Walsh v Toyota Finance Australia Ltd (No 3)
[2016] QDC 336
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- Unreported Judgment
- Walsh v Toyota Finance Australia Ltd (No 3)[2016] QDC 336
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Walsh v Toyota Finance Australia Ltd (No 3)[2016] QDC 336
Walsh v Toyota Finance Australia Ltd (No 3)[2016] QDC 336
DISTRICT COURT OF QUEENSLAND
CITATION: | Walsh v Toyota Finance Australia Ltd (No 3) [2016] QDC 336 |
PARTIES: | MICHAEL ANTHONY WALSH (applicant) v TOYOTA FINANCE AUSTRALIA LTD (ABN 48 002 435 181) (respondent) |
FILE NO/S: | 3634/16 |
DIVISION: | Civil |
PROCEEDING: | Appellate |
ORIGINATING COURT: | Magistrates Court Brisbane |
DELIVERED ON: | 16 December 2016 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 12 December 2016 |
JUDGE: | Smith DCJA |
ORDER: |
|
CATCHWORDS: | PROCEDURE – SUMMARY JUDGMENT – APPEAL – whether the magistrates court should have ordered summary judgment in favour of the respondent – whether the appellant raised any triable issues in his defence and counterclaim – whether leave to appeal should be granted Magistrates Court Act 1921 (Qld) s 45 Queensland Civil and Administrative Appeals Act 1999 (Q) dictionary Uniform Civil Procedure Rules 1999 (Q) rr 165, 292, 293, 748, 785 Allesch v Maunz (2000) 203 CLR 172 American Express International Inc v Hewitt [1993] 2 Qd R 352 Atkinson v Commissioner of Taxation [2014] FCA 127 Atkinson v Commissioner of Taxation (2015) 318 ALR 585; [2015] FCAFC 18 Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 Deputy Commissioner of Taxation v Sproule [2012] FMCA 1188 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Spencer v Hutson [2007] QCA 178 Walsh v Toyota Finance Australia Ltd TA Toyota Financial Services [2016] QDC 92 Wilmink as Trustee for the Bangarra Trust v Westpac Banking Corporation [2014] FCA 872 Wilmink as Trustee for the Bangarra Trust v Westpac Banking Corporation (2015) 318 ALR 572; [2015] FCAFC 17 |
COUNSEL: | Self-represented applicant Mr M. de Waard for the respondent |
SOLICITORS: | Forbes Dowling for the respondent |
Introduction
- [1]This is an application by the applicant for leave to appeal a decision of the Brisbane Magistrates Court dated 29 July 2016 by which the Magistrates Court dismissed an application for summary judgment by the applicant and ordered that the applicant pay to the respondent the sum of $20,090.93 together with interest and costs.
- [2]In order to succeed in this appeal the application must firstly obtain leave to appeal out of time and then establish the decision below was wrong[1].
Pleadings
- [3]The respondent, by amended claim, claimed the sum of $20,090.93 together with interest and costs by way of monies owing by the applicant pursuant to a loan contract dated 28 February 2014.
- [4]In the amended statement of claim it was alleged that on 24 February 2014, the respondent and the applicant entered into a loan contract whereby the respondent agreed to loan monies to the applicant in exchange for a mortgage over a motor vehicle with the conditions as follows:
- (a)The loan would be for 48 months with a commencement date of 28 February 2014;
- (b)There would be 47 monthly payments of $1,390.89 and one final payment of $22,532.36;
- (c)A blue Toyota Hilux Utility would be purchased;
- (d)The principal sum advanced to the applicant was $62,952.01;
- (e)The applicant agreed to make the repayment specified in the schedule to the loan contract;
- (f)The mortgage would secure all payments payable by the applicant under the loan contract;
- (g)The applicant agreed to keep the vehicle insured;
- (h)The applicant would be in default of the loan contract if he did not remedy a default within the period specified in a default notice; and
- (i)If he was in default and did not remedy the default, the balance due on the loan contract would become immediately due and payable and the respondent would be entitled to begin enforcement proceedings in relation to the loan contract and to take possession of the vehicle.
- [5]It was alleged[2] that the applicant defaulted on the loan contract by failing to make repayments on time which thereby entitled the plaintiff to commence enforcement proceedings in relation to the default or repossess the vehicle. In this regard, the respondent issued a default notice to the defendant on 19 May 2015 demanding an overdue payment of $3,490.50 by 22 June 2015, failing which, the balance would be due and enforcement proceedings would commence. On 18 August 2015 the respondent sent a letter to the applicant advising that it was going to enforce the loan contract.[3] The respondent’s agent was unsuccessful in taking possession of the vehicle between 19 August 2015 and 10 September 2015. On 11 September 2015, the respondent obtained an order for recovery of possession from the Magistrate’s Court at Cleveland.[4] On 16 September 2015 the vehicle was repossessed and on 24 September 2015 a notice in that regard was sent to the applicant.[5] On 28 October 2015, the vehicle was sold at Pickle’s Auction House for $40,500.[6] The gross proceeds of sale were applied towards the balance payable under the loan contract and on 2 May 2016 the respondent sent a letter to the applicant confirming the sale of the vehicle and requesting the applicant pay the sum of $21,959.76, being the payout figure.[7] Despite demand, the amount remains outstanding.
- [6]The applicant filed a defence and counter claim dated 30 May 2016. The defence is non-responsive to the amended statement of claim. Inter alia it says the number of without prejudice offers were made. Further, a counter claim was brought against the respondent on a basis not known to law and then in general relief the applicant claims loss and/or damages in the withholding of property, alternatively $160,000 as per a costs statement apparently filed in the District Court of Queensland.
- [7]This defence was later amended but did not fix the fundamental defects in the original defence.
- [8]It may readily be seen that the amended defence and counter claim does not provide a valid defence to the claim brought by the respondent.
Proceedings below
- [9]The respondent, pursuant to Rule 292 of the Uniform Civil Procedure Rules, brought an application for summary judgment or alternatively, judgment by way of admissions or alternatively, the striking out of the applicant’s defence and counter claim together with costs.
- [10]The respondent relied on the affidavit of Samantha Nicole Dillon Taylor, sworn 4 July 2016. In this affidavit, Ms Taylor deposes to the fact that on 3 June 2016 she caused a letter to be sent to the applicant advising that his defence and counter claim was deficient.[8] Exhibit SNDT4 is a true copy of the loan applicant with respect to the vehicle entered into on 28 February 2014. Exhibit SNDT5 is a true copy of standard terms and conditions of the term contract. Ms Taylor deposes to the fact that she was informed and verily believes that on 19 May 2015, the respondent issued a default notice requesting payment of the total amount due on 22 June 2015. She encloses a true and correct copy of the default notice.[9] She encloses relevant copies of correspondence, deposes to the fact that the vehicle was repossessed and the vehicle sold for $40,500 and deposes to the fact that no payments have been received by the applicant towards the balance owed.[10]
- [11]In my opinion, the affidavit provides sufficient proof of the matters alleged in the statement of claim.
- [12]By way of response, the applicant on 27 June 2016 filed an application seeking orders that the respondent pay the sum of $170,000 and costs pursuant to Rule 293 of the UCPR. The applicant was said to be in the name of “General Executor and Trust Protector for this Estate”. Indeed on 30 May 2016 the applicant had filed a notice of intention to defend notice of third party interest, namely, that of a General Executor and Trust Protector. In an affidavit in purported support of this application, the applicant largely sets out unintelligible matters raising, inter alia, alleged breaches of the Geneva Conventions, the Lieber Code, the “ICRC” and “the assignment of reversion”.
- [13]The affidavit was then said to be served on the secretary to the treasury, the Walsh Family Partnership Trust, the Registrar General Queensland Government, a Sergeant of police at the Upper Mt Gravatt police station and a General Executor.
- [14]Further in support of the applicant’s claim for summary judgment, an affidavit was filed by the applicant sworn 6 July 2016. Equally, this affidavit largely seems unintelligible. The affidavit, inter alia, refers to the fact that all are equal under the law and the truth be sovereign; “Sacrifices the measure of credibility”; “no judge, court, government or agencies thereof or any other third parties whatsoever can abrogate anyone’s sworn affidavit of truth”; and “that the lawful seizure, collection and transfer of ownership of money or property must be effected by means of a valid commercial lien.”
- [15]It is alleged that relevant documents were not provided by Ms Taylor in her affidavit and continuity of evidence cannot be established. Other earlier affidavits of Ms Taylor are attached.
- [16]In my respectful opinion, nothing raised on the affidavit answers, in any substantive way, the matters raised in the respondent’s material.
- [17]The respondent, in extensive written submissions to the Magistrates Court, referred to the history of the matter and the important principle established in Deputy Commissioner of Taxation v Salcedo.[11] It was pointed out that no material facts were pleaded giving rise to the relief sought in the pleading. It was further submitted that the applicant had no real prospect of succeeding on all or any part of his defence and there was no need for any trial of the claim or part of the claim. It was submitted in no circumstances that summary judgment ought to be given or alternatively, judgment on admissions or alternatively the applicant’s pleadings should be struck out.
- [18]The learned magistrate acceded to the respondent’s submissions and as I noted earlier, dismissed the applicant’s application and ordered summary judgement in favour of the respondent.
Applicant’s submissions
- [19]The applicant seeks leave to appeal on the grounds that the applicant did not resubmit statutory instruments and/or the commercial lien. He also seeks a hearing de novo. In support of these grounds, the applicant has filed an affidavit dated 19 September 2016. Like his other material, much of it is unintelligible, referring to the secretary to the treasury, the office of the Registrar General, the Australian Taxation Office, the Social Security Appeals Tribunal, Child Support Australia, the Walsh Family Partnership Trust, Toyota Finance, RAMS Financial and BUSSQ Superannuation. He repeats his allegations that original contracts notes bonds were not exhibited and that a General Executor was involved in the proceedings.
- [20]In an amended notice of appeal (and submissions) the applicant sets out 21 grounds he relies on.
- [21]In oral argument the applicant also repeated his allegations that a bill of exchange had been delivered[12].
- [22]In my opinion, nothing raised orally, in his written submissions or in his affidavits answers the claims brought by the respondent.
Respondent’s submissions
- [23]In the respondent’s outline of argument, the respondent submits that the applicant seems to be abandoning 13 grounds of appeal originally contained in the notice of appeal and relies on an additional 21 grounds. It is submitted that each of the grounds of appeal fail.
- [24]In oral submissions the respondent submitted that the defence and counter claim was not pleaded in accordance with the rules and in any event raised no valid defence. It was also pointed out the applicant had been given the opportunity to amend the pleadings. It was submitted that judgment should have at the least been given because of the deemed admissions.
Disposition
- [25]I agree with the contentions made by the respondent in this case. It is my view that as the amount involved in this case was less than $25,000, it is necessary for the applicant to obtain leave to appeal.[13]
- [26]Leave should only be granted where the court is satisfied that there is some important principle law or justice involved. An important principle of justice requires that there be a question going beyond the consequence of a decision upon the immediate parties to the actual matter.[14] Davies JA stated:
“…it is not speaking merely of the injustice which a party will generally suffer when a decision is made against that party which appears to be wrong. It is speaking of a question which goes beyond the correctness or otherwise of the decision…merely demonstrating that a decision is arguably or even probably wrong does not establish that an important question of justice is involved.”
- [27]In my opinion, there is no important question of law or justice involved in this case.
- [28]Even if I am wrong as to that conclusion, it is my respectful opinion that no error may be established in the approach of the magistrate. It is my view that the magistrate was entitled to order summary judgment because the applicant had no reasonable prospect of successfully defending the proceeding. He did not have an arguable case. There was no need for a trial on the claim or any part of it[15].
- [29]The applicant has sought also to argue that satisfaction of the debt have been achieved by the delivery of a bill of exchange. A number of cases have decided that the delivery of a bill of exchange does not of itself satisfy the requirement for payment.[16] I conclude that this point does not raise any defence here. As I noted in the earlier case I find there is no valid bill of exchange as:
(a)It is not addressed to anybody;
(b)It does not direct who is to be paid;
(c)It does not have a certain sum; and/or
(d)It is not accepted by the drawee.
- [30]Also in any event I consider in light of the state of the applicant’s pleadings the magistrate would have been entitled to grant judgment to the respondent on the basis on deemed admissions[17].
- [31]
- (a)Whether there is an explanation for delay;
- (b)Prejudice to the respondent;
- (c)Public considerations; and
- (d)Merits of the appeal.
- [32]In this case there is no valid explanation for delay. Further, I note that there are four separate costs orders in favour of the respondent against the applicant. None of these have been paid. There are also now separate bankruptcy proceedings on foot. Also, an important issue is the issue of public consideration. In Spencer v Hutson,[20] the court said, “The prescribed time limits for appeals serve the important purpose of bringing finality to litigation. They are not lightly to be ignored.”
- [33]When I balance these considerations, I consider this is also a case where leave should not be granted.
Conclusion
- [34]In conclusion for the reasons I have given, the application for leave to appeal is dismissed. I will hear the parties on the question of costs.
Footnotes
[1] Allesch v Maunz (2000) 203 CLR 172 at [23].
[2] Para 3 of the amended statement of claim.
[3] Para 4 of the amended statement of claim.
[4] Para 6 and 7 of the amended statement of claim.
[5] Para 9 of the statement of claim.
[6] Para 10 of the statement of claim.
[7] Para 12 of the amended statement of claim.
[8] Para 6 of the affidavit of Samantha Taylor sworn 4 July 2016.
[9] Exhibit SNDT6 to the affidavit of Samantha Taylor sworn 4 July 2016.
[10] Para 19-25 of the affidavit of Samantha Taylor sworn 4 July 2016.
[11] [2005] 2 Qd R 232; [2005] QCA 227.
[12] These are also mentioned in Walsh v Toyota Finance Australia Ltd TA Toyota Financial Services [2016] QDC 92 at [41]-[51].
[13] Section 45 (3) Magistrates Court Act 1921 (Qld). The amount for a minor civil dispute is $25,000 see dictionary Queensland Civil and Administrative Tribunal Act 1999 (Q).
[14] American Express International Inc v Hewitt [1993] 2 Qd R 352 at p 353.40.
[15] Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 at [17] per Williams JA and [44] per Atkinson J.
[16] Deputy Commissioner of Taxation v Sproule [2012] FMCA 1188; Wilmink as trustee for the Bangarra Trust v Westpac Banking Corporation [2014] FCA 872; the appeal was dismissed in Wilmink as Trustee for the Bangarra Trust v Westpac Banking Corporation (2015) 318 ALR 572; [2015] FCAFC 17; Atkinson v Commissioner of Taxation [2014] FCA 1217 (appeal dismissed in Atkinson v Commissioner of Taxation (2015) 318 ALR 585; [2015] FCAFC 18) and Walsh v Toyota Finance Australia Ltd TA Toyota Financial Services [2016] QDC 92 at [41]-[51].
[17] UCPR 165.
[18] See UCPR 785 which applies rule 748.
[19] Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at pp 348-349 per Wilcox J.
[20] [2007] QCA 178 at [28].