Summers v Pycju Pty Ltd - [2021] VSC 230

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT
CORPORATIONS LIST

S ECI 2020 04448

GEOFFREY DOUGLAS SUMMERS & ANOR (according to the schedule attached)	Plaintiffs
v
PYCJU PTY LTD (ACN 166 978 490) & ORS (according to the schedule attached)	Defendants

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JUDGE:	M Osborne J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 April 2021
DATE OF JUDGMENT:	3 May 2021
CASE MAY BE CITED AS:	Summers v PYCJU Pty Ltd
MEDIUM NEUTRAL CITATION:	[2021] VSC 230

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PRACTICE AND PROCEDURE – Summary judgment sought pursuant to s 61 and 63 of the Civil Procedure Act 2010 (Vic) – Applicable test for summary judgment – Whether defence has a real prospects of success – General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125 – Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27.

DEED OF SETTLEMENT – Alleged breach of intermediate or innominate term – Whether party to a contract is precluded from seeking recovery of a debt while retaining title to certain property to be transferred – The time at which a debt owed to the recipient party accrues – Chang v Registrar of Titles (1976) 137 CLR 177 – Geoffrey W Hill & Associates v King (1992) 27 NSWLR 228 – Hausman v Abigroup Contractors Pty Ltd (2009) 29 VR 213 – Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115 – McDonald v Dennys Lascelles (1933) 48 CLR 457 – Mount Bruce Mining Pty Ltd v Wright Prospecting (2015) 256 CLR 104.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr G Bigmore QC and Mr B Murphy	Cornwalls
For the Defendants	Mr D Williams QC and Mr B Devanny	HFW

HIS HONOUR:

Introduction

This is an application by the plaintiffs for summary judgment pursuant to order 22 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘the Rules’) and part 4.4 of the Civil Procedure Act 2010 (Vic) (‘the CPA’).

The application arises out of a deed of settlement (‘the Deed’) by which the parties to the Deed resolved a proceeding in the Federal Court of Australia.

The Deed provided for the first defendant (‘PYCJU’) to purchase from the second plaintiff (‘West Horse’) shares in Lottah Mining Pty Ltd (‘Lottah Mining’) and Forward Mining Limited (‘FML’) for the sum of $10,000,000. Additionally, the Deed provided for the second defendant (‘AGG’) to purchase from the first plaintiff (‘Mr Summers’) shares in Dundas Mining Pty Ltd (‘Dundas’) for the sum of $2,000,000.

AGG and the third to eighth defendants guaranteed the obligations of PYCJU under Deed, whilst PYCJU and the third to eighth defendants guaranteed the obligations of AGG under the Deed.

It is not in dispute that PYCJU and AGG did not make payments to the plaintiffs of the respective amounts of $8,000,000 and $1,600,000,[1] which were payable on 18 November 2020 per clause 3.4(b) of the Deed.
[1]The balance of the price after payment of the respective deposits.

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: [2021] VSC 230
Decision Date: 3 May 2021

CaseChat Overview and Summary

The case of Summers v Pycju Pty Ltd involved the plaintiff seeking summary judgment against the defendant for the recovery of a debt, pursuant to sections 61 and 63 of the Civil Procedure Act 2010 (Vic). The dispute centred on the interpretation of a deed of settlement and the defendant's alleged breach of an intermediate or innominate term. The plaintiff argued that the defendant could not retain title to certain property while simultaneously claiming a debt. The court was tasked with determining the applicable test for summary judgment and whether the defendant had a real prospect of successfully defending the claim.

The legal issues before the court encompassed the test for summary judgment as outlined in General Steel Industries v Commissioner for Railways (NSW) and Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd. The court had to examine whether the defendant's defence had any real prospect of success. Additionally, the court needed to resolve whether the plaintiff was precluded from recovering the debt while retaining title to the property. The case also raised questions about the accrual of the debt and the interplay between the title to property and the obligation to pay a debt, drawing on precedents such as Chang v Registrar of Titles and Hausman v Abigroup Contractors Pty Ltd.

The court found that the defendant's defence did not present a real prospect of success, and thus, the plaintiff was entitled to summary judgment. The court concluded that the defendant's retention of title to the property did not preclude the plaintiff from recovering the debt. The court's reasoning was grounded in the interpretation of the deed of settlement and the relevant case law. The court held that the debt accrued at a specific point in time, irrespective of the title to the property, aligning with the principles established in Mount Bruce Mining Pty Ltd v Wright Prospecting.

The final orders of the court granted the plaintiff summary judgment and directed the defendant to pay the sum of money claimed by the plaintiff. The court's decision clarified the legal position regarding the interplay between title to property and the obligation to pay a debt, providing guidance for future disputes of a similar nature.

Orders