National Australia Bank Limited v O'Brien
[2011] QDC 158
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- Unreported Judgment
- National Australia Bank Limited v O'Brien[2011] QDC 158
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National Australia Bank Limited v O'Brien[2011] QDC 158
National Australia Bank Limited v O'Brien[2011] QDC 158
DISTRICT COURT | [2011] QDC 158 |
CIVIL JURISDICTION | |
JUDGE ROBIN QC | |
No 3676 of 2010 | |
NATIONAL AUSTRALIA BANK LIMITED (ACN 004 004 937) | Plaintiff |
and | |
BARRY GRAHAM O'BRIEN | Defendant |
BRISBANE | |
DATE 12/07/2011 | |
ORDER | |
CATCHWORDS | Uniform Civil Procedure Rules 1999, r 69, r 439 Joinder as a defendant of the defendant's wife - plaintiff claiming possession of a mortgaged vehicle under arrangements with him - it was last seen at her place and she had attempted to purchase it from him, registered it in his name |
HIS HONOUR: The Court makes an order in terms of the initialled draft. That follows a hearing at which the existing defendant, Mr O'Brien, who happens to be a bankrupt, and his former wife were cross-examined. That was envisaged under an order of Judge Griffin SC made on the 17th of February 2011.
The terms of the order, strictly construed, may not have been quite wide enough to justify the cross-examination,
Mr O'Brien's affidavit, in particular, not having been filed to satisfy the reference in the order to filing. However, Rule 439 is wider than that and authorises cross-examination to occur if an affidavit is intended to be used, as I take it Mr O'Brien's affidavit and Mrs O'Brien's were.
Leave to read and file his affidavit was given to Mr Ward representing the plaintiff bank. It's engaged in the pursuit of a Mercedes Benz motor vehicle of which it is lessee to
Mr O'Brien. Mr Ward informs the Court that section 58(5) of the Bankruptcy Act makes it clear that the bank is entitled to pursue its own property in this proceeding, notwithstanding
Mr O'Brien's status. That status doubtless has implications for the part of the claim by which it seeks lease payments said to amount to more than $90,000. There may be some interest or similar component in there.
The cross-examination has occurred today with the cooperation of Mr O'Brien and Mrs O'Brien. There remains an issue as to whether she should be joined as a defendant in the proceeding under rule 69. As to the width of that provision Mr Ward refers to MAM Mortgages Limited (in liquidation) against Cameron Brothers and Others [2002] QCA 330 in particular at paragraph 27.
The bank's agents have been singularly unsuccessful in their efforts to get control of the vehicle. Both witnesses today indicate that on or about the 19th of November 2010 that the vehicle was last seen at Mrs O'Brien's place, Mr O'Brien having driven it - or given it a run on the day but according to her definitely returned it. It then disappeared.
The witnesses surmise that the repossession agents have got it which they, on affidavit evidence, deny. The vehicle hasn't been reported missing to police apparently.
Ms O'Brien resists being joined as a defendant, but unsuccessfully. She acknowledges that she has in her possession keys although Mr O'Brien disputes that, saying they simply are keys which are at her place. I would say the keys represent part of the vehicle, that the bank's entitled to possession of them. Mrs O'Brien does assert willingness to hand them over.
She has taken steps in relation to the vehicle, registering it in her name and then deregistering it. Steps were taken to transfer it to her for an appropriate consideration. It was then learned, it is said by advice from the bank, that it was not possible to transfer the vehicle to her when Mr O'Brien encountered his financial difficulties. Arrangements were then made which are said to have extended to provision to him by her of the sum of about $90,000 to pay out the bank in cash which was given to him by her and then back to her by him.
The $15,000 paid in addition to Mr O'Brien is said to have become a loss she has to suffer. It's made to appear that she was fully aware of the bank's interest in the vehicle. I don't know that I would go as far as Mr Ward asks and accept the personalised number plate IO-NAB as an acknowledgement of the bank's interest but it seems clear enough that with notice of the bank's interest and, indeed, of its desire to gain possession of the vehicle by its agents, the defendants were both physically close to that vehicle on the day when it appears to have disappeared.
It is not suggested that Mrs O'Brien had any … obligations to the bank.
I think there's ample justification there for the joinder and I make an order in terms of the initialled draft.
MS O'BRIEN: Can I just make note that the number plates - those number plates belonged to a previous car before that car so they weren't bought for that car. I'd just like to make that record for the Courts, please.
HIS HONOUR: Thank you. Well, there'll be a transcript recording that, thank you.