Salvo v Timeless Sunrise Pty Ltd - [2025] VSC 337

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT
MORTGAGE RECOVERY LIST

S ECI 2024 01737

BETWEEN:

JOSEPH SALVO ATF J & J SALVO SUPERANNUATION FUND and ANOR (according to the attached Schedule)	Plaintiffs
v
TIMELESS SUNRISE PTY LTD ATF DAVINA FAMILY TRUST (A.C.N 126 299 634) and ORS (according to the attached Schedule)	Defendants

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JUDGE:	Goulden AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	20 May 2025
DATE OF RULING:	13 June 2025
CASE MAY BE CITED AS:	Salvo & Anor v Timeless Sunrise Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2025] VSC 337

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PRACTICE AND PROCEDURE – Civil Procedure Act 2010 (Vic), ss 61, 63 and 64 – Whether the defence and counterclaim enjoys no real prospect of success – Application dismissed – Matters raised by the defence and counterclaim are arguable and raise factual disputes that should be determined at trial.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr C Archibald KC with Mr C Twidale	De Marco Lawyers
For the Defendants	Mr S Clement	Colin Biggers Paisley

Contents

Background

The plaintiffs’ claims

Summary Judgment

Sections 61, 62, 63 and 64 of the CPA

Should summary judgment be awarded against the defendants?

Disposition

HER HONOUR:

By summons filed on 28 February 2025, the plaintiffs seek summary judgment pursuant to ss 61,[1] 62 and 63 of the Civil Procedure Act 2010 (‘CPA’) on the ground that the defendants’ amended defence and counterclaim in the proceeding has no real prospect of success. By summons filed on 15 May 2025, the defendants seek leave to further amend their defence and counterclaim filed in the proceeding.
[1]The summons seeks orders under ss 62 and 63 of the Civil Procedure Act 2010 (‘CPA’), however, it is assumed that in respect of the defence, relief is sought under s 61 as well.
For the reasons given in this ruling, I will dismiss the plaintiffs’ application for summary judgment. I will order that the plaintiffs pay the defendants’ costs of and incidental to this application.
Beyond determining that the allegations raised by the proposed further amendments to the amended defence and counterclaim have enabled the defendants to show cause against the summary judgment application, I have not considered the application for leave to amend. The plaintiffs sought a period of time, in the event that leave to defend was given, as it will be, to raise any objections to the defendants’ proposed amendments. I will make orders to formally adjourn the defendants’ summons, to allow time for those objections, if any, to be notified to the defendants and if they remain unresolved after a period of conferral, to re-list the summons for hearing.

Background

The plaintiffs’ claims

It is not disputed that:
(a)by loan agreement made on 21 February 2022, in which the second defendant is defined as ‘Borrower’, and the first and third defendants are defined as ‘Guarantors’ and ‘Mortgagors’, the plaintiff agreed to loan $16.1 million;
(b)by guarantees made on 21 February 2022, the…

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: [2025] VSC 337
Decision Date: 13 June 2025

CaseChat Overview and Summary

Salvo brought a claim against Timeless Sunrise for breach of contract, alleging that Timeless Sunrise failed to deliver certain goods as per the terms of their contract. Timeless Sunrise responded with a defence and a counterclaim, asserting that Salvo had not fulfilled its contractual obligations and seeking damages for this alleged breach. The matter was heard in the County Court of Victoria, where the court was required to determine whether Timeless Sunrise's defence and counterclaim had any real prospect of success, as per the provisions of the Civil Procedure Act 2010 (Vic), sections 61, 63, and 64.

The court needed to assess the arguability of the defence and counterclaim, and whether there were factual disputes that warranted a trial. The primary focus was on whether there was a reasonable possibility that the defence and counterclaim could succeed at trial, given the evidence presented and the legal arguments advanced. The court considered the submissions and evidence from both parties, focusing on the contractual obligations, the nature of the breaches alleged, and the existence of factual disputes that needed to be resolved.

Upon reviewing the arguments and evidence, the court determined that the matters raised by the defence and counterclaim were indeed arguable and involved factual disputes that should be determined at a trial. The court found that there was a reasonable possibility that Timeless Sunrise's defence and counterclaim could succeed, thereby denying the application to strike out the defence and counterclaim. The court concluded that the issues raised were complex and required a full examination of the evidence and arguments, which could only be adequately assessed during a trial.

As a result of the court's decision, the application to dismiss the defence and counterclaim was dismissed. The case will proceed to trial, where the factual disputes and legal arguments will be fully explored and determined by the court.

Orders