GE Automotive Financial Services Pty Ltd v Newton
[2009] QDC 369
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- Unreported Judgment
- GE Automotive Financial Services Pty Ltd v Newton[2009] QDC 369
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GE Automotive Financial Services Pty Ltd v Newton[2009] QDC 369
GE Automotive Financial Services Pty Ltd v Newton[2009] QDC 369
[2009] QDC 369 | |
DISTRICT COURT | |
CIVIL JURISDICTION | |
JUDGE ROBIN QC | |
No 2566 of 2009 | |
GE AUTOMOTIVE FINANCIAL SERVICES | Applicant |
and | |
CHRISTOPHER GRAEME NEWTON | Respondent |
BRISBANE | |
DATE 11/11/2009 |
ORDER | Commonwealth Bills of Exchange Act 1909 s 100 Uniform Civil Procedure Rules 1999 r 926 Cross applications to have the respondent dealt with for contempt of a court order to deliver or permit delivery up of a vehicle and by him to have the order set aside - court rejects respondent's contention that a notarised document setting out his assertions that nothing was owing to the applicant financier because a cheque in the appropriate amount had been sent in the mail (which was never presented or the subject of payment) |
HIS HONOUR: The Court has made an order essentially in terms of a document which the applicant's solicitors and the respondent, Mr Newton, have signed.
The terms of the order are as follows:
"BY CONSENT THE ORDER OF THE COURT IS THAT:
- The Application filed 9 November 2009 by CHRISTOPHER GRAEME NEWTON (“the Respondent”) (“the Respondent’s Application”) is dismissed.
- The Application filed 7 October 2009 by the Applicant, GE Automotive Financial Services Pty Ltd (“the Applicant’s Contempt application”), be dismissed.
- The Respondent is ordered to:
- (a)Pay the costs of the Applicant of and incidental to the Applicant’s Application filed 14 August 2009 on an indemnity basis fixed in the amount of $4300.00.
- (b)Pay the costs of the Applicant of and incidental to the Respondent’s Application on an indemnity basis fixed in the amount of $4300.00, and
- (c)Pay the costs of the Applicant of and incidental to the Applicant’s Contempt Application filed 7 October 2009 on an indemnity basis fixed in the amount of $12904.75.
- (a)
- That the Applicant provide to the Respondent within 7 days of this order an affidavit verifying as to:
- (a)The true amount due and owing and likely enforcement expenses (including storage and sale of the said vehicle the subject of the within proceeding), and
- (b)The amounts received by the Applicant as to payments due under the loan agreement the subject of the within proceeding, and
- (c)A copy of a true account as to same.
- (a)
- The Applicant not proceed to the sale of the said vehicle before close of business on 24 December 2009, provided that:
- (a)The Respondent at or before 4pm on 24 December 2009 make payment of all amounts owing to the Applicant by the Respondent as verified by the Applicant in the above affidavit.
- (b)Such payment by the Respondent be made by way of bank cheque issued by the Commonwealth Bank of Australia Limited payable to the Applicant delivered to the offices of the Applicant’s lawyers Mills Oakley lawyers, Level 2, 217 George Street, Brisbane.
- (a)
- If the Respondent complies with (a) and (b) of paragraph 5 above, the Applicant return the vehicle to him.
- Liberty to apply."
The sums of $4300 in paragraph 3(a) and (b) are cumulative, the court was told.
A good deal of court time has been expended on this proceeding today and it might be worth making some observations about it.
The applicant financed the acquisition of a motor vehicle by the respondent. It says that the arrangements were the equivalent of an old system mortgage in accordance with which the applicant owned the vehicle, although it was registered in the respondent's name.
From its point of view, he fell behind in meeting his obligations and steps were put in train to obtain possession of the vehicle.
On the 25th of September 2008, Acting Judge Collins made an order ex parte which required Mr Newton to deliver the vehicle and, also, authorised the applicant or its agents to enter some identified premises for the purpose of taking possession.
The order was never complied with. Unfortunately for the applicant, perhaps, it didn’t include the endorsement required by rule 665. Another order was obtained from Judge Noud, again ex parte, on the 18th of August 2009.
It is of a kind becoming familiar to the court in these times, authorising the applicant and its agents to take possession of a vehicle at identified premises and the like.
It required any person in occupation of the premises to permit entry there, also, paragraph 5 required the respondent to deliver the vehicle if possession of it hadn't been obtained. The rule 665 endorsement appeared.
The applicant's application before the court today seeks to have Mr Newton dealt with for contempt. It appears to have satisfied requirements of rule 926 and the affidavit material, in my view, supports the application for relief.
There's a cross application before the court, however, which is entitled counter-claim. In essence, Mr Newton seeks to have previous orders, Judge Noud's in particular, set aside.
He complains, and justly, that he had no opportunity to be heard against the making of those orders. It seems to me that the reasons why the applicant might pursue it ex parte, if permitted to by the court, in situations like the present, are fairly obvious.
On the affidavits produced by it, the applicant has encountered a good deal of obstruction in its attempts to get hold of the vehicle which hitherto have been unsuccessful, although during the luncheon adjournment, it succeeded in gaining possession with the cooperation of Mr Newton. It is a matter of speculation whether he was influenced by the course the hearing took.
The parties ought to be congratulated to getting things resolved in that way. I explained to Mr Newton that his assertions that he has seen no material justifying the making of the Court's earlier orders is neither here nor there.
Anyone in his position, that is as someone against whom orders are made in his or her absence, has the right to approach the court with proper material, seeking to have those orders set aside or changed without being driven to appeal.
In my very definite opinion, Mr Newton hasn't shown that the orders ought to be changed. From my point of view, the essential question is whether or not substantial moneys remain outstanding to the applicant, so that in moral as well as legal terms, it ought to have possession of the vehicle.
The assertion Mr Newton makes is that he has paid everything that's owing by a cheque which was posted to the applicant at its address in Melbourne, for more than $56,000.
This happened some time about the middle of last year. The applicant, in general terms, denies any knowledge of any such payment. It certainly found its way into the applicant's records.
More significantly, Mr Newton was totally unable to demonstrate that the proceeds of any such cheque were paid out of any account of his. He has challenged the applicant to return the cheque, which it says it doesn't have, to him, protesting that if that's done, he'll then pay what is due.
The cheque, if it is still at large, is stale and unlikely to be paid by the bank on which it's drawn, always assuming that there is such a cheque.
Mr Newton claims to have an unanswerable case in that regard and this brings me to the gravamen of his argument. He places before the court a copy of, and offers to produce the original of a notarial "Certification and Verification."
This is a production of a notary public whose name is unknown, but may be Mahoney, if Mr Newton's interpretation of the signature is correct.
This sealed document, two pages of close typing, purports to record the despatch to the applicant (which, of course, has nothing whatever to do with the coming into existence of the notarised document) of a Bill of Exchange.
According to the document, by reason of the despatch of the cheque, presumably said to be drawn in the appropriate amount, the applicant has no financial claim against Mr Newton, "no formal rebuttal being issued by the debtor party" in respect of the assertion that the cheque was sent.
The document goes further by reciting complaints about the vehicle, in particular that it was supposed to be a four-wheel drive but in the event, it was not. I find it difficult to reconcile some of the dates in that document with the things which were asserted from the Bar table - in particular, so far as it asserts that "Full payment made by the Court to the party is duly effected by registered mail on the debtor party, on June 30, AD 2008 and therefore was and has now been irrevocably accepted as the full payment for the said vehicle."
The information the court's given from the Bar table was that payment occurred on a later date. The notary who affixed his seal would have not the slightest idea whether a cheque was sent or not. I'm totally unable to agree with Mr Newton's assertions as to the potency of this document which he asserted is binding on all courts, including the High Court of Australia, as incontrovertible and is proof that nothing was owing to the applicant.
Reliance appears to be placed on the role, which the Archbishop of Canterbury's Court of Faculties plays in the appointment of notaries public.
The notion seems to be that that could be assimilated with the Privy Council, a body standing above all Australian courts. Material in Mr Newton's filed material includes assertions that the Australia Act is invalid.
For the record, my view is that that argument is wholly incorrect, that the notary relevantly does nothing more than authenticate documents, in this case the making of assertions, presumably, assuming that things have been done regularly, that Mr Newton told the truth. Nothing more has happened in authentication of Mr Newton's assertions as factually or legally correct.
It's hard for the court to judge the genuineness of the stances that Mr Newton has adopted. In the circumstances, that today is his first day in court, raises concern in my mind as to the appropriateness of dealing with him immediately for contempt. He has purged his contempt over lunch; in any event, by handing over the vehicle.
People who are familiar with the system would understand that whether orders are made ex parte or not, they have to be complied with. Anyone who wishes to have them changed, has to apply earlier (rather than later, as Mr Newton did) to have them changed.
Consideration has been given to various ways of achieving some useful outcome today; among others I'd considered appointing a receiver of the vehicle. It might have been the applicant's solicitors, in the interest of saving costs.
That would have placed Mr Newton in the awkward position of resisting attempts of the court's officer to obtain possession of the vehicle.
Such an expedient might have held the situation, pending a proper hearing in court on proper evidence, regarding what, in my view, is the essential question which, as indicated, is whether substantial moneys are outstanding to the applicant. The late cooperation of the parties relieves the court from having to make some difficult judgments.
In the absence of some statutory provision or judicial authority to support Mr Newton's contention that a notarised document amounts to a judicial adjudication, I reject it entirely. The acknowledgment of the role of notaries in s 100 of the (Commonwealth) Bills of Exchange Act 1909 does not affect my view.