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  • Unreported Judgment

Perpetual Trustee Company Limited v Meeko

 

[2020] QDC 219

DISTRICT COURT OF QUEENSLAND

CITATION:

Perpetual Trustee Company Limited v Meeko [2020] QDC 219

PARTIES:

PERPETUAL TRUSTEE COMPANY LIMITED

ABN 42 000 001 007

(Plaintiff/Applicant)

v

DIETER MEEKO

(Defendant/Respondent)

FILE NO:

4435/20

DIVISION:

Civil

PROCEEDING:

Application for Summary Judgment

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

11 September 2020

DELIVERED AT:

Brisbane

HEARING DATE:

1 September 2020

JUDGE:

Byrne QC DCJ

ORDERS:

  1. Plaintiff’s application for summary judgment dismissed.
  2. The defendant is to pay the plaintiff’s costs of, and incidental to:
  1. a.
    The plaintiff’s application to strike out the Notice of Intention to Defend and the Notice of Defence; and
  2. b.
    The preparation and filing of the affidavit of Alice Morrow filed 27 August 2020

as agreed, or if not agreed then assessed on the indemnity basis.

  1. There be no other order as to costs.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – SUMMARY JUDGMENT – where the Applicant has applied for summary judgment – where the respondent has not filed a notice of defence but has produced documents attempting to defend – where an action is brought for repayment of a debt – whether the application of summary judgment should be granted.

LEGISLATION:

Uniform Civil Procedure Rules 1999 (Qld), r 292, r 681.

CASES:

Chen v Australia and New Zealand Banking Group & Anor [2001] QSC 43.

DCT v Salcedo [2005] 2 Qd. R. 232.

Dobbs v National Bank of Australasia (1935) 53 CLR 643.

Du Boulay v Worrell and others [2009] QCA 63.

Jessup v Lawyers Private Mortgages Ltd [2006] QSC 3.

Theseus Exploration NL v Foyster (1972) 126 CLR 507.

Tutos v Roman Catholic Trust Corporation [2020] QCA 171.

COUNSEL:

Mr S. Taylor for the Applicant

The respondent appeared in person.

SOLICITORS:

Dentons Australia Limited for the Applicant

The respondent appeared in person.

Introduction

  1. [1]
    The application before me is for summary judgment pursuant to r 292 of the Uniform Civil Procedure Rules 1999 (“UCPR”).  There is also an incidental application concerning costs. 
  2. [2]
    The plaintiff’s claim seeks the following orders:
  1. Recovery of possession of land at Narangba. 
  2. The defendant pay to the plaintiff the sum of $61,764.09 being money owing as at 20 February 2020 pursuant to the loan agreement.[1]
  3. Costs assessed on an indemnity basis.
  1. [3]
    The defendant filed what I think was correctly described by the plaintiff as a “technical defence”. Mr Meeko had obtained the pro-forma documents for a Notice of Intention to Defend and a Notice of Defence, handwrote his details and other formal matters into both documents but failed to insert any statements of substance in either document.

Factual background

  1. [4]
    On 9 March 1998, the defendant acquired a property at Redcliffe (“the Redcliffe property”). On the same day a mortgage, granted by the defendant, was registered over that property in favour of two persons[2] (“the first mortgage”). 
  2. [5]
    By a document dated 18 March 1999 and registered on 12 May 1999, the first mortgage was released and replaced with a new mortgage over the title of the Redcliffe property, still in favour of the same two persons[3] (“the second mortgage”). The second mortgage was the security for an advance in the sum of $70,000 to the defendant, and for a term of 12 months commencing 1 April 1999.[4] There is no evidence before me that the term was extended.
  3. [6]
    On 20 April 2001, the plaintiff and defendant entered into a loan agreement by which the defendant was extended finance in the sum of $75,000 (“the loan agreement”) for a term of 30 years.[5] The loan agreement required that there be a “1st Priority Registered Mortgage” as security. The defendant executed a mortgage as security under the loan agreement over the Redcliffe property in favour of the plaintiff on the same day.[6]
  4. [7]
    The face of the mortgage document shows that it was not signed on behalf of the plaintiff mortgagee until 11 May 2001, that stamp duty was paid on an unstated date in May 2001 and that there was a significant but partial refund of that stamp duty on 27 July 2001.
  5. [8]
    On 22 April 2001, a firm of solicitors acting for the plaintiff in the transaction (“the plaintiff’s solicitors”) sent the plaintiff a compliance letter indicating that a telegraphic transfer in the sum of $74,998.50 was required for settlement.[7] 
  6. [9]
    There is no direct evidence that any money was ever sent by the plaintiff to its solicitors for disbursement. (The plaintiff’s outline at paragraph 32 asserts that the proof of payment to the solicitors is to be found in the affidavit of Alice Morrow filed 23 July 2020 (Court Doc. 12) at ALM-3. That attachment is in fact a copy of the compliance letter referred to at paragraph 8 herein and provides no proof that moneys were in fact disbursed to the solicitors; only that a notification that they were required had been received by the plaintiff.)
  7. [10]
    It was not until 14 September 2001 that the second mortgage was released and replaced with the mortgage in favour of the plaintiff[8] (“the present mortgage”).
  8. [11]
    On 3 April 2002, the plaintiff and defendant entered into a variation agreement, by which the parties agreed to replace the Redcliffe property as security for the loan agreement in exchange for a property at Narangba.[9]  On the same date the defendant signed a mortgage as security for the loan agreement over the Narangba property.[10] It is this property which is the subject of the claim in these proceedings.
  9. [12]
    On 31 July 2003, the defendant made a repayment in the sum of $74,000.[11]  The effect of that was that $1,000 remained owing under the loan agreement and hence created an effective line of credit for the defendant. 
  10. [13]
    On 21 August 2006, the plaintiff and defendant entered into a further variation by which the parties agreed to extend the expiry date of the loan agreement to 26 April 2031.[12]
  11. [14]
    On 17 December 2010, the defendant re-drew funds from the loan facility in the amount of $20,000. Similar withdrawals were made in the sum of $10,000 on 14 December 2010, $10,000 on 29 April 2011, $10,000 on 1 July 2011, $10,000 on 13 September 2011, $10,000 on 3 July 2013, and $7,530.40 on 15 January 2015.  There is no dispute that it was the defendant who re-drew these funds. 
  12. [15]
    On 30 September 2019, the defendant ceased making any payments pursuant to the loan agreement under the direct debit arrangement that had been put in place.  As will become apparent, this is because he says he had at no stage received the original $75,000 from the plaintiff. 
  13. [16]
    The necessary default notice has been issued and the defendant has failed to remedy the breach. He accepts that he has not made any payments since 30 September 2019, and in submissions made it clear that he did not intend to make any payments in the future. 
  14. [17]
    Prior to the commencement of the litigation there have been at least four items of correspondence sent to the defendant in an attempt to resolve the dispute.
  15. [18]
    On 2 March 2020, the plaintiff filed and served its claim and statement of claim as outlined earlier in this judgment. On 6 July 2020, the plaintiff applied for summary judgment pursuant to r 292 of the UCPR and in the alternative, an order that the notice of intention to defend and the defence filed by the defendant on 20 March 2020 be struck out.  The matter came before Rackemann DCJ on 24 July 2020 and his Honour granted the application to strike out the defence.  He adjourned the summary judgment to the date on which I heard the matter.  He gave the defendant leave to file and serve an amended defence within 28 days of his ruling on 24 July 2020 and placed a time limit on the filing of other affidavits. His Honour also ordered that the plaintiff’s costs of and incidental to the adjournment be paid by the defendant as agreed, and if not agreed, then assessed on an indemnity basis. 
  16. [19]
    The defendant has not filed another notice of defence. When asked directly about that, his explanation was to the effect that he has trouble writing English. In the meantime however, he has forwarded to both the plaintiff and the Registry, a bundle of documents.  I will attempt to summarise their content.   
  1. A number of pages from a Suncorp Metway bank account in the name of the defendant.  The apparent purpose of them is to show that he did not receive $75,000 in cash on or around 26 April 2001 and, secondly, that he made some repayments, at least in 2001, apparently under the loan agreement. 
  2. A copy of the first page of the loan agreement that I have earlier referred to.
  3. A letter from the solicitors for the plaintiff dated 20 March 2020, with apparent emphasis being made to a sentence which referred to the loan executed 20 April 2001 and went on to say “this loan was secured by a mortgage over the property”.  Mr Meeko has marked this document that it can’t be proven and he didn’t receive the money.
  4. A copy of a letter from the ANZ Bank which indicates that the defendant has access to a sum of $63,000 upon request.
  5. The front page of the letter from a law firm which he had at one stage engaged, stating that they had requested from the plaintiff’s lawyers proof of the payment of $75,000, and a notation by Mr Meeko that there has been no answer to that.
  6. A copy of a notice of non-party disclosure which had been filed in the proceedings by the plaintiff directed to the Commonwealth Bank of Australia designed to elicit the evidence of the deposit of the various re-draws which are not now in dispute.
  7. Two photos of what appear to be damage to a motor vehicle.  This appears to have been produced to corroborate Mr Meeko’s submission that he had been at some stage involved in a motor vehicle accident. 
  8. A series of copies of the defendant’s account with the plaintiff, presumably designed to show that he has been making repayments for some time.
  9. An aerial photo and a land based photo of a house and property, presumably the subject of the present mortgage, with a notation on the back asserting that his land can be subdivided, it has a value of “$4 million plus”, that he has nothing to pay off and that “it is all one hundred percent” his.
  1. [20]
    The plaintiff has annexed copies of this material to an affidavit, which has in turn been filed. This was appropriate, given the defendant had not done so, and is self-represented. Nonetheless, most of it is irrelevant, but it was admitted out of deference to the position a self-represented litigant finds himself in. They have also been marked as Exhibit 1 on the application.
  2. [21]
    In the course of the litigation, the plaintiff’s solicitors have received correspondence from two separate law firms indicating that they have at different stages acted for the defendant. Each firm no longer acts for the defendant.

Legal framework

  1. [22]
    The claim is a straightforward claim asserting rights granted under a contract, namely the loan agreement, as varied.
  2. [23]
    The power under r 292 of the UCPR to order summary judgment should only be exercised in the clearest of cases.[13]
  3. [24]
    Summary judgment should not be given where facts upon which rights are asserted are in dispute, or where the respondent to an application adduces evidence as to the existence of facts which, if proved, would establish a defence or right to relief. It is only where all facts are known or are established beyond controversy that the court should embark on determining whether to give summary judgment.[14]
  4. [25]
    Further, summary judgment should not be granted where a viable cause of action arises on the material which, although pleaded in a deficient manner, could be legitimately advanced.[15]
  5. [26]
    Even where all facts are known and not in dispute, the extent and complexity of the legal issues may mean that a trial is the preferable method of disposition.[16]

The parties’ contentions

  1. [27]
    The defendant’s main contention is that the plaintiff is unable to prove that he personally received the initial advance of $75,000 in April, 2001.  He relies heavily on correspondence and asserted conversations with the plaintiff and their solicitors wherein, he says, they could not tell him where the initial $75,000 was deposited. This, he asserts, supports his position that it was never paid to him, nor on his behalf to anyone. He contends that, because that is so, he has no liability for repayments and hence those repayments were “stolen” from him. (There has been no counterclaim filed).  He asserts, therefore, that the loan agreement and the mortgage which acts as security for the loan is unenforceable.
  2. [28]
    Mr Meeko strenuously argued that in fact the mortgage was not a mortgage per se, but rather was a “security mortgage”. He contended that there is a difference because there is no ability for the mortgagee to exercise its rights unless he has not paid.  As, he says, he has no liability to make repayments, there can be no exercise of the mortgagee’s rights just because he stopped paying. 
  3. [29]
    As to the re-draws, he contends that he was simply accessing what is his money because he had already repaid it.  His assertion is that therefore he has no debt to the plaintiff because he was only accessing the money he had already given them to hold. 
  4. [30]
    When given the opportunity to seek further legal advice, he made clear that he had spoken to solicitors, and apparently more than the two solicitors that had contacted the plaintiff’s solicitors, and had decided that none of them were able to act for him.  He replied at one point, something to the effect, “they can’t do any better than me”.
  5. [31]
    The plaintiff’s contentions are unsurprising.  A loan agreement was entered into in 2001 and a mortgage was executed by way of security, and to replace an existing mortgage.
  6. [32]
    The plaintiff accepts that it cannot show through financial records where the sum of just under $75,000 was deposited.[17] Nonetheless it contends that as a matter of inference it is open to accept, on the balance of probabilities, that the money was paid to the previous mortgagees in order to release that mortgage.  Thus, it says, one would not expect the defendant’s bank account to show the receipt of the $75,000. It emphasises that consideration passed on the payment of the money to the previous mortgagees, and so the loan agreement was enforceable.
  7. [33]
    Through the variation to the loan agreement signed by the respondent, the Redcliffe property was replaced with the Narangba property, and a mortgage was executed in the plaintiff’s favour over that property. The plaintiff emphasises that there is no dispute that moneys have stopped being paid, and hence it is argued the contractual rights under the loan agreement support the action being taken.
  8. [34]
    On the hearing, a further affidavit was tendered to provide an up to date calculation of the amount owing, namely $95,144.26.[18] This is proven by the issuing of a certification as to the amount, as provided for by the loan agreement, providing the loan agreement is enforceable.[19]
  9. [35]
    The plaintiff also seeks costs on an indemnity basis, principally in reliance on a clause in the loan agreement, and also in reliance on the defendant’s refusal to try to resolve the matter outside of litigation.

Consideration

  1. [36]
    The value of the Narangba property is estimated to be $575,000[20] and so the application is within the jurisdiction of this Court. The respondent’s assertion that it is worth in excess of $4 million should be seen as an optimistic projection after sub-division of the property, of which there is no admissible evidence before me.
  2. [37]
    In order to succeed in its action, the plaintiff must establish on the balance of probabilities that the contract, in the form of the Loan Agreement as varied, is valid and enforceable. There has been no issue taken with the validity of the variation.
  3. [38]
    The essence of the defence is that the plaintiff cannot show that consideration passed, in the form of the agreed amount of $75,000.
  4. [39]
    I accept, as does the plaintiff, that there is an evidentiary basis to accept that the defendant was not personally paid the initial loan amount of $75,000. The issue then is whether I can properly infer that that money was paid to the previous mortgagee.
  5. [40]
    Unsurprisingly, given the passage of time, the plaintiff’s solicitors have no records to establish to whom and when the moneys were paid, if they had been received from the plaintiff in the first place.
  6. [41]
    The face of the plaintiff’s mortgage over the Redcliffe property bears notations suggesting that stamp duty was initially paid on the whole of the $75,000 advanced, and later recalculated with an exemption for the $70,000 earlier advanced on the earlier mortgage. This tends to suggest that the plaintiff’s solicitors, in calculating the fees payable were unaware of the earlier mortgage. If that is so, they could not have paid the loan amount of $75,000 to the previous mortgagee. Alternatively, of course, there simply could have been human error in the calculation.
  7. [42]
    Further, on the evidence before me, the previous mortgage secured a loan of $70,000. There is no evidence that that amount was increased at any stage. The loan amount under the present loan agreement was for $75,000. On the evidence before me, there is no explanation as to where that extra $5,000 was paid. According to the defendant’s bank account statement, it was not paid to the defendant during the period of 26 April 2001 and 4 May 2001, when it might have been expected to be paid, if it was to be paid to him.[21] On the evidence before me there is no need to have paid it to the previous mortgagees.
  8. [43]
    I accept that the plaintiff had been granted a “1st Priority Registered Mortgage” and that usual commercial practice means that it could not have been registered without the release of the earlier mortgage. Ordinarily the release of the earlier mortgage would be effected by payment of the amount advanced under the earlier mortgage to that mortgagee, but it need not be so. In the present circumstances I don’t think I can assume that to be the case, for three principal reasons:
  9. [44]
    First, ordinarily that release would have been on or close to the time the money under the last loan agreement was advanced. Here it did not occur for almost 5 months. This delay is curious and unexplained.
  10. [45]
    Second, as I have earlier noted, the payment of the higher amount of stamp duty may suggest that the plaintiff’s solicitors were unaware of the earlier mortgage. There may be an innocent explanation, but I cannot determine that issue on the present evidence.
  11. [46]
    Thirdly, on the evidence before me, the earlier loan was to be secured for a period expiring on 31 March 2000, about 13 months before the present loan agreement was reached. It could simply be that the previous mortgagee had not removed the mortgage at the expiry of the agreement through oversight rather than still being owed any money. Again, I cannot draw a final conclusion on the present evidence.
  12. [47]
    Accordingly, I cannot draw the inference sought by the plaintiff on the state of the present evidence. As I have sought to make clear, the inference may be able to be drawn, but I think it raises a triable issue if properly pleaded, and the state of the evidence is in such a state of contention that this is not an appropriate matter for summary judgment to be granted.
  13. [48]
    It may be that further investigation can allow that inference to be drawn, and so these reasons should not be taken as an indication that the plaintiff cannot ultimately prove its case. Indeed, whilst it may arguably be that the plaintiff is precluded from obtaining default judgment on the basis that a “technical Notice of Defence” has been filed, albeit it also having been struck out, the defendant’s apparent refusal to file an amended defence may mean that he remains liable either on a further application for summary judgment or at trial. There are also other approaches the plaintiff can explore to obtain judgment in interlocutory proceedings if the defendant maintains his refusal to file an amended defence.

Costs

  1. [49]
    Ordinarily, costs follow the event and hence the defendant would be entitled to a favourable costs order even though the amount claimable would likely be meagre. However, I retain a discretion as to the appropriate order to be made.[22]
  2. [50]
    I do not consider it appropriate to make a costs order against the plaintiff. It has, in my view, acted appropriately both before the commencement of, and during the litigation in terms of its dealings with the defendant. It is unlikely that some of the material upon which these reasons turn would have been before the Court in admissible form had it not acted in a way that recognised the position of the self-represented litigant. The material provided by the defendant was not on affidavit, and was filed outside the time ordered by Rackemann DCJ.
  3. [51]
    The defendant, on the other hand, refuses to file an amended defence and his refusal, not inability, to engage legal representation has likely resulted in the Court’s time being taken to consider the matter where it was likely a cogent identification of the real issues would have precluded the application being brought. It is certainly incomprehensible that a defence would have been filed in the form it was.
  4. [52]
    Whilst the Court allows some latitude to self-represented litigants, they must still conduct themselves according to the rules and practices of the Court.[23] A refusal to do so is a relevant factor informing the discretion in a costs order.
  5. [53]
    In my view, the plaintiff is entitled to that part of its costs that is attributable to the striking out of the defence, as ordered by Rackemann DCJ on 24 July 2020, and to its costs attributable to the preparation of and filing of the affidavit of Alice Morrow filed 27 August 2020. It was that affidavit which made admissible the defendant’s bank statement to which I have had regard in coming to my conclusions. Given the clause in the loan agreement as to the basis that costs might be sought, they should be payable on the same basis that Rackemann DCJ ordered.
  6. [54]
    The plaintiff is not, in my view, entitled to any other costs, but neither should it be ordered to pay the defendant’s costs of this application in the circumstances.

Orders

  1. [55]
    My orders are:
    1. Plaintiff’s application for summary judgment dismissed.
    2. The defendant is to pay the plaintiff’s costs of, and incidental to:
      1. The plaintiff’s application to strike out the Notice of Intention to Defend and the Notice of Defence; and
      2. The preparation and filing of the affidavit of Alice Morrow filed 27 August 2020

as agreed, or if not agreed then assessed on the indemnity basis.

  1. There be no other order as to costs.

Footnotes

[1]This amount is calculated inclusive of interest accruing on the debt up to that date. It is now a higher sum.

[2]Affidavit of Brad Hooper filed 19 August 2020 (Court Doc. 15) at Exhibit BH-2.

[3]Affidavit of Brad Hooper filed 19 August 2020 (Court Doc. 15) at Exhibit BH-2.

[4]Affidavit of Brad Hooper filed 19 August 2020 (Court Doc. 15) at pp 3-6 of Exhibit BH-2 (especially p 4).

[5]Affidavit of Brad Hooper filed 6 July 2020 (Court Doc. 11) at pp 34-36 of Exhibit BH-1 (especially at pp 1-9).

[6]Affidavit of Brad Hooper filed 6 July 2020 (Court Doc. 11) at pp 34-36 of Exhibit BH-1.

[7]Affidavit of Brad Hooper filed 19 August 2020 (Court Doc. 15) at pp 7-9 of Exhibit BH-2.

[8]Affidavit of Brad Hooper filed 19 August 2020 (Court Doc. 15) at p 1 of BH-2.

[9]Affidavit of Brad Hooper filed 6 July 2020 (Court Doc. 11) at pp 37-39 of BH-1.

[10]Affidavit of Brad Hooper filed 6 July 2020 (Court Doc. 11) at pp 40-42 of BH-1.

[11]Affidavit of Brad Hooper filed 6 July 2020 (Court Doc. 11) at p 87 of BH-1.

[12]Affidavit of Brad Hooper filed 6 July 2020 (Court Doc. 11) at pp 55-64 of BH-1

[13]DCT v Salcedo [2005] 2 Qd. R. 232, [3].

[14]Jessup v Lawyers Private Mortgages Ltd [2006] QSC 3, [21].

[15]Chen v Australia and New Zealand Banking Group & Anor [2001] QSC 43, [1].

[16]Theseus Exploration NL v Foyster (1972) 126 CLR 507, 518.

[17]Affidavit of Brad Hooper filed 19 August 2020 (Court Doc. 15) at para 11.

[18]See affidavit of Alice Morrow filed and read by leave, 1 September 2020.

[19]Dobbs v National Bank of Australasia (1935) 53 CLR 643, 651, 654.

[20]Affidavit of Alice Morrow filed 22 July 2020, ALM-1.

[21]I have not overlooked the fact that the defendant has not produced his complete bank accounts, but the issue is whether there is a triable issue, not the need to make final findings of fact.

 

[22]Rule 681 UCPR.

[23]Du Boulay v Worrell and others [2009] QCA 63 per Muir JA at [69]; Tutos v Roman Catholic Trust Corporation [2020] QCA 171, [14]-[15].

Close

Editorial Notes

  • Published Case Name:

    Perpetual Trustee Company Limited v Meeko

  • Shortened Case Name:

    Perpetual Trustee Company Limited v Meeko

  • MNC:

    [2020] QDC 219

  • Court:

    QDC

  • Judge(s):

    Byrne QC DCJ

  • Date:

    11 Sep 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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