Schiller v Quirk
[1996] QDC 212
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- Unreported Judgment
- Schiller v Quirk[1996] QDC 212
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Schiller v Quirk[1996] QDC 212
Schiller v Quirk[1996] QDC 212
IN THE DISTRICT COURT HELD AT SOUTHPORT QUEENSLAND | PLAINT NO: 93/96 |
Before HALL D.C.J.
BETWEEN:
COLIN THEODOR SCHILLER | Plaintiff |
AND:
PETER JOHN QUIRK and JULLIE MAREE QUIRK | First Defendants |
AND:
MOODY ROBERTSON ADAMS PTY LTD | Second Defendant |
AND:
JAMES ADAMS | Third Defendant |
REASONS FOR JUDGMENT - HALL D.C.J.
(Delivered the day of 1996)
This is an application for summary judgment in an action wherein the plaintiff claims Twenty-seven thousand five hundred dollars ($27,500.00) being monies lent pursuant to an agreement evidenced by a Promissory Note. An Entry of Appearance and Defence and Counterclaim filed on behalf of the female first defendant both raise multiple issues by way of defence, namely a denial that the document sued upon is a promissory note, defences of non est factum, mistake, undue influence and unconscionable behaviour and a claim that the sum sued for is a penalty. I heard lengthy argument from Mr Weld for the plaintiff and Mr Mitchell for the female defendant and I give full weight to Mr Mitchell's submissions based upon the well-known authorities Cloverdell Lumber Co Ltd v. Abbott (1924) 34 CLR 122, Australian and New Zealand Banking Group Limited v. Barry (1992) 2 Qd.R. 12 and Vancourt v. Mercantile Credits (1983) 154 CLR 87.
The material put before me by the defendant does not establish any triable issue. The document sued upon by the plaintiff is in these terms:
“This promissory note is made the tenth day of February 1992
PARTIES
BETWEEN: | PETER JOHN QUIRK AND JULLIE MAREE QUIRK of Forest Hills Queensland | |
| COLIN THEODOR SCHILLER of Tallebudgera Queensland | |
OPERATIVE PARTS | ||
| By Promissory Note dated 10 February 1992 Peter and Jullie Quirk 9 Rosewall Place Forrest Hills Queensland promise to pay the sum of Twenty-seven thousand five hundred on or before 10 March 1992. | |
| Jullie Maree Quirk as collateral security for the advance. Jullie agrees to, a caveat over property at 9 Rosewall Place. | |
| In event of not being repaid by 11 March 1992 outstanding amount will increase by Two thousand five hundred dollars per capital month. | |
EXECUTION | ||
| This Promissory Note is executed by the parties hereto on the date first herein before mentioned. |
|
_________________________ | _________________________ |
P J Quirk | J M Quirk |
Witnessed by: (Signature).”
That document is clearly a Promissory Note. It establishes a debt and contains a promise to pay by a certain date. There is no basis for the argument of the defendant to the contrary, (Thomas v Hollier (1984) 156 CLR 152).
The plea of non est factum is clearly untenable. As Mr Weld succinctly argued, the now famous case of L'Estrange v. F Graucob Limited (1934) 2 KB 394 is directly apposite. At p 403, Scrutton L.J. said:
“When a document containing contractual terms has been signed, then in the absence of fraud, or, I will add, misrepresentation, the party signing it is bound, and it is wholly immaterial whether he has read the document or not.”
Maugham L.J. said, at p 406:
“There can be no dispute as to the soundness in law of the statement of Mellish L.J. in Parker v. South Eastern Railway Co 2 C.T.D. 416 at 421, which has been read by my learned brother, to the effect that where a party has signed a written agreement it is immaterial to the question of his liability under it that he has not read it and does not know its contents. That is true in any case in which the agreement is held to be an agreement in writing.”
The defences of unconscionability and unilateral mistake are based on the fact circumstances set out by the female defendant in her two affidavits. At the commencement of the hearing of this application Mr Weld cross-examined the female defendant, establishing that the assertion contained in her pleading and sworn to in her first affidavit that she was pregnant at the material time was false. I accept the explanation contained in her second affidavit sworn 7 June 1996 that in making that assertion she was mistaken as to the year in which the relevant events occurred. However, the remaining bases of her claim to equitable relief are these:
- At the time of the transaction she had a small child at home.
- During the relevant period her time was primarily devoted to her child and to home activities.
- The loan provided by the plaintiff through the agency of the third defendant was sought by her husband, the first defendant Peter John Quirk without her knowledge.
- The company Eagletime Pty Ltd on whose behalf the loan was sought was operated by her husband and she was not a director thereof, though she may have been a shareholder.
That evidence is supplemented by the affidavit of the defendant Peter John Quirk who swears that at no time on or prior to 10 February 1992 did he inform his wife:
- That the loan was to be made to her and to himself in their personal capacities.
- That it was a term of the loan that she and he consent to the registration of a caveat over our residential property. He swears further that as at 10 February 1992 he had not informed his wife that she would be personally liable under the loan.
On that factual basis Mr Mitchell for the defendant argued that the third defendant, knowing both Mr and Mrs Quirk and knowing that Mr Quirk ran the business and being aware that the business conducted by Mr Quirk was in some financial difficulty, had a duty to ensure that Mrs Quirk understood the nature of the documents she was signing. The knowledge of Mr Adam is to be imputed to the plaintiff because of the agency between them. However, there is nothing in the material before me and nothing adverted to in the argument of Mr Mitchell to indicate that the third defendant had any reason to suspect that Mrs Quirk was unaware of the document she was signing. Nor is any basis for the slightest suggestion that the third defendant had any reason to suspect that Mr Quirk might have mislead his wife. Consequently, it is impossible to establish that either the third defendant or the plaintiff acted unconscionably. Moreover, if the female defendant was mistaken as to the nature of the document which she signed, and she does not indicate in the material what document she thought it was, that mistake was hers alone and was not caused, or contributed to, by the third defendant. There is no misrepresentation or fraud by the third defendant alleged in the defendants pleading and there is no basis for any suggestion that the third defendant, being aware of a mistaken belief on the part of the female defendant took advantage of that mistake. The defence relating to penalty doesn't bear consideration. The sum sued for is in the nature of a principal sum and there is no claim for interest, much less for default interest.
In the result the defendant has failed to show that there is any real question to be tried. Accordingly, I give leave to amend the female first defendants name to JULLIE MAREE QUIRK and I order that the plaintiff be at liberty to sign judgment against the first defendant, Jullie Maree Quirk, in the sum of Twenty-seven thousand five hundred dollars ($27,500.00). I further order that the defendant, Jullie Maree Quirk, pay the plaintiff's costs of and incidental to the action and this application to be taxed.