Plaintiff v Defendant

1 In this proceeding the plaintiff seeks repayment of loans alleged to have been made to the defendant. Excluding interest, the total amount alleged to be owed to the plaintiff is $1,080,000 (Alleged Debt).

2 The plaintiff seeks summary judgment in respect of the Alleged Debt, together with interest pursuant to s 58 of the Supreme Court Act 1986 (Vic) (Act) calculated at the rate fixed under s 2 of the Penalty Interest Rates Act 1983 (Vic) (Rates Act). For the relevant period[1] that interest rate is 10 per cent per annum.[2]

3 For the reasons that follow judgment should be given in respect of the Alleged Debt and interest. In summary, this is because the defendant's defence to the claim for the Alleged Debt has no real prospect of success, the defendant does not dispute that the Alleged Debt is due and payable, and it is appropriate that interest be paid at the 10 per cent per annum rate fixed under the Rates Act.

4 Aspects of the factual background to the claim were set out in my reasons in Koulouris v Haidaris [2019] VSC 392,[3] to which I refer, but will not set out again. Briefly, it is alleged that, pursuant to a series of oral agreements, between January and August 2017 a number of short-term loan advances totalling $1,170,000 were made by the plaintiff to the defendant. It is alleged that only $90,000 has been repaid, leaving the Alleged Debt past due and payable.

5 The plaintiff also alleged that interest was agreed to be paid in respect of each loan. The interest rates and amounts alleged to have been agreed were substantial, and far exceed the 10 per cent per annum rate under the Rates Act. However, these allegations need not be further addressed because the plaintiff has now expressly abandoned this part of his claim and, 'instead',[4] seeks interest pursuant to s 58 of the Act at the 10 per cent per annum rate from the date the claim was filed (on 2 April 2019) until the date of judgment.

6 In his defence filed on 23 August 2019 the defendant, a self-represented party, does not put forward any positive defence in response to the claim for the Alleged Debt, and he states that:

(a) he accepts that the plaintiff advanced $1,080,000 to him 'in different forms of loans';[5]

(b) he understands that the plaintiff has suffered loss by him 'not repaying the money back',[6] and he acknowledges the 'stress' he has put the plaintiff under;[7]

(c) he does not wish to 'move away from [his] obligation of paying the money back',[8] and that he will be 'repaying the money back to the plaintiff';[9]

(d) it was an error of judgment on his part to offer the interest rates referred to in the statement of claim, and at the time he was battling an illness of being a compulsive gambler, which he has since taken steps to obtain assistance with;[10] and

(e) he is 'prepared to pay some interest' on the Alleged Debt but not the amount of alleged agreed interest referred to in the statement of claim, which he says amounts to 'over 100% interest'[11] on the Alleged Debt.

7 The plaintiff relied upon his affidavit sworn on 22 November 2019, which also referred to an affidavit filed earlier in the proceeding,[12] and the affidavit of his solicitor, Mr Wilson, sworn on 22 November 2019.

8 The defendant relied upon his affidavit filed on 3 December 2019.

9 Given the common ground between the parties regarding the existence and quantum of the Alleged Debt, the plaintiff's abandonment of the agreed interest claim, and the admissions made by the defendant in his defence, it is not necessary to traverse the plaintiff's evidence in detail.

10 It is sufficient to note that in his affidavits the plaintiff deposes to, among other things: the circumstances in which the loan advances were made and the dates when the amounts were due to be repaid, all of which have passed; the Alleged Debt being due and payable but unpaid; the unsuccessful attempts to obtain payment; the plaintiff learning of the defendant's gambling problem and that the moneys advanced by him had not been used for on-lending to developers as he thought they would be; statements made by, and communications from, the defendant in which it is said that the defendant does not dispute, and admits, that he owes the Alleged Debt; and that the defendant does not believe that the defence to the claim for the Alleged Debt has any real prospect of success. The plaintiff also expressly stated in his 22 November 2019 affidavit that he is abandoning the claim for agreed interest and seeking only statutory interest instead.[13]

11 Mr Wilson says in his affidavit that the defendant '... has admitted that he owes the Plaintiff the [Alleged Debt] both in correspondence to KKI and statements in Court',[14] and he exhibits various communications and transcript extracts said to contain and evidence these admissions.

12 The defendant's short affidavit was consistent with his defence, both in relation to the Alleged Debt and the claimed agreed rates and amounts of interest. He again did not dispute that the Alleged Debt is owing, stating that '... I do not dispute the amount of $1,080,000 that I need to repay back to the plaintiff'.[15] He also addressed the interest claimed in the statement of claim, apparently not appreciating that the claim for agreed interest had been expressly abandoned by the plaintiff. In this regard he said that he was disputing the amount of interest claimed as there was no written agreement but that '... I am not shying away from what I owe the plaintiff and I am willing to pay some interest that is deemed reasonable.'[16]

13 The defendant also deposed to: his desire to repay the Alleged Debt; his ongoing work as a real estate agent; his understanding that the plaintiff has 'every right'[17] '... to go down the path of legal action ...'[18]; his desire to have 'a second chance'[19] and for the plaintiff to meet and agree some form of instalment arrangement with him; his fear regarding the adverse impact of a judgment on his ability to earn income; and his gambling addiction and the steps he has been taking to address it.

14 Even though the defendant deposed to his ongoing work as a real estate agent there was no evidence from him or the plaintiff that any amount of the Alleged Debt had been repaid. In his oral submissions the defendant informed the Court that he admits that he owes the Alleged Debt. He also reinforced that he would like to reach an agreement to repay the money over time but that repayment was 'not going to happen tomorrow ... in six months ... or 12 months ...'.[20]

15 The plaintiff filed a succinct written submission, which was supplemented by oral submissions from counsel. Among other things it was submitted that the evidence established that the Alleged Debt is due and owing and that, in any event, this was not disputed by the defendant. The absence of dispute was said to be established by past admissions made by the defendant to the plaintiff, to the plaintiff's solicitors, in communications with the Court, in the defence, and in open court. Reliance was placed upon the communications and transcript exhibited to the plaintiff's and Mr Wilson's affidavits, and reference was also made to the acknowledgment of indebtedness in the defendant's affidavit filed on 3 December 2019.

16 It was submitted that the only issue that was in dispute related to the alleged agreed interest rates and amounts referred to in the statement of claim, but that this was no longer an issue because the plaintiff had abandoned this interest claim and seeks only statutory interest, and only from the date of filing of the writ. As mentioned, this was adjusted to the date of service of the writ, being 4 April 2019. It may also be observed that the amount of interest now claimed is a much smaller amount than the previously alleged agreed interest, which was for an amount of more than $1.1 million.

17 The plaintiff submitted that, having regard to established principles regarding applications for summary judgment,[21] s 63 of the Civil Procedure Act 2010 (Vic) (CP Act) had been satisfied because the defence to the claimed Alleged Debt and statutory interest had no real prospect of success. It was also submitted that if summary judgment is ordered, the plaintiff will have been the successful party on this application and in the proceeding generally and therefore he should have his costs, except for costs of and incidental to his summons filed on 17 September 2019 in relation to contempt of court, which has not yet been heard and determined.

18 In his written submissions the plaintiff submitted that orders should be made to the following effect:

(a) The plaintiff be granted summary judgment as to the claim in respect of the Alleged Debt in the amount of $1,080,000 and interest pursuant to s 58 of the Act calculated from 2 April 2019 up to the date of judgment.

(b) The defendant pay the plaintiff's costs of the proceeding to date, including all reserved costs and the costs of and incidental to this application.

(c) The proceeding otherwise be dismissed with a right of reinstatement reserved to the plaintiff.

19 As he has done on other occasions when this matter has been before the Court, the defendant appeared in person after obtaining the assistance of the self-represented litigant co-ordinator. He did not file a written submission but was given the opportunity to make submissions orally. The defendant's position was consistent with that referred to above and he stated that he did not dispute that the Alleged Debt is payable and that he wanted to repay it, but it was not going to happen quickly.

20 As was recently observed in Silver Chef Rentals Pty Ltd v Makong Australia Pty Ltd,[22] the principles applicable to the grant of summary judgment are well established. It is convenient to draw upon the following helpful summary of Sloss J in that case:[23]

1. In Victoria, the requirements which must be satisfied in order for a plaintiff to obtain summary judgment have recently been considered and aptly summarised by Matthews JR in Padella Pty Ltd v Elliott.[24] For convenience, I have largely adopted those principles as distilled by Matthews JR, which are set out below.
2. 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 that, subject to s 64, the Court may give summary judgment in a civil proceeding 'if satisfied' that a defence has 'no real prospect of success'.
3. Section 64 of the CPA provides that:

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.

1. In Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd,[25] the Court of Appeal stated the relevant test to be applied in determining an application for summary judgment made under ss 61 and 63, as follows:[26]

(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 Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125];

(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.

1. Section 7(1) of the CPA sets out its overarching purpose, which is 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.
2. Where a plaintiff in a civil proceeding seeks to bring an application for summary judgment under s 61 of the CPA, it must be made in accordance with Order 22 of the Rules.[27]
3. Rule 22.04 of the Rules sets out the material required to be filed in support of an application for summary judgment. It provides as follows:

(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.

1. The requirements set out in rr 22.04 and 22.05 were considered by the Court of Appeal in Hausman v Abigroup Contractors Pty Ltd.[28] In relation to an affidavit in support of an application for summary judgment, the Court of Appeal stated that what 'must be verified are the facts necessary to establish a good cause of action'.[29] 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.[30]
2. With regard to the equivalent of what is now r 22.05, the Court of Appeal stated as follows:[31]

[62] ... 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'.

[63] 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.

[64] 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.

[65] 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.

1. Those principles from Hausman extracted above remain good law since the advent of the CPA.[32]

21 I have concluded that summary judgment should be given in favour of the plaintiff in respect of the Alleged Debt, together with interest at the 10 per cent per annum rate fixed under the Rates Act.

22 Putting to one side for the moment the alleged admissions of the defendant,[33] I am satisfied that the evidence of the plaintiff in his April and November 2019 affidavits establishes that loan advances of $1,170,000 were made, that $90,000 has been repaid, and that a balance of $1,080,000 remains due and payable by the defendant to the plaintiff. It may also be observed that no evidence was filed, relied on, or referred to by the defendant to suggest otherwise. The defendant's defence does not plead or otherwise put forward any positive defence to the claim for the Alleged Debt, and no affidavit material has been filed or submission made that suggests that there is or may be an arguable basis for defending this aspect of the claim. The plaintiff has also deposed to the fact that he believes that the defence to the claim has no real prospect of success. These matters establish that the defendant's defence has no real prospect of success and provide a sound basis for granting summary judgment in respect of the Alleged Debt.[34]

23 In addition, the defendant expressly acknowledges in his defence that he is liable to the plaintiff in respect of the Alleged Debt. Whether considered alone or together with the matters raised in the preceding paragraph, this also establishes that the defendant's defence has no real prospect of success and provides a sound basis for granting summary judgment.

24 That being so, it is not strictly necessary to consider whether, taken alone or together with the other matters referred to, the alleged admissions in the defendant's various communications and statements provide a further basis for granting summary judgment.[35] But for completeness I add that I accept the plaintiff's submission that in communications between the parties, to the plaintiff's solicitors, and in open court, the defendant has indicated on numerous occasions, both directly and indirectly, that he does not dispute that he owes the defendant $1,080,000 in respect of the Alleged Debt. I refer in this regard to the statements and communications referred to in the plaintiff's 22 November 2019 affidavit, in Mr Wilson's affidavit, and the statements made in court this day. It may also be observed that the defendant did not seek to make submissions or lead evidence to the contrary. These matters further reinforce that the defendant's defence has no real prospect of success.

25 It was not submitted that summary judgment should not be granted and the matter should proceed to trial on the basis that it is not in the interests of justice to give summary judgment, or on the basis that the dispute is of such a nature that only a full hearing on the merits is appropriate.[36] In any event, it is plain that such matters could not be established. Although the background facts involve some intrigue and complexity, the claim is a conceptually straightforward debt claim, the plaintiff has been kept out of his money for some time, and this is a clear case for summary judgment.

26 Although the evidence, pleadings, and submissions suggest that the defendant has been suffering some challenges in connection with his gambling and illness, that judgment may or will impact on his employment and earning capacity, and that he would like to reach agreement regarding payment of the Alleged Debt in instalments, these matters do not alter the position. As the plaintiff submitted, they do not provide a basis for an arguable defence and when considered with the other circumstances they do not provide any sound basis for concluding that it is in the interests of justice or otherwise appropriate for the matter to proceed to trial.

27 I am also satisfied that the plaintiff should be awarded interest calculated at the 10 per cent per annum rate under the Rates Act. Although the pleaded agreed interest claim has been abandoned, the claim is for a debt or sum certain and s 58 of the Act is engaged. Understandably it was not suggested that good cause has been shown as to why no interest at all should be awarded. Plainly it should be, as the defendant also acknowledged.[37]

28 As mentioned, the plaintiff initially sought interest from 2 April 2019, being the date the writ was filed. When the issue of service of the writ was raised, counsel for the plaintiff submitted that the date of service was the date of demand that the plaintiff relies upon. The court was informed that 4 April 2019 was the date of service, which was supported by a previously filed affidavit of service. In these circumstances, and noting the terms of s 58 of the Act, interest should be calculated from and including 4 April 2019. The plaintiff did not seek interest from the dates of earlier demands, which the evidence suggests were made prior to 4 April 2019. Because the plaintiff expressly sought interest from 4 April 2019 only, that provides good cause to grant interest from that date, which is what I propose to do.

29 As has been observed in other cases, as a general rule it has been the practice in this Court to use the rates under the Rates Act as the 'starting point'.[38] There was no evidence before me in relation to the plaintiff's position, however, consistent with the approach commonly taken in this Court it is in my view appropriate to apply these rates having regard to the circumstances of this case. In this regard it may be observed that the plaintiff has been deprived of the use of his money over an extended period and that the plaintiff had been chasing the defendant for repayment for some time prior to the filing and service of the writ.[39] It may also be observed in passing that the amount claimed is a materially lower sum of interest than that which the plaintiff's defence suggests he said he would pay, although I add that the position would not change even if that were not the case, noting that the agreed interest claim was abandoned.

30 Finally, although I propose to give summary judgment and make an order otherwise dismissing the claims as sought by the plaintiff, I do not propose to make an order reserving a right of reinstatement of the proceeding. This aspect of the summons was ultimately not pressed and would not have been appropriate in any event. However, granting summary judgment does not dispose of the proceeding entirely because there remains for hearing and determination the contempt allegations the subject of the plaintiff's summons filed on 17 September 2019.

31 Summary judgment should be given in favour of the plaintiff in respect of the Alleged Debt together with interest from 4 April 2019 until today, at the 10 per cent per annum rate fixed under the Rates Act.

32 Subject to confirming the calculations with the parties, it is proposed to make orders to the following effect:

(a) The defendant pay to the plaintiff the sum of $1,080,000, together with interest on that amount of $73,084.93.

(b) The plaintiff's claim is otherwise dismissed.

33 I will hear from the parties regarding costs and further directions in respect of the plaintiff's summons filed on 17 September 2019.

[1] The period in respect of which interest was claimed was from the date of the filing of the writ (2 April 2019) until judgment. As will be seen, this was revised to 4 April 2019, being the date of service.

[2] This was the rate fixed by the Attorney-General pursuant to the Rates Act with effect on and from 1 February 2017.

[4] Plaintiff's affidavit sworn on 22 November 2019 at [6]. See also plaintiff's written submissions dated 29 November 2019 at [1(b)] and [16].

[5] At [10] and paragraph 'B' on page 2 of the defence.

[7] Final paragraph on page 2 of the defence.

[9] Penultimate paragraph on page 2 of the defence.

[11] At [10] and paragraph 'B' on page 2 of the defence.

[12] Filed on 3 April 2019, which was referred to in his affidavit of 22 November 2019 at [4](a)-(e).

[14] At [5]. KKI is a reference to the firm of solicitors acting for the plaintiff, Kalus Kenny Intelex.

[20] Transcript 7:16-30. The defendant also confirmed that he had not put any written proposal to the plaintiff but was willing to do so.

[21] Referring to Lysaght Building Solutions Pty Ltd v Blanalko [2013] VSCA 158; (2013) 42 VR 27 [35] and additional cases. These principles are referred to further below.

[22] [2019] VSC 703, [49]-[60]. And recognised by the plaintiff.

[23] Which was drawn in part from a summary in Padella Pty Ltd v Elliott [2018] VSC 301, [19]-[28] (Matthews JR).

[24] [2018] VSC 301, [19]-[28]. See also Israfoods (2006) Ltd v J & D Consortium Pty Ltd [2019] VSC 323, [40]-[51].

[25] (2013) 42 VR 27; (2013) VSCA 158.

[26] Ibid, at 40 [35] (per Warren CJ and Nettle JA, Neave JA agreeing in part (at 42 [40]-[42])).

[27] Rule 22.03 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).

[28] (2009) 29 VR 213; [2009] VSCA 288 (Hausman).

[30] See footnote 13 in the reasons of the Court of Appeal in Hausman, 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'.

[31] Hausman, at 225-226 [62]-[65] (citations omitted).

[32] Innovateq Australia Pty Ltd v Barnes [2016] VSC 618, [11] (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 [2012] VSC 490.

[33] Including those in his affidavit filed on 3 December 2019.

[34] Noting also that considerations of the kind mentioned in s 64 of the CP Act do not arise, as is briefly further discussed below.

[35] Noting also that the plaintiff did not bring an application for judgment on admissions pursuant to rule 35.04.

[36] As to which, see s 64 of the CP Act.

[37] See paragraph 12 above.

[38] Kalenik v Apostolidis (No 2) [2009] VSC 410 (Hargrave J). See also Hodgson v Amcor Ltd (No. 9) [2012] VSC 205, [36] (Vickery J).

[39] But noting that, for the purpose of calculating interest, the plaintiff elected to rely on the service of the writ as the operative demand.