Growthbuilt Pty Limited v Paul Saad

Consideration

1. In order to succeed in its application for summary judgment under r 13.1 of the UCPR, the plaintiff must adduce evidence: 1. establishing the facts justifying the claim for relief; 2. of it is its belief that the defendant has no defence to the claim, or part of the claim; and 3. showing that there is no real issue to be tried.
2. It is not in dispute that the threshold for summary judgment is a high bar. The power to summarily determine proceedings must be exercised with caution and with a high degree of certainty about the ultimate outcome of the proceedings: see Spencer v Commonwealth [2010] HCA 28 at [53] and [55].
3. Generally, the Court will not deny a party a contested merits hearing unless the absence of a cause of action or defence is clearly demonstrated by the party applying for the order: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 and Singh v Varinder Kaur (1985) 61 ALR 720.
4. At the hearing, Mr Adelstein informed the Court that the defendant would not be advancing any defence to these proceedings and did not seek to challenge the plaintiff's right to judgment pursuant to the terms of the Deed of Variation.
5. Based on submissions made by the plaintiff's counsel, the concession by the defendant and evidence before the Court, I am satisfied that there are facts which justify the plaintiff's claim for summary judgment, and there is no real defence to the claim and no real issue to be tried.
6. The facts are clear. The defendant agreed to compromise his defence to the damages proceedings by entering into the Settlement Deed, which he did with the benefit of legal advice.
7. At the defendant's own instigation, the parties agreed to a variation of the Settlement Deed on terms which provided the defendant further time to pay the settlement sum (plus some interest) and that the plaintiff could seek judgment in the event that he did not do so.
8. The Deed of Variation represented an agreed compromise based on mutual promises of the parties to do certain acts in satisfaction of the original claims in the damages proceedings. Those mutual promises included the defendant's promise to pay the revised settlement sum and for the plaintiff to be entitled to enforce by way of consent judgment if payment was not forthcoming. The promises are legally binding and enforceable and the original cause of action from the damages proceedings no longer remains alive: McDermott v Black (1940) 63 CLR 161 at [183] to [185].
9. The evidence from the plaintiff's finance manager is that no payments have been made by the defendant in respect of the varied settlement sum or these proceedings and that the amount of $326,567.12 remains outstanding.
10. There is also evidence from the plaintiff's solicitor that he believes the defendant has no defence to the claim. While this evidence is not strictly in proper form, I accept the submission from plaintiff's counsel that the statement is based on information and belief from the defendant.
11. In those circumstances, I am satisfied that it is appropriate for summary judgment to be granted to the plaintiff in these proceedings and will make orders accordingly.

Costs

1. As the plaintiff has succeeded in its application, the usual rule is that costs would follow the event and the defendant would be ordered to pay the plaintiff's costs: r 42.1 UCPR.
2. Mr Adelstein submits that the Court should not adopt the usual rule because these proceedings should not have been maintained in this Court and should have been transferred to the District Court. He relies on r 42.34 of the UCPR, which applies to proceedings (other than defamation proceedings) where a plaintiff has obtained a judgment in an amount of less than $500,000 and would be otherwise entitled to an order for costs.
3. Rule 42.34(2) of the UCPR provides that: (2) An order for costs may be made, but will not ordinarily be made, unless the Supreme Court is satisfied that: (a) …the commencement and continuation of the proceedings in the Supreme Court, rather than the District Court, was warranted…
4. By the Settlement Deed and Deed of Variation the parties agreed that steps to enforce the consent judgment would be taken by filing a summons in this Court.
5. Given the amount of the judgment sum, the District Court was the appropriate Court to consider this matter. The parties should have recognised this and commenced these proceedings in that Court
6. That said, once these proceedings were commenced in this Court in accordance with the parties agreement, I do not think their continuation was not warranted such as to deprive the plaintiff of the benefit of a costs order, as Mr Adelstein submits.
7. Taking steps to transfer the proceedings to the District Court after commencement, as Mr Adelstein suggests, would have been likely to result in increased costs to both parties, which is not in the interests of justice. These proceedings have not involved a lengthy action requiring significant Court time or the resolution of complex questions of fact and law. They essentially require the Court to recognise and administer the agreement reached between the parties.
8. I also consider it relevant that at no stage before today was the issue of transfer to the District Court raised by the defendant.
9. Even if I were to accept Mr Adelstein's submission that r 42.34 is engaged because the proceedings were appropriately commenced but should not have been maintained in this Court, the Court retains a general discretion as to costs: Gladio Pty Limited v Buckworth (No 2) [2015] NSWSC 1462 at [24]. I see no reason why I should not exercise my discretion in this case in favour of a plaintiff who has obtained judgment and order the defendant to pay its costs.

Orders

1. Accordingly, I make the following orders: 1. Judgment for the plaintiff against the defendant in the sum of $326,567.12 (judgment sum) pursuant to r 13.1 of the Uniform Civil Procedure Rules 2005 (NSW). 2. Interest at the rate of 12% per annum is payable on the judgment sum from the date of these orders, on so much as is from time to time unpaid, pursuant to s 101 of the Civil Procedure Act 2005 (NSW), 3. The defendant to pay the plaintiff's costs of these proceedings as assessed or agreed.

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