Pepper Finance Corporation Limited v Farrell
[2017] QDC 97
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- Unreported Judgment
- Pepper Finance Corporation Limited v Farrell[2017] QDC 97
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Pepper Finance Corporation Limited v Farrell[2017] QDC 97
Pepper Finance Corporation Limited v Farrell[2017] QDC 97
DISTRICT COURT OF QUEENSLAND
CITATION: | Pepper Finance Corporation Limited v Farrell & Anor [2017] QDC 97 |
PARTIES: | PEPPER FINANCE CORPORATION LIMITED (plaintiff) v RAYMOND CHARLES FARRELL (first defendant) and SANDRA ELIZABETH FARRELL (second defendant) |
FILE NO/S: | 4591/2016 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court at Brisbane |
DELIVERED ON: | 8 May 2017 |
DELIVERED AT: | District Court Brisbane |
HEARING DATE: | 12 and 27 April 2017 |
JUDGE: | Smith DCJA |
ORDER: |
|
CATCHWORDS: | PRACTICE AND PROCEDURE – APPLICATION TO SET ASIDE DEFAULT JUDGMENT – whether explanation for failure to defend – whether a good ground of defence raised by the first defendant. Uniform Civil Procedure Rules 1999 (Q) r 290 Aboyne Pty Ltd v Dixon Homes Pty Ltd [1980] Qd R 142 Cook v DA Manufacturing Co Pty Ltd [2004] QCA 52 National Mutual Life Association of Australia Ltd v Oasis Developments Pty Ltd [1983] 2 Qd R 1 441 |
COUNSEL: | Solicitors for the plaintiff Self-represented first defendant |
SOLICITORS: | Gadens Lawyers for the plaintiff Self-represented first defendant |
Introduction
- [1]This is an application by the first defendant to set aside a default judgment entered against him on 20 January 2017 for the amount of $385,022.86 together with interest and costs and for the recovery of land, namely property situated at 22 Mountain View Road, Maleny.
- [2]The application is pursuant to r 290 of the Uniform Civil Procedure Rules. The judgment is regularly entered.
- [3]The principles associated with such an application are well settled. In National Mutual Life Association of Australia Ltd v Oasis Developments Pty Ltd[1] McPherson J held:
“The principal question remaining is whether the judgments obtained in default of appearance… should be set aside. In Aboyne Pty Ltd v Dixon Homes Pty Ltd[2] Kelly J regarded an application to set aside such a judgment, when regularly entered, as requiring the court to consider whether the defendant had given a satisfactory explanation of its failure to appear; any delay in making the application; and whether the third defendant had a prima facie defence on the merits. Speaking generally, it may be said that it is the last of these considerations that is the most cogent. It is not often that a defendant who has an apparently good ground of defence would be refused the opportunity of defending even though a lengthy interval of time had elapsed provided that no irreparable prejudice is thereby done to the plaintiff.”
Background
- [4]The plaintiff filed a claim in the District Court of Queensland on 21 November 2016 claiming recovery of possession of 22 Mountain View Road, Maleny and sums owing pursuant loan accounts as against the first defendant and the second defendant.
- [5]The first defendant was served on 8 December 2016 with the Claim and Statement of Claim[3] and further the second defendant was served at the same time.[4] No Defence was filed by either defendant. On 16 January 2017 the plaintiff requested default judgment.[5] In support of the application for default judgment an Affidavit of Natalie Patrice Tuson filed 16 January 2017[6] was filed. On 20 January 2017 the Deputy Registrar issued default judgment.[7]
Plaintiff’s material
- [6]Natalie Patrice Tuson has sworn an Affidavit on behalf of the plaintiff dated 12 April 2017.[8] In this Affidavit there is a letter from Gadens Lawyers to the first defendant advising as to the default judgment and of the requirement to file affidavit material. There was a response from the first defendant to Gadens Lawyers dated 20 March 2017 in which he alleges that he did give an intention to defend the matter, namely a letter was sent to Gadens seven days before judgment. There is a further letter in which he alleges that he has been misled by Westpac Bank or its agents and there was a failure to supply documents.
- [7]Barbara Sim has sworn an Affidavit filed 20 April 2017.[9] In the Affidavit are a number of relevant documents. Exhibit BAS2 is a Declaration of Financial Position apparently signed by the first and second defendants. The loan sought was for $350,000 for a period of 24 months. Exhibit BAS3 is the final approval letter from the plaintiff to the defendants dated 16 October 2014. Exhibit BAS4 is the home loan application dated 17 October 2014 which indicates the loan amounts were for $173,420 and $177,000, the loan term being 20 years, the loan purpose being refinancing of existing home loan. Details of the first defendant were in the document and his signature, together with that of his wife’s appears on page 27. Exhibit BAS5 is a loan agreement purportedly signed by both the first and second defendants. There is a certification signed by both of them stating that they should get independent legal advice if required. Exhibit BAS6 is the mortgage with respect to the property. It is apparently signed by both the first defendant and the second defendant. Exhibit BAS7 is a copy of the loan accounts as is BAS8. The loan disbursement advice to the defendants is Exhibit BAS9.
- [8]Importantly BAS 7 sets out details of loan one which discloses that the last payment made towards payment of the loan was on 25 July 2016 in the amount of $9,662.83.
- [9]BAS 8 which relates to the second loan shows the last payment was of $13,356.10 on 25 July 2016.
- [10]There is an Affidavit of Service of default notices (BAS10). There is a letter from the first defendant to Gadens dated 29 November 2016 (BAS11). There is no suggestion the outstanding amounts have been paid.
Defendant’s material
- [11]On 20 February 2017[10] the first defendant applied to set aside the default judgment. He alleged inter alia there was perjury, tax fraud, wilful damage, fraud and stealing. An affidavit was filed by the defendant on 11 April 2017[11] which simply exhibited a settlement deed with Westpac Banking Corporation, details as to a truck loan, a notification to attend court and an Australian Taxation Office bill[12].
- [12]The first defendant gave evidence in chief on 12 April 2017. He alleged in his evidence that he had not filed a Defence to the Claim because he had written a letter to Gadens in 20 November 2016 and was waiting for a response to this.[13] He alleges that he is not liable because he was never given the money, it wasn’t put into his bank account and he said that complaints had been put into the financial ombudsman concerning his relationship with Westpac.[14] He alleged that the plaintiff’s lawyers have lied to the financial ombudsman and he had not been given the relevant documentation.[15]
- [13]In cross-examination the defendant:
- (a)
- (b)
- (c)Admitted signing the home loan application;[18]
- (d)
- (e)
- (f)Contrary to the certification on the document alleges he did sign under duress;[22]
- (g)
- (h)
- (i)Alleged not all documentation had been provided and that Gadens had not properly investigated matters.[26]
Submissions
- [14]It was difficult to follow exactly what the first defendant was submitting in legal terms. In essence he submitted for the reasons he gave in evidence judgment should be set aside. He submitted that the loans were signed under duress, not all documents had been provided and that Gadens had not properly investigated matters.
- [15]The plaintiff submitted that no proper explanation had be given for failure to defend. The letter written in November 2016 was not a sufficient reason for such failure. There was no evidence supporting allegations of fraud. The material clearly shows there had been a dispute with Westpac, the Financial Ombudsman had ruled on this and the refinancing was in large part to pay out the Westpac loans and this had occurred. There was no viable defence to the action.
Disposition
- [16]I accept the plaintiff’s submissions.
- [17]I am satisfied on the evidence that the first and second defendants entered into the relevant pleaded loan contracts and a mortgage with respect to the property and money was advanced. I am satisfied there has been default under these agreements.
- [18]I am satisfied that the purpose of the loan was to refinance subsequent to the Westpac dispute.
- [19]Insofar as there is an allegation of duress there is insufficient evidence to support such a claim. Indeed I note that there was a settlement concerning the Westpac dispute, the loan from the plaintiff was for refinancing, the defendants had ample opportunity to obtain independent legal advice[27] and when signing the loan contract the defendants certified they entered the loan contract “freely, voluntarily and without pressure from any person.”[28] This significantly tells against any claim for duress.
- [20]I did not accept the first defendant’s evidence when he alleged he could not say whether it was his wife’s signature on a document.
- [21]I am satisfied on the balance of probabilities there is no viable defence available to the first and second defendants.
- [22]I am also satisfied there is no sufficient explanation by the first and second defendants as to why they did not defend this claim.
- [23]In the circumstances I am not persuaded that the judgment should be set aside.
Orders
- [24]In the circumstances my orders are:
- The application by the first defendant is dismissed.
- I order the first defendant pay the plaintiff’s costs of and incidental to this application as agreed or assessed on the standard basis.
Footnotes
[1] [1983] 1 Qd R 441 at p 449. See also Cook v DA Manufacturing Co Pty Ltd [2004] QCA 52.
[2] [1980] Qd. R. 142.
[3] Affidavit of Darren Whelan filed 20 December 2016 – Document 2.
[4] Affidavit of Darren Whelan filed 20 December 2016 – Document 3.
[5] Request for Default Judgment filed 16 January 2017 – Document 4.
[6] Affidavit of Natalie Patrice Tuson filed 16 January 2017 - Document 5.
[7] Default Judgment - Document 6.
[8] Affidavit of Natalie Patrice Tuson filed 12 April 2017 - Document 11.
[9] Affidavit of Barbara Sim filed 20 April 2017 - Document 12.
[10] Application to set aside default judgment - Document 8.
[11] Affidavit of Raymond Charles Farrell sworn 11 April 2017 - Document 9.
[12] The plaintiff objects to the admission of these documents, but I overrule this objection and consider them to be relevant.
[13] Transcript Day 1 at page 9.5
[14] Transcript Day 1 at page 9
[15] Transcript Day 1 at page 10.10
[16] Transcript Day 2 at page 6.
[17] Transcript Day 2 at page 7.
[18] Transcript Day 2 at page 11.
[19] Transcript Day 2 at pages 12 and 14.
[20] Transcript Day 2 at page 18.
[21] Transcript Day 2 at page 17.
[22] Transcript Day 2 at page 14.
[23] Transcript Day 2 at page 18.
[24] Transcript Day 2 at pages 20 and 22.
[25] Transcript Day 2 at pages 20 and 22.
[26] Transcript Day 2 at pages 6, 12, 14, and 21.
[27] See Affidavit of Barbara Sim filed 20 April 2017 – Document 12 at pages 39, 60.3.
[28] See Affidavit of Barbara Sim filed 20 April 2017 – Document 12 at page 39.