SMB Brisbane Pty Ltd v Fistonich
[2025] QMC 25
•07/10/25
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
SMB Brisbane Pty Ltd v Fistonich & Anor [2025] QMC 25
PARTIES:
SMB Brisbane Pty Ltd
(Plaintiff)
v
Alicia Fistonich
(First Defendant)
&
Deon Haar
(Second Defendant)
FILE NO/S:
M001899/23
DIVISION:
Civil
PROCEEDING:
Application
ORIGINATING COURT:
Brisbane Magistrates Court
DELIVERED ON:
07/10/25
DELIVERED AT:
Brisbane Magistrates Court
HEARING DATE:
02/05/2025
MAGISTRATE:
Pinder
ORDER:
1) I give judgement for the first defendant against the plaintiff and dismiss the plaintiff’s claim.
2) I give judgement for the second defendant against the plaintiff and dismiss the plaintiff’s clam.
3) The plaintiff’s application filed 12 March 2025 is dismissed.
4) I direct that in respect of any costs orders sought, the parties are to file and serve written submissions (to be no more than 5 A4 typed pages) as follows.
- The first and second defendants within 14 days
- The plaintiff within 21 days
CATCHWORDS:
PROCEDURE – RULES OF COURT – APPLICATION FOR SUMMARY JUDGEMENT ON CLAIM AND COUNTER CLAIM
Uniform Civil Procedure Rules 1999 (Qld) r 292 and r 293
Deputy Commissioner of Taxation v Salcedo [2005] QCA 227
Qld Building Services Authority v Orenshaw & Anor [2012] QSC 241
Jessup v Lawyers Private Mortgages Ltd and Ors [2006] QSC 3
Agar v Hyde [2000] 201 CLR 552
COUNSEL:
Plaintiff appears pro se
First Defendant – Mr Henry
Second Defendant – Ms M Wanshunicwon (solicitor)
SOLICITORS:
Plaintiff appears pro se
First Defendant – GLG Legal
Second Defendant – Stratos Legal
INTRODUCTION
The plaintiff has commenced proceedings claiming $17,734 as a liquidated debt in respect of the provision of design and production services for the publication of a magazine. The plaintiff appears to have commenced proceedings against Ms Alicia Fistonich and Mr Deon Haar upon the basis that they were both directors of Strong Fitness Magazine Australia Pty Ltd (SFMA).
The parties have each filed an application for summary judgement.
THE APPLICATIONS
The parties have filed applications (by date of filing) as follows:
First Defendant
The first defendant applies for the following orders:
1) Summary judgement pursuant to r 293 Uniform Civil Procedure Rules 1999 (Qld) (UCPR) on the plaintiff’s claim.
2) Alternatively pursuant to r 171 UCPR that the statement of claim be struck out against the first defendant.
3) The plaintiff pay the first defendant’s costs.
Second Defendant
The second defendant applies for the following orders:
1) Summary judgement pursuant to r 293 on the plaintiff’s claim.
2) The plaintiff pay the second defendant’s costs.
Plaintiff
The plaintiff applies for the following orders:
1) Summary judgement pursuant to r 293 UCPR for the plaintiff against both the first and second defendants.
2) Under s 588G of the Corporations Act 2001 (Cth) the directors of Strong Fitness Magazine failed their duty to prevent apparent insolvent trading of the company Strong Fitness Magazine Pty Ltd. This resulted in the company being unable to pay their debts owing the plaintiff prior to it being deregistered by ASIC by 26 May 2024.
3) Both the first and second defendants pay the plaintiff’s costs.
In respect of the plaintiff’s application:
1) The relief sought at paragraph 2 is ultra vires the jurisdiction of the Magistrate’s Court[1] and no such power is conferred by s 588G of the Corporations Act 2001 (Cth).
2) The application is expressed to be pursuant to r 293 but in fact is an application for summary judgement by the plaintiff pursuant to r 292.
[1]Magistrates Court Act 1921 (Qld) s 4.
THE PARTIES’ MATERIAL
The first defendant relies on the following material:
1) First defendant’s application for summary judgement filed 6 February 2025
2) Affidavit of Alicia Fistonich filed 6 February 2025
The second defendant relies on the following material:
1) Second defendant’s defence filed 25 March 2024
2) Second defendant’s application for summary judgement filed 28 February 2025
3) Affidavit of Deon Haar filed 28 February 2025
The first defendant and second defendant have each provided an outline of argument.
The plaintiff did not provide an outline of argument, understandable as he appeared pro se by a director Mr Hannon. In the course of hearing the plaintiff’s submissions it became apparent that the plaintiff relied on the following:
1) Plaintiff’s claim and statement of claim filed 7 September 2023
2) The plaintiff’s application for summary judgement filed 12 March 2025
3) Affidavit of Benjamin Hannon filed 12 March 2025
THE RELEVANT RULES
The UCPR empowers this court to grant summary judgement in respect of the plaintiff’s claim against the defendant.
Rule 292 provides:
292 Summary judgement for plaintiff
(1) The plaintiff may, at any time after a defendant files a notice of intention to defend, apply to the court under this part for judgement against the defendant.
(2) If the court is satisfied that –
(a) The defendant has no real prospect of successfully defending all or a part of the plaintiff’s claim; and there is no need to a trial of the claim or the part of the claim;
(b) There is no need for a trial of the claim or part of the claim.
The court may give judgement for the plaintiff against the defendant for all or part of the plaintiff’s claim and may make any other order the court considers appropriate.
The plaintiff’s application mistakenly refers to r 293, it should be r 292.
The first and second defendants’ applications are pursuant to r 293.
Rule 293 provides as follows:
293 Summary judgement for defendant
(1) A defendant may, at any time after a defendant files a notice of intention to defend, apply to the court under this part for judgement against a plaintiff.
(2) If the court is satisfied –
(a) The plaintiff has no real prospect of succeeding on all or part of the plaintiff’s claim; and
(b) There is no need for a trial of the claim or part of the claim.
The court may give judgement for the defendant against the plaintiff for all or part of the plaintiff’s claim and may make any other order the court considers appropriate.
THE RELEVANT LEGAL PRINCIPLES
In determining applications for summary judgement (pursuant to rule 292 and rule 293) this court is bound by the statements of principle contained in Deputy Commissioner of Taxation v Salcedo[2]where it is held:
Summary judgement will not be obtained as a matter of course and the Judge determining such an application is essentially called upon to determine whether the respondent to the application has established some real prospect at succeeding at trial, if that is established then the matter must go to trial.
[2] [2005] QCA 227.
At paragraph 44 of the judgement Atkinson J stated:
In the case of an application by the Plaintiff, the court must consider if it is satisfied that:
(a) The Defendant has no real prospect of successfully defending all or part of the Plaintiff’s claim; and,
(b) There is no need for trial of the claim or part of the claim.
If the court is satisfied of those circumstances then it has the discretion to give judgement for the Plaintiff and make any other order that it considers appropriate. Similar criteria apply to an application by a defendant pursuant to rule 293.
Her Honour continued at paragraph 47 and further held:
… The court must consider whether there exists a real, as opposed to fanciful, prospect of success. If there is no real prospect that a party will be successful in all or part of a claim and there is no need for a trial, then ordinarily the other party is entitled to judgement.
In Queensland Building Services Authority v Orenshaw & Anor[3] Henry J said in respect of the relevant test:
The words ‘no real prospect of proceeding’ mean what they say. They are to be applied in conjunction with required satisfaction that there is no need for a trial, so as to ensure before any summary intervention that there is a high degree of certainty about what the ultimate outcome of the proceeding would be if it were allowed to go to trial in the ordinary way.
[3] [2012] QCA 241.
Whilst those authorities require the court to apply the rule giving the words their usual and ordinary meanings and without further amplification, their practical application to particular circumstances was considered comprehensively by Chesterman J in Jessop v Lawyers Private Mortgages Ltd & Ors.[4]
[4] [2006] QSC 3.
His Honour at paragraphs 18 and 19 of the decision considered the earlier authorities and the proposition that the wording of the rule ought to be given its “plain and unambiguous meaning.” His Honour adopted a convenient and practical approach to the application of the rule and held at paragraph 20.
If summary judgement is not to work on an injustice it must be limited to those cases where it can be seen that a plaintiff or defendant, as the case may be, could not succeed at a trial of the action. It is only where a trial can be seen to be pointless that judgement should be entered summarily. Whatever form of words one uses the reality must be that it will only be just to deprive a party of its right to prosecute its claim or defence at trial where it can be seen that the claim or defence cannot succeed. If it might succeed, if there is a possibility of success, it cannot be just (though it might be expeditious) to enter summary judgement.
His Honour continued at paragraph 21:
In practical terms I suspect the rule means (as the old rules meant) that summary judgement should not be given where the facts upon which the parties respective rights depend are disputed, or where the respondent to the application for summary judgement adduces evidence as to the existence of facts, which if proved, would establish a defence or right to relief. In other words it is only where all the facts are known and/or established beyond controversy that the court should embark upon determining whether to give summary judgement. Where relevant facts are converted, or where it appears that facts may exist which would effect a right of action or defence, there should be a trial to determine the facts…
In approaching the disposition of the present application I proceed adopting the test enunciated by Chesterman J at paragraph 23 of Jessop v Lawyers Private Mortgages Ltd & Ors[5] that is, I approach the applications on the basis that I should give judgement only if satisfied that there are uncontroverted facts proved by the material read in the application which show an entitlement in law to the relief claimed by the party, and that there is no evidence to suggest the existence of additional facts which, if provided would controvert those facts.
[5] [2006] QSC 3.
SUMMARY JUDGEMENT APPLICATION – THE TEST
The relevant test for a summary judgement application is the same whether the application is by a plaintiff pursuant to r 292 or a defendant pursuant to r 293.
The first question is whether the plaintiff or defendant have no real prospect of succeeding or defending all or part of the claim.
In Deputy Commissioner of Taxation v Salcedo the court said that means no real prospects as opposed to fanciful prospects.[6] The applicant satisfies that only if I consider that there is a high degree of certainty about the ultimate outcome of the proceeding if it were to go to trial in the ordinary way.[7]
[6]Deputy Commissioner of Taxation v Salcedo [11]–[13].
[7]Agar v Hyde [2000] 201 CLR 552.
The second questions under r 292 or r 293 is whether there is no need for a trial of the relevant claim. That is, despite a defendant having no prospect of success, based on the evidence available at the hearing of the summary judgement application there may be reasons for the court to consider that there should be a trial in any event.
The plaintiff or defendant must satisfy the court that both of those tests are met to succeed in the application.
Both of those tests must be satisfied by the applicant to succeed in the application. The application should be refused if the court is satisfied that there are circumstances that ought to be investigated, notwithstanding that the opposing party cannot identify a specific issue which ought to be tried. The onus is on the applicant to satisfy the court of those two requirements, and only when a prima facie entitlement to summary judgement has been established does the evidentiary burden shift to the defendants.[8]
[8]Queensland Pork Pty Ltd v Lott [2003] QCA 271
The power to order a summary judgement must be exercised with great care and only if it is clear that there is no real question to be tried.[9]
[9]Agar v Hyde [2000] 201 CLR 552 [57].
THE PLEADINGS
The relevant pleadings are:
- Statement of claim filed 7 September 2023
- Defence of the first defendant filed 6 February 2025
- Defence of the second defendant filed 25 March 2024
The plaintiff appears pro se, without the benefit of legal advice or legal representation. The statement of claim appears to have been drafted by Mr Hannon as director of the plaintiff.
As both defendants properly complain, the statement of claim does not comply with the pleading’s rules of the UCPR and does not plead a cause of action known at law.
The rules of pleading pursuant to the UCPR provide that a pleading must:
(a) Contain a statement of all material facts on which the party relies but not the evidence.[10]
[10]Uniform Civil Procedure Rules 1999 (Qld) r 149(1).
(b) Plead a conclusion of law or raise a point of law if the party also pleads the material facts in support.[11]
[11] Ibid r 149(2).
(c) Plead specific matters including breach of contract or trust and every type of damage claimed.[12]
(d) For a debt or liquidated demand particulars of the debt or liquidated demand and interest claimed.[13]
(e) Include in a pleading particulars necessary to define the issues and enable the opposite party to plead.[14]
[12] Ibid r 150(1).
[13] Ibid r 150(3).
[14] Ibid r 157.
The statement of claim addresses none of those pleading rules. Paragraphs 1 to 22 appear to attempt to plead evidence rather than material facts and are a mishmash of alleged evidence about conversations and other communications.
The plaintiff does not plead any alleged agreement between SFMA nor either the first or second defendant and as best can be gleaned from the pleading, in the prayer for relief the plaintiff claims
Payment for the balance owing on outstanding invoice dated 29 January 2020 and outstanding invoice dated 20 May 2020 totalling $21,340.16.
Not only as there no properly pleaded claim or a cause of action against SFMA, but the second defendant is not mentioned in the pleading and there is no claim pleaded against him. The current pleaded claim against the second defendant must fail.
The pleaded claim against the first defendant identifies her in paragraphs 1, 2, 3, 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, and 20.
Taken at its highest, noting the noncompliant pleading, those paragraphs simply purport to plead evidence of interactions as between the plaintiff (through its officers or staff) and the first defendant Ms Fistonich – as director as Strong Fitness Magazine Australia Pty Ltd.
Paragraphs 10 and 11 of the statement of claim purport to plead that the first defendant agreed to enter a deed of guarantee in respect of a debt, but no such deed of guarantee was signed and returned. Paragraph 11 pleads
In the email Alicia Fistonich advised she would have signed deed of guarantee dated 9 March 2023 returned overnight. This means Alicia Fistonich (director of Strong Fitness Magazine) agreed to the terms of the guarantee dated 9 March 2023 and is now personally liable for the debt.
The plaintiff fails to plead a cause of action against SFMA. Upon that basis, with no proven debt, the affect of a purported guarantee is unknown.
The plaintiff has failed to plead a cause of action against SFMA and the potential pleaded cause against Ms Fistonich as director and guarantor must similarly fail.
There is no pleaded case by the plaintiff against the first defendant.
THE PARTIES’ EVIDENCE
The evidence of the parties in this proceeding is by way of affidavit.[15]
[15] UCPR- r 390(b).
The evidence of the parties is as follows.
The First Defendant
In her affidavit Ms Fistonich deposes to the following:
- She was a director of Strong Fitness Magazine Australia Pty Ltd.
- The company engaged the services of the plaintiff pursuant to a contract attached to a form of quotation accepted by the company.
- All invoices issued to the plaintiff were issued solely to the company.
- She did not personally engage the services of the plaintiff or enter into a contract with the plaintiff.
- She did not sign or enter into any deed of guarantee on behalf of the company with the plaintiff.
The Second Defendant
In the affidavit of Mr Haar, he deposes uncontroversially to the following:
- He was previously a director of Strong Fitness Magazine Australia Pty Ltd.
- The company was deregistered on 26 May 2024.
- He never personally contacted the plaintiff and all of the quotations or other correspondence from the plaintiff were never sent to him.
- He never signed or entered into any contract with the plaintiff.
- He never personally guaranteed the obligations of the company or the first defendant.
The Plaintiff
In his affidavit Mr Hannon deposes to the following:
- The plaintiff provided creative proofs to the first defendant.
- The company was invoiced for the work undertaken.
- The plaintiff submitted a deed of guarantee to the first defendant, but the deed of guarantee was not signed and returned.
In respect of the evidence, taking the plaintiff’s evidence at its highest, that evidence is consistent with the absence of any properly pleaded case by the plaintiff against the first or second defendants.
The plaintiff’s evidence does not prove:
- That either the first or second defendants contracted with the plaintiff
- Indeed, the plaintiff’s evidence is that the company(SMFA) contracted with the plaintiff
- All invoices and other documents were issued by the plaintiff to the company(SMFA).
- The second defendant was never requested and did not give any guarantee in respect of the debt
- The first defendant did not sign or enter any guarantee in respect of the debt.
There are no facts upon which the parties’ respective rights depend which are disputed and no facts which would establish the plaintiff’s right of relief against the first or second defendants.
CAN THE PLAINTIFF REPLEAD A CAUSE OF ACTION?
The plaintiff has not specifically raised the prospect of seeking to replead its case as against the first and second defendants. If there were a potential viable cause of action, that may be a consideration, especially having regard to the enunciation of the test by Chesterman J where a party’s position could be improved by amended pleading such that it could be established if there were reasonable prospects of success.[16]
[16]Jessop v Lawyers Private Mortgages Ltd [2006] QSC 3 [21].
The difficulty for the plaintiff in respect of the alleged guarantee is that such a potential claim is defeated by the provisions of the Property Law Act 1974 (Qld).
The Property Law Act 1974 (Qld) provides as follows:
56 Guarantees to be in writing
(1) No action may be brough upon any promise to guarantee any liability of another unless the promise upon which such action is brought, or some memorandum or note of the promise, is in writing, and signed by the party to be charged, or by some other person by the party lawfully authorised.
The effect of s 56 of the Property Law Act 1974 (Qld) is that absent a signed note or memorandum constituting the guarantee, the plaintiff cannot succeed against the first defendant at all.
CONSIDERATION
The plaintiff has no pleaded cause of action as against either the first defendant or second defendant.
The plaintiff may have (if properly pleaded) a cause of action against Strong Fitness Magazine Australia Pty Ltd but there is no pleaded particular of either the first or second defendant’s engaging or contracting with the plaintiff.
The second defendant is in fact not mentioned at all in the pleading.
The plaintiff could not succeed if it had a claim for a debt against SFMA, against the first defendant in respect of alleged guarantee noting its failure to comply with the provisions of s 56 of the Property Law Act 1974 (Qld).
The plaintiff’s claim against the first and second defendants is misconceived and doomed to fail. The plaintiff has no prospects, let alone no reasonable prospects.
Both the first and second defendants have satisfied the requirements of r 293 and I am satisfied that:
(a) The plaintiff has no real prospects of succeeding on the claim against either the first or second defendant.
(b) There is no need for a trial of the claim.
The first and second defendants are both entitled to summary judgement on the claim against them.
PLAINTIFF’S SUMMARY JUDGEMENT APPLICATION
The plaintiff’s summary judgement application pursuant to r 292 is similarly misconceived and doomed to fail.
The plaintiff on an application for summary judgement must relevantly establish that each of the first and second defendant’s have no real prospect of successfully defending the claim and that there is no need for a trial.
The reasons articulated above conclusively demonstrate to the contrary. Both defendants have very real and strong prospects of successfully defending the claim brought against them.
The plaintiff’s application for summary judgement must fail.
DISPOSITION
1) I give judgement for the first defendant against the plaintiff and dismiss the plaintiff’s claim.
2) I give judgement for the second defendant against the plaintiff and dismiss the plaintiff’s clam.
3) The plaintiff’s application filed 12 March 2025 is dismissed.
4) I direct that in respect of any costs orders sought, the parties are to file and serve written submissions (to be no more than 5 A4 typed pages) as follows.
- The first and second defendants within 14 days
- The plaintiff within 21 days
Magistrate JNL Pinder
07/10/25
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