AAB Holdings Pty Ltd v Property and Entertainment Corporation Pty Ltd [2013] QDC 96

DISTRICT COURT OF QUEENSLAND CITATION: AAB Holdings Pty Ltd v Property and Entertainment Corporation Pty Ltd [2013] QDC 96 PARTIES: AAB HOLDINGS PTY LTD (ACN 092 750 064) (Plaintiff) v PROPERTY AND ENTERTAINMENT CORPORATION PTY LTD (ACN 087 099 081) (Defendant) FILE NO/S: 4401/12 PROCEEDING: Application DELIVERED ON: 22/04/2013 DELIVERED AT: Brisbane HEARING DATE: 22/04/2013 JUDGE: Samios DCJ ORDER: 1. Judgment for the plaintiff against the defendant for the sum of $93,103.27. 2. The defendant pay the plaintiff’s cost of the application, to be assessed on the standard basis. CATCHWORDS Practice - Summary judgment sought by the plaintiff- whether the defendant has no real prospect of successfully defending all or part of the plaintiff’s claim - whether there is no need for a trial of the claim or the part of the claim. Uniform Civil Procedure Rules rr 292 COUNSEL: Mr Sweeney for the Plaintiff. Mr Kake (Sol) for the Defendant. SOLICITORS: HWL Litigation Pty Ltd for the Plaintiff. Quinn & Scattini for the Defendant. [1] The plaintiff has sued the defendant for $568,136.36 as restitution for moneys paid under a mistake of fact. Alternatively, the plaintiff claims against the defendant the settlement amount of $568,136.36 pursuant to section 82 of the -- 1 of 5 -- Trade Practices Act 1974 (Commonwealth) and/or section 236 of schedule 2 of the Competition and Consumer Act 2010 (Commonwealth). [2] The defendant has filed a notice of intention to defend. On 3 April 2013 the plaintiff filed this application seeking, under rule 292 of the Uniform Civil Procedure Rules, judgment be entered against the defendant for $149,442, or alternatively for $16,304. However, on the hearing of the application this morning, the plaintiff claims against the defendant judgment for $93,103.27. [3] The application is opposed. Rule 292 of the Uniform Civil Procedure Rules provides that a plaintiff may, at any time after a defendant files a notice of intention to defend, apply to the Court for judgment against the defendant. Further, if the Court is satisfied that the defendant has no real prospect of successfully defending all or a part of the plaintiff's claim, and there is no need for a trial of the claim or the part of the claim, the Court may give judgment for the plaintiff against the defendant for all or the part of the plaintiff's claim, and may make any other order the Court considers appropriate. [4] I am mindful, from the authorities referred to me by Mr Kake, who appears on behalf of the defendant today, that on an application of this kind the Court should be cautious, and that if there is a real prospect of the defendant succeeding at a trial, then the matter should be let go to trial. [5] Only if I am satisfied that there is no need for a trial and that the defendant has no real prospect of successfully defending all or part of the claim should I enter judgment in favour of the plaintiff. -- 2 of 5 -- [6] The dealings between the relevant persons who are the moving forces behind each of the companies, including the plaintiff and the defendant, on their face are somewhat complex. However, it does appear - and I proceed on this basis - that there is no dispute that the Australian Tax Office has, on four occasions, garnisheed a total of $332,523.16 in tax refunds otherwise available to Mr Anthony. The first being on 25 October 2009 for $124,180; then on 31 August 2010 for $92,231; then on 31 August 2011 for $60.65; and then on 24 April 2012 for $116,052. [7] The plaintiff on this application accepts what is alleged by the defendant in paragraph 2(c) of the defence, that there was an agreement between the relevant parties to a process to give Mr Anthony indemnity for future garnisheements. That being so, it seems to me that the plaintiff is correct to submit that the substance of the agreement alleged by the defendant was that any amounts in the future garnisheed from Mr Anthony by the ATO would be treated as a loan by Mr Anthony to the plaintiff, which would then be repaid to Mr Anthony by the plaintiff making repayments at his discretion to the defendant. The defendant would then raise invoices for services, grossed up to take into account the 30 per cent corporate tax rate which invoices would be paid. [8] In this instance the defendant's invoices total $568,136.36, ex-GST, which have assumed that in March 2013 the ATO would garnishee $93,103 from Mr Anthony and apply for further amounts towards the plaintiff's tax debt. This is the allegation made in the defence in paragraph 2(h) of the defence. -- 3 of 5 -- [9] However, what is relied upon principally by Mr Kake in his submissions is that Mr Anthony swears that until his amended income tax returns are assessed by the ATO, he is not able to state the exact amount the ATO will seek to garnishee from his tax refunds in respect of the tax debts of the plaintiff company group. [10] While Mr Anthony makes this statement, in my opinion it amounts to a speculative assertion as to what might happen in the future, which is insufficient to meet the plaintiff's claim that at present there is no defence to the plaintiff's claim to be paid by the defendant the $93,103.27. In that regard, I refer to the affidavit of Mr Ross, particularly paragraphs 2 and 4, which, in my opinion, support the plaintiff's claim that, as matters stand, there is no triable issue regarding this sum of $93,103.27. [11] In those circumstances, even though Mr Anthony has sought to put in dispute certain matters in the evidence by using the word "dispute" in his affidavit, I am not satisfied that is an answer in this case to the plaintiff's entitlement to have judgment entered in its favour again the defendant for $93,103.27. I am satisfied that as to that amount, the defendant has no real prospect of successfully defending that part of the claim made by the plaintiff and I am satisfied there is no need for a trial of that part of the claim. [12] Therefore, there will judgment for the plaintiff against the defendant for the sum of $93,103.27. I will hear the parties any further in relation to questions of costs. -- 4 of 5 -- [13] I'm not inclined to accept that the payment has in any way altered the approach that the defendant has taken. The matter has been contested and, in the circumstances, costs should follow the event and they should be on the standard basis. [14] Therefore, the order I make is that the defendant pay the plaintiff's cost of the application, to be assessed on the standard basis. I repeat the previous order that there will be judgment for the plaintiff against the defendant for $93,103.27. So there will be an order as per the draft, initialled by me and left with the papers. -- 5 of 5 --