Saba v Hakim
[2019] VCC 1624
•11 October 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-18-05002
| BESHEER SABA | Plaintiff | |
| v | ||
| ANDREW PAUL HAKIM | First Defendant | |
| and | ||
| DEBBIE HAKIM | Second Defendant | |
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JUDGE: | HIS HONOUR JUDGE COSGRAVE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 August 2019. Written submissions were filed by the plaintiff on 29 August 2019 and the first defendant on 29 August 2019. | |
DATE OF RULING: | 11 October 2019 | |
CASE MAY BE CITED AS: | Saba v Hakim & Anor | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1624 | |
REASONS FOR RULING
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Silver | LDA Legal Pty Ltd t/a Dimos Lawyers |
For the First Defendant | Mr P Bradley (Solicitor) | SW Legal Pty Ltd |
HIS HONOUR:
1 On 28 August 2019, I heard an application by the plaintiff, Besheer Saba (“Saba”), seeking summary judgment against the first defendant, Andrew Hakim (“Hakim”), pursuant to rule 22 of the County Court General Civil Procedure Rules 2008 (Vic) and section 61 of the Civil Procedure Act 2010 (Vic).
2 The claim was one relating to monies said to be owing by Hakim to Saba arising from a business relationship they shared in connection with the company Prolec Electrical Services Pty Ltd, an electrical services business.
General principles
3 In determining an application for summary judgment, the Court must have regard to section 61 and sections 63 to 65 of the Civil Procedure Act 2010:
61 Plaintiff may apply for summary judgment in proceeding
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.
63 Summary judgment if no real prospect of success
(1) 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.
(2) A court may give summary judgment in any civil proceeding under subsection (1) —
(a)on the application of a plaintiff in a civil proceeding;
(b) on the application of a defendant in a civil proceeding;
(c)on the court's own motion, if satisfied that it is desirable to summarily dispose of the civil proceeding.
4 At the hearing of the application for summary judgment, the plaintiff must satisfy the Court that the contents of the affidavit verify the elements of the claim and otherwise discharge the onus of proof which the plaintiff bears. Further, the affidavit must establish that the deponent believes that the defence has no reasonable prospect of success.
5 The Court will not give judgment pursuant to sections 61 and 64, if the defendant satisfies the Court that:
(a) it has a real prospect of success regarding the defence or part thereof;
(b) it is not in the interests of justice to dispose of the matter summarily; or
(c) the dispute is of such a nature that only a full hearing on the merits is appropriate.
Consideration
6 Saba’s affidavit material provides a substantive basis in support of the allegations made in the claim to the effect that Hakim owed him money which Hakim agreed to repay, but then failed to do so.
7 The only material in opposition filed by Hakim was an affidavit sworn by Paul Bradley, his solicitor. The Bradley affidavit did not:
(a) dispute the main facts alleged in the plaintiff’s affidavit; or
(b) put forward an alternate version of the facts.
8 The Bradley affidavit made a couple of points. First, it said that the first defendant had told Bradley that, after the court hearing on 5 August 2019, the first defendant’s mental and physical health was not good and he was not able to provide clear instructions about the application. Secondly, it seemed to argue that, because the first defendant had filed a notice of dispute in relation to 3 documents the subject of the notice to admit, this constituted an arguable defence. Bradley said that there was a dispute about whether the second defendant signed the documents which were the subject of the notice to admit.
9 Beyond this, the defendants did not raise any other factual matters. Hakim did not raise any substantive defence in the affidavit filed on his behalf. Nor did he seek to adjourn the application for summary judgement.
10 I note in passing that Hakim filed a defence in which he disputed signing some of the documents relied upon by Saba. The defence also asserted that Hakim signed certain documents as a result of improper pressure or coercion. These two points are inconsistent: one cannot deny signing a document while simultaneously arguing one did so as a result of undue pressure or coercion. However, in my view, the point is not relevant because there was no affidavit evidence to support Hakim’s allegations.
11 In the circumstances, I am satisfied Saba is entitled to recover the monies alleged to be owing.
12 A separate point arises concerning Saba’s ability to obtain an order for judicial sale of the property at 137 Normanby Drive, Greenvale (the “Property”).
13 At the conclusion of the summary judgment hearing, counsel for the plaintiff handed up a proposed order which provided for judicial sale of the Property. This was not a point explored in any depth during the hearing. Saba contended that the defendants agreed to charge the Property as security for the monies which Saba lent or advanced on behalf of Hakim. He relied also in part on the doctrine of estoppel by deed.
14 I directed that the parties file written submissions on the issue of judicial sale and the appropriateness of making such an order.
15 The parties duly filed their submissions.
16 Saba abandoned the estoppel by deed argument, leaving the only issue to be determined that of the alleged charge over the Property and the granting of an order for judicial sale.
17 Saba submitted that the Court should grant an order for judicial sale pursuant to section 90 of the Property Law Act 1958 (Vic) due to the existence of an equitable charge over the Property.
18 Saba submitted that in the deed of acknowledgement between the parties:
(a) recital H expressly provided that the caveat was “to provide comfort and assurance to the Creditor in relation to the performance of the Covenantor under this Deed”; and
(b) clause 7.3 provided (inter alia) that if the covenantor defaulted, the parties acknowledged that the creditor would have the right to “upon the sale of the Property, will exercise its right to direct that a proportion of the sale proceeds from the Property will be used to repay the debt…”.
19 Hence, Saba argued that the purpose of the caveat was to provide comfort and assurance for the performance of the covenantor’s obligations under the deed of acknowledgement (including the repayment of money due). Also, the deed of acknowledgement, in referring to Saba’s rights to the relevant proportion of the proceeds of the Property upon sale, clearly assumed the existence of a charging provision in Saba’s favour. In addition, Saba argued that there was his uncontested affidavit evidence that Hakim agreed with Saba that he would repay him $160,000.00 over two years and his house at 137 Normanby Drive, Greenvale, would be security for the repayment.
20 However, Saba also acknowledged that there was a difficulty regarding the definition of security in the deed of acknowledgement where it referred to employer instead of creditor. Saba said he had not yet sought rectification of the deed to replace “employer” with “creditor”, but submitted that, in view of recital H and clause 7.3, he did not need to do so.
21 Hakim argued that the grant of a caveatable interest did not necessarily entail any rights beyond the right to lodge a caveat. He argued that the deed of acknowledgement relied upon did not explicitly allow for, or set out, a specific charge over the property.
22 In my view, the relief should be limited at this time to the payment of the outstanding debt. I have reached this view for several reasons.
23 First, the deed is sufficiently ambiguous that it would not be appropriate to enter a final judgment which assumed the existence of the equitable charge alleged by Saba. Secondly, the deed of acknowledgement relied upon Saba might require rectification. Thirdly, while I have no recollection of it being referred to at the hearing, I am now aware that Saba is proceeding to trial against the second defendant in March 2020. Especially in circumstances where the second defendant is a joint proprietor of the Property and might have defences available in relation to Saba’s claim regarding the equitable charge over the Property, it would not be a proper exercise of the court’s power or discretion to find the existence of such an interest at this hearing. This is particularly so when Saba did not move against the second defendant in this application and she was not party to the application. Finally, the circumstances of the case (including the possible issues with the deed of acknowledgement and the potentially divergent positions of the two defendants) are such that I do not consider it appropriate to dispense with the whole matter summarily. There should be a full hearing on the merits regarding the alleged equitable charge.
24 Hakim is liable to repay the outstanding debt owed, and the interest owing should be calculated from 21 May 2018, being the day after the debt was due and payable under the deed of acknowledgement.
Conclusion
25 In the circumstances, subject to hearing from the parties, I propose to order that:
1. There be judgment for the plaintiff against the first defendant in the sum of $160,000.00.
2. The first defendant pay the plaintiff interest on the sum of $160,000.00. from 21 May 2018 until the date of judgment at the rate proscribed by section 2 of the Penalty Interest Rates Act 1983 (Vic).
3. The first defendant otherwise have leave to defend the proceeding.
4. Costs reserved.
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