Mbuzi v Collection House Limited
[2005] QDC 313
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- Unreported Judgment
- Mbuzi v Collection House Limited[2005] QDC 313
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Mbuzi v Collection House Limited[2005] QDC 313
Mbuzi v Collection House Limited[2005] QDC 313
[2005] QDC 313
DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBIN QC
No 3412 of 2005
JOSIYAS MBUZI | Plaintiff |
and | |
COLLECTION HOUSE LIMITED (ACN 010 230 716) | Defendant |
BRISBANE
DATE 10/10/2005
ORDER
CATCHWORDS: | Uniform Civil Procedure Rules rr 78, 135, 157, 171, 374(4)(c), 444 - plaintiff seeks $250,000 compensatory damages against collections in purported reliance on a challenged hire purchase agreement - Defendant applies for striking out of embarrassing statement of claim on last day for filing notice of intention to defend and defence - whether filing of the notice was a condition of jurisdiction - alternative relief by way of particulars to render statement of claim intelligible - proceeding consolidated with claim by the purported owner against the plaintiff and his wife, in which they cross-claimed for damages for conduct ostensibly by the defendant |
HIS HONOUR: This is an application by the defendant for the striking out of the plaintiff's statement of claim under rule 171(1) of the Uniform Civil Procedure Rules.
It seeks other relief, in particular, particulars "in accordance with rule 157", and an extension of time for filing and serving of a notice of intention to defend and defence. It also seeks consolidation of the proceeding with that in file number BD2509 of 2005 which is a Supreme Court action brought against the plaintiff, Mr Mbuzi, by St George Bank Limited.
The application of the defendant, insofar as it seeks orders for particulars and directions, asks for non-compliance with rule 444 to be excused pursuant to rule 371. I think the application is correctly framed in that the principal relief sought is under rule 171 which does not require a rule 444 letter. It would be obvious that the applicant might well be left with second prize in the form of directions and orders for particulars.
Today is the last day for filing of a notice of intention to defend and defence and Mr Mbuzi hasn't disguised his intention to seek default judgment if those documents are not filed. He raises technical objections to the application's being entertained. The first relates to service of the application which advises that on the hearing of it the applicant intends to rely on the affidavit of Russell Thurgood on last Wednesday day night without any such affidavit. In the end, no such affidavit has been used - the anticipated purpose of it of placing correspondence before the Court being achieved by use of an affidavit of another deponent who had the benefit of some conversation with Mr Mbuzi.
Mr Doxey's affidavit of service which is the only evidence on the point, as opposed to Mr Mzubi's assertion of the date of service, says it was last Tuesday that the application was filed. I think in the circumstances, the Court ought to proceed on the basis of the evidence in Mr Doxey's affidavit rather than Mr Mbuzi's assertion. Even on the basis of that, he has had the week-end and two business days. I can't see, in the circumstances, that the absence of the Thurgood affidavit has any impact. Rule 374(4)(c) requires service with the application of any affidavit to be relied on.
The other technical point leading Mr Mbuzi to urge on the Court that no relief ought to be granted on the application is the non-compliance with rule 135. It states that:
"Except with the Court's leave, a defendant may take a step in a proceeding only if the defendant has first filed a notice of intention to defend."
The terms of the application by seeking an extension of time to file and serve it make clear that there is no notice of intention to defend. Ideally, the application would have contained a prayer for relief in the form of the leave mentioned in rule 135. Instead, what was offered on the hearing was a notice of address for service of the defendant's solicitors, a proper gesture to make as anyone wishing to have dealings with them is entitled to expect to find a clearly marked address for service on the Court file rather than have to ferret around among the footers of filed documents in a quest for an equivalent.
The statement of claim reads as follows:
"This claim in this proceeding is made in reliance on the following facts:
- I am the plaintiff in this claim and my particulars are as set out and full-time doctoral candidate at the University of Queensland St Lucia campus.
- On numerous occasions between November 2002 and March 2005, the defendant forcibly and unlawfully entered my premises.
- The defendant engaged in their action in point 2 despite my verbal, as well as written requests, for the defendant or any of its staff to stop doing so.
- The defendant's action referred to was in breach of section 360 of the Property Agents Motor and Motor Dealers Act 2000 (Qld) hereinafter referred to as the PAMDA.
- The above Act prohibits debt collectors from entering the house or land of a person without permission.
- During the same period of over two years, the defendant made false and misleading representations that my wife and I were in default of payments over a vehicle higher purchase contract agreement. No such contract was shown.
- The defendant's persistent representation of the above, despite our denial of such liability, forced my wife to agree to make some payments as a way of avoiding the harassment from the defendant.
- The conduct of the defendant, as described in paragraph 7 above, contravenes section 361 of PAMDA which prohibits debt collectors from making false and misleading representations to induce the person to enter into payment arrangements.
- The defendant's actions of forcibly entering my premises, disregarding my oral and written instructions, stopping their agents from doing so, are also a contravention of the Trade Practices Act 1974 (CTH) which forbids debt collectors from harassing individuals at their home. Exhibit marked 1 is a true copy of my letter about the defendant's conduct.
- The defendant's persistent reckless, ruthless and total disregard for the rule of law, led me to make complaints to the Office of Consumer and Fair Trading, the Financial Banking Ombudsmen and the Small Claims Tribunal at the Caboolture Magistrates Court.
- During the proceedings of the Tribunal I complained that the defendant's representative, Mr Graeme Crowley, was harassing me and had arranged a tow truck which was at the Court premises preparing to take my vehicle.
- Mr Crowley told the Chairman that there were no plans to take my vehicle.
- I believe that Mr Crowley's denial of plans to take my vehicle was a false statement he made to the Chairman of the Tribunal.
- During trial I will be requesting the Court to charge the defendant and their representative, Mr Crowley, with perjury for false and misleading statement made to the Chairman of the Tribunal.
- The defendant knew or ought to have known that there was no truth in their claim of enforcing the alleged valid contract.
- The conduct of the defendant described in this claim is against the rule of law and improper invasion of our privacy and entitlement to peaceful living as a family of seven individuals.
- The defendant ignored my reason for request to go to Court if indeed there was any contract to enforce, and seek lawful orders to enter my property and enforce the alleged contract agreement.
- The defendant persistently, recklessly, ruthlessly and unlawfully caused my family to suffer loss.
- My five children felt traumatised, harassed, humiliated and scared. My reputation was damaged.
- Although I have written to the defendant on two occasions, the defendant has failed to give a satisfactory answer, other than saying my correspondence had been referred to their client.
- My two letters of 2005 and the defendant's response are annexed hereto as Exhibits 2, 3 and 4, respectively.
- The conduct of the plaintiff raises the issue of legal rights of private individuals pitied against the illegal excesses of commercial organisations in pursuit of financial gain.
- And the plaintiff claims:
(a) $250,000 as compensatory damages.
- (b)Interest of nine per cent from 1 January 2003 up to date of judgment and 10 per cent thereafter until full payment is made under the Supreme Court Act 1995.
(c) Costs.
- The claim should be accepted given the gravity of the defendant's conduct, prolonged duration, severity and that seven private individuals were affected."
The pleading was filed with a claim seeking relief in the same terms as paragraph 23 on the 12th of September 2005.
By the time of it a lot of water has passed under the bridge. It seems that the St George Bank asserts it has a valid hire purchase agreement in respect of a vehicle and that it has engaged the present defendant to act as its collections agent.
Mr Mbuzi contends that there is no valid hire purchase agreement, whatever documents may be produced. He said from the Bar table today that the St George bank by personnel at a car yard acting as its agent committed it to offer him the same deal as another bank and that it failed to deliver on such promise. It appears he challenged the St George Bank to take the matter to Court which is what it did in Supreme Court proceedings BS6297 of 2004. Those sought recovery of possession of the vehicle and costs. That claim was filed on the 20th of July 2004.
It appears from the Supreme Court order sheet that on the 23rd of September 2004 the Registrar denied the bank's request for default judgment. The Registrar's note indicates "No authority for default judgment by Registrar rule 285(5)". The next thing that happened was an ex parte application by Mr Mbuzi, presumably on his own behalf and his wife's, she being the co-defendant.
The Chief Justice dealt with that on the 18th of March 2005, "on the papers" according to the endorsement. It seems that the vehicle was repossessed without any order authorising it. An order was made by the Chief Justice that the St George Bank forthwith return possession of the vehicle and that the bank have leave to re-list the matter for the vacating of that order or for other orders.
The matter was before Mr Justice Helman on the 21st of March 2005 when the bank sought pursuant to rule 667(2) that the Chief Justice's order be vacated. The matter was adjourned to another date, Mr Mbuzi tells me, because of late provision of material by the bank.
The matter was before Justice White on the 5th of April 2005 when it was further adjourned with a particular order that:
"On or before Friday 8th of April 2005 Josiyas Mbuzi is to serve the other side and file an affidavit deposing as to the reason why Mr Mbuzi asked Vaness Mbuzi to come to Court today, that is the 4th of April 2005 to seek an adjournment. That affidavit should include the name, address, the telephone number of any dentist or other medical officer from whom assistance was sought."
That order is perhaps indicative of the nasty aspect which the controversy has been generating. It was Mr Justice Douglas who is the last Judge of the Supreme Court to be concerned with the matter, on the 13th of April 2005, who made an order removing the matter to this Court and refusing to vacate the Chief Justice's order. The bank's application was dismissed, not its action or claim.
Mr Mbuzi says his understanding is that the matter was sent to the District Court for assessment of damages in his or his and his wife's favour against the bank. But that does not appear to be the case. There is a counterclaim in the Supreme Court seeking, relevantly, only rescission of the agreement. But there was before Douglas J a "cross application", filed on the 12th of April 2005 which sought the following orders,
"1. That the plaintiff's amended application be dismissed pursuant to the Uniform Civil Procedure Rules of 1999.
2. That the plaintiff pay $25,000 damages for causing inconvenience, embarrassment and financial costs by the unlawful action of repossessing our vehicle Toyota Landcruiser Prada registration number 386 EQP engine number 5VZ0647784 on 18 March 2005.
3. That the plaintiff pay exemplary damages of $10,000 for proceeding to repossess our vehicle Toyota Landcruiser Prada registration number 386 EQP engine number 5VZ0647784 on 18 March 2005 while aware that the two applications in the Queensland Supreme Court in 2004 to repossess the said vehicle were not granted. Further, that the Petrie Magistrate, the banking ombudsman and the Office of Consumer and Fair Trading prohibited repossession of the vehicle until the matter was resolved by the Court.
- That the plaintiff pay $5,000 for damages caused to our vehicle Toyota Landcruiser Prada registration number 386 EQP engine number 5VZ0647784 by the plaintiff or its agents on 18 March 2005 in the process of unlawful repossession.
...
- That the plaintiff be ordered to recompense the respondents for the time and opportunity costs relating to these proceedings.
8. That the plaintiff's solicitors, McCullough Robertson lawyers be censored for misleading and deceptive conductive relating to these proceedings.
It does appear, although not pleaded, there is a damages claim against the bank. The present defendant is said to have been acting as the bank's agent in its alleged misconduct. In resisting the suggested consolidation of the proceedings, Mr Mbuzi suggests but does not convince me that the agency arrangements may not have been in place on the 18th of March 2005 when it is said the repossession happened in the circumstances outlined.
Be that as it may, it seems to me that paragraphs 2 and 7 which I have quoted indicate overlap between the present proceedings and those remitted from the Supreme Court. It seems to me clear that both the proceedings involve determination of whether there was any valid hire purchase agreement between Mr and Mrs Mbuzi or either of them and the bank. Without the support of a valid such agreement the present defendant's situation may be much more difficult, of course.
Mr Mbuzi's understanding of comments made by Justice Douglas which cannot be checked from anything available on the Supreme Court file is that his Honour thought there was no valid hire purchase agreement. It is simply unclear if that is what his Honour was saying. It does not appear to me that he finally determined any questions except that the Chief Justice's order should remain intact, that the bank should not without a trial of the claim, recover possession of the vehicle.
The statement of claim set out above is, in my opinion, highly embarrassing and the defendant's claim to have it struck out could be seen as strong. Just by way of example, paragraphs 10, 14, 20, 22 and 24 have no business in a pleading, it seems to me. I note, from the terms of the Supreme Court application quoted above, that Mr Mbuzi is perfectly well aware of the concept of exemplary damages which are not claimed in this proceeding which seeks only compensatory and, perhaps, aggravated damages on the basis of paragraph 19.
It is also plain from what Mr Mbuzi has said today that he is an articulate man with the capacity to grasp legal principles relevant to his situation as circumstances demand, that he understands terms such as trespass, defamation and the like which one would expect to see featuring in his claim and statement of claim. They are not there, making it difficult for the defendant to understand just what claims are faced.
Ms Hindman has, as I understood her, accepted that allowances have to be made for lay people and that what I have called second prize might be more likely to be forthcoming from the Court. In my view, the important thing today is to advance the litigation. That should alleviate some of Mr Mbuzi's concerns that the defendant is simply seeking to frustrate and delay him.
In my opinion he ought to be directed to amend the statement of claim or provide particulars to deal with the following:
- Disclosure of any representative capacity in which he sues in light of paragraphs 18 and 19, for example.
- Next, the dates, address or addresses and individual or individuals involved in the paragraph 2 conduct should be provided together with identification in dollars of the particular damages claimed for each act of trespass.
- Paragraph 5: details should be given of any section of the Property Agents and Motor Dealers Act relied on other than section 360.
- Apropos paragraph 6, details should be given of the occasions where and persons to whom misrepresentations were made and of the damages said to flow.
- Particulars should be given of the dates and amounts of the payments pleaded to have been made under duress in paragraph 7.
- The sections of the Trade Practices Act relied on in paragraph 9, and details of any relief sought under that Act should be provided.
- In respect of paragraph 16, details of the compensatory damages sought should be given, together with identification of any statutory or regulatory provisions relied on.
- Particulars of each kind of loss, and the amount of it referred to in paragraph 18 should be given.
- Particulars of the amount of damages sought by dint of damage to Mr Mbuzi's reputation, as referred to in paragraph 19, should be given, and details ought to be given as to how he says his reputation was damaged.
The foregoing is without prejudice to the defendant's right to claim further and better particulars under rule 161.
Ms Hindman told the Court that her instructing solicitors had available a notice of intention to defend and defence ready to file today. They prefer not to file it, because, in fair measure, it is inappropriate, she says, complaining that particular provisions in the statement of claim - and there are several of them - cannot be responded to in a pleading.
I have contemplated making special orders under rule 367, which might permit the defendant to satisfy rule 135 by filing a notice of intention to defend, but without an attached defence or until a statement of claim that was use more useful was forthcoming. I invited Ms Hindman to identify any prejudice to her client in having to proceed in that way, but I don't think her response has been convincing. I think it is preferable to have a notice of intention to defend as the basis for establishing a defendant's standing to make this application, rather than the notice of address for service proffered. There's still time today for the document to be filed, and the defendant will have, in these comments, I hope, any protection that it needs against later criticism of the contents of the defence. I say that without having had the benefit of seeing the document myself, so that I am in ignorance of the content of it.
Rule 371, as noted, has been called in aid by Ms Hindman and to a considerable extent it is available to spare the defendant adverse consequences of not complying with the rules strictly. The whole philosophy of the UCPR in rule 5 and other places is to get to resolution of the real issues that separate the parties without excessive reliance on technicalities.
I hope Mr Mbuzi understands that in not adopting his suggested outcome of simply refusing the defendant any relief, the Court's intentions are to promote his interests, the defendant's and a community's by advancing these matters towards resolution. It would be nice to think it could occur by compromise rather than by the Court.
It is distressing to the Court to encounter the tone which has been adopted in this matter.
For example, Mr Thurgood, whose affidavit never eventuated, wrote to the plaintiff on the 5th of October:
"We refer to the above matter and our letter of 4 October 2005 by which you were served with our client's application. We confirm that our client was served with your claim and statement of claim on 12 September 2005 which was filed in the Brisbane District Court registry on the same date. Accordingly, we confirm that our client's notice of intention to defend and defence is due by 4 p.m. on Monday, 10th October 2005. Our client's application has been set down for hearing at 10 a.m. on 10 October 2005.
As you will be aware, our client's application seeks as its primary relief a strike out of the proceedings. In a legal sense your pleading is embarrassing and our client is quite simply unable to respond to it. Very broad allegations have been raised by you such as 'breach of the rule of law'. There is no way a sensible response can be provided to this.
The purpose of this letter is to invite you to discontinue your claim (and replead it if you so desire) so as to avoid the costs of Monday's application. We encourage you to seek legal advice with respect to this matter and the prospects of your claim generally. We believe that your claim is meritless and will inevitably expose you to having to pay our client's legal costs.
We look forward to hearing from you."
The response of 9th October 2005 was:
"Your advice to me with respect to the matter in which I have sued Collection House Limited has no basis whatever, except perhaps the basis being in your own personal and professional foolishness.
I do not need to remind you that you've been engaged and therefore being paid to represent the interest of your debt collector's clients. My action is against the people you represent and one would have thought that common sense would entail that you cannot be giving me unsolicited advice in the matter.
Admittedly I find characters like yourself, Dale Cliff and Melinda Burdon to be a disgrace to your law firm. I have had dealings with Mr Sean Robertson in the past although it was under very difficult circumstances I found him to be a gentleman and decent, same cannot be said of the other mob I have had dealings with at McCullough Robertson Lawyers.
If you have any advice to give, please confine that to the debt collectors in whose pay pockets you are."
Other allegations flying around of lying and the like I find discourteous and somewhat discreditable to Mr Mbuzi, from whom they emanate.
Since he and the firm are going to have to continue to deal with matters together for some time, it is much to be hoped that a courteous manner of dealing will be adopted.
I invited Mr Mbuzi to explain any injustice or prejudice that might occur if the proceedings were consolidated. He has been unable to offer anything at all persuasive - so that ought to occur.
Order under rule 78 that the proceeding be consolidated with BD2874 of 2005, which is the operative file, rather than BD2509 of 2005 which is mentioned in the application. Ms Hindman said she had instructions from St George Bank Limited to agree to the consolidation.
I am inclined to think that the costs of both parties ought to be their costs in the cause. There are, of course, questions about Mr Mbuzi's ability as a lay litigant representing himself to recover anything in the nature of professional costs. He referred me to a recent example of the Court of Appeal making an order in respect of costs incurred by a lay litigant in Ivers -v- McCubbin [2005] QCA 200. I am certainly not purporting to break any new ground in contemplating that Mr Mbuzi may get costs in the way I mentioned. The views of the High Court will determine what happens about that.
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HIS HONOUR: I will reserve costs.
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HIS HONOUR: I will order that the action be stayed until the requirements of the Court's order in relation to the statement of claim have been complied with.
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HIS HONOUR: Liberty to apply.
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