Vial v Cossa [1999] NSWSC 298

Vial v Cossa [1999] NSWSC 298

The documentary evidence supported the defendant's claim that he had made payments totalling $306,300, but that figure had to be reduced by $2,000 for a stopped cheque, leaving $304,300. The defendant was also entitled to a credit of $7,142 for traffic infringement notices and penalties falling within the plaintiff's indemnity, but not to an $800 fine imposed on him personally or a $182.50 restaurant meal claim. Deducting the total credit of $311,442 from the deed liability of $400,000 left $88,558, so the summary judgment sum was varied accordingly.

Jurisdiction
Australia
Judgment Date
01 April 1999
Procedural Posture
Application for Summary Judgment Pursuant to Part 13 Rule 2 of the Supreme Court Rules and Notice of Motion to Vary the Judgment Sum / Defendant's Notice of Motion Filed 19 February 1999 to Vary the Amount of Summary Judgment Ordered on 12 February 1999
Outcome
Defendant's Notice of Motion substantially succeeded; the summary judgment amount was varied and the plaintiff was ordered to pay the defendant's costs of the motion.
Legal Topics
['summary Judgment' 'variation of Judgment Amount' 'deed Debt' 'evidentiary Assessment of Payments' 'costs']
['civil Procedure' 'equity'] ['summary Judgment' 'variation of Judgment Amount' 'deed Debt' 'evidentiary Assessment of Payments' 'costs']

Case Brief

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Procedural Posture

Application for Summary Judgment Pursuant to Part 13 Rule 2 of the Supreme Court Rules and Notice of Motion to Vary the Judgment Sum / Defendant's Notice of Motion Filed 19 February 1999 to Vary the Amount of Summary Judgment Ordered on 12 February 1999

Legal Issues

  1. 1 ['Whether the sum of $147,850 referred to in the summary judgment order should be varied.' 'How much the defendant had paid toward his liability of $400,000 under the deed.' 'Whether the defendant should receive credit for traffic infringement notices and penalties related to the motor vehicle.' 'Whether the defendant should receive credit for an alleged unpaid restaurant meal bill.']

Ratio Decidendi

The documentary evidence supported the defendant's claim that he had made payments totalling $306,300, but that figure had to be reduced by $2,000 for a stopped cheque, leaving $304,300. The defendant was also entitled to a credit of $7,142 for traffic infringement notices and penalties falling within the plaintiff's indemnity, but not to an $800 fine imposed on him personally or a $182.50 restaurant meal claim. Deducting the total credit of $311,442 from the deed liability of $400,000 left $88,558, so the summary judgment sum was varied accordingly.

Court Disposition

Defendant's Notice of Motion substantially succeeded; the summary judgment amount was varied and the plaintiff was ordered to pay the defendant's costs of the motion.

Orders

  • ['The sum of $147,850 referred to in order 1 made on 12 February 1999 be varied by substituting therefor the sum of $88,558.' 'The plaintiff pay the costs of the defendant of the Notice of Motion filed by the defendant on 19 February 1999.' 'The exhibits may be returned.']