Vesuvius Australia Pty Ltd v V & M Davidovic Pty Ltd

The appeal was heard by Beech-Jones J at first instance. The plaintiff, Vesuvius Australia Pty Ltd, sought summary judgment on its claims concerning the release of a security deposit, but not on its claim for damages. The defendant, V & M Davidovic Pty Ltd, argued that it had a set-off defence, which the primary judge found to be arguable. The plaintiff then sought to re-open the first judgment and obtain the same summary relief, but this was also dismissed with costs. The plaintiff now appeals against both judgments. Additionally, the plaintiff has moved for the further amended defence and further amended cross-claim to be struck out or dismissed due to the defendant's failure to comply with directions and orders.

The legal issues before the court were whether the set-off defence was arguable and whether the defendant's failure to comply with directions and orders warranted the striking out or dismissal of its defence and cross-claim. The court found that the set-off defence was arguable, and therefore, the plaintiff was not entitled to summary judgment on the claims concerning the release of the security deposit. However, the court also found that the defendant's failure to comply with directions and orders warranted the striking out or dismissal of its defence and cross-claim.

In light of the defendant's failure to comply with directions and orders, the court allowed the appeal and ordered that the further amended defence and further amended cross-claim be struck out or dismissed. The court found that the set-off for damages for misleading or deceptive conduct or unconscionable conduct was not available against a claim for release of the plaintiff's security deposit under a deed of options for lease which provided for the return of the deposit if the lease did not proceed. Since the lease did not proceed, the defendant's set-off defence was not available.

The court ordered that the further amended defence and further amended cross-claim be struck out or dismissed. The court also ordered that the defendant pay the plaintiff's costs of the appeal.