Pepper Finance Corporation Limited v Fatafehi
[2009] QDC 259
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- Pepper Finance Corporation Limited v Fatafehi[2009] QDC 259
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Pepper Finance Corporation Limited v Fatafehi[2009] QDC 259
Pepper Finance Corporation Limited v Fatafehi[2009] QDC 259
[2009] QDC 259
DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBIN QC
No 3557 of 2008
PEPPER FINANCE CORPORATION LIMITED (ACN 094 317 647) | Plaintiff |
and | |
SIOSIFA MAFI FATAFEHI | Defendant |
BRISBANE
DATE 29/06/2009
ORDER
CATCHWORDS: | District Court of Queensland Act 1967 s 68(3)(b) - Uniform Civil Procedure Rules r 292, r 295(1) - mortgagor's application for summary judgment for recovery of possession - mortgage debt exceeded court's monetary jurisdiction, but was not claimed - Valuer General's valuation of mortgaged property fell within relevant monetary limit although market value did not - adjournment granted with direction calculated to assist the parties to agree on the state of accounts between them (which might assist the defendant to formulate a proposal to liquidate arrears) - leave to adduce oral evidence by the defendant not granted |
HIS HONOUR: There is a summary judgment application before the Court. The plaintiff/applicant seeks to recover possession of the defendant's residential property, without any claim for a money judgment.
The circumstances are similar in that way to an application which came before me last Friday in BD3558 of 2008, Pepper Finance Corporation Limited v VG Products Pty Ltd.
The reasons given on that occasion explain the way in which the plaintiff is proceeding. It is probably necessary again today to dispose of the contention in the defence which may be setting up that the Court lacks jurisdiction on the basis that the value of the property at the time of purchase by the defendant was $365,000.
If the Court has no jurisdiction in respect of the claim, given the value of the property sought to be brought into the plaintiff's possession, the Court cannot make any orders today.
However, the material before the Court indicates that the Valuer General's valuation for the property, which is the pertinent one, is within the $250,000 limit. See s 68(3)(b) of the District Court of Queensland Act 1967.
It is immaterial that according to the statement of the defendant's account, Exhibit C to the affidavit of Ms Nguyen, the balance of that account may be $258,102.67, as at 12th of May 2009, which exceeds the monetary jurisdiction. There is simply no money claim before the Court. The plaintiff intends to resort to its contractual remedies, presumably centering on exercise of power of sale, to obtain satisfaction.
The defendant is in Court, represented by his solicitor, Mr Johnson, seeking an adjournment of the application for three months. That is an unusually long period. It is not unusual that it is being sought. Mr Johnson tells the Court that his client has to look after six children and that the relevant property is their home.
It is hoped that in the three months the defendant will get matters in order. That is unlikely on the face of it, as the plaintiff has, following the defendant's asserted non compliance with a notice of default given last year, when the three monthly payments were in arrears, elected to require payment of the whole of the secured indebtedness.
The affidavit responds to assertions from the defendant that the interest rate the plaintiff charges is excessive. The Court can probably take judicial notice that the range of rates revealed is in excess of those which have, according to media reports in recent times, been available to borrowers, but that is hardly the question. They are the rates which, as things presently appear, the defendant agreed to pay. It seems equally irrelevant that he chose to commit himself without obtaining advice.
Mr Johnson proposed that his client give oral evidence in the Court today, which I apprehend was going to include or might have included assertions that there was some oral arrangement with an officer of the plaintiff that provided he made periodical payments of $500, the situation would be allowed to run on and, presumably, he could remain in his home.
Mr Cooper, counsel for the plaintiff, opposed the receipt of oral evidence. The defendant would require an indulgence under Rule 295(1) to be permitted to adduce oral evidence. This is not a suitable occasion for granting such leave. In the circumstances, it seems to me that Mr Cooper would necessarily be taken by surprise in some respects and require an adjournment to obtain instructions, so that he could cross-examine.
The circumstances are not ones in which I would contemplate granting an adjournment of the duration Mr Johnson desires. Unless the defendant can refinance, any useful outcome would require the plaintiff to resile from its determination to recover the whole of what is owing to it and to restore the periodical payment arrangements which from its point of view have proved unsatisfactory.
There is an odd difference of understandings at the Bar table, presumably depending on the different instructions. Although at the time of the notice of default, the arrears were something like three monthly payments' worth, Mr Cooper understands his instructions to be that it is now more like six monthly payments' worth of arrears, an amount exceeding $12,000. Mr Johnson's instructions are that the arrears have been kept at the same level, because his client has been continuing to make payments.
The circumstances are likely to be ones in which, assuming the issue becomes getting the account in order, in the sense of periodical payments up-to-date, what the parties say is required to do that is far apart.
I do not know to what extent that may have to do with entries in the statement which have nothing to do with the ordinary repayment schedules. There are many instances of charges being made, such as dishonour fees, following dishonoured payments and there are default interest charges in escalating amounts, arrears management fees, "Agent costs", legal costs, and going back to the beginning of the account, there are some fairly large charges for "Completion Fee" and "Title Insurance".
On my analysis, the defendant's approach that all he needs to do is repair the situation by making the aggregate of monthly payments which he ought to have, may not resolve the situation.
He is concerned that he has made some payments, presumably not the ones recorded as dishonoured, which the plaintiff has not acknowledged. I have included a special direction in the Court's order today to ensure that the defendant has reliable information from the plaintiff as to its understanding of the state of the account today, before he is required to finalise his own material in respect of the application.
The difficulty involves no criticism of the plaintiff, which is not required to produce the usual affidavit regarding the amount of indebtedness in the circumstances.
It is not for me to seek to bind or influence the Judge who hears the application on the adjourned date, which is after a period closer in duration to that contended for by Mr Cooper, who appeared to accept that there ought to be some adjournment, although asserting - and I think correctly - the defendant had no entitlement to one, than to the three months sought by Mr Johnson.
However, it may well be that if Mr Fatafehi can get the account back in order in the sense that there are no arrears by reference to monthly payments and offer some prospect of keeping things in order, a sympathetic Judge may entertain the notion of exercising a discretion, if there is one, against making an order for possession. At the moment, the defendant appears to have an uphill battle, but if Mr Johnson's assertions are correct, having secure employment, he may be able to work something out.
I think it is necessary to bring the parties somehow to an agreement as to what the true state of the account is. They can then work out how to proceed.
The orders of the Court are:
- Adjourn the application for summary judgment to the 13th of July 2009;
- Within four business days of the plaintiff providing to the defendant's solicitors a statement bringing up-to-date the statement Exhibit C to the affidavit of Florence Nguyen regarding the defendant's account, or by the 6th of July 2009, whichever is the later, the defendant must provide the plaintiff's solicitors with the complete material he wishes to rely on in defence of the application;
- The plaintiff provide any further material it wishes to rely on by 9 July 2009;
- Reserve consideration of the plaintiff's application for costs wasted by the adjournment;
- Liberty to apply.