Creditanstalt-Bankvereinag v Berner
[1996] QDC 53
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Creditanstalt-Bankvereinag v Berner[1996] QDC 53
Creditanstalt-Bankvereinag v Berner[1996] QDC 53
DISTRICT COURT | No 579 of 1996 |
CIVIL JURISDICTION
JUDGE BRABAZON QC
CREDITANSTALT-BANKVEREINAG | Plaintiff |
and
FRANZ BERNER | Defendant |
BRISBANE
DATE 19/03/96
JUDGMENT
HIS HONOUR: The plaintiff is a corporation which carries on a business in Austria as a credit institution and it lends money. This case is a claim by it to recover the balance of money it says is owed to it by the defendant together with interest and some costs. The defendant has not entered an appearance but he has attended in person and given evidence in support of his submission that the claim for summary judgment should be dismissed.
I should explain how this procedure came about. The plaint was issued on 22 February 1996 and at the same time the bank's solicitors took out a judgment summons and the papers were served upon Mr Berner who lives at 55 Gordon Street, Hawthorne, Brisbane.
When the matter came on for hearing on 4 March 1996 I was the chamber judge. Mr Molloy of counsel appeared for the bank and solicitors appeared for Mr Berner. An adjournment was asked for principally on the basis that he was not in a fit state of health to attend at that time to his own affairs and to defend the claim. I accepted an affidavit by Mr Michael Quinn who was a solicitor acting on his behalf. The affidavit deposed to the fact that on Friday 1 March he received instructions to act on behalf of the defendant from his de facto wife, Maria Kainhoffer. The effect of her information to him, and he deposed to a belief in that, was that Mr Berner had been served with the proceedings on about the day of its issue, which was 22 February. She says she was unaware of any problem up to that time because their business was conducted separately. She did not know if he had received any prior written notice by mail or fax from the bank of its intention to take action against him. She said that they had resided at the same address for about five years.
Her main complaint on his behalf was that he was injured at work on 22 November last year when he received a blow to the head and that he had continued to suffer from some symptoms of a head injury, including constant head pain, memory loss and disorientation. She suggested that a month would be needed to go through and check his affairs, including contacting people who might have documents on his behalf in Austria so that a defence might be made to the facts contained in the plaint and the affidavit of Mr Monteath filed on behalf of the bank.
A certificate was put in from his local medical practitioner which did say that he was very depressed and suffering from concussion. It was expected by Dr Zolte that he would be receiving reports from specialists to be consulted by Mr Berner. Mr Quinn also said that he had spoken to Mr Berner by telephone and that he did not appear to have a reliable memory concerning these matters.
When the matter was called on today the solicitors previously acting for him asked leave to withdraw. They had no further instructions from him as he wished to act on his own behalf. I did not make a formal order as it appeared that no address for service had been filed. Those solicitors then left the courtroom and Mr Berner appeared for himself.
He told me that he did not want an adjournment of the matter, that he did not want to get another solicitor and that he wished to give sworn evidence instead of seeking to file an affidavit to resist the application for judgment. He then gave sworn evidence and was cross examined by Mr Molloy on behalf of the plaintiff.
I should say that during the course of his evidence he appeared to me to be under no disability. He was a smartly dressed man who has lived on and off in this country for 20 years, and who had a reasonably good command of the English language. I have no hesitation in proceeding and I should say, indeed, that there has been no application this morning for the proceedings not to continue because of any medical disability. No effort was made to tender any further medical evidence before me. I do not know whether or not he has seen the specialists.
The question to be considered is whether or not Mr Berner raises a triable issue in response to the matters put before the court by the plaintiff. He had read the short material and he spoke about it in the witness-box. He suggested that it was important that the bank's letter of 21 November 1989 was not signed by him. He also suggested that there was some errors in translation but he only pointed to one thing which seemed to me to be of no relative importance. He did not proffer another translation by a different translator.
He, it seems, does not contest that there was a loan to him by the bank in November 1989, though, he does not accept that the amount was 500,000 Austrian schillings. He says that he doesn't recall the amount. He did not suggest a different figure. His main assertion was that the loan has been entirely repaid.
He mentioned on more than one occasion the various figures set out in the affidavit of Mr Monteath especially the figure of 226,373 schillings, which the bank says had been paid by Mr Berner from time to time. On the whole of his evidence, it seems to me that he really has no contest with that figure, his main claim being, as I have said, that the loan was discharged upon the sale of his house late in 1993. He produces no records of any kind but says that settlement was effected early in 1994. He also says that the interest seems to be too high. I accept Mr Molloy's assurance that he has done the calculations and there seems to be nothing wrong, as a matter of arithmetic, with the interest claimed.
It seems to me, therefore, that I need to concentrate on the allegation by Mr Berner that the loan has been entirely discharged by funds coming from the sale of his house. Mr Monteath's affidavit does say on behalf of the bank that the property was subsequently sold, that is subsequent to the loan, and that Mr Berner ceased to reside in Austria. Both those things are common ground, he having lived in Australia on and off since the 1970s. Mr Berner says that his affairs were in the hands of an Austrian accountant and that the conduct of the sale was in her hands. His assumption, he says, is that the amount was repaid when the house was sold and settlement effected in early 1994. He has no records from the accountant and suggested to me that he may have heard about the matter by telephone.
All things considered, it seems to me that the evidence given by Mr Berner does not raise a triable issue. I am conscious of how little needs to be done by a defendant to discharge that onus and to enable the Court to take its usual course which would be to have a trial of the issues. But there are enough matters here to lead me to think that there is, in truth, nothing to be tried. First of all, there are a number of matters suggested by Mr Berner which are of no importance - that is the absence of a signature on the bank's letter, the fact that the bank manager changed and that Mr Pertilla, who gives the information upon which the affidavit for the bank is sworn, was not the bank manager at the time. His rather faint suggestion of error in translation also tends to destroy the value of what he otherwise said. He suggested that the bank hadn't sufficiently proved its case, but it seems to me that it has, and the question is whether or not there has been a repayment.
He is a man who appears to have a degree of sophistication in business matters. He has both German and Australian accountants. I see that the one communication from the bank after the original loan which is in evidence (that is the letter of 22 April 1993) was faxed to Mr Berner and to Mrs Kainhoffer care of a fax at the local newsagent. It seems to me extraordinary that if there were indeed some arrangements which were in his favour and supervised by his accountant that there is no record of them at all and none, it seems, available.
Mr Quinn's affidavit did say that the adjournment was sought to enable people to be contacted who might have documents on Mr Berner's behalf. There is no suggestion to me today that there is any wish to delay the matter so that those documents might come to hand. I have to be persuaded on the evidence that there is an acceptable set of facts which would give rise to a triable issue and I do not think that the evidence from Mr Berner goes that far. In short, I do not accept what he says about the repayment of the loan.
That being so, I find that there is no triable issue and I am prepared to give judgment which the cases say may now be in a foreign currency. Mr Molloy suggests that there is no difference in the practice in this Court and I see no reason not to accept his submission. He referred me to ANZ Banking Group v. Korwid (1987) 1 Queensland Reports 131, and European Asian Bank and Katsikalis (1988) 1 Queensland Reports 45.
It appears from the affidavit of Mr Monteath that the debt in Austrian schillings up to the present time including interest is 633,440.39 schillings.
Accordingly I give judgment for that sum.
...
HIS HONOUR: Order as per draft initialled by me.