Stable Property Group Ltd v Huber

[2009] VCC 33

IN THE COUNTY COURT OF VICTORIA Revised

(Not) Restricted

AT MELBOURNE
COMMERCIAL LIST

GENERAL DIVISION

Case No. CI-08-04505

STABLE PROPERTY GROUP PTY LTD	Plaintiff
v.
JASON HUBER	Defendant

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JUDGE:	His Honour Judge Anderson
WHERE HELD:	Melbourne
DATE OF HEARING:	5 February 2009
DATE OF JUDGMENT:	5 February 2009
CASE MAY BE CITED AS:	Stable Property Group Ltd v. Huber
MEDIUM NEUTRAL CITATION:	[2009] VCC 0033

REASONS FOR JUDGMENT

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Catchwords:  Practice and procedure – Application to set aside a default judgment –
Order conditional upon the judgment sum being paid into Court.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D. Jones	EM Lawyers
For the Defendant	Ms K. Tate	Dibbs Abbott Stillman

b.	the defendant alleges that the principal amount of the loan was $400,000 rather than $450,000. However in email communications between the defendant and Mr Buhagiar, the defendant has referred to “a loan of $450,000”. This ground of defence has no substance.
c.	defendant alleges that the date of 31 January 2008 was discussed as a projected repayment date. However, the defendant says, repayment was, at

HIS HONOUR:

1           The plaintiff entered judgment in default of appearance on 3 December 2008. The defendant, later that day, apparently sought to file an appearance, but he was not permitted to do so. By summons, dated 15 December 2008, he made application to

set aside the default judgment. The summons was supported by a hand-drawn
affidavit, which explained the reason for judgment having been entered, but which did
not disclose a defence. No affidavit was filed in support of the application until the
defendant’s affidavit was filed and served on 4 February 2009. The affidavit appears
to respond to an affidavit sworn by the Chief Executive Officer of the plaintiff, Mr
Gelom Buhagiar on 3 February 2009.

2           The critical issue in the application is whether the defendant has shown an arguable defence. The matters raised in the defendant’s affidavit are as follows:

a. The defendant says that the party who lent money to him was not the plaintiff but Mr Buhagiar. There appears to be little dispute that the agreement for the loan of money was made in a conversation or series of conversations between

the defendant and Mr Buhagiar. The loan monies were advanced in a series of payments, four out of five of which were by cheque drawn upon the bank account of the plaintiff. These payments, between 30 June 2007 and 11

December 2007, totalled $425,000. A further payment of $25,000 was allegedly paid in cash. The defendant says in his affidavit that security was offered for the loan in the form of the transfer of shares “to Mr Buhagiar’s entity, the plaintiff, from my family’s entity”.

In the circumstances, it seems to me that this ground of defence is extremely weak and if the matter proceeded, and a claim were made by the plaintiff to join Mr Buhagiar as an alternative plaintiff, that ground of defence would effectively disappear.

the plaintiff alleges that the loans were repayable on 31 January 2008. The the email communications between the parties, the defendant conceded that the scheduled date for repayment of the monies was 31 January 2008. There is no objective evidence to suggest that this was not the repayment date or that the date for repayment was at large. If the date for repayment was at large, the plaintiff subsequently made demands for payment and no payment was made within a reasonable time.

d.	There is a suggestion in the material filed by the defendant that repayment was to be made upon certain “milestone” dates being reached. There is no supporting evidence that the repayment of the loans was conditional upon the
milestones being reached. In any event, the email communications include statements by the defendant that these milestones had passed.
e.	the defendant suggested that there had been a variation in the agreed time for repayment. In an email, dated 25 July 2008, the defendant made an offer to transfer shares to the plaintiff or Mr Buhagiar, incrementally for so long as the loans remained unpaid. There is no evidence in the subsequent email communications that this offer was accepted, or that the alleged agreement was partly performed by the transfer of shares. The communications suggest that, within days, the Mr Buhagiar was repeating his demands for the repayment of the loan monies.

3           Even if there were a basis for a defence in this proceeding, in my view, the judgment should only be set aside if the whole of the amount in dispute and presently the subject of the judgment, together with the costs thrown away, should be paid by the defendant into Court or that alternative security in a form acceptable to the plaintiff be provided. The loans the subject of the judgment appear to have been outstanding for more than 12 months. The judgment was entered 2 months ago. I have allowed 14 days for the defendant to provide security and to pay the costs thrown away if he wishes to have the judgment set aside. Liberty to apply has been reserved in case either party wishes to make any application to the Court.

4           If the defendant provides the security ordered and pays the outstanding costs, the judgment will be set aside. In that event, the issue between the parties, having been fully explored in the affidavit material, can go to trial within a matter of weeks for a final determination.

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Certificate

I certify that these 2 pages are a true copy of the reasons for decision of His Honour

Judge Anderson delivered on 5 February 2009.

Dated: 5 February 2009.

Caroline Dawes

Associate to His Honour Judge Anderson