Plaintiff v Defendant

1 The plaintiff, Padella Pty Ltd ('Padella'), applies by summons dated 11 April 2018 for orders pursuant to s 61 of the Civil Procedure Act 2010 ('CPA') for summary judgment. Padella seeks orders that:

(a) Padella recover possession of the land situate at and known as (Rear) 1 Wood Street, Avondale Heights, Victoria, being the rear yard and shed comprising part of the land more particularly described in Certificate of Title Volume 07579 Folio 064 ('Premises');

(b) The defendant, Mr Elliott, pay to Padella mesne profits, in an amount calculated at the rate of $92 per week from 10 October 2015 until the date that possession is delivered up to Padella;

(c) Mr Elliott pay interest on the amount of mesne profits awarded in accordance with s 60 of the Supreme Court Act 1986 (Vic); and

(d) Mr Elliott pay Padella's costs of and incidental to the summary judgment application

2 I heard the Application on 25 May 2018 and gave brief oral reasons on that day when I granted the Application and made orders. I indicated at that time that I would publish my reasons later, and these are those reasons.

3 The Application is supported by the affidavit of Joseph Augello sworn 11 April 2018, who is one of Padella's directors ('Augello Affidavit').

4 On 23 March 2018, I held a directions hearing in relation to the proceeding. Mr Elliott attended that hearing and represented himself. Padella was represented by counsel. At that hearing, Padella foreshadowed that it would be making an application for summary judgment. I then made orders for the conduct of that foreshadowed application, as follows:

(a) Padella was to file and serve its summons and affidavit in support by 11 April 2018;

(b) Mr Elliott was to file and serve any affidavit in reply by 8 May 2018;

(c) Padella was to file and serve a written outline of submissions and any affidavits in reply by 16 May 2018;

(d) Mr Elliott was to file and serve a written outline of submissions by 22 May 2018;

(e) the Application was to be listed for hearing on 25 May 2018.

5 Mr Elliott has not filed any affidavit material in response to the Application or any written outline of submissions. Mr Elliott has therefore been on notice of the Application for over two months and has had ample opportunity to defend it, which he has not taken up.

6 Mr Elliott appeared at the hearing to represent himself. As noted below, at the hearing Mr Elliott did not dispute Padella's entitlement to summary judgment, but did make submissions as to the calculation of the mesne profits.

7 For the reasons set out below, I granted summary judgment to Padella for possession of the Premises and for mesne profits.

8 This proceeding was commenced by writ and statement of claim on 22 November 2017 ('SOC'). The claims made by Padella against Mr Elliott relate his continued occupation of the Premises, without consent, beyond the date by when he was to vacate the Premises (being 10 October 2015).

9 Between January 2008 and February 2013, Mr Elliott leased the Premises from Padella. The Premises consist of a yard and a shed, and Mr Elliott has used the Premises to store a large volume of goods, equipment and other material. He has also placed two 20-foot shipping containers on the Premises.

10 The lease expired on 28 February 2013. Although demands were made for him to vacate the Premises and remove all of his goods, Mr Elliott continued to occupy the Premises.

11 Padella commenced proceedings against Mr Elliott in the Magistrates' Court of Victoria, which led to a settlement agreement being entered into between the parties on 21 April 2015 ('Settlement Agreement'). Pursuant to the Settlement Agreement, Mr Elliott agreed to vacate the Premises by 10 October 2015 and to remove all his chattels, equipment and any other items from the Premises and to pay certain amounts in consideration of his ongoing occupation, including for the period prior to the Settlement Agreement and the period from then to 10 October 2015.

12 Padella alleges that Mr Elliott did not pay all of the monies due under the Settlement Agreement, following which orders were obtained in its favour from the Magistrates' Court for Mr Elliott to pay certain sums. Mr Elliott subsequently obtained an order enabling him to pay the judgment debt in instalments.

13 Padella alleges that in breach of the Settlement Agreement, Mr Elliott has not vacated the Premises and has continued to occupy the Premises and to store various physical items at the Premises. The particulars to paragraph 19 of the SOC detail these items. Padella alleges that it has made repeated demands for Mr Elliott to vacate the Premises and remove his items, but he has not done so. Padella alleges that it re-entered the Premises and attempted to regain possession on 9 July 2017 by removing the padlock and chain Mr Elliott had installed at the entrance and replacing it with its own padlock and chain. Padella alleges that between 16 and 23 July 2017 Mr Elliott removed the new padlock and chain and replaced it with his own.

14 Padella also alleges that it is entitled to mesne profits from 10 October 2015 to the date when possession is delivered up, at the rate of $92 per week.[2]

15 Padella also makes allegations as to damages to the Premises, particularly the shed, and as to Mr Elliott's failure to maintain the Premises in good and tenantable repair and to make good any damage caused to the Premises.

16 Mr Elliott has filed and served a defence dated 22 February 2018 ('Defence'). In his Defence, Mr Elliott admits that he:

(a) entered into the Settlement Agreement;[3]

(b) has not paid all sums due under the Settlement Agreement;

(c) has received correspondence from Padella that he vacate the Premises;

(d) is continuing to store items at the Premises;[4] and

(e) is continuing to secure the Premises with a padlock and chain.[5]

(a) between July 2011 and February 2013, he repeatedly failed to pay rent when due to Padella;

(b) the items he is storing at the Premises are as particularised by Padella, as he says that he has removed approximately 20% of the items which had previously been stored at the Premises; and

(c) he has caused damage to the Premises and failed to make good any damage or keep them in good and tenantable repair.

(a) Padella is entitled to mesne profits, as it cut off water and power supply to the Premises; and

(b) Padella has suffered loss and damage.

19 Section 61 of the CPA permits a plaintiff to make an application for summary judgment on the ground that the defendant's defence or part of that defence has no real prospect of success. Section 63 of the CPA provides (subject to s 64) that the Court may give summary judgment in a civil proceeding if it is satisfied that a claim, defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has 'no real prospect of success'.

Despite anything to the contrary in this Part or any rules of court, a court may order that a civil proceeding proceed to trial if the court is satisfied that, despite there being no real prospect of success the civil proceeding 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.

21 The Court of Appeal has set out the test to be applied in this context in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd.[6] Upon the present state of authority:

(a) The test for summary judgment under s 63 of the [CPA] is whether the respondent to the application for summary judgment has a 'real' as opposed to a 'fanciful' chance of success;

(b) 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;

(c) 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;

(d) 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.

22 Section 7(1) of the CPA sets out its overarching purpose, being to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. Section 9 of the CPA requires the Court to have regard to these purposes in making any order or giving any direction in a civil proceeding.

23 An application made pursuant to s 61 of the CPA it is to be made in accordance with Order 22 of the Rules.[7]

(1) An application shall be made by summons supported by an affidavit -

(a) verifying the facts on which the claim or the part of the claim to which the application relates is based; and

(b) stating that in the belief of the deponent the defence to the claim or the defence to the relevant part of the claim -

(i) has no real prospect of success; or

(ii) has no real prospect of success except as to the amount of the claim or as to the amount of the relevant part of the claim.

(2) Where a statement in a document tends to establish a fact within paragraph (1) and at the trial of the proceeding the document would be admissible by or under the Evidence (Miscellaneous Provisions) Act 1958, the Evidence Act 2008 or any other Act to verify the fact, the affidavit under paragraph (1) may set forth the statement.

(3) An affidavit under paragraph (1) may contain a statement of fact based on information and belief if the grounds are set out and, having regard to all the circumstances, the Court considers that the statement ought to be permitted.

(4) The plaintiff shall serve the summons and a copy of the affidavit or affidavits and of any exhibit referred to in the affidavit or affidavits on the defendant not less than 14 days before the day for hearing named in the summons.

(1) The defendant may show cause against the application by affidavit or otherwise to the satisfaction of the Court.

(2) An affidavit under paragraph (1) may contain a statement of fact based on information and belief if the grounds are set out.

(3) Unless the Court otherwise orders, the defendant shall serve a copy of any affidavit and of any exhibit referred to in the affidavit or affidavits on the plaintiff not less than three days before the day for hearing named in the summons.

26 The requirements set out in Rules 22.04 and 22.05 were considered by the Court of Appeal in Daniel Simon Hausman and Lance Vincent Hodgkinson v Abigroup Contractors Pty Ltd.[8] Of the equivalent of what is now Rule 22.04 in relation to the affidavit in support of summary judgment, the Court of Appeal stated that what 'must be verified are the facts necessary to establish a good cause of action'.[9] Once the plaintiff has established the elements of its cause of action, there is 'something akin' to a shifting of the evidential burden to the defendant.[10]

27 Of the equivalent of what is now Rule 22.05, the Court of the Appeal stated the following (citations omitted):[11]

1. ... Assuming the plaintiff's application is properly made, there will be judgment for the plaintiff unless the defendant shows cause against the application to the satisfaction of the court. The Rule provides that the defendant can show such cause 'by affidavit or otherwise'.
2. The defendant must satisfy the Court that, in respect of the claim to which the application for judgment relates, a question ought to be tried, or there ought for some other reason to be a trial of that claim. The Court, if so satisfied, will give the defendant leave to defend and the proceeding will continue to trial in the ordinary way. The Court will normally require an affidavit by, or on behalf of, the defendant before it will be satisfied that the defendant is entitled to leave to defend. The standard of diligence required of the defendant in preparing a case in opposition to the application, especially if under pressure of time, is perhaps not as high as that required in preparing for trial.
3. Nonetheless, the defendant is required to use reasonable diligence to put before the Court, albeit in a summary form, all the evidence relied on in the defence. In that regard, it would generally be regarded as an injustice to the plaintiff to introduce for the first time, on appeal, evidence which was readily available for the hearing of the application, but was not produced. An affidavit filed by the defendant may contain a statement of fact based on information and belief.
4. The authorities suggest that an affidavit in opposition to an application for summary judgment must provide sufficient particulars to enable the defence case to be properly understood. A bald denial that the defendant is indebted to the plaintiff will not suffice. The affidavit should, so far as practicable, deal specifically with the plaintiff's claim and the facts set out in the supporting affidavit to establish that claim. It should state clearly and concisely what the defence is, and identify the facts relied upon in support of that defence.

28 The Court of Appeal principles in Hausman v Abigroup extracted in paragraph 27 above remain good law since the advent[12]f the CPA.12

29 In Permanent Custodians Limited v Sanders,[13] I summarised the applicable principles in respect of the Court's approach where one of the parties is not represented by a lawyer. I adopt and follow that summary.

30 In determining the Application, I have considered all issues raised by Mr Elliott in his Defence and oral submissions to consider whether his defence has any real prospects of success, without making an undue emphasis on proper form, as Mr Elliott is self-represented. In my view, this approach is justified given Mr Elliott's unrepresented status and is consistent with the Court's approach to unrepresented litigants.

31 Through a combination of Mr Elliott's admissions in the Defence and the evidence adduced by way of the Augello Affidavit, Padella has established all required elements of the cause of action. In particular, it has established the following to my satisfaction:

(a) the entry by Padella and Mr Elliott into the Settlement Agreement.

(b) the terms of the Settlement Agreement, in particular, that:[14]

(i) Padella agreed to provide Mr Elliott with some further time to vacate the Premises;

(ii) Mr Elliott agreed to vacate the Premises by 10 October 2015 and to remove all of his chattels, equipment and other items from the Premises;

(iii) Mr Elliott agreed to pay certain amounts to Padella; and

(iv) Mr Elliott agreed that if he did not vacate the Premises by the agreed date, Padella would be entitled to obtain an order from the court for vacant possession of the Premises.

(c) Mr Elliott's breach of the Settlement Agreement by, inter alia, failing to vacate the Premises by 10 October 2015[15] and to pay certain amounts to Padella. In stating this, I note that of these two breaches, it is only the former that is relevant to and a necessary element of Padella's claim to possession of the Premises;

(d) Mr Elliott's continued and continuing occupation of the Premises;[16]

(e) Padella has made repeated demands for Mr Elliott to remove his items and vacate the Premises, but he has failed to do so.[17]

32 I am satisfied that Padella has established that Mr Elliott has occupied the Premises without lawful entitlement since (at least) 10 October 2015. This was the date which the parties had previously agreed would be the date by when Mr Elliott must vacate the Premises and deliver vacant possession to Padella. Mr Elliott has continued to store a vast number of items on the Premises, although it appears that the amount of items may have diminished recently as he told the Court that he has now removed around 90% of the items which had been stored on the Premises. Apart from a very brief period in July 2017 when Padella removed Mr Elliott's lock and chain and replaced it with one of its own, following which Mr Elliott removed it and again installed his own lock and chain, Mr Elliott has maintained exclusive possession of the Premises by securing its only access gate with a padlock and chain.

Does the Defence have a real prospect of success?

33 As noted above, Mr Elliot has either admitted these elements or has not produced any material in response to the Application and the Augello Affidavit to set out what his defence is and to identify the facts relied upon in support of that defence.

34 Mr Elliott had an opportunity to adduce evidence to establish any facts relied upon in his Defence, but has not elected to do so. As set out by the Court of Appeal in Hausman v Abigroup, once the plaintiff has established the elements of its cause of action, it is then up to the defendant to state, on affidavit, clearly and concisely what the defence is and identify the facts relied upon in support of that defence.[18]

35 Padella submits that the Defence does not disclose any reason or explanation for his continuing to store items at the Premises and his prevention of Padella from accessing the Premises. It also submits that the Defence does not disclose any factual basis on which it might be contended that Mr Elliott has, or has had at any time since 10 October 2015, a lawful entitlement to occupy the Premises.

36 I agree with this submission. It is no answer to Padella's allegations of continued breach by Mr Elliott's failure to remove the stored items from the Premises (as particularised in paragraph 19 of the SOC) to say that he has removed 20% of the items or to quibble with the descriptions given to particular items (as he does in the Defence). The simple fact is that Mr Elliott continues to store items on the Premises and he has placed his own padlock and chain on the only entrance to the Premises.

37 The Augello Affidavit sets out a description of the items stored on the Premises as at various dates, including as late as 31 March 2018, and exhibits some photographs of the Premises and the items stored there. It is no exaggeration to say that until very recently, there has been a large amount of items stored on the Premises, in quite haphazard fashion. The photographs as at 11 July 2017 show at least one shipping container, several shopping trolleys, unregistered and dilapidated vehicles, tyres, electrical switchboards, furniture, construction materials, and a large number of storage boxes.[19] It is apparent that delivering vacant possession of the Premises would take a period of time: presumably, this is why Padella agreed to give Mr Elliott until 10 October 2015 when it entered into the Settlement Agreement on 21 April 2015. It is no answer now, if that is what Mr Elliott does say in the Defence, to claim that more time is needed. Padella has been more than patient with Mr Elliott and it is entitled to possession without further delay.

38 The most recent photographs show that some items have been removed and that parts of the yard (particularly around the gate) have been cleared.[20] Mr Elliott said at the hearing that he had now removed about 90% of the items from the Premises.

39 Nonetheless, it remains the case that Mr Elliott agreed to vacate the Premises and remove his items by 10 October 2015. He did not do so, and has still not done so. He is not entitled to occupy the Premises and he has no defence to this very simple claim, although his recent efforts to remove items from the Premises are noted.

40 For these reasons, the Defence has no real prospects of success and Padella is entitled to summary judgment for possession of the Premises.

41 At the hearing, Mr Elliott acknowledged that he 'did not have much of a defence', that he 'probably shouldn't be there', and he hadn't been paying rent. In the circumstances, those acknowledgments were properly made by Mr Elliott and he is to be commended for doing so. He did not attempt to rely on the matters pleaded in the Defence as a basis for resisting the Application.

42 Even without Mr Elliott's acknowledgments, I would have been satisfied that he has no real prospect of successfully defending the claim to possession. Therefore, there will be summary judgment for Padella to recover vacant possession of the Premises.

43 Counsel for Padella, Mr McCredden, provided a useful summary of the principles associated with a claim to mesne profits in his written outline of submissions, which I have set out below:

Mesne profits are in substance damages for trespass, payable by a defendant trespasser in respect of any period over which a plaintiff can prove a right to possession.[21] There are several principles relevant to the award and calculation of mesne profits:

• To be entitled to mesne profits, it is not necessary that a plaintiff establish that the relevant property has been damaged, or that the plaintiff would have been able, or willing, to lease the premises during the period of the trespass.[22]
• The usual measure of damages is the value of the market rent for the property that the trespasser should have paid during the period of the unlawful occupation.[23] However, a plaintiff may rely on the rent that a defendant was paying under an expired lease as proof of the appropriate measure of damages.[24]
• A plaintiff is ordinarily entitled to mesne profits up until the date that possession is delivered up by the defendant.[25]

44 In this case, Padella claims mesne profits from Mr Elliott from the period of time he has occupied the Premises without lawful entitlement, that is, from 10 October 2015 until the date vacant possession is delivered to Padella.

45 As previously stated, I am satisfied that Padella has established that Mr Elliott has continued to occupy the Premises when he has no lawful entitlement to do so. He has been a trespasser on the Premises since 10 October 2015. The Augello Affidavit sets out the repeated demands which Padella made for Mr Elliott to vacate the Premises. Mr Elliott admits this: he does not say that Padella has acquiesced or consented to his occupation of the Premises from 10 October 2015.

46 The evidence is that Mr Elliott has not paid any monies in consideration for his continuing occupation of the Premises since 10 October 2015.[26] It is therefore clear that Padella is entitled to mesne profits for the period since that date.

47 The question which then arises is the calculation of those mesne profits. Relying on the cases cited in footnote 21 of these reasons, Padella says that the mesne profits should be calculated at the rate of $92 per week. Mr Augello's unchallenged evidence is that from 1 March 2010, the rent for the Premises was increased to $2,392 for each 6 month period (being $92 per week).[27] I am therefore satisfied that the rent applicable to the Premises under the previous lease was $92 per week.

48 At the hearing, Mr Elliott conceded that he should have to pay something, but disputed that he should have to pay the equivalent of $92 per week as he was not getting 'full services' during the period from 10 October 2015. He says that Padella did not supply power or water to the Premises after that date and so he should not have to pay the full rent. In response to a question from the Bench, Mr Elliott said that power and water had been cut off well prior to 2015. From the Bar table, he said that at the time of first leasing the Premises, he was told by the agent that power and water would be supplied without charge, however there was no evidence of this.

49 Padella says that it was never obliged under the lease to supply power and water. It also says that the Settlement Agreement contained an acknowledgment that power and water would not be supplied to the Premises while Mr Elliott remained in occupation after 21 April 2015.[28] I do not regard this acknowledgment in the Settlement Agreement as determinative of the question.

50 Further, Padella says that mesne profits is damages for trespass, calculated by reference to the previously applicable rent, and is not damages for unpaid rent.

51 Despite Mr Elliott's submissions, I am satisfied that $92 per week from 10 October 2015 to the date upon which vacant possession is delivered to Padella is the appropriate way to calculate mesne profits in this case.

52 For these reasons, I gave summary judgment for Padella for it to recover vacant possession of the Premises, and for Mr Elliott to pay Padella mesne profits for the period from 10 October 2015 to the date when vacant possession is delivered at the rate of $92 per week.

53 After I pronounced the judgment, Padella indicated that it would agree to a stay of 14 days on execution of the judgment for possession. Mr Elliott sought longer, but I did not accept this. In circumstances where Padella is entitled to immediate possession and Mr Elliott has had ample opportunity to vacate the Premises, I was not prepared to grant a stay beyond that period which Padella was prepared to give.

54 Padella sought its costs of and incidental to the Application, which Mr Elliott did not dispute.

(a) recovery of possession of the Premises;

(b) a stay on execution of the order for possession for a period of 14 days;

(c) Mr Elliott to pay mesne profits calculated at the rate of $92 per week for the period 10 October 2015 to 25 May 2018, being $12,604;

(d) Mr Elliott to pay interest on the sum of $10,173 (being the mesne profits from 10 October 2015 to the commencement of the proceeding on 21 November 2017) at the penalty interest rate from 21 November 2017 to the date of payment;

(e) Mr Elliott to pay interest on the amount of $92 for each week for the period from 21 November 2017 to 25 May 2018 at the penalty interest rate from the date when each weekly amount arose in that period to the date of payment;

(f) Mr Elliott to pay mesne profits calculated at the rate of $92 per week from 26 May 2018 to the date when vacant possession is delivered up;

(g) Mr Elliott to pay Padella's costs of and incidental to the Application.

[1] The Application has been referred to me for hearing and determination, by orders made on the Court's own motion, pursuant to R 84.04 of the Supreme Court (General Civil Procedure) Rules 2015 ('Rules').

[2] This is the amount of the rent previously payable by Mr Elliott under the lease, calculated weekly.

[3] Mr Elliott admits entering into the Settlement Agreement, but says in the Defence that he cannot recall its contents: Defence, [11].

[4] Defence [19], [24]; although Mr Elliott does not accept Padella's allegations in respect of all the items particularised by Padella.

[6] [2013] VSCA 158; (2013) 42 VR 27, 40 [35].

[8] (2009) VR 213; [2009] VSCA 288 ('Hausman v Abigroup').

[10] See footnote 13 in the reasons of the Court of Appeal in Hausman v Abigroup, where it was stated: 'Whether there is in fact such a burden upon a plaintiff, once the prerequisites for summary judgment have been satisfied, is a difficult question. Rule [22.05] requires a defendant, who is the subject of an application, in proper form, for summary judgment, to "show cause" why such judgment should not be granted. It may be that this imposes upon a defendant an evidential burden, or something akin thereto'.

[11] Hausman v Abigroup, [62]-[65].

[12] Innovateq Australia Pty Ltd and Anor v Barnes and Ors [2016] VSC 618 (Ierodiaconou AsJ), referring to Capital One Securities Pty Ltd v Soda Kids Holdings Pty Ltd [2012] VSC 163 and to Portbury Development Pty Ltd v Ottedin Investments Pty Ltd and Ors [2012] VSC 490.

[13] [2017] VSC 516 [24]-[26].

[16] Augello Affidavit, [28], [30].

[17] Augello Affidavit, [31], [33], [45]; Padella's solicitors sent letters demanding delivery of vacant possession on 22 March, 21 June and 6 September 2017. On the last occasion, the letter explained why Mr Elliott was not entitled to remain in possession, gave him 3 weeks to vacate and stated that proceedings would then be issued if possession was not delivered.

[20] Exhibit 'JA-16', taken on 31 March 2018.

[21] Wilson v Kelly [1957] VicRp 19; (1957) VR 147, 152; Lynch v Port Jackson Trading Corporation Pty Ltd [1950] VicLawRp 28; [1950] VLR 153, 155.

[22] Lollis v Loulatzis [2007] VSC 547 [219].

[23] Lollis v Loulatzis [2007] VSC 547 [219].

[24] Rock Bottom Fashion Market Pty Ltd v HR & CE Griffiths Pty Ltd (Unreported, Queensland Court of Appeal, 6 March 1998) [1998] QCA 33, 15-6; Clover Pines Pty Ltd v Avin Operations Pty Ltd [2003] VSC 242 [7].

[25] Lynch v Port Jackson Trading Corporation Pty Ltd [1950] VicLawRp 28; [1950] VLR 153, 155; Wilson v Kelly [1957] VicRp 19; (1957) VR 147, 152; see also Southport Tramway Co v Gandy [1897] 2 QB 66.

[28] Exhibit 'JA-9', clause 1(g) of the Settlement Agreement.