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Perpetual Trustee Company Limited ACN 000 001 007 v Konrad and White[2012] QDC 298

Perpetual Trustee Company Limited ACN 000 001 007 v Konrad and White[2012] QDC 298

DISTRICT COURT OF QUEENSLAND

CITATION:

Perpetual Trustee Company Limited ACN 000 001 007 v Konrad and White [2012] QDC 298

PARTIES:

PERPETUAL TRUSTEE COMPANY LIMITED

ACN 000 001 007

(applicant)

v

EMIL HARRY FRANZ KONRAD

(first respondent)

and

DONNA MAREE WHITE

(second respondent)

FILE NO/S:

539/11

DIVISION:

Civil

PROCEEDING:

Applications Court

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

2 October 2012

DELIVERED AT:

Brisbane

HEARING DATE:

7 August 2012

JUDGE:

Farr SC, DCJ

ORDER:

1. There will be judgment for the applicant/plaintiff.

2. I will hear submissions as to the nature of the orders I should make particularly in relation to interest and costs.

CATCHWORDS:

PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES – APPLICATION FOR SUMMARY JUDGMENT – where the applicant seeks liquidated damages for an amount outstanding after the respondents defaulted on their mortgage and the mortgagee after exercising its right of sale incurred a shortfall as the loan balance exceeded the net proceeds of sale – whether pursuant to r 292 of the Uniform Civil Procedure Rules 1999 (Qld) the respondents have no real prospects of defending the applicant’s claim or a part of the claim – whether there is a need for a trial of the claim or a part of the claim

ANZ Banking Group Limited v Barry [1992] 2 Qd R 12, cited

Coldham-Fussell & Ors v Commissioner of Taxation (2011) 82 ACSR 439; [2011] QCA 45, cited

Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232; [2005] QCA 227, cited

Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1, cited

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69, cited

Gray v Morris [2004] 2 Qd R 118; [2004] QCA 5, cited

Theseus Exploration NL v Foyster (1972) 126 CLR 57; [1972] HCA 41, cited

Credit (Commonwealth Powers) Act 2010 (Qld)

Consumer Credit (Queensland) Act 1994 (Qld), Appendix

s 6(1)(b), s 80

National Consumer Credit Protection Act 2009 (Cth), s 88, Schedule 1

Property Law Act 1974 (Qld), s 84

Uniform Civil Procedure Rules 1999 (Qld), r 292

COUNSEL:

SOLICITORS:

Adamson Bernays Kyle & Jones Lawyers for the applicant
The respondent represented himself

Nature of application

  1. [1]
    This is an application for summary judgment pursuant to r 292 of the Uniform Civil Procedure Rules 1999 (Qld).  The applicant seeks an order for liquidated damages for an amount alleged to be outstanding after the respondents defaulted on their mortgage and the mortgagee after exercising its right of sale incurred a shortfall as the loan balance exceeded the net proceeds of sale.
  1. [2]
    The respondents resist the application.

Summary of facts

  1. [3]
    The applicant is an Australian public company which at all relevant times to this proceeding was registered.[1]
  1. [4]
    By way of a loan agreement dated 5 February 2009, the applicant agreed to advance to the respondents the total sum of $368,000.00 on the basis of the terms and conditions contained in the loan agreement. The respondent’s obligations under the loan agreement were secured by way of mortgage (“the mortgage”) registered over real property located at 29 Yakola Parade, Alexandra Headland in the State of Queensland (“secured property”).
  1. [5]
    The loan sum was advanced on or about 13 February 2009, and the mortgage was registered over the secured property shortly thereafter.
  1. [6]
    On or about 13 January 2011, the respondents fell into arrears of their loan repayments which, pursuant to the terms of the loan agreement and mortgage, was an Event of Default. The respondents also failed to make their required loan repayment on or about 13 February 2011.
  1. [7]
    Pursuant to the terms of the Loan Agreement and Mortgage, the applicants, through their appointed Mortgage Programme Manager (agent) RedZed Lending Solutions Proprietary Limited (“RedZed”), issued a Default Notice which the applicants submit was in accordance with the provisions of s 84 of the Property Law Act 1974 (Qld).
  1. [8]
    The Default Notice was served on the first respondent and second respondent on 24 February 2011 and 28 February 2011 respectively.  The terms of that Default Notice gave the respondents 31 days from the date of service to cure the default.[2]
  1. [9]
    The Total Account Balance detailed in Schedule 1 of the Default Notice included the following:
  1. (i)
    Loan account balance as at 11 February 2011 in the sum of $371,125.96;
  1. (ii)
    Accrued interest as at 11 February 2011 in the sum of $4,042.30;
  1. (iii)
    Enforcement expenses in the sum of $605.00; and
  1. (iv)
    Early Termination Fee in the sum of $7,360.00.
  1. [10]
    On or about 30 March 2011, the respondents sent a formal Hardship Application to RedZed seeking relief of mortgage repayments.
  1. [11]
    On 5 April 2011, subsequent to submitting the Hardship Application but prior to the applicant making a decision in relation to it, the first respondent sent an email to an officer of RedZed stating that he would be able to make payments of $1,800.00 each Friday.[3]
  1. [12]
    The applicant, through its nominated agent RedZed, declined the respondents’ Hardship Application but agreed to the suggested repayment arrangement with certain conditions. Those conditions were outlined in the applicant’s solicitor’s letter dated 8 April 2011 as being:
  1. (i)
    That the respondents sign a Direct Debit Authority and return same to RedZed by 12 April 2011;
  1. (ii)
    That the respondents pay $1,800.00 per week in accordance with the respondents’ offer dated 5 April 2011 from the week commencing 15 April 2011; and
  1. (iii)
    That the respondents clear all arrears on the loan on or before 30 May 2011.[4]
  1. [13]
    Under the terms of the Default Notice, the Loan Agreement and the Mortgage, a consequence of failing to remedy a default is that the entire loan balance is accelerated and becomes immediately due and payable. In this case, it is alleged that on or about 1 April 2011 the loan balance became immediately due and payable.
  1. [14]
    The respondents did not comply with the repayment arrangement detailed above as two weekly repayments were dishonoured and the arrears were not repaid on or before 30 May 2011. The repayments which were made at around this time were as follows:[5]

Date of Payment

Amount Paid

Date attributable per arrangement

6 April 2011

21 April 2011

29 April 2011

6 May 2011

13 May 2011

20 May 2011

23 May 2011

27 May 2011

3 June 2011

$1,800.00

$1,800.00

$1,800.00

$1,800.00

$800.00

 

$1,000.00

 

15 April 2011

22 April 2011

29 April 2011

6 May 2011

13 May 2011

Rejected (20 May 2011)

20 May 2011

Rejected (27 May 2011)

Rejected (3 June 2011)

  1. [15]
    On or about 17 June 2011 the applicant took possession of the secured property, which was vacant land, and proceeded to engage a real estate agent to manage its sale.
  1. [16]
    On or about 23 June 2011, the respondents lodged a complaint with the Credit Ombudsmen Service Limited (“COSL”), a service provider who provides dispute resolution services between borrowers and its members (lenders), in accordance with its rules. The respondents’ complaint sought:
  1. (i)
    the crediting of higher interest charges applied by the applicant due to the respondents’ default of the Loan Agreement and Mortgage; and
  1. (ii)
    time to clear the arrears (60 days).
  1. [17]
    On 2 November 2011, COSL sent an email to the respondents detailing, amongst other things, an offer made by RedZed (on behalf of the applicant) to credit various charges applied to the loan account including higher interest charges in the sum of $2,537.93, direct debit dishonour fees in the sum of $1,240.00, and three units of legal fees included in a tax invoice dated 1 August 2011. The same email, under the heading “2. Opportunity to pay arrears”, stated that should the respondents not be in a position to repay the arrears (by a loan organised through Capita Finance, a third/party lender), then COSL would not be able to ask RedZed for any additional time to pay the arrears.[6]
  1. [18]
    On or about 28 November 2011, COSL considered the complaint finalised and closed their file.
  1. [19]
    The applicant’s evidence is that RedZed reversed various higher interest charges as a gesture of good faith only and without prejudice to their rights under the Loan Agreement and Mortgage. The applicant submits that it at no time came to an agreement with the respondents via the COSL process to accept the repayment of arrears.
  1. [20]
    By way of contract dated 20 March 2012, the applicant sold the secured property for the sum of $315,000.00.[7]
  1. [21]
    After necessary adjustments and payments that sale realised the sum of $305,215.32 for application to the loan debt.[8]The loan debt outstanding was reduced to $170,118.40 which is the sum claimed in this proceeding.  That sum is calculated as follows:
  1. (i)
    Loan account balance as at 18 April 2012 in the sum of $438,094.22;
  1. (ii)
    Plus legal costs of enforcement as at 18 April 2012 in the sum of $23,327.70;
  1. (iii)
    Costs associated with the sale of the Secured Property in the sum of $13,911.80; and
  1. (iv)
    Less the realised sum of $305,215.32.

Admissions to the claim

  1. [22]
    The respondents (by way of their defence) make certain core admissions in relation to this matter:
  1. (i)
    They admit the Loan Agreement dated 5 February 2009 and the resulting Mortgage in writing which contains certain express terms regarding a relationship between the applicant as lender and the respondents as borrowers;[9]
  1. (ii)
    They admit that the amount of $368,000.00 was advanced to them pursuant to that Loan Agreement;
  1. (iii)
    They admit that there was a default of the Loan Agreement and Mortgage by them which resulted in a Notice of Default (also termed “Default Notice”) being issued and served upon them; and
  1. (iv)
    They admit that upon a failure to comply/remedy the Notice of Default within the time specified, the full amount of the loan together with interest and costs became immediately due and payable.[10]

Issues in contention

  1. [23]
    The respondents (who were both represented on this application by the first respondent Mr Emil Konrad) have raised two arguments which they assert represent a defence to the claim. They are:
  1. (i)
    That the Notice of Default (or Default Notice) was invalid as it did not include the information prescribed by the National Consumer Credit Code and that the loan balance as stated in Schedule 1 of the Default Notice was “substantially incorrect”; and
  1. (ii)
    That there were two relevant agreements entered into between the parties which were not adhered to by the applicant and therefore the applicant is either in breach of those agreements or is estopped from pursuing its rights under the terms of the Loan Agreement by reason of a breach of those agreements. The agreements alleged by the respondents were:
  1. (a)
    A repayment arrangement dated 8 April 2011; and
  1. (b)
    A repayment arrangement entered into on or about 2 November 2011.

Relevant legislation

  1. [24]
    Rule 292 of Uniform Civil Procedure Rules 1999 (Qld) states:

“292 Summary judgment for plaintiff

  1. (1)
    The plaintiff may, at any time after a defendant files a notice of intention to defend, apply to the court under this part for judgment against the defendant.
  1. (2)
    If the court is satisfied that –
  1. (a)
    the defendant has no real prospect of successfully defending all or a part of the plaintiff’s claim; and
  1. (b)
    there is no need for a trial of the claim or the part of the claim;

the court may give judgment for the plaintiff against the defendant for all or the part of the plaintiff’s claim and may make any other order the court considers appropriate.”

  1. [25]
    It is well established that caution must be exercised by a court before giving summary judgment. In Gray v Morris[11] P D McMurdo J said at [46]:

“it seems to me that rr 292 and 293 should be applied by reference to their clear and unambiguous language, without a need for any paraphrase or comparison with a previous rule.  But in the application of the plain words of rules 292 and 293, and in particular the consideration of whether there is a need for a trial, a court must keep in mind why the interests of justice usually require the issues to be investigated at a trial.  In my view it surely remains the case, as Mason, Murphy, Wilson, Deane and Dawson JJ said in Fancourt  v Mercantile Credits Limited (1983) 154 CLR 87 at 99, that:

‘The power to order summary or final judgment is one which should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried’.

That remains a forceful and authoritative guidance and is in no way in tension with the application of these rules according to their own terms.”

  1. [26]
    In General Steel Industries Inc v Commissioner for Railways (NSW)[12]Barwick CJ adopted the observation of Dixon J in Dey v Victorian Railways Commissioners (1949) 78 CLR 62, where he said at 91:

“A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his [or her] case for determination in the appointed manner by the court …”

That principle applies equally to applications for summary judgment by both plaintiffs and defendants.

  1. [27]
    Insofar as the phrase “no real prospect” is concerned, in Deputy Commissioner of Taxation v Salcedo [2005] QCA 227 McMurdo P held at [3] that:

“Nothing in the UCPR … detracts from the well established general principle that issues raised in proceedings will be determined summarily only in the clearest of cases.”

  1. [28]
    Furthermore, as to whether there is no need for a trial of the claim or the part of the claim, the summary judgment application should be refused if there are relevant facts to be decided, or a triable issue of law if the court is of the view that the extent and complexity of the matters of law and argument thereon warrant a full hearing.[13]
  1. [29]
    It is well established that the onus of proof satisfying the two requirements of r 292(2) lies with the plaintiff and the evidentiary onus only shifts to the defendant when the plaintiff has established a prima facie entitlement to summary judgment.[14]
  1. [30]
    In Coldham–Fussell & Ors v Commissioner of Taxation[15]White JA said at [98]:

“Rule 292 is expressed in clear and plain language.  It requires no judicial gloss to understand its meaning.  What those phrases mean is best understood, in the time honoured way, on a case by case basis, informed by judgment about the relevant legal principles.  In Deputy Commissioner of Taxation v Salcedo the President described the rule as ‘clear and unambiguous language’.  Justice Williams quoted with approval observations of Lord Woolf MR in Swain v Hillman [2001] 1 All ER at 91 at 92 considering the English Rule 24.2 upon which rule 292 was based:

‘The words ‘no real prospect of succeeding’ do not need any amplification, they speak for themselves.  The word ‘real’ distinguishes fanciful prospects of success or … they direct the court to the need to see whether there is a ‘realistic’ as opposed to ‘fanciful’ prospect of success.’”

Default Notice

  1. [31]
    The respondents contend that the Default Notice issued and served is invalid as it did not include the information prescribed by s 88 of the National Consumer Credit Protection Act 2009 (Cth) (“the NCCP Act”).[16]Both the applicant and the respondents have agreed that the respondents meant to refer to the provisions of the National Consumer Credit Code (“NCCC”) when referring to the NCCP Act.  The NCCC is set out in Schedule 1 of the NCCP Act and s 88 is a reference to the NCCC.  The applicants took no issue with this error.
  1. [32]
    The applicants contend that the NCCC has no application to this Loan Agreement.
  1. [33]
    The NCCP Act received Royal Assent on 15 December 2009 and the NCCC came into force federally on 1 April 2010.  The operation of the NCCC however did not come into force and effect in Queensland until 1 July 2010 as the Credit (Commonwealth Powers) Act 2010 (Qld) commenced on that date.  The effect of that legislation was to refer the State’s consumer credit powers to the Commonwealth for regulation under the NCCP Act.[17]
  1. [34]
    It follows that the NCCP Act and the NCCC were not in effect or force before 1 July 2010 and their respective provisions do not apply to loans entered into prior to that date.
  1. [35]
    In oral submissions, the respondents were unable to identify any provision of the NCCP Act, the Credit (Commonwealth Powers) Act 2010 (Qld) or the NCCC which indicated that the NCCC had retrospective effect.  No authority was placed before the court by the respondents to that effect either.  Furthermore, examination of the provisions of the NCCP Act failed to reveal any provisions which might in any way lend weight to the argument that was advanced by the respondents.
  1. [36]
    I therefore accept the applicant’s submission that the NCCC does not have application in the circumstances of this matter. Accordingly I accept that the Default Notice which was served upon the respondents was not invalid due to its failure to comply with s 88 of the NCCC.
  1. [37]
    In my view this is not an issue of law that is of such complexity as to require or warrant a full hearing and is suitable for determination at the summary stage. It follows given my finding above that the relevant regulatory legislation potentially applicable in Queensland at the time of the inception of this loan was the Consumer Credit (Queensland) Act 1994 (Qld) and its associated Consumer Credit Code (“CCC”) which is an appendix to that Act.  Section 6(1)(b) of the CCC, however, limits the applicability of this legislation to those loans which are “provided or intended to be provided wholly or predominantly for personal, domestic or household purposes.”  If a loan was not applicable under that Act, then the loan would be “unregulated” so far as the consumer credit legislation was concerned.
  1. [38]
    The applicants submit that the loan agreement in this case involved an unregulated loan and was therefore not subject to the provisions of the CCC.  Alternatively, it is submitted that should the court determine that the CCC did apply to this credit contract then by reasons of the provisions of s 80 (particularly sub-sections (1), (2) and (3)) of the CCC, the applicant’s Default Notice was compliant and was not irregular or invalid.  The respondents argue on the other hand that if the NCCC has no application then the CCC certainly does and that the Default Notice was also non-compliant with the requirements of that code.
  1. [39]
    It is appropriate to deal firstly with the issue as to whether or not the Default Notice was compliant with the provisions of s 80 of the CCC.
  1. [40]
    Section 80(1) of the CCC states that a credit provider must not begin enforcement proceedings against a debtor unless the debtor is in default under the credit contract and the credit provider has given the debtor a default notice complying with the provisions of s 80 and allowing the debtor a period of at least 30 days from the date of the notice to remedy the default.  Section 80(3) states that a Default Notice must specify the default and the action necessary to remedy it and that a subsequent default of the same kind that occurs during the period specified in the Default Notice for remedying the original default may be the subject of enforcement proceedings without further notice if not remedied within the period.
  1. [41]
    Examination of the Default Notice in this matter[18]shows that the notice allowed the debtors a period of 31 days from the date of service of the notice to remedy the default.  It also specified the default and the action necessary to remedy it.  Furthermore, paragraph 6 of the default notice advised the debtors that any subsequent default of the same kind that occurs during the period specified in the Default Notice for remedying the original default may be the subject of enforcement proceedings without further notice if not remedied within the period.
  1. [42]
    Accordingly the Default Notice is compliant with the relevant provisions of s 80 of the CCC.
  1. [43]
    I note that the respondents claim that the notice was not compliant because the amount stipulated as the Total Account Balance (i.e. $383,133.26) as at 11 February 2011 was substantially incorrect. In support of that submission they rely upon the Transactions Summary which states that the balance owing as at 13 February 2011 was only $371,125.96 despite no successful payments having been made between those two dates. That discrepancy in amount however is unsurprising as the balance owing in the Transaction Summary did not include accrued interest of $4,042.30, enforcement expenses of $605.00 and an Early Termination Fee of $7,360.00. I am satisfied on the evidence that the stipulated amount was correct.
  1. [44]
    Given that the notice was compliant with s 80 of the CCC, it is unnecessary to embark upon an examination of the evidence to determine the issue as to whether this was a “regulated” or an “unregulated” loan as those terms are defined in the CCC.

Repayment arrangements

First repayment arrangement

  1. [45]
    The first repayment arrangement relied upon by the respondents in their defence is set out in the letter dated 8 April 2011[19]from the applicant’s solicitors to the respondents.  That letter required the respondents to:
  1. (a)
    Complete and sign a Direct Debit Authority, and return that Authority to RedZed;
  1. (b)
    Pay weekly direct debit payments in the sum of $1,800.00 to the loan; and
  1. (c)
    Clear all arrears by 30 May 2011.
  1. [46]
    The applicants submit that the respondents did not adhere to any of the requirements detailed above, although the applicant takes no issue in relation to requirement (a).
  1. [47]
    The first respondent contends in his affidavit that the respondents complied with requirement (b). I note however, that the first respondent accepts in his affidavit that he did not make a payment on either 20 May 2011 and 27 May 2011 and only paid a sum of $800 on 13 May 2011 and $1,000 on 23 May 2011. I also note that there is no dispute that the respondents did not make a payment on or about 13 April 2011. Furthermore, the respondents did not make any repayment to clear the arrears prior to 30 May 2011. The respondents claim that RedZed neglected or refused to provide the respondents with an accurate balance of arrears owing on both 27 May 2011 and 30 May 2011. They allege that this failure was to ensure that the respondents could not meet the date of final payment. I note however that the respondents do not allege that they paid any sum to satisfy the arrears owing as at 30 May 2011 irrespective as to whether that sum was contested.  The failure to clear the full arrears by 30 May 2011 (or at least the contested amount as challenged by the respondents) clearly breached the repayment arrangement as referred to above.  I note that in his affidavit the first respondent alleges that RedZed refused to accept their payment of $8,000.00 to satisfy the repayment arrangement on 6 June 2011 and also refused to grant further time to pay an additional amount of $5,500.00 which allegedly represented fees incurred as a result of higher interest rates.  Resolution of that dispute is unnecessary at this time.  Quite simply, the respondents failed to comply with the repayment arrangement.
  1. [48]
    As a result of that default the applicant chose to progress its enforcement procedures which it was entitled to do.

Second repayment arrangement

  1. [49]
    The respondents have also relied upon an alleged second repayment arrangement made through the Credit Ombudsman Service Limited (“COSL”) on 2 November 2011. The respondents claim that an agreement was reached under the dispute resolution process conducted by the Credit Ombudsman Service which the plaintiff breached by not accepting the offer to pay the arrears that had been agreed upon under that process. The respondents maintain that they are not obligated to pay the full amount of the loan and are only obligated to pay the arrears.
  1. [50]
    The applicant submits that allegation is fundamentally flawed as the evidence does not reveal any agreement by the applicant to accept only the repayment of arrears.
  1. [51]
    The evidence unequivocally supports the applicant’s submission. The first respondent lodged a complaint with COSL on or about 23 June 2011 in relation to the default notice. The applicant continued with its enforcement procedures after that date despite complaints from the respondents to the effect that any continuing enforcement actions should be stayed until resolution of the complaint to COSL is determined. Ultimately, the applicant cancelled the auction of the mortgaged property which had been set down for 10 November 2011 to allow the complaints to be resolved. On 20 September 2011 a representative from RedZed advised an officer from COSL of the arrears which were owing as at 20 September 2011 and the date that the next monthly payment was due. That email went on to say …

“If the full arrears is cleared by 30 September 2011 and ongoing scheduled payments made on the due date we would be prepared to withdraw the property from the market for a period of three months giving clients sufficient time to pay the loan out in full.”[20]

On 2 November 2011 COSL sent an email to the first respondent which referred to an offer that RedZed had made to settle some of the issues raised by the respondents in their complaint.  That settlement involved the reversal of:

  1. The high interest that was charged on the loan in April 2011 and May 2011 totalling $2,537.93;
  1. The total direct dishonour fees charged on the loan, totalling $1,240; and
  1. Three units of the legal fees on the tax invoice dated 1 August 2011.

COSL sought the respondents’ response to this offer by 16 November 2011.

  1. [52]
    In that same email COSL also referred to the respondents’ request that RedZed accept payment of the arrears and the monthly payments going forward. That email relevantly said:

“As it is now 2 November 2011, we assume that the Capita Finance loan has settled.  If so, please provide us with documentation which shows the funds you have available to pay the arrears on the RedZed loan and meet the monthly payments going forward (for example, a copy of the Capita Finance loan account statement).  Please provide this to us by 16 November 2011.

Unfortunately, if the Capita Finance loan has not settled, we are unable to ask RedZed to provide you with more time.  We understand that you have had difficulties with the transfer of the Brisbane property into your name.  However, the Capita Finance loan was first approved in June 2011 and we are not able to ask RedZed to provide you with further time.”[21]

  1. [53]
    The first respondent says that on or about 16 November 2011 he sent a letter to COSL which had been given to him by Capita Financial Group confirming that funds were available to pay the arrears and confirming that the respondents accepted the applicant’s offer of a reversal of the aforementioned fees and interest charges. He also said:

“I am meeting with the lender this morning at 11.00 am to provide confirmation of funds available to clear the arrears.  The lender does not have loan account statements, as it is short term funding (three months) and will on forward evidence after receipt.”[22]

  1. [54]
    As is evident from the above brief chronology, there is no evidence that the applicant reached an agreement with the respondents to accept repayment of the arrears and to allow the original loan conditions and repayment requirements to continue. That in fact was confirmed by the applicant in a letter dated 1 December 2011 which relevantly said:

“We confirm that COSL have closed the complaint.  Our client is now proceeding to enforce its security and claim for liquidated damages by reason of the default of the mortgage and loan agreement.

We are instructed that our client will not accept a payment that is less than the full amount outstanding on the loan account.”[23]

Conclusion

  1. [55]
    For the reasons outlined above I am satisfied that the respondents have no real prospect of successfully defending all or a part of the applicant’s claim and that there is no need for a trial of the claim or part of the claim.

Quantum of claim

  1. [56]
    The applicant claims the following relief:-
  1. Liquidated damages in the sum of $170,118.40;
  1. Interest; and
  1. Costs.
  1. [57]
    The applicant sold the secured property by way of contract dated 20 March 2012 for the contract price of $315,000.00. The net proceeds of sale which were recovered by the applicant on 19 April 2012 as a partial repayment of the loan amount was $305,215.32.
  1. [58]
    The amount outstanding prior to the recovery of that amount consisted of the following:
  1. Balance of the loan account: $438,094.22
  1. Outstanding legal costs of enforcement: $23,327.70
  1. Costs associated with sale of the secured property: $13,911.80
  1. [59]
    When the net proceeds of sale are deducted from the total of those amounts the claimed figure of $170,118.40 is reached. That figure is confirmed in the affidavit of Loralle Slater, Chief Operations Officer of RedZed Lending Solutions Pty Limited.[24]

Orders

  1. [60]
    There will be judgment for the applicant/plaintiff.
  1. [61]
    I will hear submissions as to the nature of the orders I should make particularly in relation to interest and costs.

Footnotes

[1]  Attachment MEB1 to the affidavit of Murray Evan Bruce filed on 25 July 2012.

[2]  Attachment MEB2 to the affidavit of Murray Evan Bruce filed 25 July 2012.

[3]  Attachment MEB3 to the affidavit of Murray Evan Bruce filed 25 July 2012.

[4]  Attachment MEB4 to Affidavit of Murray Evan Bruce filed 25 July 2012.

[5]  Attachment MEB5 to Affidavit of Murray Evan Bruce filed 25 July 2012.

[6]  Attachment MEB6 to the Affidavit of Murray Evan Bruce filed 25 July 2012.

[7]  Attachment MEB7 to the Affidavit of Murray Evan Bruce filed 25 July 2012.

[8]  Attachment MEB8 to the Affidavit  of Murray Evan Bruce filed 25 July 2012.

[9]  Paragraph 2 of the defence filed 8 June 2012.

[10]  Paragraph 10 of the defence filed 8 June 2012.

[11]  [2004] QCA 5.

[12]  (1964) 112 CLR 125; [1964] HCA 69.

[13] Theseus Exploration NL v Foyster (1972) 126 CLR 57; [1972-73] ALR 839.

[14] ANZ Banking Group Limited v Barry [1992] 2 Qd R 12.

[15]  [2011] QCA 45.

[16]  Paragraph 4(e) of the defence filed 8 June 2011.

[17]  See s 4 of the Credit (Commonwealth Powers) Act 2010 (Cth).

[18]  Attachment MEB2 to Affidavit of Murray Evan Bruce filed 25 July 2012.

[19]  Attachment MEB4 annexed to the Affidavit of Murray Evan Bruce filed 25 July 2012.

[20]  Attachment to further and better particulars of the defence filed 4 January 2012.

[21]  Attachment MEB6 to Affidavit of Murray Evan Bruce filed 25 July 2012.

[22]  Attachment to further and better particulars of the defence filed 4 January 2012.

[23]  Exhibit I to Affidavit of Emil Harry Franz Konrad filed 3 August 2012.

[24]  Affidavit of Loralle Slater filed 26 July 2012.

Close

Editorial Notes

  • Published Case Name:

    Perpetual Trustee Company Limited ACN 000 001 007 v Konrad and White

  • Shortened Case Name:

    Perpetual Trustee Company Limited ACN 000 001 007 v Konrad and White

  • MNC:

    [2012] QDC 298

  • Court:

    QDC

  • Judge(s):

    Farr SC DCJ

  • Date:

    02 Oct 2012

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Australia and New Zealand Banking Group Ltd v Barry[1992] 2 Qd R 12; [1991] QSCFC 83
2 citations
Jump To
Cite 1 - [1992] 2 Qd R 12
Cite 2 - [1992] 2 Qd R 12
Coldham-Fussell v Commissioner of Taxation [2011] QCA 45
2 citations
Jump To
Cite 1 - [2011] QCA 45
Cite 2 - [2011] QCA 45
Coldham-Fussell v Commissioner of Taxation (2011) 82 ACSR 439
1 citation
Jump To
Cite 1 - (2011) 82 ACSR 439
Deputy Commissioner of Taxation v Salcedo[2005] 2 Qd R 232; [2005] QCA 227
3 citations
Jump To
Cite 1 - [2005] QCA 227
Cite 2 - [2005] QCA 227
Cite 3 - [2005] 2 Qd R 232
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
2 citations
Jump To
Cite 1 - (1949) 78 CLR 62
Cite 2 - (1949) 78 CLR 62
Dey v Victorian Railways Commissioners [1949] HCA 1
1 citation
Jump To
Cite 1 - [1949] HCA 1
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
1 citation
Jump To
Cite 1 - (1983) 154 CLR 87
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
2 citations
Jump To
Cite 1 - (1964) 112 CLR 125
Cite 2 - (1964) 112 CLR 125
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69
2 citations
Jump To
Cite 1 - [1964] HCA 69
Cite 2 - [1964] HCA 69
Gray v Morris[2004] 2 Qd R 118; [2004] QCA 5
3 citations
Jump To
Cite 1 - [2004] QCA 5
Cite 2 - [2004] QCA 5
Cite 3 - [2004] 2 Qd R 118
Hamra v Commissioner of Taxation (Cth) [1973] ALR 839
1 citation
Jump To
Cite 1 - [1973] ALR 839
Theseus Exploration NL v Foyster (1972) 126 CLR 57
2 citations
Jump To
Cite 1 - (1972) 126 CLR 57
Cite 2 - (1972) 126 CLR 57
Thesus Exploration N L v Foyster [1972] HCA 41
1 citation
Jump To
Cite 1 - [1972] HCA 41

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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