Plaintiff v Defendant

Supreme Court of Victoria|2014-04-02|Before: LANSDOWNE AsJ

MORTGAGE RECOVERY - summary judgment - no appearance by defendant so reasons not pronounced in court - subsequent request for reasons for appeal - plaintiff's case proved - no substantive defence and matters raised in defence otherwise addressed or not relevant - no real prospect of success - no relevant matters of discretion - summary judgment given.

Mr A. Felkel for adjournment application only - no appearance otherwise entered

1 This was an application for summary judgment which I heard and determined on 2 April 2014 together with a similar application made in another matter S CI 2010 6772. That application for summary judgment was also made by Westpac Banking Corporation, in that proceeding against Ms Hou and her partner Mr Kanakaridis. The defendant Ms Hou in this matter, and defendants in the other matter Ms Hou and her partner Mr Kanakaridis, had solicitors on the record who were in communication with the Court as late as 1 April 2014. On that date they advised that Mr Andrew Felkel of counsel had been engaged to appear for both defendants but only to seek an adjournment. The solicitors indicated that Mr Felkel would need to withdraw from both proceedings in the event that the application for adjournment was unsuccessful, as it was in each matter.

2 As the defendants had entered an appearance at Court that day in relation to adjournment I gave detailed reasons in Court for the refusal of the adjournment. However, due to the pressure of other business in the list that day and because the substantive summary judgment applications were then unopposed the available court time was spent by counsel for the plaintiff taking me through the detail of the evidence and orders sought in this proceeding, and making brief submissions in relation to the other. Counsel for the plaintiff identified some points of difference in the other matter, and I raised some others. I was informed that apart from those points of difference, the evidence was otherwise in parallel with this matter. I indicated in Court that I would make the orders essentially as sought in this matter, but did not elaborate my reasons except as was apparent from discussion with counsel. In the other matter, I considered the evidence further in chambers, and made orders in chambers.

3 I have now been requested to express my reasons in each matter in writing as the defendant in this case and defendants in the other have appealed the orders. These are those reasons in this proceeding. I will provide separate reasons in relation to the other proceeding.

4 The proceeding commenced by filing of writ and statement of claim on 15 December 2010. The plaintiff sought possession of land known as 308 Ferrars Street South Melbourne and debt, at that time in the sum of $499,050.11. Interest and costs on an indemnity basis were also sought. The defendant filed a notice of appearance, defence and amended defence through solicitors who have remained on the record. I will return to the content of the pleadings shortly. By summons filed 6 September 2011 the plaintiff sought the following orders: amendment of its statement of claim, summary judgment for possession and debt (as at 2 September 2011 $538,692.98) and indemnity costs.

5 I was informed at the hearing of that summons on 2 April 2014 that the summons and supporting affidavits were not served at that time because the defendant in this matter and defendants in the other had lodged a dispute with the Financial Ombudsman Service. Those disputes were not determined until January of this year and accordingly the summons for summary judgment could not proceed until after that time. There were multiple adjournments by consent as between the solicitors pending the determination of the disputes.

6 The summons for summary judgment and supporting affidavits of Warren Leslie Wright sworn 18 August 2011 and John Pastro sworn 2 September 2011 together with their exhibits were served on the defendant by post to her solicitors on 6 February 2014. An affidavit of Alexia Schar sworn 21 February 2014 and her further affidavit of 27 March 2014 updating the sum sought were also subsequently filed and served.

7 The proceeding came before me for hearing on 2 April 2014. As noted above Mr Felkel on behalf of the defendant sought an adjournment. I refused the adjournment for detailed reasons given at the time which are now available on transcript. Mr Felkel then sought leave to withdraw which I granted. There was no other appearance for the defendant. After dealing with some other matters in the list that day, I returned to this proceeding and heard detailed submissions from Mr Hay for the plaintiff on the application for summary judgment and the other orders sought in the summons. Those submissions and my responses are also available on transcript.

8 In making the orders I applied the Court of Appeal decision Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd,[1] in which the Court of Appeal held by majority (Warren CJ and Nettle JA) as follows in relation to the test to be applied for summary judgment under s 63 of the Civil Procedure Act 2010 ("CPA"):

the test for summary judgment under s 63 of the Civil Procedure Act 2010 is whether the respondent to the application for summary judgment has a 'real' as opposed to a 'fanciful' chance of success;
the test is to be applied by reference to its own language and without paraphrase or comparison with the 'hopeless' or 'bound to fail test' essayed in General Steel;

it should be understood, however, that the test is to some degree a more liberal test than the 'hopeless' or 'bound to fail' test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent's case is not hopeless or bound to fail, it does not have a real prospect of success;

at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.

9 I first considered the proposed amendment to the statement of claim. The principal evidence in support of the application for summary judgment was given in the affidavit of Mr Pastro sworn 2 September 2011. His evidence differed from the statement of claim as pleaded in the writ. The statement of claim did not plead the variations to which Mr Pastro deposes at paragraphs 10 and 12 of his affidavit. The plaintiff sought leave in the summons to amend the statement of claim to plead these variations and to make other amendments, principally to the following effect:

• To add particulars of the advance (which was in fact by means of drawdown on a credit facility);

• To correct the statement of claim as to the nature of the default (being exceeding the credit limit rather than failure to pay instalments when due);

• To specify the amount sought in the notice of default; and

• To plead that the total amount owing under the Loan Agreement as varied and the mortgage became immediately due and payable (if it was not already) on default of compliance with the notice.

10 The proposed amended statement of claim also made other minor and consequential amendments.

11 I gave leave to amend the statement of claim for the following reasons:

(1) Notice of the application to amend had been given by the summons and the affidavit in support of the summons exhibited the proposed amended statement of claim;

(2) The amendments were sought to bring the statement of claim in line with the evidence which had also been served at that same time; and

(3) I was satisfied that to the extent there was any substantive difference to be effected by the amended statement of claim it was only to provide particulars that the defendant herself had requested.[2]

12 By the amended defence filed 9 June 2011 the defendant admitted the following matters pleaded in the original statement of claim:

(b) that the defendant was the registered proprietor of the relevant land;

(e) the terms of the loan and mortgage as then pleaded.

13 The defendant also admitted an advance to a credit limit of $384,000.00 which was the original credit limit. She sought particulars of the advance, which particulars were subsequently provided by the proposed amended statement of claim.

14 The balance of the plaintiff's case as then pleaded was not admitted by the defendant. Accordingly, I required the plaintiff to prove all the other elements.

15 The defendant did not contend in the amended defence that the credit provided was regulated by the credit code that then applied, the Uniform Consumer Credit Code ("UCCC"), now overtaken by the National Credit Code ("NCC"). In this regard it is material to note that the amended defence was prepared by a solicitor. The plaintiff submitted to me that in the absence of any allegation that the credit was regulated, on the basis of s 11(1) of the UCCC I should treat it as not so regulated.

In any proceedings (whether brought under this Code or not) in which a party claims that a credit contract, mortgage or guarantee is one to which this Code applies, it is presumed to be such unless the contrary is established.

17 That provision is now replicated in s 13(1) of the NCC. Its effect is that it is sufficient (subject to other aspects of ss 11 and 13 respectively that are here not relevant) to bring a provision of credit within the UCCC, now NCC, by simply making a claim in a proceeding to that effect, and the lender must then establish the contrary to escape the requirements of the code.

18 In my view it is arguable that s 11 was, and s 13 is, essentially an onus or facilitative provision, and the governing provision as to whether or not a provision of credit fell within the UCCC, or now falls within the NCC, is respectively s 6 of the UCCC and s 5 of the NCC. Accordingly, I required the plaintiff to satisfy me that the UCCC was satisfied if it did apply. Those sections are directed to the purpose of the provision of credit. Section 6(1)(b) of the UCCC provided that the credit was only regulated if "the credit is provided or intended to be provided wholly or predominantly for personal, domestic or household purposes".

19 There was no specific evidence before me as to the purpose of the loan save that the Loan Agreement states that the lender treats it as a non-Code loan and also states that it is for the refinance of an existing home loan. At the time this loan was entered into the then governing provision was s 6 of the UCCC, which did not extend to credit provided for the purpose of an investment home loan. Credit for an investment home loan is now covered by s 5 of the NCC but pursuant to the transitional provisions in this respect it is the earlier code, the UCCC, that governs whether or not it is a code regulated loan. As it was apparent from the two proceedings before me that there were at least two properties that the defendant owned or part owned, one at least must have been an investment property.

20 For the avoidance of doubt, however, and because the proceeding was undefended, I nevertheless required the counsel for the plaintiff to satisfy me that the UCCC would be satisfied if it did apply. I accepted the plaintiff's submission that the only area where there may have been a difference in outcome as to whether or not the loan was a UCCC loan was in relation to specification of the amount of the default in the notice. I accepted his submission that if the amount was misstated (which the defendant had not alleged) if anything it would be an understatement and so would not affect the validity of the notice.

21 Counsel also took me at my request to the provisions as to the form of the notice and the time required to be given to remedy default at the time the notice here in question was issued. These were regulated by s 80 of the UCCC because the notice was issued prior to the commencement of the NCC in July 2010. The relevant requirements-that the default be specified; the action necessary to remedy it be stated; at least 30 days from the date of the notice be given to remedy it; the notice specify that a similar default within that period may be the subject of enforcement action without further notice; and that the default was not remedied within that period-were all here complied with.[3] It follows that even if the credit was regulated, I was satisfied that the requirements of the UCCC had been complied with.

Proof of the plaintiff's case not admitted by the defendant

22 The defendant admitted in the amended defence the execution of the original loan and its terms as then pleaded, but given the proposed amendments to the statement of claim as to the terms and the new pleading as to variations the plaintiff established on evidence all relevant matters relating to the original loan. In particular the plaintiff proved by exhibit JP-1 to the affidavit of John Pastro sworn 2 September 2011:

(b) execution of the loan offer by the plaintiff and acceptance of the offer by the defendant on 23 September 2003;

23 The provision in relation to repayments which appears in the schedule to the offer provides that interest, and any fees and charges, will be debited to the loan account at regular intervals and that the interest will then bear interest accordingly. The repayment term specifically provides that "this will reduce the amount of credit available to be drawn". The term provides that no repayment is required while the loan balance is less than the credit limit (at that time $384,000.00) and that if at any time the balance of the loan exceeds the credit limit the borrower must "immediately pay the excess amount" to the plaintiff. As I noted in discussion with counsel for the plaintiff, the effect of this provision is that if all of the credit was drawn down then once interest commenced to be applied the account would be overdrawn unless payments were made.[4]

24 Exhibit JP-1 also establishes that the security for the credit was to be the property the subject of this application for possession by way of "a new mortgage" which the title search shows was the first registered mortgage.

25 The plaintiff also proved relevant terms applicable to the line of credit from the Booklet of Standard Terms and Conditions ("the Booklet") which is exhibited as JP-2. In particular, clause 10(b) of the Booklet, which is headed "Exceeding the Credit Limit" reiterates the specific provision in the loan offer that "if at any time the balance of the loan account exceeds your credit limit, you must immediately pay us the excess amount in addition to your scheduled repayment". Clause 18 of the Booklet found at page 15 of JP-2 makes provision for the giving of notices and demands. That clause provides:

A notice or demand under the loan contract will be served on you if:

it is delivered personally; or
it is sent by mail to or left at the place where you live (or the place most recently known to the person signing the demand or notice as that place); or
it is sent by facsimile to any number you give to us.

If the notice or demand is sent through the post it will be regarded as having arrived when it would have been delivered in the ordinary course of the post, even if it never arrives. We may serve court documents in the same way.

We may serve demands, notices or any other documents under any security documents in the same way.

26 I was satisfied that pursuant to that provision notice of default may be given by mail and is deemed to be received even if in fact it is never received. In the amended defence the defendant stated that she was "currently not in a position to either admit or deny that she received the (default notice) on or around the date when the Plaintiff alleged that it provided it to her"(paragraph 9.1 and elsewhere). The defendant pleaded that she could not locate the original copy and in February 2011 was packing to vacate the property to which the notice had been sent. She conceded she had subsequently through her solicitors received a copy of the February 2010 notice, but could not compare it to the original said to be been sent to her.

27 The affidavit of Warren Leslie Wright sworn 18 August 2011 deposes that service of the default notice dated 22 February 2010 was attempted personally on three occasions at 2/6 Broadway St, ("the Elwood property") and was then effected by express post to the security property, being 308 Ferrars Street South Melbourne Victoria, and the Elwood property on 2 March 2010. I was satisfied having regard to this evidence that the notices had been sent in compliance with clause 18 of the Booklet notwithstanding that the defendant does not admit either the sending of the notice or receipt. Clause 18 does not require proof of receipt provided the notice is sent to the residential address and Mr Pastro's affidavit establishes that this was the last known residential address of the defendant at that time. That this was her residential address would also appear to flow from the amended defence at paragraph 9.

28 The variations were not pleaded in the original statement of claim. I was satisfied by the evidence being JP-3 and JP-4 that the variations took place and their terms were as pleaded in the proposed amended statement of claim. The first variation is confirmed by letter dated 24 August 2005 which is JP-3 to Mr Pastro's affidavit. It confirms a new credit limit of $409,000.00; that no repayments are required whilst the debt remains below the new credit limit; and that:

Except as varied in this letter, all of the terms and conditions of your Loan Contract will remain the same and continue to apply to your loan.

...

This letter is a variation to the terms of your existing Loan Contract, and accordingly your loan remains secured by your existing security.

29 JP-3 shows that the defendant accepted the variation on 26 August 2005 and required the increased drawdown to be deposited to a nominated account.

30 JP-4 proves the second variation by letter dated 23 November 2007 from the plaintiff which was accepted by the defendant on 26 November 2007. By that variation the then current credit limit of $409,000.00 increased to $434,000.00 and, as before, no repayments were required while the loan balance is less than the new credit limit and except as varied by that letter all of the terms and conditions of the Loan Contract remained the same.

31 The existence and terms of the mortgage were admitted by the defendant in the amended defence as then pleaded. The only relevant change in the proposed amended statement of claim was to add reference to the variations and also to insert reference to the term as to service of demands on notices under the mortgage. Notwithstanding that it may not have been necessary, I was satisfied that the plaintiff had proved the mortgage and all pleaded terms in the proposed amended statement of claim by JP-5 which contained a copy of the executed mortgage and the Memorandum of Common Provisions. In particular the plaintiff proved the powers conferred on the plaintiff on default set out in clause C2 of the Memorandum of Common Provisions. That clause conferred a power on the plaintiff to notify the defendant by notice of a failure to pay any amount due which had continued for at least seven days. The clause then provided that if the failure continued for at least 31 days after service of the notice the plaintiff could require all of the monies secured by the mortgage to be paid; take possession of the property; sell the property; or take various other actions not here relevant.

32 The service provision for notices given under the mortgage is provided in clause E1 of the Memorandum of Common Provisions. It provides that a notice or demand under the mortgage may be sent by mail to the security property or to the last known address known to the plaintiff and that if that means is adopted it is "to be regarded as having been delivered in the ordinary course of post, even if it never arrives". This has the same effect as the provision in the Booklet- that it is not necessary for the plaintiff to prove receipt of a default notice.

33 Clause E4 of the Memorandum of Common Provisions provides for a Dobbs certificate in these terms:

A written statement by a representative of the Lendor as to amounts owing under this mortgage is sufficient evidence against you unless you prove it is wrong.

34 The plaintiff relied on that provision and a Dobbs certificate prepared pursuant to it dated 27 March 2014, which was Exhibit AFS-3 to the affidavit of Alexia Schar sworn 27 March 2014, as proof of the amount owing. The provision in the Memorandum of Common Provisions permits a "representative of the Lender" to make the Dobbs certificate. The definition provision as to "representative" in the Memorandum of Common Provisions provides that this term includes any employee of the lender "whose title includes the word 'manager', 'president', 'counsel' or 'head'". Ms Schar deposese that she is the Secured Recoveries Case Manager of the plaintiff. Accordingly, I was satisfied that she was a "representative" within the meaning of clause E4 and could give the Dobbs certificate. The Dobbs certificate provision permits the defendant to dispute that the amount there stated is the amount owing, but the defendant did not attend the hearing to do so or file any affidavit evidence to dispute the amount there stated.

35 For these reasons I found that the amount owing to the plaintiff by the defendant was the amount stated in Ms Schar's certificate of 27 March 2014, being $627,424.65 as at that date. The plaintiff was content for that to be the amount in the judgment for debt.

36 The statement of claim as originally pleaded at paragraph 5(c) pleaded that it was a term of the mortgage that the defendant would pay the plaintiff "all reasonable amounts with the Plaintiff reasonably spent or incurred in relation to the enforcement of the Mortgage including legal fees on a full indemnity basis". The defendant admitted that paragraph. For completeness, counsel for the plaintiff took me to the relevant provision in the Memorandum of Common Provisions which is clause B1(b) which provides that the borrower must pay:

All reasonable amounts which the Lender reasonably spends or incurs in relation to enforcement of this mortgage ... for example ... legal fees on a full indemnity basis ... All these amounts are payable on demand or when the Lender debits your account for them.

37 The terminology there employed- i.e. reference to "indemnity basis", that the costs must be "reasonable" in amount and also reasonably spent or incurred- parallels the wording as to costs on an indemnity basis in the Supreme Court (General Civil Procedure) Rules 2005 ("the Rules"). Rule 63.30.1(1) provides that:

(1) Subject to paragraph (2), on a taxation on an indemnity basis all costs shall be allowed except in so far as they are of an unreasonable amount or have been unreasonably incurred.

(2) Any doubt which the Costs Court may have as to whether the costs were unreasonably incurred or were unreasonable in amount shall be resolved in favour of the party to whom the costs are payable.

38 I was satisfied that the bargain the parties had struck in the mortgage required indemnity costs and that having regard to this bargain and the use of similar terminology in the Rules the Court should exercise its discretion as to costs to give effect to that bargain.

39 JP-6 to Mr Pastro's affidavit proves that the defendant was at the date of the register search there exhibited (20 June 2011) the sole registered proprietor of the land in question, which was subject to a first registered mortgage to the plaintiff. A more recent title search was done and exhibited to the affidavit of Alexia Falie Schar sworn 21 February 2014 which shows that the property remains subject to the plaintiff's mortgage and the defendant remains the sole registered proprietor. The date of that search is 6 February 2014. I was satisfied that the land was the land described as Lot 1 on the title plan referred to in the order.

40 The defendant admitted an advance by way of drawdown to the amount of the initial credit limit of $384,000.00. I was satisfied that the plaintiff had proved drawdown to the extent of the subsequently varied amounts by the statements exhibited as JP-8 to the affidavit of John Pastro. Those statements show that the first credit limit was fully drawn down shortly after the date of the loan agreement (statement 1). The first increase of $25,000.00 was fully drawn down on 29 August 2005 (statement 8). The second increase of a further $25,000.00 was fully drawn down by several smaller drawdowns in the period 30 November 2007 to 21 February 2008 (as shown by statements 17 and 18).

41 In her amended defence the defendant admitted the advance up to $384,000.00 but sought particulars of the advance. Those particulars are now given in the proposed amended statement of claim. Those particulars correspond to the evidence I have just recited.

42 In her amended defence the defendant sought particulars of the instalments that the original statement of claim pleaded she had not paid. The pleading of default in the original statement of claim was not as precise as it could have been and was corrected by the proposed amended statement of claim which more accurately described the default as exceeding the credit limit. The particulars given in the proposed amended statement of claim plead that at the beginning of 22 February 2010 (being the date of the notice given on that date) the balance of the loan account was $470,419.12 which was $36,419.12 in excess of the credit limit of $434,000.00. I am satisfied that that is proved by statement 26 which appears within JP-8. That statement shows that prior to the debiting of interest on 22 February 2010 the balance of the loan account was $470,419.12.

43 Page two of statement 25 states that, as at the date of that statement being 22 January 2010, the credit limit was $434,00.00, and warns the defendant that she is in arrears, then in the sum of $32,844.41, and requires her to repay that amount immediately. There were three further debits between that date and the close of 22 February 2010, and one credit on 22 February 2010 itself, but the credit payment was insufficient to bring the loan back within the credit limit. Thus default by virtue of being in excess of the credit limit which was the subject of the default notice dated 22 February 2010 had continued at least since 22 January 2010, well in excess of the required seven day default prior to issue of a default notice.

44 The proposed amended statement of claim also pleads that the defendant had remained in excess of the credit limit since 22 September 2008. It was not necessary for the plaintiff to establish this element of the particulars and it did not do so. For the notice to be valid pursuant to the provisions of the Memorandum of Common Provisions forming part of the mortgage default is sufficiently proved if the defendant has failed to pay an amount due under the mortgage (here any amount in excess of the credit limit) and that failure has continued for at least 7 days.

45 I was satisfied that notice had been given to the defendant in the form of JP-9 which is dated 22 February 2010. That notice stipulates that the default is in the sum of $36,419.12. That sum is the difference between the credit limit, then $434,000.00, and the amount by which it had been drawn down prior to the application of interest on 22 February 2010. As noted above, this amount had been owing for more than 7 days as at that date and so the plaintiff was entitled to issue the notice. It was put to me by counsel for the plaintiff that if anything this amount was an understatement as interest was applied on 22 February which substantially increased the amount owing. I do not consider that submission correct insofar as it relates to the power to issue the notice because the higher amount would not have been owing for 7 days as at 22 February 2010. The submission was not necessary, however, because I was satisfied that the amount stipulated in the notice was in fact correct.

46 The defendant in the amended defence did not admit the allegation of default, merely reciting as set out earlier that she was unable to locate the original of the notice sent to her. As set out earlier proof of receipt is not necessary and I was satisfied that the notice had been sent on the date it bore.

47 The amended defence also sought particulars of the default specified in the notice. Those particulars are given in the proposed statement of claim.

48 The statement of claim pleaded at paragraph 10 that the defendant had not remedied the default within 31 days from the date of service of the notice on her and accordingly was liable to pay the plaintiff all monies secured by the mortgage without further notice. The amended defence contains what may be a typographical error in its paragraph 10. If that paragraph is intended to relate to the pleading of failure to remedy it merely recites that the defendant was unable to locate the original notice, that she had requested a copy of the notice and had been supplied with it, and seeks particulars.

49 I was satisfied from scrutiny of JP-8 that the defendant did not remedy the default by paying the required sum of $36,419.12 within 31 days after deemed service of the notice. A notice sent on 22 February 2010 would have been received in the ordinary course of the post (being the deemed date of receipt pursuant to the provision of the Memorandum of Common Provisions) within four working days thereafter. The statements after the date of 22 February 2010 show some payments were made but not to the full extent of the amount in default and not within 31 days of deemed service of the notice.

Entitlement to the full amount owing under the loan

50 New paragraph 11A of the proposed amended statement of claim pleads that "As a result of the defendant's failure to comply with the Notice, the total amount owing under the Loan Agreement as varied and the Mortgage became immediately due and payable (to the extent it was not already immediately due and payable)".

51 This was a new plea but I did not consider that allowing the amendment to be made or evidence given in relation to it would cause any prejudice to the defendant for the reasons set out earlier. In particular, JP-5, the Memorandum of Common Provisions to the mortgage provides that if failure continues for at least 31 days after service of the notice then the plaintiff may require payment of all monies secured by the mortgage. Notice that the plaintiff would require payment of the full amount owing was given by the notice dated 22 February 2010 in clauses 4 and 5.

52 The defendant in the amended defence queried the calculation of the amount stated to be owing in the statement of claim as it then stood, and sought further particulars of the allegation. The amount owing as at the date of the hearing was brought up to date by the Dobbs certificate dated 27 March 2014 being exhibit AFS-3 to the affidavit of Alexia Schar sworn 27 March 2014. As set out earlier, the plaintiff is not required to prove how it calculated the amount owing where a Dobbs certificate is given and is not challenged. For the reasons given earlier in the section of these reasons relating to the Memorandum of Common Provisions, I found that the amount stated in the certificate dated 27 March 2014 was the amount owing as at that date.

53 As noted earlier, the amended defence merely required the plaintiff to prove its case (save for the few matters admitted) and sought further particulars of some matters, which are provided by the proposed amended statement of claim served well in advance of the hearing. No substantive defence was advanced by the amended defence, and no affidavit evidence was filed for the defendant. The plaintiff having proved all necessary elements of its case, I was satisfied that the defence had no real prospect of success within s 63 of the CPA.

54 Section 64 of the CPA confers power on the Court to refuse summary judgment even where the defence has no real prospect of success and order that the proceeding proceed to trial, if satisfied that it should not be disposed of summarily because:

(a) it is not in the interests of justice to do so; or

(b) the dispute is of such a nature that only a full hearing on the merits is appropriate.

55 The Court is required to consider the exercise of the discretion in every case. I did so, but nothing was advanced before me by the defendant to enliven the discretion and the only matter that could have done so on the amended defence was possibly the request for further particulars. To the extent the plaintiff could have been required to provide these particulars and they were essential to its case the requested particulars were provided by the proposed amended statement of claim. The plaintiff would not ordinarily have been required to provide details as to how it calculated the sum owing given the Dobbs certificate provision, and nor were particulars of the requests pleaded at paragraph 13 essential to the plaintiff's case, as this was an alternative plea. Accordingly, no discretionary reason was shown for refusing summary judgment.

56 For these reasons I made the orders as sought by the plaintiff.

[2] Discussion with counsel for the plaintiff in relation to the amendment is recorded at transcript pages 21-23, 28-33 and 34-36.

[3] The submissions of counsel for the plaintiff and discussion in relation to these matters is recorded at transcript pages 17-20, 23-28, 33-34 and 64-66.

Court (General Civil Procedure) Rules 2005

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