Asquith Leaf Pty Ltd and Banc Developments Pty Ltd v Pascale Audrey Madrid
Representation: Counsel: Mr Harker appeared for the plaintiffs
Source
Original judgment source is linked above.
Catchwords
Asquith Leaf Pty Ltd and Banc Developments Pty Ltd v Pascale Audrey Madrid
Representation: Counsel: Mr Harker appeared for the plaintiffs
Judgment (10 paragraphs)
[1]
Judgment
By Notices of Motion filed 12 December 2022, the plaintiffs, Asquith Leaf Pty Ltd ('Asquith') and Banc Developments (Bankstown) Pty Ltd ('Banc')in each matter seek summary judgment against the defendants Hugo Madrid ('Mr Madrid') and Pascale Audrey Madrid ('Mrs Madrid') or, in the alternative, orders that the defences be struck out in whole and default judgment be entered. The two matters have travelled together and the Court is hearing the Motions concurrently.
[2]
BACKGROUND
Asquith and Banc Developments (Bankstown) Pty Ltd ('the plaintiffs') were incorporated for the purposes of developing property at 190-194 Stacey Street in Bankstown, New South Wales ('the site').
The plaintiffs planned to construct a multi-story residential block of units at the site with Asquith as the developer and Banc providing project management services.
The plaintiffs allege that the defendants each entered into contracts for the sale of two 'off the plan' units to be constructed as part of the development at the site.
On 15 June 2016, Mr Madrid entered into a contract with the plaintiffs whereby the plaintiffs agreed to sell and Mr Madrid agreed to buy Unit A32 to be constructed at the site for a purchase price of $595,500.00 including a 10% deposit ('the Unit A32 contract').
On 8 July 2016, Ms Madrid entered into a contract with the plaintiffs whereby the plaintiffs agreed to sell and Ms Madrid agreed to buy Unit A20 to be constructed at the site for a purchase price of $592,500.00 including a 10% deposit ('the Unit A20 contract').
On 29 July 2016, the defendants provided bank guarantees to the plaintiffs' solicitors in the amounts of $59,550.00 and $59,250.00 being 10% deposits for the purchase prices for the Unit A32 contract and the Unit A20 contract ('the contracts') respectively.
On 28 November 2017, the plaintiffs extended the sunset dates for the contracts to 28 February 2020.
On 12 November 2018, the plaintiffs further extended the sunset dates for the contracts to 30 September 2020.
The defendants bank guarantees for the 10% deposits expired on 30 September 2019 and were not renewed.
On 12 March 2020, the defendants were served with Occupation Certificates in respect of units A32 and A20.
On 14 April 2020, the defendants sought a two-week extension of the settlement date for the contracts. On 15 April 2020, the plaintiffs agreed to extend the settlement dates to 22 April 2020 and 29 April 2020 respectively. The contracts were not completed by those dates.
On 15 July 2020, the plaintiffs served Notices to Complete on the defendants. The Notices to Complete required completion of the contracts by 31 July 2020.
On 30 July 2020, the defendants sought extensions of the Notices to Complete. The plaintiffs agreed to extend the expiry of the Notices to Complete until 15 September 2020.
On 15 September 2020, the defendants advised the plaintiffs that they were not ready to complete the contracts and sought a further one-week extension to the expiry date of the Notices to Complete. The plaintiffs agreed to extend the expiry date of the Notices to Complete to 22 September 2020.
On 21 September 2020, the defendants' solicitor advised the plaintiffs that the defendants would not be ready to complete the contracts by 22 September 2020.
On 23 September 2020, the plaintiffs served Notices to Terminate on the defendants in respect of both contracts.
On 14 January 2021, the plaintiffs put both units back on the market.
On 13 December 2021, the plaintiffs resold Unit A32 for $566,000.00. The sale with the new buyer was completed on 23 December 2021.
On 25 December 2021, the plaintiffs resold Unit A20 for $567,000.00. The sale with the new buyer was completed on 8 April 2022.
[3]
PROCEDURAL HISTORY
The plaintiffs filed separate Statements of Claim on 27 October 2021 seeking damages for breach the contracts against each of the defendants.
The defendants filed Defences on 16 December 2021.
The matters came before the Judicial Registrar on ten occasions.
On 16 February 2022 for a pre-trial conference and there was no appearance of the defendants.
On 13 April 2022, when there was no appearance for the defendants, the Judicial Registrar made the following orders:
Stood over for Directions (Case Managed List) on 19 May 2022 at 9:30am.
Notices to issue to the defendant at (i) hugoabell1980@gmail.com (ii) 18 Carter Street, Oran Park NSW 2570.
If no appearance for the defendant on 19 May 2022 the defence filed 16 December 2021 will be struck out under rule 12.7 of the Uniform Civil Procedure Rules 2005 and judgment entered for the plaintiff.
On 19 May 2022, the proceedings again came before the Judicial Registrar and the defendants appeared in person. The Judicial Registrar made the following orders:
Matter listed for Directions (Case Managed List) on 29 July 2022 at 9:30am before the District Court - Civil at Sydney.
Plaintiffs to serve draft Amended Statement of Claim by 26 May 2022.
1. If consent not given to draft Amended Statement of Claim by 22 June 2022, any application for Amended Statement of Claim to be filed and served by 9 July 2022 and returnable 29 July 2022.
2. Defendants to serve affidavits by 22 July 2022.
The Directions Hearing on 29 July 2022 was vacated. The matter was relisted on 11 August 2022.
On 11 August 2022, the defendants appeared in person before the Judicial Registrar who made the following orders:
Matter listed for Directions (Case Managed List) on 5 September 2022 at 9:30am before the District Court - Civil at Sydney.
Defendants to file any affidavit in support of an order for pro bono referral by 26 August 2022.
For directions on evidence and a hearing date (or the motion and the proceedings if no referral for pro bono assistance is made).
On 27 August 2022, the defendants filed the Affidavit of Hugo and Pascale Madrid dated 26 August 2022. The affidavit requested a pro bono referral.
On 9 September 2022, the defendants filed the Affidavit of Hugo Madrid dated 8 September 2022 which outlined reasons to support the application for a pro bono referral.
On 9 September, the proceedings again came before the Judicial Registrar and the following orders were made:
1. Leave is granted to the plaintiffs to file and serve an Amended Statement of Claim in the form of Annexure A to the Affidavit of Clancy Bennett dated 8 July 2022 by 16 September 2022.
2. Matter listed for Directions (Case Managed List) on 4 October 2022 at 9:30am before the District Court - Civil at Sydney for directions on defences, the defendants' evidence and a hearing date.
On 12 September 2022, the plaintiffs filed Amended Statements of Claim in each proceeding.
On 4 October 2022, the proceedings again came before Judicial Registrar Howard. The defendants did not appear on that occasion. Judicial Registrar Howard made the following orders:
Under rule 7.36 of the Uniform Civil Procedure Rules 2005 the defendants are referred to an Assistant Registrar for referral to a solicitor and/or barrister on the Court Pro Bono Panel for the provision of legal advice and/or representation.
Defences to be filed and served by 28 October 2022.
Matter listed for a Directions Hearing (Case Management List) on 1 November 2022.
If there is no appearance by the defendants, judgment may be entered for the plaintiff.
On 1 November 2022, the proceedings again came before the Judicial Registrar and Ms Hammond of Counsel, who had been appointed to act for the defendants pursuant to the pro bono referral, appeared for the defendants on that occasion. The Judicial Registrar made the following orders:
Extend time to the defendants to file a defence by 11 November 2022.
Matter listed for a Directions Hearing (Case Management List) on 15 November 2022.
On 15 November 2022, the proceedings again came before the Judicial Registrar. Ms Hammond of Counsel appeared for the defendants and advised the court that she would cease acting for the defendants. The Judicial Registrar made the following orders:
Under rule 7.39 of the Uniform Civil Procedure Rules 2005 the referral for Pro Bono assistance is terminated.
Matter listed for a Directions Hearing (Case Management List) on 22 November 2022.
Notices to issue to the defendants.
If no appearance for the defendants the defence filed 16 December 2021 will be struck out and judgment entered for the plaintiffs.
On 15 November 2022, the defendants filed the Affidavit of Hugo Madrid and Pascale Madrid dated 15 November 2022. That affidavit provided reasons, citing medical and financial difficulties, for the defendants' failure to comply with the temporal directions made by the Judicial Registrar.
On 22 November 2022, the proceedings again came before the Judicial Registrar, the defendants appeared in person and the Judicial Registrar made the following orders:
Defendants to serve a revised Amended Defence by 25 November 2022.
If consent not given to draft Amended Defence by 2 December 2022 a notice of motion seeking leave to amend the defence by filed and served by 9 December 2022 and returnable on 13 December 2022 at 9:30am.
Matter listed for a Directions Hearing (Case Management List) on 13 December 2022.
On 12 December 2022, the plaintiffs filed a Notice of Motion seeking summary judgment or in the alternative that the defendants' defences be struck out and default judgment in the plaintiffs' favour.
On 13 December 2022, the Directions Hearing was adjourned and the matter was listed for a further Directions Hearing on 3 February 2023.
On 2 February 2023, the plaintiffs filed written submissions in relation to the Notices of Motion filed 12 December 2022.
On 3 February 2023, the matter came again before the Judicial Registrar. Mr Harker of counsel appeared for the plaintiffs on that occasion and the defendants appeared in person. The Judicial Registrar made the following orders:
Defendants to serve affidavit in response to the Notice of Motion by 24 February 2023.
Affidavits in reply to be filed and served by 3 March 2023.
The Notices of Motion were listed for hearing on 17 March 2023.
[4]
Hearing on 17 March 2023
The plaintiffs' Notices of Motion filed 12 December 2022 were heard by me on 17 March 2023 and the defendants appeared in person unrepresented.
Mr Madrid explained various difficulties that the defendants had faced, including a lack of understanding of the law, the defendants' inability to afford to engage a solicitor and poor mental health. The defendants confirmed that they did not intend to nor expect to obtain any further legal representation.
I gave the defendants a further adjournment to give them a final chance to obtain any evidence and that the matter would be dealt with to conclusion on the next occasion, and I made the following orders:
Adjourned part heard before me to 10:00am on 14 April 2023.
I direct that any further evidence that the defendants wish to put before the court be filed and served by 4:00pm on Thursday 6 April 2023.
Motions listed for further hearing on 14 April 2023 before me.
[5]
Plaintiffs' Submissions
In written submissions filed 2 February 2023, the plaintiffs submit that the defendants are in breach of the contracts having failed to complete the purchases of the units following the issue of notices to complete.
The plaintiffs rely on the fact that the proceedings have been before the Court 10 times and the failure of the defendants to articulate an arguable defence to support their application for summary judgment or in the alternative, that the defence be struck out and default judgment be entered against the defendants.
[6]
Summary Judgment
The plaintiffs submit that the preconditions to summary judgment are satisfied in that:
there is clear evidence of the contracts, breach thereof and the plaintiffs' loss; and
there is evidence about the plaintiffs' belief that the defendants have no legitimate defence.
With regard to the Court's discretionary power to order summary judgment, the plaintiffs submit that there is no real question to be tried given that:
The defendants conceded, in an unfiled defence, that the plaintiffs 'entered a contract for the sale of land with the Purchaser';
The defence appears to be that the defendants received negligent advice from their conveyancer which is not a defence to a breach of contract, nor a basis for a set-off; and
There is no challenge by the defendants to the failure to complete the contract, nor the loss suffered by the plaintiffs.
The plaintiffs further submit that they should not be subject to further cost and delay given that the proceedings have been on foot for over 15 months and the defendants have failed to proffer any tenable defence.
[7]
Strike Out and Default Judgment
In the alternative, the plaintiffs submit that the defences should be struck out and default judgment entered against the defendants as the filed defences are effectively requests for further particulars and are controverted by the admission made in the unified defence filed 16 December 2021 on behalf of the defendants that they 'entered a contract for the sale of land'. Further, the plaintiffs submit that the defences are so untenable that they cannot succeed and should be struck out.
[8]
Summary Judgment
Rule 13.1 of the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR') provides as follows in relation to 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-
1. there is evidence of the facts on which the claim or part of the claim is based, and
2. 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.
1. Without limiting subrule (1), the Court may give judgment for the plaintiff for damages to be assessed.
1. In this rule, a reference to damages includes a reference to the value of goods.
The principles applicable to an order for summary judgment are well settled. The authorities were concisely summarised by Pearlman AJA in Cosmos E-C Commerce Pty Ltd v Sue Bidwell & Associates Pty Ltd [2005] NSWCA 81 at [37]-[38]:
'[37] The basis for the exercise of a court's jurisdiction to order summary judgment is not in doubt. In Dey v Victorian Railways Commissioners (1949) 78 CLR 62, Dixon J said, at p 91 that"…a case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury". In General Steel Industries Inc v Commissioner for Railways (NSW) and Ors (1964) 112 CLR 125 at 129. Barwick CJ stated that the jurisdiction to terminate an action "…is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion." Both those authorities dealt with the exercise of a power of summary dismissal of a plaintiff's claim, but, in Theseus Exploration NL v Foyster (1972) 126 CLR 507, which dealt, amongst other things, with the giving of summary judgment, Barwick CJ at 514 said:
'Perhaps the summary intervention to prevent the continuance of a plaintiff's action ought to be much rarer than the giving of summary judgment but there is sufficient correspondence in the two situations to make apposite to this case much of what I said in General Steel Industries v Commissioner for Railways (N.S.W.)..'
[38] Webster and Anor v Lampard (1993) 177 CLR 598 was also a case involving the exercise of a power to give summary judgment. At pp 602-603 in a joint judgment, Mason CJ and Deane and Dawson JJ cited both Dey v Victorian Railways Commissioners and General Steel Industries v Commissioner for Railways for the proposition that the power must be exercised with exceptional caution, and stated that "[n]owhere is that need for exceptional caution more important than in a case where the ultimate outcome turns upon the resolution of some disputed issue or issues of fact.'
Those paragraphs were cited with approval by Johnson J in Westpac Banking Corporation v Corry [2011] NSWSC 1014 at [14] and by Hidden J in Commonwealth Bank of Australia v Susan Hannaford Pty Limited [2012] NSWSC 1094 at [26].
The plaintiff submits that there is clear evidence of the contracts, their breach and the plaintiff's loss. I accept that submission.
In my view, the requisite material is available for me to be satisfied that this is a sufficiently clear case where there is no real question of fact or law to be determined. The defendants have put many matters before the Court and to the extent that they are relevant, I have taken them into consideration. However, I note that the defendants have not by their pleadings or otherwise sought to agitate any point of fact or law.
It is unfortunate that the defendants were unable to obtain legal representation for the hearing of the Motion. But having regard to the fact that the defendants had numerous opportunities to do so, they were unable to manage to be legally represented before me, however, there must be a point at which a determination is made and today is that day. I propose to enter summary judgment for the plaintiffs against the defendants.
The plaintiffs have handed up schedules including interest calculations and I propose to make orders in accordance with them.
[9]
ORDERS
I make the following orders:
1. I make an order in accordance with prayer 1 of the motion and pursuant to rule 13.1 of the Uniform Civil Procedure Rules 2005 (NSW) there will be summary judgment entered for the plaintiffs against Hugo Madrid in the amount of $200,155.33 inclusive of interest.
2. I make an order in accordance with prayer 1 of the motion and pursuant to rule 13.1 of the Uniform Civil Procedure Rules 2005 (NSW) there will be summary judgment entered for the plaintiffs against Pascale Madrid in the amount of $198,684.80 inclusive of interest.
3. The defendants are to pay the plaintiffs' costs of the proceedings as agreed or assessed.
[10]
Amendments
14 April 2023 - ';' removed from title
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Decision last updated: 14 April 2023
Parties
Applicant/Plaintiff:
Asquith Leaf Pty Ltd and Banc Developments Pty Ltd