BRYMAT PTY LTD v KALJO [1989] NSWCA 29

BRYMAT PTY LTD v KALJO

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, CLARKE and MEAGHER JJA 31 March 1989, 31 March 1989

[1989] NSWCA 29

LOAN — SUMMARY JUDGMENT — ONUS ON APPLICANT EXISTENCE OF A QUESTION OF FACT TO BE TRIED

Clarke JA The first opponent sued the claimant in the District Court for repayment of the balance of a loan made on 26 July 1985.

Prior to the issue of the proceedings there had been correspondence between the solicitors for the parties, in the course of which it was asserted on behalf of the first opponent that the claimant had not repaid the balance of the loan, and the claimant's solicitors contended that the loan had been made, not to the claimant but to one of its directors, Mr B Fleming, who is the first opponent's son-in-law. In their letter the claimant's solicitors added the observation that he was not prepared to repay the balance of the loan until the first opponent had returned some furniture which he had allowed her to use.

The failure of the parties to resolve their different contentions led to the issue of a statement of claim which was followed by an application by the first opponent for summary judgment. This occurred, despite the fact that no defence had been filed, presumably because of the attempts by the parties to resolve their differences.

Upon the filing of the motion for summary judgment, the claimant put on a misguided application seeking an order that the statement of claim be struck out. Both the motions came on for hearing before Judge Ward on 12 August 1988 and at the outset of the hearing counsel for the claimant indicated that he wished to have an order made dismissing the motion which his client had brought. He did, however, wish to rely on the affidavit filed in support of that motion, as providing an answer to the motion for summary judgment.