Pradella v Oakley[2016] QDC 253

DISTRICT COURT OF QUEENSLAND

1. [1]
   By an application filed on 19 August 2016, the plaintiff in this matter seeks summary judgment pursuant to r 292 of the Uniform Civil Procedure Rules 1999 (“UCPR”). On 30 September 2016, the following orders were made on that application:

“1.The defendant pay to the plaintiff the sum of $668,000, being $580,000 for the plaintiff’s claim plus interest to this day totalling $88,000.

2. The defendant pay the plaintiff’s costs of this proceeding including the costs of this application on an indemnity basis.”

These are the reasons for those orders.

2. [2]
   The claim in relation to which such judgment is sought was commenced by the filing of a claim and statement of claim, on 27 May 2016. That is, a claim for damages for breach of contract. By way of broad description, the matter relates to disputes arising in respect of advances of money made between friends and in the context of a need for such advances as a consequence of the business-related financial difficulties of the defendant’s daughter. The issues that arise are as to the terms of the loan agreements made between the parties and as to the repayment of the principal and the payment of interest.

3. [3]
   Although the defendant did, on 22 June 2016, file a notice of intention to defend and defence, the plaintiff has since filed, on 21 July 2016, an amended statement of claim and points out that despite that amended statement of claim being served on the defendant, she has not filed any further pleading to that amended statement of claim. It is further pointed out that, pursuant to UCPR 385(3), she is taken to rely on her original pleading as an answer to the amended pleading and accordingly and to any extent that there is an allegation of fact made by the plaintiff in the amended statement of claim and which has not been addressed in the defendant’s earlier pleading, that may, pursuant to UCPR 166(1), be taken to be admitted.

4. [4]
   Before the order that is sought on this application may be made, pursuant to UCPR 292, the plaintiff must satisfy the Court that:

“(a)the defendant has no real prospect of successfully defending all or a part of the plaintiff’s claim; and

2. (b)
   there is no need for a trial of the claim or the part of the claim.”

5. [5]
   In this case, the defendant, as she has conducted the proceedings, initially appeared in a self-represented capacity and only to partially resist the application. She sought and was given the opportunity to file material and be further heard, before this judgment was given.

6. [6]
   It has been noted that in applying the test set out in UCPR 292(2), there is nothing that “detracts from the well-established general principle that issues raised in proceedings will be determined summarily only in the clearest of cases”;^[1]a statement made in recognition of a generally recognised requirement of the “high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way”.^[2]However and as is noted for the applicant, in Bolton Properties Pty Ltd v JK Investments Pty Ltd^[3]and despite there being separate discussion of the test in UCPR 292 and various past observations in respect of it and some differences in conclusion, there was commonality of endorsement of the following view, as expressed by Holmes J, in Queensland University of Technology v Project Constructions (Aust) Pty Ltd (in liq)^[4]and in the context of also noting the exceptionality of the remedy and a need to apply the words of the rule:

“The more appropriate inquiry is in terms of the Rule itself: that is whether there exists a real, as opposed to fanciful, prospect of success. However, it remains, without doubt, the case that:

‘great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case’.”

7. [7]
   The applicant bears the persuasive onus but there may be a different evidentiary onus.^[5]Accordingly and in the context of the pleadings in a case, it is necessary to make an assessment of the facts, as deposed in the pleadings and affidavit material and the extent to which there are and the effect of, facts that are in dispute.

8. [8]
   In this case, it may be concluded that the following facts are not in dispute:

“(a)On 5 February 2010 and in the context of an earlier discussion as to the defendant’s desire to be able to financially assist her daughter, an oral agreement was reached for the plaintiff to loan the defendant $300,000 with interest paid monthly at 4% per month. A cheque drawn in the amount of $300,000 and dated 6 February 2010 was debited in the applicant’s bank account on 10 February 2010.

2. (b)
   On 8 March 2010, there was agreement to advance a further amount of $230,000, on the same basis, with interest payable on the 10^th day of each month. There is a debit for $230,000 in the bank account of the applicant on the same day.

3. (c)
   At the applicant’s request, a written agreement was drawn up and the document which is attached as PLP2 to the applicant’s affidavit^[6] was signed and dated 9 March 2010.^[7]The defendant also provided a written receipt (PLP3) for two amounts totalling $530,000, respectively on 9 February and 9 March 2010 and containing the following:

‘There is an agreement that 4 % interest on the borrowed amount be paid monthly to Petrea Lee Pradella’; and also

‘The amounts are to be lent for an initial period of six months. A review on (9 August $300,000, 9 September $230,000) to extend the loan or reclaim.’

In the first instance this document is signed by the applicant and respondent and witnessed and is dated 9 March 2010 and the applicant particularly points to the written agreement PLP2 and the effect of clause 2 and items 9 and 13 in the schedule, as requiring the repayment of the principal sum on or before 9 March 2014.

4. (d)
   In about June 2011 and in the context of some difficulties that were expressed by the respondent, it was orally agreed to vary the amount of interest payable to a fixed amount of $4,200 per month.

5. (e)
   On about 9 June 2013 the respondent requested a further advance of $50,000, on the basis of increasing the interest payments to $4,900 per month. This was accepted and hand-written amendments were made to the written agreement (as appear in PLP2) and which record an advance of an additional $50,000 on 11 June 2013, making a total principal sum of $580,000 with that amendment being initialled by the parties and dated 10 June 2013.”

9. [9]
   It may then be noted that by paragraph 1 of her defence, the defendant admits paragraph 4 of the statement of claim, which was couched in the following terms:

“4.In October 2014, the loan agreement was again varied pursuant to a verbal agreement between the plaintiff and the defendant whereby it was agreed that the interest on the principal sum that was payable monthly by the defendant to the plaintiff would be fixed in the sum of $4,000 per month.”

10. [10]
    In the amended statement of claim, that paragraph is effectively replaced by the following paragraphs:

“The third variation

7. In or about October 2014, the loan agreement was varied pursuant to a verbal agreement between the plaintiff and the defendant whereby it was agreed that the interest on the Principal Sum that was payable monthly by the defendant to the plaintiff would be fixed in the sum of $3,900 per month.

The fourth variation

8. On or about 5 November 2015, the loan agreement was again varied pursuant to a verbal agreement between the plaintiff and the defendant whereby it was agreed that the interest on the new principal sum that was payable monthly by the defendant to the plaintiff would be fixed in the sum of $4,000 per month.”

11. [11]
    The amended statement of claim proceeds to plead that pursuant to the loan agreement, the defendant had paid interest totalling $331,851, as particularised in a schedule and as to which it is common ground it was intended to attach the schedule that is exhibited to the applicant’s affidavit as PLP-3, and which contains as the last payment of loan interest, a sum of $3,900 paid on 10 November 2014.

12. [12]
    When the respondent appeared on the return date for the application, on 23 September 2016, she indicated that she did not resist the application, as far as it related to her unfulfilled obligation to pay interest in the amount of $4,000 per month and on the 10^th day of each month from December 2014 to the date of judgment (a total of 22 months). However and consistently with her pleading by way of defence, the respondent sought to resist judgment being entered for the repayment of the principal sum on the basis that when the initial advance of $300,000 was made:

“there was only a verbal agreement with respect to the payment of interest only and repayment of the principal amount was not discussed”.^[8]

And the further contention, that the principal sum was repayable on or before 9 March 2014, as stipulated in the written loan agreement, is denied:

“…because the terms of the loan document dated 9 March 2010 did not remain static as the loan agreement was varied on June 2011, 11 June 2013, October 2014 and again in November 2014 where the plaintiff and defendant agreed to extend the payment of the principal to a time when the defendant was able to repay the principal.”^[9]

13. [13]
    In the context of some discussion of the apparent merits of the application and the information that the respondent sought to orally place before the Court and which, apart from reasserting an agreement that she would repay the principal amount when she was able to, otherwise largely sought to explain how she was unable to repay the amount sought, without the sale of her husband’s interests in some aquaculture technologies or undertaking and which had been the subject of a failed contract but was now under contract and expected to settle later this year, the application was adjourned to 30 September 2016 and the respondent directed to file and serve any material to be relied upon in response to the application, by 28 September 2016.

14. [14]
    Although an affidavit of the respondent was filed on 28 September 2016, as the Court first became aware due to a request by the applicant for a copy, it was not served and more critically, the respondent did not appear at the adjourned hearing on 30 September 2016. Accordingly, that affidavit has not been read on this application and upon the objection taken for the applicant, has not been considered in this determination of the application. It was indicated that had reliance been placed on that affidavit, the applicant would seek to read and file a further affidavit taking issue with some parts of it.

15. [15]
    The most appropriate course, in these circumstances, is to determine the application upon the materials that have been read on the application. Upon consideration of those materials, the application should be allowed. This is particularly because:

16. [16]
    Accordingly, it was concluded that the respondent had no real prospect of successfully defending the claim and that there is no need for a trial of the claim.

17. [17]
    The plaintiff also sought and was granted an order for the recovery of the costs of the proceeding, on an indemnity basis. The loan agreement, at Clause 7, also supported this order. That clause is relevantly expressed as follows:

“7.  In addition to all costs, expenses and other moneys which the Borrower may be liable at law or in equity to pay in respect of or in relation to this Agreement and/or any collateral Agreement, the Borrower shall pay to the Lender upon demand any legal costs, charges and expenses as between Solicitor and client which the Lender shall pay or be liable to pay:

1. (i)
   ….

2. (ii)
   Of or incidental to the exercise or attempted exercise of any right, authority or remedy conferred on the Lender under or by virtue of this agreement, the security or the Guarantee or by any statute, order, rule or regulation;

3. (iii)
   On account of performance or observance or default in performance or observance of any covenant on the part of the Borrower and/or the Guarantor herein contained.”

18. [18]
    The reference to “Solicitor and client” may be taken as a reference to the “solicitor and client basis” of taxation or assessment of legal costs, as referred to in s 133 of the Supreme Court of Queensland Act 1991 and UCPR 743S, as is explained in Amos v Monsour P/L & Ors [2009] QCA 65.