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Oliver v Citigroup Pty Ltd

 

[2016] QCA 261

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Oliver & Anor v Citigroup Pty Ltd [2016] QCA 261

PARTIES:

ROSWITHA MARIA OLIVER

(first applicant)

DANIEL FREDERICK OLIVER

(second applicant)

v

CITIGROUP PTY LIMITED

ACN 004 325 080

(respondent)

FILE NO/S:

Appeal No 4878 of 2016

SC No 11927 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension of Time/General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – Unreported, 7 March 2014

DELIVERED ON:

18 October 2016

DELIVERED AT:

Brisbane

HEARING DATE:

30 September 2016

JUDGES:

Gotterson and Philippides JJA and Boddice J

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

  1. The application for an extension of time within which to appeal is refused.
  2. The applicants are to pay the respondent’s costs of the application on the standard basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLYDEFAULT JUDGMENT – SETTING ASIDE – PROCEDURAL AND OTHER MATTERS – where the applicants defaulted under a mortgage agreement with the respondent – where the respondent commenced proceedings against the applicants and default judgment was entered – where the second applicant’s application to set aside the default judgment was refused – where the applicants apply for an extension of time within which to appeal the decision of the judge of the trial division to refuse to set aside the default judgment – where it is alleged service of the originating process on the applicants was defective and there is insufficient proof of indebtedness to the respondent – where the mortgage agreement specified a mode of service in the event that proceedings commenced – where the respondent filed affidavits at the time default judgment was entered that established service pursuant to the mortgage agreement and amounts owing to the respondent as a result of default – whether it is in the interest of justice to grant the extension of time – whether the judge of the trial division fell into error as alleged

Uniform Civil Procedure Rules 1999 (Qld), r 22, r 119, r 748

COUNSEL:

The applicants appeared on their own behalf

M Wilson for the respondent

SOLICITORS:

The applicants appeared on their own behalf

Cranston McEachern Lawyers for the respondent

  1. GOTTERSON JA:  Roswitha Maria Oliver and Daniel Frederick Oliver were the owners of a property situated at 4 Danaher Drive, Rochedale South.  In July 2005, they mortgaged the property to Citigroup Pty Limited (“Citigroup”).  Citigroup served the Olivers with a Default Notice incorporating a Notice of Exercise of Power of Sale under the mortgage on or about 6 December 2011.  The notice stated that they had failed to pay amounts of $2,249.08 and $2,381.42 due on 2 November 2011 and 2 December 2011 respectively, and required, in order to remedy the default, payment within 31 days of those amounts and of a further amount of $293.55 incurred for enforcement expenses.  The Olivers not having paid those amounts, Citigroup served a Notice to Quit and Deliver Up Possession of the property on them by prepaid registered post on or about 25 November 2013.
  2. On 11 December 2013, Citigroup filed a claim and statement of claim in the Supreme Court of Queensland.  As plaintiff, it claimed against Mrs Oliver as first defendant, and Mr Oliver as second defendant, recovery of possession of the property and, against Mrs Oliver, judgment for $411,634.20.  A monetary judgment was not sought against Mr Oliver because he had become a bankrupt in July 2012.  He remains a bankrupt.
  3. On 24 January 2014, the Registrar entered a default judgment against the Olivers for recovery of possession of the property and against Mrs Oliver for $416,965.08 which included accrued interest of $2,575.58 and costs of $2,755.30.  Judgment was entered upon proof by affidavit evidence of service and of the indebtedness of $411,634.20, the accrued interest and the costs.
  4. Mr Oliver filed an application in the Supreme Court on 25 February 2014 seeking an order that the default judgment be set aside.  The application was heard by a judge in the applications list on 7 March 2014.  His Honour ordered that the application be dismissed.
  5. On 16 May 2016, the Olivers filed an application in this Court for an order extending time within which to appeal against the order made on 7 March 2014.  The application was heard by this Court on 30 September 2016.  Mr Oliver made oral submissions at the hearing which supplemented both an Amended Outline of Argument and a Reply filed on behalf of the Olivers.
  6. I note at the outset that there is good reason to question the competency of Mr Oliver to make this application.  As it was he alone who had unsuccessfully sought the order refused on 7 March 2014, it would follow that Mrs Oliver would not be competent to appeal it.  However Mr Oliver’s status as a bankrupt would deny him standing to pursue an appeal unless his trustee in bankruptcy consented to that course.  That has not occurred.  The likely lack of standing on Mr Oliver’s part to make the application to set aside the default judgment was also apparent to the learned primary judge.  His Honour did not decide that application on the basis of a lack of standing.  I, too, am disinclined to decide the current application on a similar basis.
  7. An application for extension of time within which to appeal is made under r 748 of the Uniform Civil Procedure Rules 1999.  The power conferred on this Court to extend time is a discretionary one.  Factors relevant to the exercise of the discretion include the explanation, if any, given for the delay in appealing and potential prejudice to the respondent.  Of singular importance is whether the applicant for the extension has demonstrated that the proposed appeal has some prospects of success.
  8. Here, the delay has been very long – over two years.  The Olivers have sought to explain it by an absence of knowledge on their part that an application for extension of time could be sought, and by reference to their impecuniosity. I am not at all satisfied that they have satisfactorily explained their delay for the whole of the period involved.  My lack of satisfaction is reinforced by evidence filed by them in this application to the effect that they were advised by Legal Aid Queensland in August 2014 that they had no defence to Citigroup’s claim.  There is good reason to suspect that part of their delay was attributable to an acceptance, albeit temporarily, by them of that advice.
  9. Nevertheless, I am disinclined to refuse this application solely on the ground of inadequacy in the explanation of the delay.  It is appropriate to undertake an examination of the Olivers’ proposed grounds of appeal.
  10. At the hearing of the application before this Court, Mr Oliver was reminded that the applicants’ task was to advance an arguable case of error of law on the part of the learned primary judge.  Two errors were suggested by Mr Oliver.  The summary of the errors given by Mr Oliver in oral submissions drew together the points made in their Amended Outline of Argument, their Reply and the grounds listed in their proposed Notice of Appeal.
  11. The first error concerns service of the originating process in the proceeding.  Before the learned primary judge, Mr Oliver had contended that he and Mrs Oliver had not been served personally with the Claim and the Statement of Claim.  He maintained that r 22(3) of the UCPR had required them to be served in person.  His contention implied that, because of the defective service, the defaulted judgment had been irregularly obtained.
  12. The learned primary judge acknowledged that there had not been personal service.  However, he rejected the contention as being without substance because “the documents were served in accordance with the provisions of the mortgage”.  Although his Honour did not refer in terms to r 119 of the UCPR, it is evident that he had it in mind.  At the hearing of this application, Mr Oliver submitted that his Honour erred in construing r 119 as a rule applicable to originating process.
  13. I would observe, at this juncture, that there was evidence before the Registrar of service of the originating process in accordance with clause 24.7 of the terms of the mortgage given by the Olivers over the property.  That clause authorised service of any document in a court action (including a writ of summons, other originating process, or third or other party notice) by Citigroup on the Olivers, by delivery of it to the property or by leaving it there.  Plainly, the modes of service comprehended by this clause include personal service of originating process.  There was affidavit evidence before the Registrar that the property at 4 Danaher Drive, Rochedale South was “the property” as defined in the mortgage.  There was also proof that the Claim and the Statement of Claim were both delivered there and left there affixed to the front door of the dwelling on the property at 4.32 pm on Friday 13 December 2013.
  14. Rule 119(1)(a) permits service of a document relating to a proceeding in accordance with a specific method of service, so long as the parties to the proceeding have agreed to that method before the proceeding starts.  There is no basis for construing the plain and comprehensive language of the rule as subject to an implied exception in the case of a claim and statement of claim.  I reject Mr Oliver’s submission of error on the part of the learned primary judge in construing r 119.
  15. Here, the parties had agreed to the mode of service in clause 24.7 when they executed the mortgage.  There was compliance by Citigroup with that mode of service.  Service of the originating process in accordance with the UCPR had been duly proved when the default judgment was obtained.
  16. The second error attributed to the learned primary judge is one of failing to find that indebtedness to the extent of the monetary amount for which judgment was given, was not sufficiently proved when the judgment was obtained.  Mr Oliver submitted that evidence by way of a Citigroup statement of account and a tax invoice for the enforcement expenses was required.  He made the point that without documents of that kind, the Olivers were not in a position to challenge the claims against them.
  17. An affidavit of Mr David McEachern, solicitor, sworn on 17 January 2014 was filed in order to obtain the default judgment.  It is proved that by 10 December 2013, the Olivers had defaulted and failed to remedy the defaults and that, at that date and by reason of the defaults, Citigroup was entitled to recovery of possession of the property.  The affidavit also proved that at the date when the Claim and the Statement of Claim were filed, the amount of $411,634.20 had become due and owing upon default; that to the date of the affidavit, a further $2,575.58 had become due and payable for interest; that interest was accruing at the rate of 6.01 per cent per annum; and that costs of $2,755.30 had been incurred by Citigroup in the proceeding.  The learned primary judge noted in his reasons that the enforcement expenses had been proved by oral evidence given before him.  Clearly there was sufficient evidence before the learned primary judge that the amount of $416,965.08 for which judgment had been entered against Mrs Oliver had been proved.
  18. Neither a statement of account or tax invoice was necessary in order to prove the judgment amount.  Nor was the former necessary in order to inform the Olivers of the defaults alleged against them.  Mr Oliver exhibited the Default Notice to his affidavit in support of his application to set aside the judgment.  That notice informed the Olivers of the two defaults upon which it was based.  They were the defaults constituted by failure to pay the amounts due for payment on 2 November 2011 and 2 December 2011 respectively.
  19. The Olivers did not adduce evidence for the purpose of contending that either amount was not due or, if due, had been paid.  In short, they did not contend that they had not defaulted.  That is unsurprising given that the Legal Aid Queensland memorandum exhibited to the Olivers affidavit filed in this Court, discloses that in August 2014, they told the practitioner who interviewed them that they had lived on the property without making a payment to Citigroup for three years.
  20. For these reasons, in my view, an appeal based on either of the grounds proposed by the Olivers has no prospects of success.  Moreover, they have failed to advance any arguable basis for defending the claim that Citigroup made against them.  I would add that the subsequent sale of the property by Citigroup to third parties in late 2014 would be an additional powerful discretionary consideration against setting aside the judgment for recovery of possession of the property.
  21. In these circumstances, this application for an extension of time within which to appeal must be refused.  It is appropriate that the Olivers pay Citigroup’s costs of the application on the standard basis.
  22. I would propose the following orders:
    1. The application for an extension of time within which to appeal is refused.
    2. The applicants are to pay the respondent’s costs of the application on the standard basis.
  1. PHILIPPIDES JA:  I agree, for the reasons stated by Gotterson JA, that the application for an extension of time within which to appeal should be refused.  I also agree with the costs order proposed.
  1. BODDICE J:  I have read the reasons for judgment of Gotterson JA.  I agree with those reasons and with the proposed orders.
Close

Editorial Notes

  • Published Case Name:

    Oliver & Anor v Citigroup Pty Ltd

  • Shortened Case Name:

    Oliver v Citigroup Pty Ltd

  • MNC:

    [2016] QCA 261

  • Court:

    QCA

  • Judge(s):

    Gotterson JA, Philippides JA, Boddice J

  • Date:

    18 Oct 2016

Litigation History

Event Citation or File Date Notes
Primary Judgment SC11927/13 (No Citation) 07 Apr 2014 -
Notice of Appeal Filed File Number: Appeal 4878/16 16 May 2016 -
Appeal Determined (QCA) [2016] QCA 261 18 Oct 2016 -

Appeal Status

{solid} Appeal Determined (QCA)