Advantaged Care Pty Ltd v Yehuda

Judgment – EX TEMPORE – REVISED FROM THE TRANSCRIPT

1. By a Notice of Motion filed 21 January 2025, the Plaintiff seeks that summary judgment be entered in favour of the Plaintiff against the Defendant with respect to prayers 5 and 6 of the Plaintiff's Amended Statement of Claim.

2. The applicable principles to be applied in applications of this kind are not in dispute. Briefly, the level of certainty required as to the outcome of the proceedings is high: Batistatos v Roads and Traffic Authority of N**ew South Wales; Batistatos v Newcastle City Council (2006) 226 CLR 256 at [46]. It is not sufficient that the prospects of success are slight: Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91. The Plaintiff must show that any asserted defence is “so obviously untenable that it cannot possibly succeed” or is “manifestly groundless”: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-129.

3. The Amended Statement of Claim in these proceedings was filed on 31 October 2024. It is alleged that the Plaintiff is the operator of an aged care facility, that one of the residents of that aged care facility was the late Mr Danny Yehuda, who was the brother of the Defendant, and he resided at the facility from December 2016 until his death in April 2024. Mr Yehuda’s residence in the facility was governed by a residential agreement which provided for the payment of various fees, and which was the subject of a personal guarantee by the Defendant. Those fees were not, for a period before the resident's death, paid, such that it is alleged that there is a debt of at least $292,852.43 (before interest) that is owing.

4. The residential agreement includes terms as follows:

2.1 Grant of Licence

(a) We grant You a lifetime licence to occupy the Accommodation and use the Common Areas of the Care Facility for the Term.

(b) We will provide You with the Accommodation Services and Care Services from the date of this agreement until the end of the Term.

(c) You will pay to Us all money payable under this agreement in exchange for the grant of the licence and the receipt of the Accommodation Services and Care Services.

7.1 Accommodation payment must be made

In consideration of You paying the Accommodation Payment, We will grant you the right to occupy the Accommodation and provide the services described as forming part of that Accommodation.

12.1 Provision of Care Services

We will provide the Care Services and Accommodation Services to You in accordance with Your assessed care needs and Your care plan. In exchange for Us providing the Care Services and Accommodation Services to You, You will pay Us the Resident Fees set out in the Summary of Key Terms.

5. The Amended Defence was filed on 4 March 2025. Most relevantly, [7F] of the Amended Defence pleads as follows:

From at least December 2020, the plaintiff failed to provide the Accommodation Services and the Care Services to the Resident as required by the Agreement, the Aged Care Act and the Quality of Care Principles 2014.

Particulars

i. the plaintiff failed to provide appropriate bed rails or other equipment, and failed to appropriately supervise the Resident, so that on multiple occasions from at least December 2020, if not earlier, the Resident fell from his bed, including five times in the 12 months to 17 June 2022.

ii. on 17 June 2022, the plaintiff failed to appropriately supervise the Resident and failed to provide appropriate emergency assistance so that the Resident (a) fell from his bed; and (b) was not retrieved for at least 45 minutes;

iii. the plaintiff failed to provide appropriate food and hydration, so that on or around 30 August 2021, the Resident was admitted to St Vincent’s hospital for a period of around three weeks for treatment for dehydration;

iv. on several occasions, the exact dates being presently unknown to the first defendant, the Resident was left in soiled clothing;

v. on several occasions after the Resident’s mealtimes, the exact dates being presently unknown to the first defendant, the plaintiff left the Resident in a position that was not conducive to digestion, contrary to the Resident’s care plan;

vi. further, that the plaintiff failed to provide the Accommodation Services and the Care Services to the level required by the Agreement and having regard to the Resident’s high level of need may be inferred from the fact that there were usually only two care workers responsible for the Resident and 14 other residents.

6. Having regard to the clauses of the residential agreement set out above, I am not satisfied that in the event that [7F] of the Amended Defence is made out, that the Defendant's defence is so hopeless as to warrant summary judgment.

7. Resolution of the matter will no doubt require close consideration at trial. However, it seems to me that if the matters pleaded at [7F] are made good, there is a reasonably arguable defence to the claim in debt.

8. There was further argument about whether or not there was substantial performance, such that the doctrine of substantial performance may be engaged, but I am satisfied that that question, if it arises, would raise questions of fact that are not apt to be addressed in an application of this kind.

9. For those reasons, I propose to dismiss the application.

10. I order that the application is dismissed and that the Plaintiff is to pay the Defendant’s costs of the Notice of Motion on and from 21 February 2025 and that there otherwise be no order as to costs.

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