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Gajic v National Australia Bank Limited

 

[2016] QCA 101

 

COURT OF APPEAL

 

FRASER JA

PHILIP McMURDO JA

DOUGLAS J

 

Appeal No 8878 of 2015

DC No 297 of 2013

 

CARL LEO GAJICAppellant

 

v

 

NATIONAL AUSTRALIA BANK LIMITEDRespondent

ACN 004 044 937

 

BRISBANE

 

WEDNESDAY, 20 APRIL 2016

 

JUDGMENT

 

DOUGLAS J:  On 7 August 2015, the District Court at Southport gave summary judgment in favour of the respondent, National Australia Bank, for $571,108.72, together with an order that it recover possession of certain land owned by the appellant.  The bank had lent money to the appellant pursuant to an agreement dated 14 May 2010.  It also took a mortgage over the appellant’s land to secure the loan.

The appellant defaulted in payment pursuant to the provisions of the loan agreement and mortgage.  On 3 September 2013, the bank issued a claim and statement of claim against the appellant claiming its debt and recovery of possession of the land.  The appellant asserted that he agreed to a variation of the loan agreement between himself and the bank in early April 2014 by which he agreed to pay $9,500 to the bank immediately, on 10 April 2014, in response to which the bank agreed to capitalise all interest falling due on the loan for a period of 12 months and refrain from taking any proceedings against him in relation to the property and the loan agreement before that period of 12 months ended.

The bank put those allegations of a variation of the agreement in issue in the material it filed on the hearing of the summary judgment application.

The appellant made the payment of $9,500 on 10 April 2014.  The bank did not proceed with its claim or statement of claim filed 3 September 2013, apart from renewing it for a further period of 12 months on 3 October 2014, until 15 April 2015 when default judgment was entered against the appellant because he had not filed a defence.  On 26 June 2015, that default judgment was set aside by consent.

Subsequently, an application for summary judgment was filed by the bank on 16 July 2015 and a judgment was given in the District Court pursuant to that application on 7 August 2015.

The record contains no reasons for the judgment that was ordered, but we were told by Mr Copley, who appeared below, that brief reasons were given.  The appellant argues on this appeal, essentially, that the bank was obliged to commence fresh proceedings against the appellant in the event that the appellant defaulted in compliance with his obligations following the expiration of the moratorium period of 12 months.  He submitted that it was wrong to assume that the bank could exercise the right to seek summary judgment in a proceeding which should not have been issued or prosecuted at all during the moratorium period.

In fact the claim and statement of claim were issued before the moratorium period and the summary judgment application sought after the moratorium period.  The judgment by default also occurred after the moratorium period.  The renewal of the claim and statement of claim on 3 October 2014 does not appear to have occurred as part of any immediate step to then take further proceedings against the appellant.

The agreement alleged by the appellant did not contain any term requiring the respondent to issue fresh proceedings against the appellant.  Nor was any authority cited for the proposition advanced by the appellant.  There is no good basis in legal theory for expecting further proceedings to issue.

As the respondent submitted, there was no need for a trial in the matter because the alleged moratorium had passed, the appellant remained in default, not having made a payment during the year since 10 April 2014 and no other defences were raised by him.  Nor was there any pleading or submission that the alleged variation brought the existing District Court proceedings to an end.

In my view, the appellant had no grounds to resist the application for summary judgment.  There was no need for a trial to resolve the issues and the order made was correct.  Accordingly, the appeal should be dismissed with costs.

FRASER JA:  I agree.

PHILIP McMURDO JA:  I agree.

FRASER JA:  The order of the Court is that the appeal is dismissed with costs.

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Editorial Notes

  • Published Case Name:

    Gajic v National Australia Bank Limited

  • Shortened Case Name:

    Gajic v National Australia Bank Limited

  • MNC:

    [2016] QCA 101

  • Court:

    QCA

  • Judge(s):

    Fraser JA, McMurdo JA, Douglas J

  • Date:

    20 Apr 2016

Litigation History

Event Citation or File Date Notes
Primary Judgment - - QDC
Notice of Appeal Filed File Number: 8878/15 04 Sep 2015 DC297/13
Appeal Determined (QCA) [2016] QCA 101 20 Apr 2016 -

Appeal Status

{solid} Appeal Determined (QCA)