Neylon v Bluegrass Developments Pty Ltd
[2000] QDC 100
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- Unreported Judgment
- Appeal Determined (QCA)
- Neylon v Bluegrass Developments Pty Ltd[2000] QDC 100
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Neylon v Bluegrass Developments Pty Ltd[2000] QDC 100
Neylon v Bluegrass Developments Pty Ltd[2000] QDC 100
DISTRICT COURT | No 4044 of 1999 |
APPELLATE JURISDICTION
JUDGE SAMIOS
KEVIN DAVID NEYLON | Appellant |
and
BLUEGRASS DEVELOPMENTS PTY LTD (ACN 059 663 231) | First Respondent |
and
RAYMOND WILLIAM CARLE | Second Respondent |
and
MARGARET VERONICA DAWSON | Third Respondent |
No 4045 of 1999
RAYMOND WILIAM CARLE | Appellant |
and
KEVIN DAVID NEYLON | Respondent |
BRISBANE
DATE 23/03/2000
JUDGMENT
HIS HONOUR: On 3 August 1999 Kevin David Neylon, whom I shall refer to hereafter as Mr Neylon, filed a claim in the Magistrates Court at Brisbane against three defendants. Those three defendants are Bluegrass Developments Pty Ltd, which I shall refer to hereafter as the company; Raymond William Carle, whom I shall refer to hereafter as Mr Carle; and Margaret Veronica Dawson, whom I shall refer to hereafter as Mrs Dawson. I will also refer to Mrs Dawson's husband as Mr Dawson. The claim endorsed is, “That a debt of $50,000 is due and owing to the plaintiff by the joined defendants since 9 August 1993.”
In the statement of claim Mr Neylon alleged that $50,000 was owing for moneys had and received by the defendants and owing to him. In paragraph 2 of his statement of claim he pleads:
“On 9 August 1993 the plaintiff advanced moneys as a loan intended to be made to Bluegrass Developments Pty Ltd (‘Bluegrass’). Contrary to arrangements made by the plaintiff with Raymond Brian Dawson (now deceased) and Raymond William Carle for the moneys to be paid to Bluegrass and to be for an agreed special purpose use the moneys were in fact received by the defendants and used for their own personal use.”
In paragraph 3 of the statement of claim he pleaded:
“With the knowledge and consent of the defendants the said Raymond Brian Dawson procured a loan from the plaintiff in the presence of Raymond William Carle for the defendants and the defendants received the loan.”
Mr Neylon claims that the defendants have failed to pay any part of that sum of $50,000 to him and they remain justly and truly indebted to him for that amount.
Mr Carle, the second defendant in the proceedings, filed a notice of intention to defend on 2 September 1999. In his defence he denies paragraphs 1, 2 and 3 of Mr Neylon's statement of claim and denies that any amounts are due as alleged or at all. He then gives particulars. Further in his defence he alleges that at no time did he contract with Mr Neylon in respect of the alleged indebtedness. He also claimed that in any event even if he were so indebted Mr Carle became bankrupt on 10 May 1995 and Mr Neylon is precluded from pursuing these proceedings pursuant to the Bankruptcy Act.
Mr Carle filed an application in the Magistrates Court on 2 September 1999 in which he applied for an order that the claim be dismissed and for costs. In support of the application Mr Carle relied on his affidavit sworn 1 September 1999. His affidavit refers to how he met Mr Neylon. He also refers to Mr Dawson and the circumstances in which funding was being sought by Mr Dawson. After exhibiting a number of documents to his affidavit and dealing with a number of matters Mr Carle claimed that at no time has he been indebted to Mr Neylon for any reason whatsoever and that even if he were it would have been subsumed in his bankruptcy.
Mr Neylon told me yesterday afternoon and on oath this morning that when he went to respond to this application in the Magistrates Court he followed advice that he had been given that all he needed to do was turn up and argue on the material that Mr Carle was going to rely upon.
The learned Magistrate appears not to have given written reasons, certainly none have been put before me. However, the Court record shows that the learned Magistrate endorsed his file that he heard the parties and for the reasons given he would make an order in accordance with clause 1 of the application. That is, dismiss Mr Neylon's action against Mr Carle.
When the learned Magistrate did so, apparently Mr Carle made application for the costs of the application. That application was refused.
Mr Neylon and Mr Carle have appealed to this Court. Mr Neylon has appealed against the learned Magistrate's decision to dismiss his claim and Mr Carle has appealed against the learned Magistrate's decision to make no order as to costs.
When the matter came on before me yesterday afternoon, Mr Neylon, as he had been before the learned Magistrate, was unrepresented. For reasons I expressed earlier this morning, I considered that there were special grounds to receive further evidence pursuant to Rule 766 (1) (c) of the Uniform Civil Procedure Rules; that is, Mr Neylon who appeared before me yesterday afternoon again made submissions from the Bar table and said many things about the circumstances relating to his claim against Mr Carle.
He did though in the documents he filed in this Court indicate an intention to adduce further evidence. He said he had further evidence with him in the nature of bank statements and cheques that were relevant to his claim. He gave evidence on oath about these matters this morning and I have received Exhibits 1, 2, 3 and 4 that are copies of two cheques, bank statements and records, and an official receipt from the police who apparently have provided documents to Mr Neylon.
It has been submitted that the documents that I have admitted as Exhibits 2 and 3 would appear to have been obtained illegally and that would weigh against accepting Mr Neylon's evidence that he gave before me, and overall accepting Mr Neylon's credit on any matter relevant to my decision today. It was submitted Mr Neylon does not come here with clean hands.
I would say though that there has not been a thorough inquiry as to how Mr Neylon came by these documents or how the police came by these documents and furthermore it may be a matter upon which a legal defence might be available depending upon the circumstances. I say nothing further on that aspect.
Because the learned Magistrate did not give reasons, it is difficult to see how he arrived at his decision. I am not suggesting by that any criticism of the learned Magistrate. I consider the learned Magistrate had the same difficulty I had yesterday afternoon in dealing with someone who is unrepresented, and looking at the face of his claim and listening to him, I assume the learned Magistrate may have concluded that Mr Neylon's claim was one that had to be brought in the criminal Courts.
In the grounds of appeal in Mr Neylon's notice of appeal, he says the Chamber Magistrate has erred in law by finding that the plaintiff's proceedings could not be brought in a civil Court and that they were proceedings of a criminal nature. That is, as best as I have been able to understand Mr Neylon and the evidence he has given, he complains that Mr Carle and others were deceitful in their dealings with him, that is, he advanced monies on a representation as to how they would be used by the company, but the intention of those dealing with him including Mr Carle always was to use the monies for their own purposes.
I consider that to some extent he has an arguable claim. I am not suggesting in any way that is how a Magistrate, or anyone else, might conclude after hearing all the evidence. I consider that the bank documents and cheques that have been put before me could arguably lead to an inference to support Mr Neylon's complaint. That complaint of course does not find itself expressed in that way in the statement of claim.
It may be that again the learned Magistrate found difficulty understanding the claim and seeing how it could be maintained in the civil Court and maintained in the face of the bankruptcy. However again I must pause here and say that the bankruptcy would appear to have not been a matter that influenced the learned Magistrate, that is because Mr Neylon himself says in the schedule to the notice of appeal that the use of the bankruptcy document was disallowed by the hearing Magistrate, that is, Mr Neylon apparently complained that the date of birth in what was to certify Mr Carle's bankruptcy was incorrect because it showed the person was born on 1 November 1911, whereas Mr Carle's date of birth was 28 February 1950, although it is possible because Mr Carle was not there that the learned Magistrate would not know one way or another whether or not that was in fact the case regarding age.
However as I have said, it would appear that this did not influence the learned Magistrate. Of course there is an affidavit put before me on the hearing of these appeals by Mr Carle to the effect that his correct date of birth was 28 February 1950, some error has been made in the records, he truly was bankrupt at the material times and consequently any debt was subsumed, if it did exist, in the bankruptcy.
However the point I wish to make at this point is that although the claim by Mr Neylon appears to be a money had and received claim, and one might therefore think the Statute of Limitations is against it, and one might think that any claim by him based on deceit is now statute barred, it is arguable, in my opinion, that even if fraud is involved it can still be a money had and received claim.
Again I lament that Mr Neylon is unrepresented. Someone looking at these issues with legal background might be able to develop these matters further. I do not suggest for one moment that these were matters that Mr Eleftheriou ought to have made submission to me upon. He clearly has been at a significant disadvantage in these proceedings in the sense that these are not matters that have been the subject of outlines of argument.
I did consider yesterday afternoon when these matters came before me that I was going to be asked as the applications Judge to deal with these matters on the basis that I would make, or give directions, which would lead to outlines of argument. However the parties had signed a certificate of readiness and apparently the intention was that I hear these matters as the appeals and I have done so, but the point is that as best as I can see from my consideration of Bullen Leake and Jacobs Precedents on Pleadings, a person can make a claim under the money had and received claim for proceeds of a tort.
It may well be also that further consideration of the money had and received concept sits comfortably with the allegation of fraud. Clearly, I have tried to put some direction in the matter as much I can possibly do in terms of what my obligations are on hearing these appeals.
As I have said, Mr Neylon has been unrepresented. At the same time I have to be mindful that he not obtain in this adversarial system any undue advantage. Nevertheless, it seems to me that he has fairly raised this issue.
I am, I consider, rehearing the matter, that is, an order striking out a claim is a final decision in a proceeding within the meaning of rule 765. Accordingly, an appeal is by way of rehearing to be determined pursuant to the Uniform 3 Civil Procedure Rules (see De Innocentis v. Brisbane City Council, Queensland Law Reporter, 11 March 2000, Court of Appeal).
I am also mindful that a case must be very clear indeed to justify the summary intervention of the Court to prevent a plaintiff submitting his case for determination in the appointed manner by the Court with or without a jury. The fact that a transaction is intricate may not disentitle the Court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined, whether of fact or law, and that the rights of the parties depend upon it, then it is not competent for the Court to dismiss the action as frivolous and vexatious and an abuse of process (see Dey v. Victorian Railway Commissioners [1948-1949] 78 CLR page 62 at page 91).
That was the view of Walsh J in Co-ownership Land v. Queensland Estates 1 ALR page 201 at page 205 to 206 where he said that he thought that:
“When a Court is asked to take the summary step of staying an action it should have regard not merely to the manner in which the plaintiff's claim have already been pleaded but also the manner in which they could be framed in pursuance of any amendment which the Court might consider to be one which ought be allowed.”
In my opinion Mr Carle has in his evidence this morning described why he says that things happened contrary to arrangements. To make someone more comfortable reading his statement of claim, perhaps it needs to be expanded. Again, I am not saying that it necessarily has to be expanded, although it may be a matter that bears further consideration by Mr Neylon and/or anyone else who might subsequently advise him.
Certainly I consider that Mr Carle is entitled to have an allegation of fraud specifically made out in express terms, although it may not need much to say it in the context of what has already been said in the statement of claim. Again, I should not descend into that area any more than I think I have had to in what I consider to be the interests of justice at this stage.
Again, in case I am in any way thought of as having formed any views, I have not. I am merely deciding the matter on the basis of the material in front of me and seeing what was arguable and whether on a rehearing it is right to allow the appeal and what might happen in the future in terms of dealing with this claim.
It may well be that documents that Mr Carle has put forward in his affidavit before the learned Magistrate will carry certain implications that will have to be considered in due course by the person hearing the case. In my opinion, those inferences or findings of fact must be weighed up with all other facts that are put before the Court and then a final decision made.
Dealing with the bankruptcy point, it seems to me that, notwithstanding Mr Carle's bankruptcy, that would not prevent the matter going forward. I am indebted to Mr Eleftheriou for pointing out to me that section 153, paragraph 2, subparagraph (b) provides that:
“The discharge of a bankrupt from a bankruptcy does not release the bankrupt from a debt incurred by means of fraud or a fraudulent breach of trust to which he or she was a party or a debt of which he or she has obtained forbearance by fraud.”
Again, I appreciate that an allegation of fraud is a serious issue. It is not to be treated lightly. I am conscious that these are matters that occurred seven years ago. Nevertheless, I consider that the factual circumstances are in a narrow compass and there would appear to be documentation available dealing with the transactions.
Even if I were wrong that the claim as framed by Mr Neylon for money had received cannot carry with it what he seeks to complain about, if there is a cause of action based on what he complains about, then I would have thought, and I would have acted in my discretion, to add that cause of action even out of time because it may arguably be in the interests of justice that it be done. In that respect I refer to the Court of Appeal's decision in Draney v. Barry and Others, [1999] Queensland Court of Appeal 491, delivered on 30 November 1999.
In those circumstances I allow Mr Neylon's appeal.
...
HIS HONOUR: I dismiss Mr Carle's appeal.
...
HIS HONOUR: I set aside the orders made by the learned Magistrate on 14 September 1999.
...
HIS HONOUR: As Mr Neylon has represented himself and has not incurred any Registry costs, and bearing in mind the considerable amount of grace that has been given by Mr Eleftheriou who appears on behalf of Mr Carle, I consider it is proper that I make no order as to costs on both appeals.
...
HIS HONOUR: What I will do is no order as to costs on the appeals. I will only set aside the order made by the learned Magistrate that dismissed the action otherwise the order will remain on the application before the Magistrate that there was no order as to costs.