Iacullo v Hillam [2014] NSWSC 624

Supreme Court New South Wales

Medium Neutral Citation: Iacullo v Hillam [2014] NSWSC 624 Hearing dates: 15/05/2014 Decision date: 15 May 2014 Jurisdiction: Equity Division - Commercial List Before: McDougall J Decision: See at [24] Catchwords: PROCEDURE - judgments and orders - judgment on admissions - whether appropriate case to grant judgment on admissions - whether to grant leave to move for summary judgment Legislation Cited: Civil Procedure Act 2005 (NSW) Evidence Act 1995 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: In the Matter of the Trade Marks Act 1955-1958 and In the Matter of Registered Trade Marks "Certina" and "Certina DS" (1970) 44 ALJR 191 Nominal Defendant v Gabriel (2007) 71 NSWLR 150 Category: Procedural and other rulings Parties: Dominic Iacullo (First Plaintiff) Lillian Iacullo (Second Plaintiff) John Hillam (Defendant) Representation: Counsel: D A Smallbone (Plaintiffs) D Neggo (Defendant) Solicitors: I E Duffield (Plaintiffs) Mills Oakley Lawyers (Defendant) File Number(s): 2014/66418

Judgment (ex tempore - revised 15 May 2014) 1HIS HONOUR: The plaintiffs, Mrs and Mrs Iacullo, sue the defendant, Mr Hillam, on various counts. Among the causes of action are claims for repayment of debts owing under two loan agreements. Although the total indebtedness is said to exceed $355,000, Mr and Mrs Iacullo seek relief today only on two advances: one said to have been made on 12 July 2011, in the sum of $200,000; and the other said to have been made a fortnight later, on 26 July 2011, in the sum of $155,000. 2Mr Hillam acknowledges his liability for the loan of $155,000 made on 26 July 2011 and has tendered payment of that sum to Mr and Mrs Iacullo, I was informed this morning. It may be that the actual offer of payment was made somewhat earlier, but that is now relevant only to the question of costs. 3As to the sum of $200,000, the sole "pleaded" defence is that Mr Hillam does not admit that the advance was made. It appears, from some material to which I am about to refer, that the non-admission (which on the face of it is somewhat surprising) arises because the loan may have been advanced not to Mr Hillam personally but to a solicitor then acting for him in some connection. 4Mr and Mrs Iacullo moved pursuant to UCPR r 17.7 for judgment on admissions. The admissions in question were said to have been made in various documents signed by Mr Hillam. There is no need to deal with the admissions in respect of $155,000, for the reason I have indicated. 5As to the sum of $200,000, Mr and Mrs Iacullo rely on three documents. One is a loan agreement dated 26 July 2011. The next is an email chain, on a printout of which Mr Hillam wrote and signed certain words. The third is a Loan agreement dated 15 August 2011. 6In the first of those documents, which it is uncontested was signed by Mr Hillam, the expression "Loan" is defined to mean $355,000. Clause 2.1 stated that Mr and Mrs Iacullo had advanced the Loan to Mr Hillam as at the date of the agreement. Clause 3 dealt with interest. It provided that interest was to run on $200,000 from 12 July 2011, and on $155,000 from 26 July 2011. 7The email chain concerns a proposal that Mr Hillam give some security for "the $355,000 loan agreement". It appears to record that Mr Hillam had agreed to give some security. On the printout of the email Mr Hillam wrote: "Provided it does not take presidence [sic] over other charges." 8It is accepted that the writing and following signature are his. 9The loan agreement of 15 August 2011 does not describe the expression "Loan" to mean the total amount. It refers to advances said to have been made on various dates, including the two to which I have referred. Somewhat confusingly, however, cl 2.1 says that the Loan (which is each of the four instalments in question, including the two to which I have referred) is to be advanced on the date of the agreement. 10One might think it is tolerably clear, as a matter of construction, that the obligation to advance "the Loan on the date of this Agreement" means so much of the loan as has not been advanced (and, I interpose, agreed to have been advanced) on prior occasions. But regardless, I am concerned not with the construction of the agreement but with the extent to which it constitutes an admission. 11There are some uncertainties in the second and third documents. The email refers to "money which John [Hillam] will owe me and Lillian [Mrs Iacullo] regarding the $355,000 loan agreement...". That could be taken to indicate that the money will be owed once it is advanced. 12With the third document, the loan agreement of 15 August 2011, there are the obscurities to which I have referred. 13The clearest case of an admission arises, of course, from the first document, the loan agreement of 26 July 2011. On the face of things, that agrees that there is a loan of $355,000 and that it has been advanced. Clause 3, dealing with interest, could be taken to acknowledge the dates of the two advances that make up the total loan. 14Mr Neggo of counsel, who appeared for Mr Hillam, sought to mount an argument that the agreement in question did not amount to an admission, and that it offended the hearsay rule. It was a hearsay case, Mr Neggo submitted, because (in terms of s 59 of the Evidence Act 1995 (NSW)) the document was, at best, a previous representation made by Mr Hillam. 15Further, Mr Neggo submitted, the document was not an admission against interest and therefore admissible, as proof of the asserted fact, under s 81 of the Evidence Act. It was not an admission, Mr Neggo submitted, because it was not adverse to Mr Hillam's interest in the outcome of the proceeding. That was so, according to the submission, because the making of the advance was not denied, but merely not admitted. 16I have the greatest difficulty in understanding that submission. For the purposes of s 81, Mr Hillam's interest in the outcome of the proceeding is, presumably, to defend the various claims made against him. Thus, the admission which is express on the face of the agreement of 26 July 2011, that the full amount of the loan has been advanced as at the date of the agreement, is against that interest. 17The alternative argument that Mr Neggo advanced was that the context of the admissions must be considered, and that on Mr Hillam's evidence, (which for present purposes, understandably, was not challenged), there was reason to think that the admission had not been made with personal knowledge of the facts. 18That submission was based on Mr Hillam's affidavit, which said in careful terms that when he signed the documents in question, he knew that the sum of $200,000 had not been paid to him on the asserted date, 12 July 2011, but he assumed that it had been paid by transfer to the solicitor. He said, further, that he did not know whether it had been so transferred and he still did not have personal knowledge of that fact. 19Mr Neggo submitted that in those circumstances it could be said that the supposed admission (if, contrary to the principal submission, there was any admission made) was not made at a time when Mr Hillam, the party making it, was in possession of all relevant facts. Mr Neggo relied on what Campbell JA had said in Nominal Defendant v Gabriel (2007) 71 NSWLR 150 at [113]. For convenience I set out that paragraph: [113] An admission made otherwise than in the course of a formal court process is merely an item of evidence that the court might ultimately accept or reject. It is open to a party who has made such an admission to seek to demonstrate, through other evidence, that the admission was made under a misapprehension, or at a time when the person who made the admission did not have all the relevant information, or that there is some other reason why the court ought not to accept that the admission states the truth about the matter admitted. In that way, an admission that is an item of evidence made outside court proceedings can be qualified or explained away. However, there is no question, absent some statutory context that provides it, of any such admission being "withdrawn". If a motorist, after an accident, says "I wasn't looking", nothing that the motorist does afterwards can alter the fact that he or she said those words, and it is the saying of the words that constitutes the admission. 20Bearing in mind the need to exercise the power, to grant judgment on admissions, "with great caution" and only "in a clear case" (see Barwick CJ in In the Matter of the Trade Marks Act 1955-1958 and In the Matter of Registered Trade Marks "Certina" and "Certina DS" (1970) 44 ALJR 191 at 192), I think there is just enough in the statements in Mr Hillam's affidavit to make this an inappropriate case to grant judgment on admissions in respect of the sum of $200,000. 21Nonetheless, bearing in mind the very limited nature of the issue tendered on the "pleadings" and on Mr Hillam's affidavit, it seems to me that the appropriate course is to give Mr and Mrs Iacullo leave to amend their notice of motion so as to claim summary judgment for the sum of $200,000, and to file an affidavit showing payment of that amount to whomsoever it was paid (and such other matters as they may be advised are relevant to be shown on the application). 22It is clearly appropriate, in terms of s 56 of the Civil Procedure Act 2005 (NSW), for the real issue on the alleged loan for $200,000.00 to be exposed and, if it be appropriate, dealt with. That way, the remaining issues in the proceedings can be dealt with on their merits, and (if they are otherwise entitled) Mr and Mrs Iacullo will not be kept out of their money, in respect of which (it might be) there is no issue that should stand in the way of their recovering judgment. 23Equally, given the highly technical nature of the "defence" that is advanced and the very limited (or as Mr Smallbone for the plaintiffs put it "careful") drafting of Mr Hillam's affidavit affirmed yesterday, it is appropriate that the costs of this application should be dealt with when the application for summary judgment is dealt with. 24For those reasons, and as discussed with counsel in the course of argument, I make the following orders: 1. I note that the sum of $155,000, being part of the claim made by the plaintiffs against the defendant, was paid by the defendant to the plaintiffs this morning. 2. I reserve the question of costs in respect of that aspect of the claim. 3. I grant the plaintiffs leave to move for summary judgment and direct that any notice of motion for summary judgment be filed and served by 5pm on 16 May 2014 and be made returnable before me at 9:30am on 22 May 2014. 4. I direct that any affidavit in support of that application be served by 12 noon on 19 May 2014 and that any affidavit in reply be served by 5pm on 21 May 2014. 5. I reserve the question of costs in relation to the claim for repayment of $200,000.