Summary Judgment - Mini-scenario 1

Facts

Viclee Nominees Ptd Ltd applies for summary judgment, seeking possession of premises that it is the landlord of. The defendant, Team Venture Pty Ltd operates a restaurant as Viclee’s tenant. Viclee alleges that Team Venture has not paid rent for the last three months as is required by the lease. Team Venture claims that it is not in arrears, except for electricity payments resulting from a long-standing dispute over a faulty air-conditioner, i.e. Team Venture has been setting off payments with losses or damages resulting from the failure of the air-conditioner. Team Venture counterclaims for damages for breach of the landlord’s covenant of quiet enjoyment. Financial records and affidavits provided confirm that Team Venture has in fact failed to pay rent for the past three months. Relevant provisions of the lease contract provide:

 Cl 13: The Lessee expressly agrees to make all payments due under this Lease, including for rent and outgoings, punctually on the date when each payment is due and shall not withhold or be entitled to withhold the whole or any part of such payment by way of deduction, set-off or counterclaim, in respect of any claim for damages or for compensation which the Lessee shall make or has made against the Lessor, until after the Lessor’s liability for damages or compensation is determined and the amount due to the Lessee is determined or agreed.

 Cl 42: The Lessor covenants with the Lessee:

(a)             that whilst the Lessee complies with the financial and other obligations under this Lease, and

(b)             subject to the powers and entitlements conferred on the Lessor under this Lease,

(c)             the Lessee may occupy and have the use and enjoyment of the Leased Premises for the term of this Lease without interruption or disturbance from the Lessor and other persons lawfully claiming through or under the Lessor.

 

1:Which party or parties can validly apply for summary judgment?
A)

Viclee Nominees only, because only a plaintiff may apply for summary judgment: s61

Incorrect

 

B)

Viclee Nominees only, because although a defendant can apply for summary judgment, a defendant may only do so in relation to a claim, not a counterclaim: s62

Incorrect

 

C)

Viclee Nominees only, because Team Venture has no real prospect of success

Incorrect

 

D)

Either party, because plaintiffs and defendants may apply for summary judgment in relation to claims and counterclaims under Part 4.4

Correct

 

2:Is a party entitled to summary judgment?
A)

No, as this is a matter that should be allowed to proceed to trial, pursuant to s64

Incorrect

 

B)

No, as neither party has a real prospect of success

Incorrect

 

C)

Yes, Viclee Nominees, as Team Venture has no real prospect of success

Correct

 

D)

Yes, Team Venture, as Viclee Nominees has no real prospect of success

Incorrect

 

3:Following on from a ruling that summary judgment be granted, what overarching obligation is most likely to have been contravened?
A)

Overarching obligation – requirement of proper basis (s18)

Correct

 

B)

Overarching obligation not to mislead or deceive (s21)

Incorrect

 

C)

Overarching obligation to narrow the issues in dispute (s23)

Incorrect

 

D)

Overarching obligation to ensure costs are reasonable and proportionate (s24)

Incorrect

 

Comments

Post new comment

  • Allowed HTML tags: <a> <em> <strong> <ul> <ol> <li>
  • Lines and paragraphs break automatically.
  • Web page addresses and e-mail addresses turn into links automatically. (Better URL filter.)
CAPTCHA
Please enter the words you see in the box, in order and separated by a space. Doing so helps prevent automated programs from abusing this service.

Main Navigation

JOIN Login

The Judicial Officers Information Network (JOIN) is an online resource for judicial officers and their support staff. JOIN ensures judicial officers have access to legislation, judgments, publications including benchbooks and manuals, sentencing statistics and legal reference material.

JOIN is for work use only. All users must agree to the terms and conditions before using it. The Judicial College supplies and manages the username and password.