- Agar v Hyde

Judgment 1By Interlocutory Process filed on 10 October 2012, the Second Plaintiff, Ledir Investments Pty Limited ("Ledir Investments") seeks summary judgment against the Third Defendant, Ian Aboud, pursuant to r 13.1 of the Uniform Civil Procedure Rules 2005 (NSW) as to that part of the claim for relief set out at paragraph 8A.4A of the Fourth Amended Originating Process and the associated claims for relief in the Fourth Statement of Claim, including judgment for $1,050,000 and interest pursuant to section 100 of the Civil Procedure Act 2005. I will refer to Mr Ian Aboud, without disrespect, as "Ian". Background facts 2The proceedings were commenced by Originating Process filed on 18 May 2010. The First Plaintiff is Ms Rosemary Aboud. I will refer to Ms Rosemary Aboud, without disrespect, as "Rosemary". The Second Plaintiff is Ledir Investments, for whom Rosemary brings proceedings by leave granted under s 237 of the Corporations Act 2001 (Cth). The First Defendant is Ledir Enterprises Pty Limited ("Ledir Enterprises"), of which Ledir Investments is a subsidiary. The Second and Third Defendants are Mr David Aboud, who was at relevant times a director of Ledir Investments, and Ian, who are Rosemary's brothers. I will refer to Mr David Aboud, without disrespect, as "David". The Fifth Defendant, Mandala Pty Limited ("Mandala"), is a company of which Ian is the sole shareholder and director. The wider proceedings seek, inter alia, orders that Ledir Enterprises be wound up and other orders on the grounds, inter alia, of oppression and on the just and equitable ground. 3The application for summary judgment is directed to the amounts described in the pleadings as the "Ian Aboud 2008 Payments". That term does not seem to be defined in the pleadings but apparently refers to amounts of $50,000 paid to Ian on or about 24 September 2008 and $1 million paid to Ian or Mandala on 23 December 2008. The relief sought in that paragraph is sought in the alternative to claims for relief under s 1317H of the Corporations Act 2001 (Cth) arising from alleged breaches of ss 180, 181 and 182 of the Corporations Act, a claim for damages under s 1324 of the Corporations Act, a claim for declaratory relief in respect of breach of fiduciary duty and a claim for equitable compensation in specified amounts. 4The relief sought in the Originating Process appears to reflect the matters pleaded in paragraphs 67C.1-67C.11 of the Fourth Amended Statement of Claim which relevantly plead that: The Ian Aboud 2008 Payments were not in discharge of any legal obligation by Ledir Investments; were not a gift by Ledir Investments; were paid at Ian's request; and were paid to Ian or alternatively to Mandala. Ian has acknowledged that he is liable to repay the Ian Aboud 2008 Payments to Ledir Investments. That allegation is particularised by the accounts of Ledir Investments for the years ended 30 June 2009 and 2010 signed by Ian. It would be unjust if the Ian Aboud 2008 payments were not repaid to Ledir Investments. Those payments have not been, or have not fully been, repaid to Ledir Investments. Ian is liable to Ledir Investments in the amount of the Ian Aboud 2008 Payments, or that amount less any repayments which have been made on account of them, as money lent by Ledir Investments to Ian, or money paid by it to Mandala at Ian's request, or money had by Ian to Ledir Investments' use. 5Ledir Investments relies in this application on two affidavits of Mr Michael Michell, Rosemary's solicitor, dated 11 October 2012 and 3 December 2012; Rosemary's affidavit affirmed 29 November 2012 as to her belief as to the absence of a defence; admissions said to be made in the pleadings and numerous documents contained in a Court Book. During the course of oral submissions, I asked Counsel for Ledir Investments to identify the facts on which the relevant claim was based, underlying the application for summary judgment under Uniform Civil Procedure Rules r 13.1 and Counsel provided a document titled "Plaintiff's Summary of Facts Beyond Serious Dispute" which was said to support the application, to which I refer below. Applicable legal principles 6Rule 13.1 of the Uniform Civil Procedure Rules relevantly provides that: "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, 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 claim, 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." 7This rule, in its terms, permits but does not require the Court to grant summary judgment if the matters specified in paragraphs (a)-(b) are satisfied. The applicable principles in respect of a summary judgment application are well established. Before a Court will give summary judgment, it is necessary for the Court to reach a high level of satisfaction that the order should be made, and the power to order summary judgment should be sparingly employed: Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129; Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598 at 602-683; Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552; (2000) 173 ALR 665; Cosmos E-C Commerce Pty Ltd v Bidwell & Associates Pty Ltd [2005] NSWCA 81 at [37]-[38]; Westpac Banking Corporation v Lahood [2011] NSWSC 1057 at [15]. 8In General Steel Industries Inc v Commissioner for Railways (NSW) above, Barwick CJ observed that great care was to be exercised to ensure that a plaintiff was not improperly deprived of the opportunity for the trial of the case "under the guise of achieving expeditious finality", and, on the other, that the summary intervention of the court was not reserved for cases where "argument is unnecessary to evoke the futility of the plaintiff's claim". In that case, his Honour was satisfied that a statement of claim did not disclose a reasonable cause of action so that the Court should strike it out. In Agar v Hyde above (at [57]), the plurality of the High Court noted that his Honour's observation should not be given "canonical force" but that: "It is, of course, well accepted that a court whose jurisdiction is regularly invoked in respect of a local defendant (most often by service of process on that defendant within the geographic limitations of the court's jurisdiction) should not decide the issues raised in those proceedings in a summary way except in the clearest of cases. Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way." That observation was in turn cited in Batistatos v Roads & Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 at [46]. While Ledir Investments points out that Ian has had the opportunity to take advantage of the Court's interlocutory processes in this matter, he has not had the opportunity of a trial as to the issues, including the opportunity to cross-examine witnesses as to matters of contested fact. 9Ian contends that, in order to grant summary judgment, the Court must be satisfied that liability under one or other of the alternative cause of actions pleaded by Ledir Investments has arisen and that Ian has no defence to that particular liability and that Ledir Investments is currently entitled to recover judgment from Ian on a summary basis in respect of that liability. In my view, it may be sufficient to support a summary judgment application that the Court is satisfied that one or other of the causes of action is established, and that Ian has no defence to them, without needing to distinguish between them. However, it is not necessary for me to reach a final decision as to that question, since I am not satisfied of that matter for reasons that I set out below. The issues in dispute 10In the "Plaintiff's Summary of Facts Beyond Serious Dispute", Ledir Investments advances the propositions that: "1. The payments were made by Ledir Investments: a. The $50,000 by a cheque in favour of Ian Aboud; b. The $1 million by a bank transfer to Mandala; c. The Defendant does admit they were made from Ledir Investments' bank account. 2 The payments were made to Ian Aboud or to Mandala at the direction of Ian Aboud: a. As to $50,000: i. [T]he cheque is in Ian Aboud's favour; ii. At paragraph 51(g) it is pleaded that the payment was made to Ian Aboud, and the Defendant at paragraph 51 admits that the payments to Mandala and Ian Aboud were made. b. As to the $1 million, though paid by transfer to Mandala: i. Ian Aboud says the payments were to him, albeit that he says they were from the [Ledir] Trust; ii. Ian Aboud says that he asked for payments to be made to him; iii. Ian Aboud asked for payments for him to be made to Mandala; iv. The payments do not appear as payments made to Mandala in either its accounts or its tax returns; v. Mandala's tax returns and accounts are only explicable on the basis that Ian Aboud maintained a loan account with Mandala and the payments [sic]. 3 The payments were not a dividend from Ledir Investments. There is no evidence of a dividend being declared, either in the form of accounts or any resolution of the directors to that effect. 4. The payments were not in discharge of any other obligation of Ledir Investments: a. There is no evidence of any. b. Nobody posits any such obligation other than possibly an obligation to pay a dividend as to which see above. 5. The L[edir] I[nvestments] accounts record a loan to Ian Aboud. He has signed those accounts, as has David Aboud. 6. Accepting for the purpose of this application Ian Aboud's evidence that he believed at the time that he was receiving a distribution from the Ledir Trust, the only evidence of his subsequent belief is his 2009 tax return, which is contrary to that. He does not say that his tax return is wrong. 7. If the accounts recording a loan are incorrect, there is no other proper basis for the payment of the amounts from Ledir Investments. a. There are no resolutions of the directors of Ledir Investments recording any basis of the payment from Ledir Investments. 8. For the purposes of this application, Ian Aboud and David Aboud were and are the directors of Ledir Investments." 11The first question which here arises is who made the relevant payment and the second question is to whom it was made, or by whom it was received. The second proposition, that the payments were made to Ian on the one hand or Mandala at his direction (so that he had first derived the payment, rather than it being made to Mandala in its own right) is critical, since the application is for summary judgment against Ian. 12The case for a receipt by Ian is stronger in respect of the $50,000 payment, where it appears a cheque for $50,000 was drawn on Ledir Investments' account in favour of Ian and then deposited to Mandala's account. The position is less clear in respect of the payment of $1 million on or about 24 December 2008 which was apparently made by electronic funds transfer from the account of Ledir Investments to the account of Mandala. David's evidence (which was not admitted as truth of the asserted fact) was that the Ledir Trust ("Trust") distributed the amount of $1,050,000 "to Ian" and that Ian instructed the payments to be made to Mandala. A working paper from the accountants' file for Ledir Investments (which was not admitted as proof of the asserted fact) purports to show that the $1,050,000 was paid to Ledir Enterprises, then the Trust, then to Ian, although the evidence would otherwise indicate that the amount of $1 million was paid, in the first instance, to Mandala rather than to Ian directly. 13Ledir Investments contends that it is clear that David intended the payment to be made "for Ian's benefit". It is difficult to assess the accuracy of that statement, where no evidentiary reference for it is provided; however, even if it were the case that Ledir Investments intended that Ian should benefit from a payment made to a corporate entity controlled by him, Mandala, that does not necessarily support treating a receipt by Mandala as either made at Ian's request or as otherwise amounting to a receipt by Ian. A receipt by Mandala also does not necessarily become a receipt by Ian, even if, as it appears is the case, Ian declared the payment as distributions to him in his tax returns, although that would be relevant evidence to support such an inference. Ian's evidence, on which Ledir Investments relies, is that all of his banking went through Mandala's bank account and that he used Mandala's bank account for most transactions. This evidence may support a finding a trial that the receipt by Mandala was, in truth, a receipt by Ian; but it does not seem to me to be sufficient to exclude a defence available to Ian that the monies were in fact received by the corporate entity and there is, as a matter of law, a distinction between the corporate entity and himself. 14Ledir Investments also relies on Ian's Defence where, unsurprisingly, he admits that the payment was made by Ledir Investments to Mandala but denies that it was made to him. The Plaintiffs contend that this is addressed by their alternative pleading that payment was made to Mandala at Ian's request. Also unsurprisingly, Ian does not admit that allegation. It may well be possible for the Plaintiffs to establish, at a trial, that Ian made such a request, expressly or impliedly, but that is not, in my view, presently established with a sufficiently "high degree of certainty" that Ian could properly be shut out from running a case to the contrary. 15The Plaintiffs also contend that: "The court can infer that Ian Aboud had at some time provided David Aboud with the bank details of Mandala and requested David Aboud, when transferring funds to him, to transfer them to Mandala. Ian Aboud's receipt of the 2007 funds in this fashion itself operated as a tacit request or acceptance that subsequent payments be made to him by payment to Mandala." This submission refers to two payments totalling $2 million made to Ian in May and June 2007, although those payments were not the subject of the summary judgment application. Submissions were made before me as to the nature of the 2007 payments, but those submissions did not distinguish between those matters (if any) that were admitted and those matters that were not, so it is not possible for the Court to approach these issues on the basis that any particular matters are uncontested. It is not possible to reach findings as those matters that were contested in that regard without a substantive hearing as to the matters in dispute in the proceedings. (It is convenient to add that, in a similar fashion, submissions were also made as to what was known at various times and as to what emerged from various tranches of discovery. Again, it is not possible for me to have regard to those matters in determining this application, where they were neither the subject of evidence before me nor was there identification of any aspect of it that was common ground between the parties.) While the Court may, at a final hearing, draw the inference that is sought to be drawn from the 2007 payments, I again do not consider the correctness of that inference has a sufficient degree of certainty to warrant depriving Ian of the opportunity to contest it at a trial. 16Ledir Investments also relies on the existence of a loan account between Ian and Mandala; however, a suggestion that Mandala advanced the relevant monies to Ian, under such a loan account, would be consistent with the receipt of the monies by Mandala from Ledir Investments in its own right, and inconsistent with Ledir Investments' case that those monies were received by Ian in his own right. The position is further complicated by the fact that the monies received by Mandala in turn appear to have funded a payment by cheque from its account to Ian's wife or former wife, rather than being received by Ian himself; although Ledir Investments in turn submits that Mandala's financial statements dated 30 June 2009 do not record the receipt of the amount from Ledir Investments or the payment of it to Ian's wife or former wife. 17The next question raised by the summary judgment application and reflected in the "Plaintiffs' Summary of Facts Beyond Serious Dispute" is the character of the relevant payments. Ledir Investments' primary position is that the Ian Aboud 2008 payments are repayable by Ian as money had and received, or alternatively as a loan made on the authority of one of Ledir Investments' directors, David. However, Ledir Investments also pleads, in paragraph 55A of the Statement of Claim, a characterisation of the Ian Aboud 2008 Payments as a distribution from the Trust, although that characterisation is in turn not admitted by Ian. 18Ian in turn contends that the Payments were made as a distribution to him as a beneficiary of the Trust. There is evidence that he is a beneficiary of that Trust, since he is a child of Mr Lewis Aboud. There are at least some documents of the trustee of the Trust, Comserv (No 1650) Pty Limited ("Comserv") that are consistent with that characterisation of the payments. Ledir Investments contends that no weight should be given to those documents, apparently on the basis that they are not documents of Ledir Investments. Nonetheless, they seem to me to be relevant as establishing the factual circumstances in which the relevant payments were made. 19The minutes of meeting of the directors of Comserv as trustee for the Trust held on 24 September 2008, purportedly attended by David as Chairman and Ethel Aboud (by her attorney Ian) record a resolution that an interim distribution of $50,000 be paid to Ian. Ian's evidence as to the $50,000 is that there was no discussion about the payment being a loan and, as recorded in the resolution of Comserv dated 24 September 2008, he understood the payment to be a distribution from the Trust. The minutes of a meeting of directors of Comserv as Trustee for the Trust held on 23 December 2008, purportedly attended by David and Ethel Aboud (by her attorney Ian) purportedly record a resolution for an interim distribution to be made to Ian of $1 million. Ian's evidence is that there was no discussion that he can recall about the payment of $1 million being a loan and, as recorded in the resolution of Comserv dated 23 December 2008 and he understood the payment to be a distribution from the Trust. The minutes of a meeting of the directors of Comserv held on 4 September 2009 attended by David and Ian purportedly ratified the making of various distributions of funds of the Trust to various members of the Aboud family, including interim distributions of $50,000 paid to Ian on or about 24 September 2008 and $1 million paid to Ian on 23 December 2008, and also ratified the grant of loans of funds of the Trust to David and Ian in different amounts. 20As Ledir Investments point out, there are difficulties with the corporate decision-making recorded in these minutes, including that the directors of Comserv were Mrs Ethel Aboud (as to whom a question of capacity existed at the relevant time) and David; and that Ian is recorded as attending the first two meetings as Mrs Aboud's attorney, whereas a director's responsibilities cannot be discharged by a person acting in that capacity (Mancini v Mancini [1999] NSWSC 799 at [30]-[31]). Ledir Investments also submits that Ian was not a director of Comserv, and points out that his appointment as such was not notified to the Australian Securities and Investments Commission. Ian in turn contends that David was the only remaining director of Comserv, on Ethel Aboud's incapacity, and was entitled to appoint Ian to fill a casual vacancy. However, I accept Ledir Investments' submission that there is no evidence that he did so. Nonetheless, as Ian points out, it is arguable that the resolutions of Comserv could have been passed by David alone, since there is, at least, uncertainty as to the minimum number of directors required for an effective resolution of that entity. 21Ledir Investments also contends that the distribution contemplated by these minutes never occurred, because Ledir Investments did not pay the money to Ledir Enterprises, which did not pay the money to the Trust, which did not distribute the money to Ian, and it relies on the accounts of the relevant companies to establish that proposition. Ledir Investments points out that the 2009 accounts of Ledir Investments record a liability by Ian to Ledir Investments of $1,050,000; and that the 2010 accounts of Ledir Investments record a reduction in that liability, and a new liability described as "Ian Aboud 2010" the sum of which is greater than $1,050,000. The recording of the payments as loans in the accounts of Ledir Investments for FY09 and FY10 appears to significantly post-date the making of the Payments, since those accounts were apparently prepared in May and June 2011. Ledir Investment's case in this regard appears to be that the references in the minutes of Comserv to payments of the relevant amounts as distributions from the Trust should be disregarded; the statement in the 2009 accounts of a liability of $1,050,000 by way of loan should be treated as correct; and the inconsistency of the statement in the 2010 accounts as to the amount owed should be ignored, because a new liability had been introduced in those accounts so that the amount owed was then greater than the amount recorded in the 2009 accounts. 22Ian's evidence is that he did not notice the entries in Ledir Investments' 2009 accounts referring to a receivable of $1,050,000 for 2009, and he understood those monies had been paid to him by the Trust not by Ledir Investments. His evidence is that he does not know why that amount was reduced in the financial records of Ledir Investments to $923,951 in the accounts for 30 June 2010. Ian's evidence is that he has no recollection of any conversation in which he agreed to those amounts being recorded as a loan in the accounts of Ledir Investments or agreed that they would be repaid by him; that he had received no document recording any terms of the alleged loans; and had received no demand from Ledir Investments for repayment of those amounts. Ian accepts that neither his nor Mandala's tax returns for FY09 refer to the Payments being received as trust distributions but contends that matter is not determinative since an amended tax return may be required depending on the outcome of the proceedings and Ledir Investments' claim. 23A working paper prepared by Ledir Investments' accountants recording payments to Ian from Ledir Investments to Ledir Enterprises, then to the Trust and then to Ian, potentially support Ian's characterisation of the payments as a distribution from the trust rather than a loan from Ledir Investments. The evidence of the more senior accountant involved in advising the Ledir Group is that he cannot recall why the relevant amounts were paid, although he then, without identifying any reasons, characterises the payments as loans. The position is further obscured by evidence of a second accountant who assisted with the matter that his recollection that the amount of $4,439,273 was paid out by the Trust to Ledir Enterprises as a loan in the 2007 financial year as part of a strategy for the distribution of assets in the Ledir Group, then reclassified (for reasons which are not explained) as a dividend/distribution in the 2008 year. That accountant also gives evidence of a conversation in late 2009 with David regarding a payment of $1,050,000 to Ian from Ledir Investments, which he then characterises as a loan, apparently on the basis that little or no franking credits were then available to the Ledir Group. That evidence might suggest that a characterisation of the transaction as a loan may be more convenient for the Ledir group, but it does not follow that more convenient characterisation reflects what occurred as a matter of fact. His evidence was also that he was not aware that that payment was to be "reclassified" as a dividend/distribution and he was not instructed that was to occur; however, the reference to a "reclassifi[cation]" depends on a premise that a previous characterisation of the transaction as something other than a dividend or distribution has been established. 24Ian also refers to Division 7A of the Income Tax Assessment Act 1936 (Cth) which has effect that payments made by a private company to a shareholder, or an associate of a shareholder, are taken to be dividends unless one of the exceptions in Subdivision D applies. Ian submits that the effect of Division 7A of the Income Tax Assessment Act, so far as it treated the Ian Aboud 2008 Payments as a dividend, although designated in the accounts of Ledir Investments as a loan, was that Ian can be under no obligation to repay those amounts to Ledir Investments. That submission has the difficulty that, as Mr Fernon (who appeared for Ian) accepted in submissions, the deeming effect of that Division takes effect for tax purposes and will not necessarily alter the rights of the parties inter se. However, there is real force in Mr Fernon's further submission that the effect of that Division may make it unlikely that the parties would have intended that a payment be made to Ian as a loan and repayable in full by him on demand if the would be taxed on the receipt as a deemed dividend under Division 7A. That submission may also be supported by evidence that Ina in fact paid tax of $509,336 on monies received from the Ledir Group, although that evidence is unclear as to which payments were taxed and on what basis (Ian affidavit 8.11.2012 [129]). That is a matter which, in my view, is also a significant obstacle to summary judgment which would prevent Ian from having the opportunity to, for example, address that issue in cross-examination of the representatives of the accounting firm involved in that matter who give evidence in Ledir Investments' case. 25There is, in my view, sufficient inconsistency within the documentation referring to the nature of the Ian Aboud 2008 Payments to create a substantial, indeed a fundamental, obstacle to summary judgment. While Ledir investments may succeed in establishing its contentions at trial, but I do not consider that this account of the relevant facts has the clarity that would be required for an order for summary judgment. 26A further question arises, if the Ian Aboud 2008 payments are properly characterised as loans, whether a demand for their repayment has been made. Ian relies on the absence of such a demand as excluding any current obligation of repayment. Ian's evidence is that he has received no demand from Ledir Investments for repayment of these amounts. There is authority that, where a loan is properly characterised as being repayable on demand, the lender may recover that money without making an anterior demand: Ogilvie v Adams [1981] VR 1041 at 1049. However, that proposition at least depends upon the proper characterisation of the loan, as a matter of construction, as payable on demand. To the extent that it is contended by Ledir Investments that the loans are payable on demand, the treatment of them in the accounts of Ledir Investments for the years ended 30 June 2009 as non-current liabilities is apparently inconsistent with that contention. 27Ledir Investments also contends that a claim made in proceedings itself constitutes a demand. It may be that the commencement of proceedings by Ledir Investments, authorised by its directors, would constitute such a demand. However, it seems to me that there is at least a seriously arguable case that a derivative claim, commenced by a single shareholder in Ledir Investments' name pursuant to leave granted by the Court, does not involve any decision by a properly authorised corporate organ so as to give rise to such a demand. Conclusion 28I accept that the facts alleged by Ledir Investments may well be sufficient to establish a claim under a loan contract or for unjust enrichment if those facts are established by Ledir Investments at trial. The Australian position appears to be that, if a payment is made at a person's request and for his benefit, there is no implied obligation to repay, by contrast with the position in the United Kingdom: Heydon v Perpetual Executors Trustees and Agency Co (WA) Ltd [1930] HCA 26; (1930) 45 CLR 111; Gray v Gray [2004] NSWCA 408; Schmierer v Taouk [2004] NSWSC 345; (2004) 207 ALR 301; Cambridge Electronics v McMaster [2005] NSWSC 198 at [10]. However, the Court may find an implied obligation to repay or that the payments were made by way of loan and are repayable on demand, where a payment is made by a company to its director or shareholder and no inference of a gift arises: Schmierer v Taouk above at [60]; Cambridge Electronics v McMaster above at [11]. In K. Mason, J.W. Carter & G.J. Tolhurst, Mason & Carter's Restitution Law in Australia, 2nd ed, [841], the authors observed that: "Where the payment is made at the defendant's request, there will usually be a contract. If there is not, restitution lies unless it appears that the plaintiff intended to make a gift." 29I accept that, as McDougall J noted in Cambridge Electronics v McMaster above at [6], the absence of records in Ledir Investments' accounts indicating that a payment was made in satisfaction of a debt or other obligation owed by Ledir Investments to Ian may well support an inference that no such debt or obligation existed, and the absence of reference to payment by way of gift may not be drawn where this was not properly recorded in Ledir Investments' accounts. However, his Honour made these observations in the course of findings at trial, and the fact that the Court can reach such findings, on the basis of evidence at a hearing, does not indicate that it can do so with the requisite level of certainty at a summary judgment stage where the evidence which will be given by witnesses on cross-examination is not yet known. 30It is apparent from the review of the facts and the inferences that Ledir Investments seeks to draw from them set out above that the documentation and evidence is confusing and contradictory. No doubt, that confusion and contradiction would be less had the corporate records of Ledir Investments or Mandala been better maintained; however, the confusion and contradiction in these records does not suggest the clarity of the factual position that would, in my view, be required for an order for summary judgment. 31In my view, a further difficulty with the application for summary judgment for this part of the claim (as distinct from judgment excluding the question of damages) is that Ledir Investments has not established the amount for which summary judgment should be given, even on its own case. Paragraphs 67C.10 and 67C.11 of the Fourth Amended Statement of Claim plead alternative cases, on the basis that either Ian has not repaid the monies, or has not repaid the monies in full and those cases would lead to different results. Those alternative cases in turn appear to reflect inconsistent information in Ledir Investments' accounts. I do not consider that summary judgment on a part of Ledir Investments' claims, that in turn left the question of damages on that part of the claim to be determined, would be consistent with the just, quick and cheap resolution of the real issues in dispute, a fortiori where the case as a whole has been set down for hearing in the near future. 32The Interlocutory Process filed 10 October 2012 should be dismissed. I will hear the parties as to the appropriate order for costs.