the parties requested that the proceeding be listed for hearing on the next available date. They wish to make short oral submissions rather than have the proceeding determined on the papers. I will list the proceeding for further hearing.
I will make the following orders unless there are any objections by 30 April 2025 at 4.00pm:
(a)The requirements of rules 5.03(1) and 8.03 of the County Court Civil Procedure Rules 2018 are dispensed with.
(b)The plaintiff is authorised to commence this proceeding by originating motion in Form 5C.
(c)Any requirement of rule 22.04(1) of the County Court Civil Procedure Rules 2018 that the plaintiff must either form the specified belief at the date the summons is issued, or depose to it in an affidavit filed with the summons, is dispensed with, pursuant to rule 2.04.
(d)The proceeding is listed for further hearing on Monday, 12 May 2025 at 9.30am, or so soon after as the business of the Court allows with an estimate of two hours.
Unless any other form of orders are sought, I propose to order that the costs of this application are costs in the cause.
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Certificate
I certify that these 10 pages are a true copy of the ruling of her Honour Judge Kirton delivered on 24 April 2025.
Dated: 24 April 2025
Jessica Meaney
Associate to Her Honour Judge Kirton
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