Westlawn Finance Limited v A.C.N. 616 658 505 Pty Ltd

[2025] NSWDC 209

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Westlawn Finance Limited v A.C.N. 616 658 505 Pty Ltd [2025] NSWDC 209

Hearing dates:

05 June 2025

Date of orders:

05 June 2025

Decision date:

05 June 2025

Jurisdiction:

Civil

Before:

Dicker SC DCJ

Decision:

In relation to the Notice of Motion filed on 9 April 2025:

(1) There be summary judgment in favour of the plaintiff against each defendant, pursuant to Part 13.1 of the Uniform Civil Procedure Rules 2005; and

(2) The Defence of the defendants is struck out, pursuant to Part 14.28 of the Uniform Civil Procedure Rules 2005.

Catchwords:

PRACTICE AND PROCEDURE – summary judgment application – complete denial by defendants – whether clear case – principles applicable

Legislation Cited:

Bankruptcy Act 1966 (Cth)

Corporations Act 2001 (Cth)

Electronic Transactions Act 2000 (NSW)

Personal Property Securities Act 2009 (Cth)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

AD v Commissioner of the Australian Federal Police [2018] NSWCA 89

Advantaged Care Pty Ltd v Yehuda [2025] NSWSC 366

Burton v Office of the Director of Public Prosecutions [2019] NSWCA 245

Dey v Victorian Railways Commissioners (1949) 78 CLR 62

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125

Martin v Gill [2025] NSWSC 385

Moon& Anor vSecure Funding Pty [2013] QCA 86

Secure Funding Pty Ltd v Moon [2012] QSC 244

Spencer v Commonwealth of Australia (2010) 241 CLR 118

Trieu v ROOK CMIT Pty Ltd [2024] NSWSC 122

Category:

Procedural rulings

Parties:

Westlawn Finance Limited (Plaintiff)
A.C.N. 616 658 505 PTY LTD (First Defendant)
A.C.N. 119 219 840 PTY LTD (Second Defendant)
Bruno Anthony Strangio (Third Defendant)

Representation:

Counsel:

Solicitors:
Westlawn Finance Limited (Plaintiff)

File Number(s):

2024/00232337

Publication restriction:

No

JUDGMENT – EX TEMPORE

1. Before the Court for determination is a Notice of Motion filed by the plaintiff, Westlawn Finance Limited, on 9 April 2025, seeking, in substance, summary judgment in its favour and/or a “dismissal” of the Defence filed in the proceedings by the three defendants on 22 July 2024.

2. The summary judgment application is made under Part 13.1 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). The application for “dismissal” of the Defence is made under Part 14.28 of the UCPR. Correctly, that should refer not to the “dismissal” of the Defence, but the striking out of the Defence, as referred to in Part 14.28(1) of the UCPR.

3. In support of the application, the plaintiff read the following affidavits:

1. Affidavit of Yatin Kumar dated 30 October 2024;

2. Affidavit of Yatin Kumar dated 4 April 2025; and

3. Four affidavits of Jessica Rose Tarrant dated 4 June 2025.

4. The application was heard ex parte. There was no appearance by or on behalf of any of the defendants at the hearing.

5. I am satisfied from the affidavits of Ms Tarrant, that each of the defendants was aware of the listing of the matter for hearing today.

6. It appears from all the evidence, that the directing mind and will of the first and second defendants is the third defendant, Mr Bruno Anthony Strangio. It appears from the evidence, that Mr Strangio is located in Victoria. By email dated 29 May 2025 sent at 12.48pm, Mr Strangio requested that “the hearing to be heard [sic] by audio”. There was a response by his Honour Judge Fitzsimmons SC, the current list judge, sent on 2 June 2025 at 2:37pm, indicating that his Honour required the parties to be present at the hearing of the Notice of Motion on 5 June 2025: see Exhibit 1.

7. As stated, each of the defendants was called outside the Court, and there was no appearance by or on their behalf.

8. The affidavit of Mr Kumar of 30 October 2024 read on the application, contains material that suggests that the third defendant is an undischarged bankrupt, having been declared bankrupt on 28 July 2008. One of the affidavits of Ms Tarrant of 4 June 2025, indicates that on 11 April 2025, she caused to be served on the Official Trustee of the Australian Financial Security Authority, who was the bankruptcy trustee for the third defendant, a sealed copy of the plaintiff’s Notice of Motion and affidavit in support, filed on 9 April 2025 by service on that body by email. When the matter came on for hearing today, the Trustees of the bankrupt estate of Bruno Anthony Strangio were also called outside the Court and there was no appearance by them.

9. A very large volume of email material, with annexures, has been received by the Associates to his Honour Judge Fitzsimmons SC and my associate, from 4 to 5 June 2025 from Mr Strangio. In addition, there was filed in the Court an affidavit of Mr Strangio dated 3 June 2025 which I have made Exhibit 3.

10. The first issue to be considered is whether the hearing should proceed in the absence of any representative for the defendants. It seems that Mr Strangio is a director of both defendants: Exhibit A. I am satisfied, from Ms Tarrant’s affidavits, all dated 4 June 2025, that each of the defendants was aware of the hearing today. It is also clear from the voluminous correspondence, which is Exhibit 2, that Mr Strangio, both for himself and as the directing mind and will of the first and second defendants, was aware of the hearing today.

11. There was no application made to me in writing for leave for Mr Strangio to appear for the defendants by audiovisual link or by telephone. In addition, there was no application by Mr Strangio for an adjournment of the hearing today. One of the emails received, in Exhibit 2, from Mr Strangio, sent at 9.39am today, includes the following:

“As per my email last night I repeat sorry for been [sic] forced to not drive to NSW as my life and my family has and continues to been threatened by the plaintiff. All address for which the plaintiff send [sic] the bikies to harass is in the plaintiff summary judgment application.”

12. I took this to mean that the third defendant saw some difficulty with attending the Court today for reasons indicated. Other than that assertion, there was no evidence to support the assertion. I do not regard it as a formal application to vacate the hearing today.

13. As a matter of caution, I have reviewed all the voluminous correspondence which is part of Exhibit 2. There are numerous authorities referred to there. In the absence of any articulation of their relevance, it is difficult to see their central relevance to the application today.

14. As a matter of further caution, the plaintiff did not object to the affidavit of Mr Strangio dated 3 June 2025 being tendered on the application. It was marked as Exhibit 3. I have carefully taken into account the matters referred to in the affidavit. In substance, the affidavit denies that the defendants entered into the chattel mortgage agreements, either as borrower or as guarantors. It is said that there was never any signing of the agreements or guarantees by or on their behalf, that there was no “wet” signature of the agreements and no evidence that the electronic signatures were applied by the defendants. In substance, I have taken this as a comprehensive denial of any liability in the matter.

15. The affidavit of Mr Kumar dated 4 April 2025, and filed on 9 April 2025, was, as I indicated, read by the plaintiff on the application. That affidavit indicates in some detail the relevant documentation sought to establish the liability of the defendants. There was a detailed exhibit, being Exhibit YK3 to that affidavit. That exhibit was made Exhibit B on the application before me today. The Court has had the assistance of Ms Tarrant taking the Court through the documents in great detail, showing the history of the matter, and the assertion that the documents clearly establish the liability of the first defendant as borrower and the second and third defendants as guarantors. I will come back to that issue.

16. As I indicated, the applications are made under Part 13.1 and Part 14.28 of the UCPR. They are as follows:

“13.1   Summary judgment

(1)  If, on application by the plaintiff in relation to the plaintiff’s claim for relief or any part of the plaintiff’s claim for relief—

(a)  there is evidence of the facts on which the claim or part of the claim is based, and

(b)  there is evidence, given by the plaintiff or by some responsible person, that, in the belief of the person giving the evidence, the defendant has no defence to the claim or part of the claim, or no defence except as to the amount of any damages claimed,

the court may give such judgment for the plaintiff, or make such order on the claim or that part of the claim, as the case requires.

(2)  Without limiting subrule (1), the court may give judgment for the plaintiff for damages to be assessed.

(3)  In this rule, a reference to damages includes a reference to the value of goods.

…

14.28   Circumstances in which court may strike out pleadings

(1)  The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading—

(a)  discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or

(b)  has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

(c)  is otherwise an abuse of the process of the court.

(2)  The court may receive evidence on the hearing of an application for an order under subrule (1).”

17. In addition, when the Court expressed some concern in relation to the absence of evidence under Part 13.1(1)(b), Ms Tarrant sought to reopen the case for the plaintiff and to give additional oral evidence of that matter. This was permitted. Ms Tarrant gave evidence that she was an in-house solicitor for the plaintiff, which is based in New South Wales, and, following obtaining instructions, was authorised to give that evidence on behalf of the plaintiff.

18. Oral evidence was given by her that, in her belief as a person with knowledge of the matter, the defendants have no defence to the claim or any part of the claim of the plaintiff. In addition, oral evidence was given that no amount had been received from any of the defendants in reduction of the claim since the proceedings were commenced.

19. The Court has also had the assistance of written submissions from Ms Tarrant dated 4 June 2025.

20. As I indicated, the applications are made under Part 13.1 and Part 14.28. The authorities in relation to applications for summary judgment are clear. Generally speaking, a very high standard is required before there can be summary judgment. In Advantaged Care Pty Ltd v Yehuda [2025] NSWSC 366, Brereton J in the Supreme Court noted this in paragraph 2. His Honour indicated that “the level of certainty required [for summary judgment] as to the outcome of the proceedings [was] high”, and it was “not sufficient that the prospects of success [were] slight”. He indicated that the plaintiff must show that any asserted defence is “so obviously untenable that it cannot possibly succeed” or is “manifestly groundless”, relying on Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-129.

21. This reflects other recent cases at first instance. See, for example, Trieu v ROOK CMIT Pty Ltd [2024] NSWSC 122 at [63]-[64]. Schmidt AJ indicated that what was required on a summary judgment application was that “the Court has a high degree of certainty about the ultimate outcome of the proceedings” and that there is “no real defence”.

22. In Martin v Gill [2025] NSWSC 385, Pike J, at paragraphs 23 and following, considered an application for summary dismissal. Whilst that, of course, looks at the position of the plaintiff rather than the defendant, the principles to be applied are similar. I have been assisted by his Honour’s clear statement of the principles. His Honour followed a number of cases, including Spencer v Commonwealth of Australia (2010) 241 CLR 118, where French CJ and Gummow J observed that, “where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue”.

23. The decision of Pike J in Martin v Gill reflects Court of Appeal authority: I refer in particular to AD v Commissioner of the Australian Federal Police [2018] NSWCA 89 at [10], per Beazley P (as Her Excellency then was), which was agreed with by Meagher JA and Gleeson JA; see also Burton v Office of the Director of Public Prosecutions [2019] NSWCA 245, in particular per White JA, at [47]-[50], where his Honour, in paragraph 49, quoted the paragraph of Spencer v Commonwealth of Australia, which I have earlier referred to. In AD v Commissioner of the Australian Federal Police, Beazley P summarised the various authorities as saying that a Court should not exercise its powers of summary determination of a proceeding “except in clear cases”.

24. I take those various authorities into account in my subsequent consideration of the material and the express denial by Mr Strangio on behalf of the defendants as to the execution of the various documents.

25. There is an issue in this case also, having regard to the evidence which establishes that the third defendant, Mr Strangio, appears to remain bankrupt. Under s 58(1) of the Bankruptcy Act 1966 (Cth), when a debtor becomes a bankrupt, the property of the bankrupt, not being after-acquired property, vests forthwith in the Official Trustee or a registered trustee. After-acquired property of the bankrupt vests, as soon as it is acquired by, or devolves on, the bankrupt, also on the Official Trustee or a registered trustee. However, that is subject to certain exceptions. Section 116(1)(a) indicates that property divisible among creditors includes all property that belonged to, or was vested in, a bankrupt at the commencement of the bankruptcy, or has been acquired or is acquired by him or her, of has devolved or devolves on him or her, after the commencement of the bankruptcy and before his or her discharge. However, in the present case, the third defendant did not acquire property but allegedly gave a guarantee in relation to the obligations of another.

26. It can be readily understood that, after a person becomes bankrupt, they can enter into obligations, such as a lease of residential property, in order to continue their lives. The sections referred to do not suggest that a liability of a person incurred after bankruptcy cannot be enforced, for example, by a landlord or, if the bankrupt has done so, concerning a tort committed by the bankrupt.

27. No section or authority was brought to my attention raising any issue with this approach, and, as presently advised, I do not see that as being a problem in relation to the current matter.

28. It seems, from the material before me, that a number of the documents in question were allegedly signed electronically. It appears that this is permitted under s 9 of the Electronic Transactions Act 2000 (NSW) if the requirements are satisfied.

29. Relief is also sought by the plaintiff under the Personal Property Securities Act 2009 (Cth). Under s 123 of that Act, a secured party may seize collateral by any method permitted by law, if the debtor is in default under the security agreement. Section 129 of that Act allows the secured party to dispose of collateral if the secured party has seized the collateral in the exercise of a right to seize the collateral.

30. In the light of the authorities and legislation, which I have set out above, the issue turns on whether this is a “clear case” in favour of the plaintiff for summary judgment.

31. The background to the matter is set out in the pleadings which have been filed in the matter. The plaintiff commenced these proceedings by a Statement of Claim filed on 24 June 2024. In the Statement of Claim, the plaintiff asserts an entitlement to some $192,321 against the defendants, arising out of chattel mortgage agreements relating to two pieces of construction equipment, and also guarantees said to have been given by D2 and D3. A Defence was filed on 22 July 2024, denying any liability, and asserting that the relevant documents were not signed by the defendants and that the defendants had no knowledge of them.

32. In substance, there is a complete denial by the defendants. A Reply was filed on 6 August 2024, which indicated that the relevant agreements were signed electronically, and that termination notices were served by email, with hard copies sent to the three defendants.

33. That, accordingly, leads the Court to the evidence, primarily in Exhibit YK3 to the affidavit of Mr Kumar sworn 4 April 2025, which is Exhibit B on the application. I have reviewed carefully the material in that Exhibit. I have been assisted substantially by the helpful submissions made by Ms Tarrant in relation to that material.

34. The material essentially consists of:

1. An initial commercial asset finance application made in relation to equipment by Chattel Security Pty Ltd, the former name of the first defendant, and documents submitted for that, including personal documents said to be related to the third defendant;

2. Very substantial documentation relating to the transactions entered into by, it is asserted, D1 and guaranteed by D2 and D3; and

3. Voluminous correspondence after alleged defaults occurred by D1 in relation to instalments to be paid by it.

35. It is submitted on behalf of the plaintiff that all of the documents, taken together, indicate:

1. That the first defendant entered into the two chattel mortgage agreements in question relating to the two pieces of equipment referred to in the Statement of Claim;

2. That guarantees were given by D2 and D3 in relation to the obligations of D1 under those agreements;

3. That moneys were advanced by the plaintiff to third parties at the direction of D1, following a 30% deposit being paid by D1 concerning two pieces of construction equipment;

4. That Mr Strangio, the third defendant, was aware of all these matters at all relevant times;

5. That there is no substance at all in the defences pleaded of Mr Strangio, including the Defence filed on 22 July 2024 and the matters raised in his affidavit of 3 June 2025;

6. That there was a proper termination for breaches by the plaintiff of the two chattel mortgage agreements;

7. That notices of termination were served properly; and

8. The plaintiff is are exercising its rights to recover moneys said to be owed under the chattel mortgage agreements.

36. It is also submitted that the plaintiff, in relation to the equipment mortgaged, has the rights, which I have previously referred to, under the Personal Property Securities Act 2009 (Cth).

37. There are many matters relied upon by the plaintiff in relation to the documentation, which is part of Exhibit B. It is regrettably necessary to point these out. I will attempt to be as brief as possible. They are as follows:

1. The documents at pp 1 to 14 of Exhibit B relate to an application for finance to the plaintiff by D1 which did not proceed. That was proposed by Mr Strangio. His date of birth of XX January 1954 is referred to (page 1). One relevant matter on page 1 of the documents is the email [email protected], which will be later relevant. The application clearly relates to D1 because of the ACN number. D1 later changed its name, as is shown on the company search: see Exhibit A;

2. At p 7 of Exhibit B is the purported signature of Mr Strangio. That signature is relevant as it apparently coincides with other signatures on documents relating to the matters in question. The email address there is slightly different to the one on the first page of the application. The signature on the application was dated 2 December 2022;

3. At p 8, it was noted that Mr Strangio had electronically viewed and signed the documents;

4. At pp 9 to 10 of the Exhibit is the driver’s licence for Mr Strangio. The date of birth coincides with the date of birth in the company searches which are Exhibit A, and is consistent throughout the documents. Further, the address in Dromana Parade, Safety Beach, Victoria is consistent with later documents;

1. At pp 11 to 12 is an electricity account for Mr Strangio, further connecting the application to him. It is noted that there are a number of different addresses for Mr Strangio in the documents which have caused some confusion;

2. It is noted that there was an approval at p 13 by the plaintiff, to a loan by D1, with Mr Strangio to be a guarantor, but that did not proceed;

3. From p 15 is the voluminous material relating to the two applications concerning the equipment in question. This first started with an application from a broker, Mr Julian Henry, on 14 August 2023, several months after the initial application with a different broker. I refer particularly to Mr Henry’s name. A finance broker, of course, acts not for the lender but for the borrower: Secure Funding Pty Ltd v Moon [2012] QSC 244 at [42] upheld on appeal: [2013] QCA 86.

4. At p 16 of Exhibit B is the application form. The licence number referred to on the application for Mr Strangio is different to the correct licence number, which may be found later at p 23 of the Exhibit. It is clearly, in my view, a typographical error. The same person is referred to from the details given. Mr Strangio places some weight on this in his affidavit, but to me, it appears clear that it is purely an error. The numbers are very similar;

5. The tax invoices for the two pieces of equipment proposed to be financed are at pp 19 to 22. It was eventually contemplated that a 30% deposit would be paid by D1;

6. There is a further copy of the licence of Mr Strangio at pp 23 to 24. This is consistent with the earlier copy of the licence at p 9;

7. There is a Medicare card for Mr Strangio at p 25. It is highly unlikely that anyone would have that card apart from Mr Strangio;

8. From p 26 and following is the broker’s privacy disclosure statement. The relevance of this document is that it has been signed electronically by Mr Strangio on 9 August 2023: see p 29. That was viewed electronically in relation to the consent form, which is shown at p 31;

9. From p 32 and following are the credit application supporting documents. This includes, at p 39, a Rate and Valuation Notice for a F Strangio at XXXX Street, Malvern East. It relates to a Notting Hill property which is one of the addresses used by Mr Strangio. I will come back further on this issue shortly;

10. There were a number of searches undertaken as part of the loan application documentation. See at p 44 and following concerning D1. At p 54 of Exhibit B is the commencement of documents relating to Mr Strangio. The identity details there are consistent with the earlier documents and the driver’s licence. I note that two addresses are given, including the Dromana Parade, Safety Beach address, which I have earlier referred to as on the driver’s licence: see p 23. Note the reference to the Notting Hill property;

11. At p 62 and following is the search concerning the second defendant, which includes as its principal place of business the other address in Notting Hill, which is referred to in a number of documents: see at p 39 and p 54.

12. The current directors of D2 are referred to at p 65. This includes Mr Strangio, with the same date of birth and the same address, at Notting Hill in Victoria, I have earlier referred to;

13. At p 77 is an identification matrix document, again referring to Mr Strangio, with the same date of birth, at the same address in Dromana Parade in Safety Beach: see also at p 23 and p 79;

14. At p 83 is the approval notice from the plaintiff, which requires a 30% deposit. That is for the first piece of equipment and is dated 17 August 2023. The guarantors were to be D2 and Mr Strangio;

15. The approval notice for the second piece of equipment is at p 85;

16. The requirements of the plaintiff for the loans are set out in an email dated 18 August 2023 sent at 4.31pm at p 87. This clearly refers to the need for “current ID” for the guarantors, including the front and back of a licence, as was later provided;

17. At p 88 is an important document. It purports to be a statutory declaration from Mr Strangio dated 17 September 2022. Mr Strangio makes some point about it being given before the loan application. However, in my view, the real issue is the substance of the statutory declaration, not when it was made. The importance of it is that it shows Mr Strangio’s current residential address, being the Notting Hill address, with his previous one being the Dromana Parade, Safety Beach address. This explained the change of address, but also links Mr Strangio to the two addresses on the relevant documents: see at pp 9, 23, 48, 54, 62 and 77.

18. At p 90 is a copy of the driver’s licence. This is consistent with the earlier driver’s licences, and was certified by the same person as the statutory declaration at 88. Also the signature on it is relevant to later signatures in question;

19. At pp 91 to 94 are the tax invoices addressed to D1 for the two pieces of equipment, less the 30% deposit in question;

20. At p 95 is an email from Mr Strangio to Julian Henry. The relevance of this is it shows a connection between Mr Strangio and Mr Henry, where it was denied that there was any connection: see Strangio affidavit paragraph 12. Also, importantly, the phone number on this email dated 20 August 2023, is the same mobile telephone number for Mr Strangio, which exists on the first application document at p 1 of the Exhibit, establishing a connection between the guarantor of the mortgage for the two pieces of equipment and the first application. See also p 96. Another relevant point is the email that this email came from, by Mr Strangio, which is the same email that was used in the first and second applications: see at p 7 and p 16;

21. At p 102 is the certificate of insurance currency for the equipment being financed, showing that the plaintiff, Westlawn Finance Pty Ltd, has an interest in both pieces of equipment. That connects the plaintiff to the two pieces of equipment. See also pp 91-94 for the invoices;

22. There is then, from p 103, a large amount of documentation relating to the chattel mortgages. It is clear that they have been signed electronically with Docusign. I am satisfied, from the terms of the chattel mortgages, that:

1. The proper law of the documents is New South Wales law: clause 17.9; and

2. That the documents may be signed electronically: clause 17.17. I am also satisfied, from the contents of the documents, that the entitlements of the plaintiff, set out in the Statement of Claim, as to the powers are satisfied;

27. The documents are divided for the two pieces of equipment and involve chattel mortgage agreements and guarantees. They relate to two numbered contracts. The first is contract 6811, commencing at p 105;

28. At p 106, it shows that the contract is signed under s 127 of the Corporations Act 2001 (Cth) by Mr Strangio, who at that time was the only director of D1. See also the signature in the Docusign box at p 129. The chattel mortgage has the usual payment obligations, indemnities and the rights of early termination clauses 3, 10 and 11. I have reviewed these clauses and am satisfied that the plaintiff has been given power under the agreements to sue for amounts outstanding and, upon default, has the power to take possession of the equipment involved. Both agreements also allow for the registration of security interests under the Personal Property Securities Act 2009 (Cth); see cl 16.1-.2. There are two guarantees, one apparently given by D2 and one apparently given by Mr Strangio. The guarantee given by D2 commences at p 115: see cl 2. That guarantee is also governed by the laws of New South Wales and allows electronic signing; see cl 7.7;

29. Importantly, at p 118 the signature of Mr Strangio is partly electronic, but it is also an actual signature, perhaps replicated, which is not dissimilar to other signatures of Mr Strangio: see at p 24, p 88;

30. At p 119 and following is the third defendant’s alleged guarantee. It has similar clauses as previously discussed. It is also subject to the laws of New South Wales: see cl 7.7;

31. Mr Strangio allowed direct debiting: see p 123. His electronic signature as the guarantor and also on behalf of the second defendant as guarantor is at p 127;

32. There is an important document at p 129, which notes that electronic signing was permitted. There also is an “identification method” of “Government issued” identification. No doubt it is referring to the driver’s licence provided in support of the application. This is the same identification document as the document referred to at p 87;

33. There is then a similar bundle of documents relating to the second chattel mortgage, commencing at p 134 for contract 6828. It is unnecessary for me to go through these documents in detail, but they contain similar clauses. I do want to refer to the guarantor’s signatures for Mr Strangio at p 158, which are remarkably similar to the signatures on the licences which have been given in identification support for the loans: see at p 23;

34. See also the Docusign signature at p 159 and p 160;

35. At pp 165 to 166 are the amounts funded by the plaintiff after the deposit of 30% was paid;

36. From p 171 is extensive correspondence relating to alleged defaults by the defendants. The documents show that the transactions were settled on 21 August 2023, and repayments commenced from that time. There was no issue with payments, it seems, until 9 March 2024;

37. The email addresses to which emails were sent, at p 172, by Westlawn, are similar to the email addresses on the initial application, at p 1. See also the consistent connection with Mr Strangio with the email from him sent on 2 April 2024, at p 176;

38. The email from Mr Strangio at p 193, is from the email address [email protected], which is the email address given in other documents, and particularly in the first application at p 1. This connects Mr Strangio to the first application;

39. At p 194 is an email where the plaintiff explains to Mr Strangio that the documents were signed digitally, and the money was forwarded to the person providing the equipment;

40. At p 201 is an email response from the plaintiff to Mr Strangio, referring to the broker, Julian Henry. There is no email from Mr Strangio denying or disputing that that was his broker, being the broker for the application relating to the two pieces of equipment in question;

41. At p 204 is an email from Mr Strangio, which was sent from the same email address as is listed on the two privacy documents on both applications: see pages 1, 7, 31. That connects Mr Strangio to the correspondence;

42. I am satisfied from the documents at p 204 and following, in the light of the substance of Mr Kumar’s 4 April 2025 affidavit, that termination notices were sent to the correct email addresses, terminating the contracts and asserting rights under the guarantees: affidavit paragraphs [29]-[31]; Exhibit B pages 207-215;

43. At p 216 and following are the demand notices from the plaintiff for the amounts owing. See also Kumar at [30];

44. At p 224 is a summary of the position of the plaintiff, as forwarded to Mr Strangio with numerous attachments;

45. The plaintiff relies on the mercantile agent’s notes from p 289. There is no affidavit from the mercantile agent, and it is difficult in my view putting much weight on the material.

38. The question, therefore, in the light of all of the material I have referred to, and having regard to the affidavit evidence of the plaintiff, is whether I am satisfied that this is a “clear case” for a summary judgment and that the Defence should be struck out. In essence, it turns on whether I am satisfied that the denial by each of the defendants that they signed the documents and are, therefore, liable to the plaintiff, has any substance, or whether the preferred position is that the defendants are liable.

39. Having regard to all the material before me and the detailed analysis, which I have undertaken above, I am satisfied to the high standard required that:

1. The first defendant entered into the two chattel mortgages;

2. The second defendant gave guarantees in relation to the chattel mortgages;

3. The third defendant gave guarantees in relation to the chattel mortgages;

4. That the plaintiff advanced the moneys as proposed by the first defendant, and to the knowledge of the second and third defendants, to the equipment suppliers;

5. That the first defendant commenced payments until 2024 pursuant to the documents and agreements;

6. That Mr Strangio was involved at all relevant times in relation to both the first application for finance and the second application for finance; and

7. That there is no substance whatsoever in the defences which have been put forward on behalf of the defendants. The connection of the transactions to each defendant is clearly established and there is a "clear case" for summary judgment.

40. In those circumstances, I turn back to the orders that are sought. I make the following order:

In relation to the Notice of Motion filed on 9 April 2025:

1. There be summary judgment in favour of the plaintiff against each defendant, pursuant to Part 13.1 of the Uniform Civil Procedure Rules 2005; and

2. The Defence of the defendants is struck out, pursuant to Part 14.28 of the Uniform Civil Procedure Rules 2005.

[His Honour then dealt with costs and quantum issues.]

**********

Amendments

11 June 2025 - Deletion of precise details of address

Decision last updated: 16 June 2025