Pepper Finance Corporation Ltd v VG Products Pty. Ltd.
[2009] QDC 254
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Pepper Finance Corporation Ltd v VG Products Pty. Ltd.[2009] QDC 254
- Add to List
Pepper Finance Corporation Ltd v VG Products Pty. Ltd.[2009] QDC 254
Pepper Finance Corporation Ltd v VG Products Pty. Ltd.[2009] QDC 254
[2009] QDC 254 | |
DISTRICT COURT | |
CIVIL JURISDICTION | |
JUDGE ROBIN QC | |
No 3558 of 2008 | |
PEPPER FINANCE CORPORATION LTD | Plaintiff |
and | |
V G PRODUCTS PTY LTD | Defendant |
BRISBANE | |
DATE 26/06/2009 | |
ORDER |
CATCHWORDS: | District Court Act 1967 s 68, s 86 - Uniform Civil Procedure Rules r 171, r 292 - summary judgment for recovery possession of mortgaged premises after default - no money claim - irrelevant that mortgage debt and market value of premises exceeded Court's monetary limits where Valuer-General valuation did not. |
HIS HONOUR: The Court has made an order in terms of the initialled draft, which gives the plaintiff judgment for recovery of possession of a house property pursuant to Rule 292.
It also strikes out the counterclaim of the defendant but gives leave to proceed. I will set out paragraphs 35 to 43 of Mr Cooper's written submissions as indicating in a convenient way the objections that may be taken to the counterclaim:
"35.Rule 171 empowers the Court to strike out all or a part of a pleading which:
(a)discloses no reasonable cause of action or defence; or
(b)has a tendency to prejudice or delay the fair trial of the proceeding.
36.Both the defence and the counterclaim are liable to be struck out in their entirety pursuant to r. 171.
37.As noted above, none of the matters pleaded in the defence disclose a reasonable defence to the plaintiff's claim.
38.Furthermore, the defence pleads bare allegations against the plaintiff, including fraud, misleading and deceptive conduct, unlawful trespass and breach of privacy without pleading any of the material facts upon which the allegations are said to be based. On the current state of the defence the plaintiff cannot know what it is alleged to have done that is said to constitute fraud or misleading and deceptive conduct or anything else the defendant relies on to resist the claim. Without a proper pleading of all of the material facts the defence is embarrassing and is likely to prejudice a fair trial of the proceeding.
39.The counterclaim has been brought in the wrong jurisdiction as the amount claimed is above $250,000.
40.The counterclaim repeats the allegations in the defence such that the deficiencies in that pleading also affect the counterclaim. In particular, the counterclaim does not plead the material facts upon which its claim against the plaintiff is said to be based.
41.For example, a significant part of the damages claim concerns income allegedly lost by the defendant due to "unfair practices" on the part of the plaintiff. The nature of the "unfair practices" and the material facts said to give rise to the plaintiff's liability are not pleaded. Furthermore, the manner in which the "unfair practices" are said to have resulted in a loss of income are not pleaded. The claim for lost income discloses no reasonable cause of action and would tend to prejudice a fair trial of the proceeding.
42.A further problem relates to the relief claimed in paragraph A of the prayer for relief in the counterclaim. By this paragraph the defendant claims payment of the amount which the plaintiff has already loaned to the defendant under the Loan Agreement. Even if the Loan Agreement were found to be void (as to which the plaintiff submits there is no reasonable likelihood) there would be no legal basis for the defendant to recover, as damages, the amount which it has already received from the plaintiff by way of loan.
43.In the circumstances the defence and counterclaim should be struck out in their entirety."
It seemed to me inappropriate to strike out the defence. Doing that might give the appearance that the plaintiff had obtained its judgment under Rule 171 in default of pleading rather than, as is the case, pursuant to rule 292 on the merits.
The self represented defendant hasn't appeared today, although served with the application and supporting material at the address indicated in both its notice of intention to defend and its conditional notice of intention to defend, which were filed apparently together on the 12th February 2009.
Reference to the date has some point, given that there is a counterclaim in an amount closely approaching one million dollars. Although Mr Cooper submitted that this was beyond the Court's jurisdiction, reference to Section 86 of the District Court of Queensland Act 1967 indicates the 14 days available to the plaintiff for having the matter referred to a Judge of the Supreme Court for possible transfer to that Court have passed with nothing done by the plaintiff.
The counterclaim now is to be treated as one the District Court has jurisdiction to consider: see subsection (5).
The Court has noted the presence on the file of affidavits of Martin G Russell and Kathleen Russell who describe themselves as director and secretary respectively of the defendant. Glancing at those affidavits tends to produce some confusion but in any event, I think it's not incumbent upon the Court in the circumstances to pay attention to those materials in the absence of anyone appearing before the Court to formally read them. That's the case notwithstanding what appear to be presented as sympathy factors, for example, in respect of Mr Russell, his age and state of health.
The plaintiff's deponent's affidavits establish the entitlement to possession of the relevant premises which are the subject of a registered mortgage in the plaintiff's favour. The Court has perused the defence but in the absence of any representation here to explain its provisions, is not persuaded that there is any merit from the point of view of presenting an issue justifying a trial in anything that appears there.
Some of the contents complaining about the form of execution of the mortgage, for example, appear to confuse the requirements for execution of such a document with those for the swearing of an affidavit.
The pleading does explain the challenge to the Court's jurisdiction (which hasn't been persisted in in the way which the Rules would require) on the basis of market value of the property which is said to be $575,000 against the plaintiff's loan of $363,600.
There is before the Court and unchallenged a QVAS property details report which indicates the Valuer-General's valuation of the property which is the relevant one for purposes of identifying the Court's jurisdiction by virtue of Section 68(3)(b) of $177,500 - so that the Court has jurisdiction.
The plaintiff, unusually in my experience, seeks no relief from the Court other than in respect of gaining possession of property. There is not the monetary claim for the secured debt which is commonly encountered. It seems to me there's no problem about the Court's jurisdiction.
It seems unusual to me that there is nothing sought in the proceeding other than assistance in recovery of possession of the property as regards enforcement of the mortgage, in particular, by exercising power of sale. I've perused the mortgage document exhibited to Ms Nguyen's affidavit.
It relevantly sets out in what might be recognised as plain English when default occurs and what the plaintiff's rights are in the event which happened, that default wasn't remedied within the period allowed after the giving of the notice of default which was given. The mortgagee's entitlements include suing for the amount owing, taking possession of the property and doing "anything an owner or receiver of the property could do including improving, selling or leasing it" and appointing a receiver to do any of those things or anything else the law requires a receiver to do.
As noted, it's only in respect of the second aspect that the Court's assistance is sought where the plaintiff has established a case for granting it.
Order as per initialled draft.