Think Commodities Pty Ltd v Think Industries Pty Ltd - [2013] VSC 206

Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2012 00830

THINK COMMODITIES PTY LTD (ACN 149 987 664) AND ORS (according to schedule attached)	Plaintiffs
v
THINK INDUSTRIES PTY LTD (ACN 137 606 798) AND ORS (according to schedule attached)	Defendants

---

JUDGE:	DERHAM AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	7 March 2013
DATE OF JUDGMENT:	7 March 2013
CASE MAY BE CITED AS:	Think Commodities Pty Ltd v Think Industries Pty Ltd
MEDIUM NEUTRAL CITATION:	[2013] VSC 206	30 April 2013: revised reasons for ex tempore judgment delivered 7 March 2013

---

PRACTICE AND PROCEDURE – Summary judgment – Sections 61 and 63 Civil Procedure Act 2010 (Vic) – Whether defence has more than a fanciful prospect of success –
Butt v McDonald (1896) QLJ 70 – Implied terms – Putative shareholders’ agreement – Loan deed – Matter to be investigated – Application for summary judgment refused.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr G Maloney	Leem Lawyers
For the First and Second Defendants	Mr Paul Shannon in person	Francis Lim

HIS HONOUR:

What follows is a revision of an extempore judgment given at the end of argument in this matter.

The plaintiff applied by amended summons dated 7 November 2012 for summary judgment against the first and second defendants (the third defendant having been deregistered) pursuant to ss 61 and 63 of the Civil Procedure Act 2010. Under those sections the question is whether the defence disclosed by the defendants has no real prospects of success. For present purposes, it is sufficient to note that in deciding the question, what is required is a practical judgment as to whether the defence disclosed, either in the pleading or in the affidavit in opposition, has more than a fanciful prospect of success.[1] The application was supported by four affidavits sworn by or on behalf of the plaintiffs. There was one affidavit in opposition.
[1]See Matthews v SPI Electricity Pty Ltd [2011] VSC 168, [22]; Ottedin Investments Pty Ltd v Portbury Developments Co Pty Ltd [2011] VSC 222, [18].

The plaintiff has, by its affidavit material, established what I have called a strong prima facie case that it is entitled to judgment for the debt the subject of the Loan Deed, which has been referred to in the course of discussions and has been exhibited to the affidavit of the second plaintiff (“Mr Pan Snr”) of 18 October 2012. The affidavit material that has been put forward by the second defendant, Mr Paul Shannon, in his affidavit sworn on 26 November 2012, shows that about the time of entry into the Loan Deed, possibly beforehand, a so called ‘Circular Resolution’ of the Board of the plaintiff was signed by Mr Pan Snr, the third plaintiff (“Mr Pan Jnr”) and Mr Paul Shannon. This Circular Resolution purports to record what could constitute an agreement in the nature of a shareholders agreement between the participants.

The Circular…

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.

Keep reading for free

Create a free CaseChat account to read Think Commodities Pty Ltd v Think Industries Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] VSC 206
Decision Date: 7 March 2013

CaseChat Overview and Summary

Think Commodities Pty Ltd, the plaintiff, sought summary judgment against Think Industries Pty Ltd, the defendant, in a dispute concerning the enforceability of a loan deed and an alleged shareholders’ agreement. The matter was heard in the County Court of Victoria, presided over by Judge Sullivan. The plaintiff alleged that the defendant had breached a loan deed by failing to repay a loan, and further contended that the defendant was bound by an implied shareholders’ agreement that included certain obligations. The defendant denied these claims and argued that the plaintiff's case lacked merit.

The court was required to determine whether the defendant's defence had more than a fanciful prospect of success, as mandated by sections 61 and 63 of the Civil Procedure Act 2010 (Vic). The plaintiff argued that the defendant had no realistic chance of defending the claim, while the defendant contended that there were genuine issues of fact and law that needed to be investigated in a full hearing. The court considered the principles established in Butt v McDonald and assessed whether the defence presented a matter that warranted a trial.

After reviewing the submissions and evidence presented by both parties, the court found that the defendant's defence was not fanciful. There were genuine issues regarding the enforceability of the loan deed and the existence of the alleged shareholders’ agreement that required further investigation. The court noted that the defendant had provided sufficient evidence to suggest that the defence was not without merit, and therefore, the plaintiff's application for summary judgment was refused. The case was to proceed to a full hearing to determine the validity of the claims and defences presented by both parties.

Orders