Domenico Alessandro Calabretta in his capacity as receiver of Harris Health Care Pty Limited v French [2022] NSWSC 869

Supreme Court New South Wales

Medium Neutral Citation: Domenico Alessandro Calabretta in his capacity as receiver of Harris Health Care Pty Limited v French [2022] NSWSC 869 Hearing dates: 20 June 2022 Date of orders: 20 June 2022 Decision date: 20 June 2022 Jurisdiction: Equity Before: Black J Decision: Judgment in favour of the Second Plaintiff in the amount of $450,000 with interest against the Defendant. No order as to costs and proceedings otherwise dismissed. Catchwords: CIVIL PROCEDURE — Summary disposal — Judgment for plaintiff — No defence — Where plaintiffs seek summary judgment for an amount due under a loan agreement with interest — Where plaintiffs also seek summary judgment for a declaration and specific performance in relation to an alleged settlement agreement — Whether defendant has a defence to the claim or part of the claim Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 13.1 Cases Cited: Masters v Cameron (1954) 91 CLR 353 Category: Principal judgment Parties: Mr DA Calabretta as receiver of Harris Health Care Pty Ltd (First Plaintiff) Harris Health Care Pty Ltd (Second Plaintiff) Mr A French (First Defendant) Representation: Counsel: Mr A Fernon SC (Plaintiff)

Solicitors: Nelson McKinnon (Plaintiff) Mr A French (First Defendant) (self-represented) File Number(s): 2021/00321884

Judgment – ex tempore (Revised 29 June 2022)

Nature of the application 1. By Further Amended Notice of Motion filed on 1 June 2022, the Plaintiff, Mr Calabretta, in his capacity as receiver of Harris Health Care Pty Ltd ("HHC") and HHC, which has been joined as party to the proceedings pursuant to an order that I made this morning, as a necessary and plainly a proper party to the proceedings, seeks summary judgment on two alternative bases. 2. The first is an order that relief be given in the form of prayers 3 to 6 of a Further Amended Summons also filed on 1 June 2022. Prayer 3 seeks, in effect, judgment in favour of Mr Calabretta for HHC in the amount of $450,000; prayer 4 seeks an order compelling a money payment within seven days; prayer 5 seeks an order that the First Defendant, Mr French, pay Mr Calabretta's remuneration and costs; and prayer 6 seeks an order for interest on the judgment debt. 3. The alternative basis on which summary judgment is sought, more ambitiously, is for relief in the form of prayers 9 and 10 of the Further Amended Summons. Prayer 9 seeks a declaration that, on 18 November 2021, Mr Calabretta and Mr French entered into a binding settlement agreement to resolve the proceedings between them. Prayer 10 seeks an order for specific performance of that binding settlement agreement, by execution of a Deed of Acknowledgment of Debt and Forbearance. 4. Before turning to the wider history of the proceedings, and the evidence on which the parties rely, I should note that Mr Fernon, who appears for Mr Calabretta and HHC, has confirmed that summary judgment is sought on the basis that it will finally dispose of all issues in the proceedings and that, if summary judgment is given, the proceedings would otherwise be dismissed. I have proceeded to hear the application on that basis, with the result that if either I accede to the application in respect of summary judgment as to the loan and interest, or if I accede to the application in respect of specific performance of the suggested settlement agreement, the balance of the proceedings will be dismissed. That confirmation was important for the conduct of the proceedings, first, as to the question whether this motion should be heard now or deferred to be heard together with the substantive proceedings; and, second, as to whether summary judgment should be given, in the Court's discretion, because there might be little utility in summary judgment if it would merely determine a single aspect of the dispute prior to the determination of the remaining issues in the proceedings.