Scorpion Securities Pty Limited v Stefan Martin Allan

[2005] NSWSC 418

CITATION:	Scorpion Securities Pty Limited v Stefan Martin Allan [2005] NSWSC 418
HEARING DATE(S):	29 April 2005
JUDGMENT DATE :	29 April 2005
JURISDICTION:	Common Law Division
JUDGMENT OF:	Master Malpass at 1
DECISION:	Direct entry of judgment for the plaintiff in the sum of $893,616.43; The cross-claim is dismissed; The defendant/cross-claimant is to pay the costs of the proceedings and the cross-claim on an indemnity basis.

PARTIES:	Scorpion Securities Pty Limited (Plaintiff) Stefan Martin Allan (Defendant)
FILE NUMBER(S):	SC 12699/04
COUNSEL:	Ms Obradovic (Plaintiff) Ms Savage (Defendant)
SOLICITORS:	Malcolm J Wright (Plaintiff)

LOWER COURT JURISDICTION:

- 2 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

29 April 2005

12699 of 2004 Scorpion Securities Pty Limited v Stefan Martin Allan

JUDGMENT

1 Master: The plaintiff makes an application for summary judgment in respect of a claim for moneys due under the documents identified in the statement of claim. In support of the notice of motion the court has before it the evidence that is required by the Rules and which prima facie entitles the plaintiff to the relief that is sought.

2 The defendant has filed a defence and cross-claim. The substantive matters raised by those pleadings are matters of unconscionable conduct and duress. Although these matters are raised in the pleadings there is no evidence placed before the court to substantiate those matters in any way whatsoever.

3 Accordingly the court is placed in the position that there is no material before it to throw up any triable issues. If regard is had to those circumstances alone, the plaintiff has demonstrated an entitlement to the relief sought.

4 Leaving these matters of evidence aside, I should also mention certain other matters. It appears that there is a history of default by the defendant. He has not bothered to appear today. The solicitor who has been recently instructed has not filed a notice of appearance and does not appear himself (it seems that he has other commitments). The task of appearing has been imposed, at short notice, on an agent who has very little, or no knowledge of the matter itself. It would seem that her intended function was to procure another adjournment.

5 In the circumstances it is difficult to see the purported defence and cross-claim as being bona fide.

6 I bear in mind that the onus which the plaintiff has is one to demonstrate a clear entitlement to relief. In my view, in the circumstances of this case, that onus has been discharged and the plaintiff is entitled to the discretionary remedy of summary relief.

7 I will direct judgment for the plaintiff in the sum of $893,616.43.

8 The second order I will make is that the cross-claim be dismissed.

9 The defendant cross-claimant is to pay the costs both of the proceedings and the cross-claim.

10 An application has been made that the costs be payable on an indemnity basis. On the material before me there is nothing to suggest that there was any bona fide basis for the filing of the defence and cross-claim. In these circumstances it is appropriate to make the order sought. Accordingly I will order the costs be payable on an indemnity basis.

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