Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QDC
  3. 2021
  4. Pioneer Credit Solutions Pty Ltd v Hyett - [2021] QDC 11

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Pioneer Credit Solutions Pty Ltd v Hyett[2021] QDC 11

Pioneer Credit Solutions Pty Ltd v Hyett[2021] QDC 11

DISTRICT COURT OF QUEENSLAND

CITATION:

Pioneer Credit Solutions Pty Ltd v Hyett [2021] QDC 11

PARTIES:

PIONEER CREDIT SOLUTIONS PTY LTD

ACN 136062970

(applicant)

v

DANIELLE HYETT

(respondent)

FILE NO:

1467/20

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Noosa Magistrates Court

DELIVERED ON:

04 February 2021

DELIVERED AT:

Brisbane

HEARING DATE:

10 December 2020

JUDGE:

Muir DCJ

ORDERS:

  1. Application for leave to appeal filed 22 May 2020 is dismissed

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – UNIFORM CIVIL PROCEDURE RULES – APPEAL – LEAVE TO TAKE A STEP IN THE PROCEEDING – where the applicant claimed monies owing under assignment of the respondent’s debt together with interest and costs – where there was a greater than two year delay during which no action was taken in the proceedings – where the appellant sought leave in the Magistrates Court under r 389 Uniform Civil Procedure Rules 1999 (Qld) to take a step in the proceedings – where the appellant submits that the magistrate failed to give proper consideration to the strength of the applicant’s case – where the appellant submits that the magistrate failed to give proper consideration to whether the delay in proceedings impacted on the prospects of a fair trial – where the appellant submits that the magistrate failed to give proper consideration to whether directions could ensure a timely trial – where the appeal is dismissed

LEGISLATION:

Uniform Civil Procedure Rules 1999 (Qld), r 222, r 280, r 389, r 786(8).

CASES:

AGL Sales (Qld) Pty Ltd v Dawson Sales Pty Ltd [2009] QCA 262

Artahs Pty Ltd v Galls Stanfield & Smith (a firm) [2013] 2 Qd R 202

Bennett v Carruthers [2010] WASCA 131

Di Iorio v Wagener [2016] QCA 97

Ferrari Estate Holdings Pty Ltd v Cooktown Earthmoving & Quarrying Pty Ltd & Anor [2016] QCA 266

Francis v Todd [2011] WASC 185

Horne v Commissioner of Main Roads [1991] 2 Qd R 38

House v The King (1936) 55 CLR 499, 504-506

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

KGK Constructions Pty Ltd v East Coast Earthmoving Pty Ltd [1985] 2 Qd R 13

Strahan v Brennan [2014] WASC 190

Tran v Claydon [2003] WASCA 318; (2003) 40 MVR 506

Tyler v Custom Credit Corp Limited [2000] QCA 178

COUNSEL:

A F Messina & J I Sproule for the applicant

S W Trewavas for the respondent

SOLICITORS:

Sphere Legal for the applicant

Aitken Whyte for the respondent

Introduction

  1. [1]
    The applicant Pioneer Credit Solutions Pty Ltd seeks leave to appeal a decision made by a magistrate on 20 March 2020, to make orders: refusing its application for leave to take a step in the proceeding under r 389 of the Uniform Civil Procedure Rules 1999 (Qld); and granting the respondent Danielle Hyett’s cross application to dismiss the proceeding under UCPR r 280.
  2. [2]
    The proceeding concerns an alleged debt incurred by the respondent on her credit card with the Bank of Western Australia Limited between December 2012 and June 2013 and payable by her to the applicant by virtue of an alleged assignment of that debt from the Bank of Western Australia to the applicant on 5 February 2012. The respondent’s case is two-fold: first, that there was no valid assignment of the credit card debt; and secondly and in any event, she cancelled and returned her credit card in September 2012 so she was not the person who incurred the charges (maintaining that the case against  her is “either erroneous, a mistake or fraud).”[1]  
  3. [3]
    The applicant’s notice of appeal filed 22 May 2020 (about one month out of time) raised 11 grounds of appeal.[2]   The written submissions of the applicant on appeal subsequently categorised these grounds conveniently into three heads of error: the strength of the applicant’s case; that the magistrate failed to give proper consideration to whether the delay sufficiently impacted on the prospects of a fair trial; and whether directions could ensure a timely trial.

Leave to appeal is necessary

  1. [4]
    The solicitors for the applicant are based in Western Australia.  The applicant’s notice of appeal was filed late due to the temporary changes made to Australia Post’s operating constraints as a result of the Covid 19 Pandemic; and a subsequent oversight by the applicant’s solicitors, which resulted in a requisition from the Brisbane District Court registry once the documents were received for filing.[3] It is common practice for such an application to be heard at the same time as the appeal to avoid unnecessary time, expense and double up.[4]  This case is no exception.   The considerations relevant to the exercise of the discretion include: the explanation for the delay; the merits of the appeal, prejudice to the respondent, and general considerations of fairness.[5] At the hearing before me, counsel for the respondent sensibly conceded that if I find in this case, that the appeal has merits, it followed that leave to appeal ought to be granted.

Nature of the appeal

  1. [5]
    The decision below involved the exercise of judicial discretion. It is not sufficient to set aside a discretionary decision simply because another view could have been taken below or this court would have reached a different decision.[6] The discretion must involve an error of law which has led to “an unreasonable or plainly unjust” result, or has involved a “substantial wrong”, before the discretion will be held to have been improperly exercised.[7]  
  2. [6]
    On appeal the applicant must identify an error of the kind identified in House v The King.[8] It follows that this court must be satisfied that the magistrate: acted on wrong principal; allowed extraneous or irrelevant matters to guide or affect his determination; mistook the facts; or did not take into account some material consideration.  Error in one or more of these categories may be inferred even where it is not explicit on the face of the reasoning but where the decision appears to be unreasonable or plainly unjust. 

Relevant background      

  1. [7]
    The relevant background to the applications below as elicited from the material before the magistrate is relatively uncontroversial. 
  2. [8]
    The applicant commenced proceedings against the respondent by filing a claim and statement of claim on 3 February 2017. The claim does not seek a specific amount but claims monies owing under assignment from the Bank of Western Australia together with interest and costs.  The statement of claim seeks the sum of $36,601.67 as the principal sum owing pursuant to the Contract [the Contract being defined in paragraph 2 of the statement of claim as the credit card agreement bearing original account number 5229803651065691 between the respondent and the Bank of Western Australia] together with interest under the Contract at the rate of 17.99% per annum on this sum from 5 February 2014. The applicant also pleads that on 5 February 2014, by way of assignment, it obtained the benefit of the Contract and that the applicant notified the respondent of this assignment in writing on 10 February 2014.
  3. [9]
    On 22 May 2017 the respondent’s solicitors requested the applicant’s solicitors provide further and better particulars of the statement of claim together with copies of the Contract, assignment, notification and demands and correspondence referred to in the statement of claim (under UCPR r 222). 
  4. [10]
    On 23 May 2017 the respondent filed a defence.  The defence does not admit the Contract but at the hearing below it was uncontroversial that the respondent entered into a written contract to obtain a credit card with the Bank of Western Australia on  20 March 2008 and that she received and used the card she was issued over the next few years.  The defence also contained non admissions about the fact of the assignment and the notice of the assignment and denied that the sum of $36,601.67 (or any amount) was owing by the respondent to the Bank of Western Australia as at 5 February 2014 because any amounts owing by her to the Bank of Western Australia had been “paid in full”.[9]  
  5. [11]
    At the time of service of the defence on 2 June 2017, the respondent’s solicitors followed up on their earlier request for particulars and documents requesting provision of this information “without delay.”
  6. [12]
    On 19 December 2017 the solicitors for the applicant provided some of the requested  documents to the respondent’s solicitors and stated that they were “still in the process of obtaining [sic] further documentation from our client to provide to you and expect to be able to support shortly.”[10]  The computer generated statements referring to  a “Bankwest Zero Platinum Mastercard” that were provided by the applicant at this time showed a credit of 4 cents on the respondent’s account as at November 2012 (there was no issue below about the statements being for the respondent’s account despite the reference to “Bankwest” instead of Bank of Western Australia).  Otherwise none of the particulars as requested of how the debt of $36,601.67 had been calculated were provided.  But this correspondence noted that: the balance assigned to the applicant was $36,601.67; interest calculated at 17.99 % per annum was $25,274.20; legal costs were $1,460.77; and there was a current amount owing of $63,336.64. The correspondence also contained a “without prejudice” offer to settle. 
  7. [13]
    On 15 March 2018 the applicant’s solicitors sent a follow-up email to the respondent seeking a response to the now expired offer of 19 December 2017, by 22 March 2018.
  8. [14]
    On 19 March 2018 the solicitors for the respondent rejected the offer stating “our instructions are that no money is owing”.
  9. [15]
    In March 2018 the respondent lodged a complaint about the debt with the Australian Financial Complaints Authority (AFCA).  The rules governing such complaints provide that the applicant must not seek judgment or take other action to pursue debt recovery legal proceedings on foot “other than to the minimum extent necessary” to preserve their legal rights.[11]
  10. [16]
    The applicant’s solicitors were advised of the AFCA complaint around 20 March 2018 and were requested by “their client” to place the proceedings on hold until further notice.
  11. [17]
    On 16 April 2019 AFCA sent a letter to the respondent ( a copy of which was also sent to the applicant’s solicitors by the applicant on 8 June 2019) advising her that on the information to hand, it was unlikely they would able to conclude that she had paid the credit card debt in full, or that she had not made the credit card transactions. This letter acknowledged the credit balance of 4 cents on the account following a payment on 28 September 2012, but referred to “other evidence” of: purchases made using the credit card from 24 December 2012 to 19 June 2013; notes of telephone communications between the respondent and the Bank of Western Australia from 29 July 2013 to 20 August 2013 about the debt (including an offer to pay $5,000 to the Bank of Western Australia on 7 August 2013); and payments made from an [unidentified] ANZ account between May 2011 and June 2013.[12] It was uncontroversial that this “other” evidence was not provided to the respondent’s solicitors until at least January 2020.
  12. [18]
    Between June 2019 and August 2019 the solicitors for the applicant again tried to settle the proceeding (to no avail). 
  13. [19]
    On 10 October 2019 the applicant’s solicitors gave the respondent’s solicitors written notice that they were going to take a step in the proceeding pursuant to UCPR r 389 and that they would be filing a reply and progressing the matter to a settlement conference.[13]
  14. [20]
    On 24 October 2019 the solicitors for the respondent wrote to the applicant’s solicitors: pointing out that over two years had passed since any step was taken in the proceeding; that the leave of the court was required under the UCPR r 389(2); and requesting that they be advised whether the applicant intended to make such an application.
  15. [21]
    About three months later, on 21 January 2020, the solicitors for the applicant wrote to the respondent’s solicitors stating [incorrectly] that all of the requested documentation was provided to them on 19 December 2017 and blaming the delay in the proceedings between December 2017 and April 2019 on the failure by the respondent to respond to the applicant’s attempts to settle the matter and the filing of the AFCA complaint by the respondent.
  16. [22]
    On 22 January 2020 the respondent’s solicitors requested the following documents that had yet to have been provided pursuant to their request on 22 May 2017: 
    1. (a)
      a copy of the contract referred to in para 2 of the statement of claim;
    2. (b)
      a copy of the assignment dated 5 February 2014 referred to in para 6 of the statement of claim;
    3. (c)
      a copy of the notification referred to in para 7(a) of the statement of claim;
    4. (d)
      a copy of the demand referred to in para 7(b) of the statement of claim;
    5. (e)
      a copy of the letter referred to in the particulars to para 7 of the statement of claim dated 10 February 2014; and
    6. (f)
      a copy of the demand referred to in para 11 of the statement of claim. 
  17. [23]
    This letter also followed up on the particulars of paras 3, 4 and 8 of the statement of claim that had yet to be provided and requested that the applicant explain: its delay in not commencing proceedings until February 2017; its failure to provide documents under r 222; the failure to respond to the request for particulars; and the delay in responding to the email of 24 October 2019 [ i.e. the request to notify them whether the applicant intended to apply for leave to proceed].
  18. [24]
    On 22 January 2020 the applicant’s solicitors responded relevantly as follows:[14]

“I note that you have again requested the information previously provided.  I enclose the previously provided statements, assignment documents and also terms and conditions of the relevant credit card again.[15]  I also enclose AFCA’s decision regarding your client’s claim.  They clearly rejected her assertion.  Most of your requests for information are not relevant to the matter.  It is irrelevant as to why the matter wasn’t commenced until 2017.  It is a straightforward claim for non-payment of a credit card debt.  The statements clearly show your client used the credit card, particularly on 12 March 2012.  Your queries regarding the statement of claim and calculations are clearly answered by the documents.” [emphasis added]

  1. [25]
    On 24 January 2020 the solicitors for the respondent received an email from the applicant’s solicitors (marked “without prejudice”) attaching documents received for the first time.  These documents included:[16]
    1. (a)
      A redacted version of a “debt sale agreement” between the Bank of Western Australia and the applicant dated 28 September 2012;
    2. (b)
      “Bankwest” statements for the period from November 2012 to January 2013.
  2. [26]
    On 3 February 2020 the application for leave to proceed and a supporting affidavit was filed and listed for hearing on 20 March 2020.
  1. [27]
    On 5 March 2020 the solicitors for the respondent requested documents referred to in the supporting affidavit.  At the time Mr Rieck swore his affidavit in support of the respondent’s opposition to the application for leave to proceed [on 18 March 2020], the Contract and the assignment dated 5 February 2014, which had been requested nearly three years earlier on 22 May 2017, had (and have still not) been provided by the applicants. The particulars of the statement of claim requested on 22 May 2017 of:  the credit said to have been advanced to the respondent in para 3 of the statement of claim; how the “debt” had been calculated at para 4 of the statement of claim; and of the payments including the final payment referred to in para 8 of the statement of claim, also remain unanswered.
  1. [28]
    On 16 March 2020 the respondent’s cross application for dismissal for want of prosecution was filed and made returnable on 20 March 2020.
  1. [29]
    The  summary above reveals that there was: almost three years between when the credit card debt was allegedly assigned to the applicant and proceedings were commenced in February 2017; and no step in the proceeding for approximately 2 years and 8 months from the time the defence was filed on 23 May 2017 and the application for leave to take a step in the proceeding was filed on 3 February 2020. 

Legal principles relevant to the applications at first instance

  1. [30]
    Rule 389(2) of the UCPR relevantly provides:

“(2) If no step has been taken in a proceeding for 2 years from the time the last step was taken, a new step may not be taken without the order of the court, which may be made either with or without notice.”

  1. [31]
    Rule 280 also relevantly provides:

“(1) If—

  1. (a)
    the plaintiff or applicant is required to take a step required by these rules or comply with an order of the court within a stated time; and
  1. (b)
    the plaintiff or applicant does not do what is required within the time stated for doing the act;

a defendant or respondent in the proceeding may apply to the court for an order dismissing the proceeding for want of prosecution.

  1. (2)
    The court may dismiss the proceeding or make another order it considers appropriate.”
  1. [32]
    In Tyler v Custom Credit Corp Limited [2000] QCA 178 (Tyler) the Queensland Court of Appeal identified a list of factors which a court “will consider in deciding whether the interests of justice require a case to be dismissed because of delay in advancing it”[17] as follows[18]:

“(1) how long ago the events alleged in the statement of claim occurred and what delay there was before the litigation was commenced;

  1. (2)
    how long ago the litigation was commenced or causes of action were added;
  1. (3)
    what prospects the plaintiff has of success in the action;
  1. (4)
    whether or not there has been disobedience of Court orders or directions;
  1. (5)
    whether or not the litigation has been characterised by periods of delay;
  1. (6)
    whether the delay is attributable to the plaintiff, the defendant or both the plaintiff and the defendant;
  1. (7)
    whether or not the impecuniosity of the plaintiff has been responsible for the pace of the litigation and whether the defendant is responsible for the plaintiff’s impecuniosity;
  1. (8)
    whether the litigation between the parties would be concluded by the striking out of the plaintiff’s claim;
  1. (9)
    how far the litigation has progressed;
  1. (10)
    whether or not the delay has been caused by the plaintiff’s lawyers being dilatory. Such dilatoriness will not necessarily be sheeted home to the client but it may be. Delay for which an applicant for leave to proceed is responsible is regarded as more difficult to explain than delay by his or her legal advisers;
  1. (11)
    whether there is a satisfactory explanation for the delay; and
  1. (12)
    whether or not the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial.”
  1. [33]
    The applicant must show that there was a good reason for excepting the proceeding from the general prohibition in UCPR r 389[19] and that the continuation of the proceeding would not involve injustice or unfairness to the respondent by reason of delay.[20] But the discretion under UCPR r 389 is not to be fettered by rigid rules. It should take into account all of the relevant circumstances of the particular case (including the consideration that ordinary members of the community are entitled to get on with their lives and plan their affairs without having the continuing threat of litigation and its consequences hanging over them) together with the above non-exhaustive factors identified in Tyler as set out in paragraph 32 above.[21]

The decision below

  1. [34]
    The hearing below (at which both parties were legally represented by counsel), took approximately two and a half hours.[22]  During the hearing, Ms Pagan (who appeared by telephone) was cross examined by counsel for the respondent. The magistrate had the benefit of considered written and oral submissions from both counsel and a few hours later he delivered a reasonably detailed ex tempore decision making the orders.[23] 
  2. [35]
    As part of his reasoning, the magistrate set out the relevant background to the application.[24] This summary is not challenged on appeal. The magistrate also correctly identified the relevant legal principles and he addressed each of the relevant Tyler factors in turn.[25]
  3. [36]
    In doing so, the magistrate firstly identified that over six years had transpired since the cause of action arose [on 5 February 2014] and that the proceeding had been commenced within time [on 3 February 2012]. He found this delay to be considerable and that it “does play a part in my considerations here.” [26]
  4. [37]
    The magistrate then turned to the applicant’s prospects of success; and in doing so he found that “the plaintiff does have some prospects of success, though not overwhelming. And I do not know whether one could class them in that the plaintiff has reasonable prosects.”[27] He then observed that:

“The problem is, a lot of the documents have either been lost or destroyed.  Not for any nefarious reasons but just in the general course of business because the matter is so old.”[28] 

  1. [38]
    After noting that there had been no disobedience to court orders or directions, the magistrate turned to examine whether the litigation had been characterised by periods of delay. The magistrate found that there had been delay on both sides but he found “more of which is attributable to the plaintiff.” [29]
  1. [39]
    The magistrate accepted that the litigation would be concluded by the striking of the applicant’s claim and that this consequence would “cause the court to look more carefully at whether or not to grant the leave to proceed.”
  2. [40]
    The magistrate then analysed the progression of the litigation observing that: pleadings had not closed; no reply had been filed; and the applicant may well need to make amendments to the statement of claim.[30]
  3. [41]
    After then observing there was no issue of the lawyers having been dilatory in this case – as it was the applicant who was responsible for its own delays - the magistrate dealt with whether there had been sufficient explanation for the delay as follows:[31]

“…– yes, the delays have been explained.  There was that significant delay explained at the – which falls at the feet of the defendant making a complaint to AFCA.  Other delays have been explained, such as the – after the litigation commenced, the solicitors were negotiating.  Not all of those delays have been satisfactorily explained and it really hasn’t been satisfactorily explained.

The delay in actually bringing the proceeding in the first place, but the delay we are concerned with here is the delay between the taking of the last step in May of 2017 and bringing this application.  As I say, some of those delays in there have been satisfactorily explained to me.  Some have not.  And the ones that have not have been at the feet of the defendant.  I do not think the defendant is responsible for any delays other than her complaint to AFCA.” [emphasis added].

  1. [42]
    The magistrate then then determined that the delay had resulted in prejudice to the respondent leading to an inability to ensure a fair trial as follows:[32]

“Well, because of the fact that these events took place in 2012 and 2013 and 2014, some evidence has been lost.  The defendant became aware of these proceedings, of course, when served with them in early 2017.  And yes, it is said that she could have taken steps then to secure evidence in support of her case, which is that she is not the person responsible for incurring the debts on that particular account.  But she had sought further particulars from the plaintiff and, it seems, sought documents from the plaintiff, which documents did not come until January 2020.

She, through a lawyer, has tried to access records of the bank of some closed-circuit television recordings of the – some of the retail outlets at which the credit card was used.  But the reasonable enquiries there have not declared that there is anything still in existence.  Opinions from employees – say, from Bunnings – was it unlikely that they would have security camera footage from 2013.  A statement from Coles is it generally does not keep – its general policy is it does not keep CCTV footage of inside stores for over six years.  That is a general statement, not specific, of course, as pointed out by the plaintiff.

The fact is that it would be extremely hard at this late juncture for the defendant to raise the defence that she wishes to raise, that it is – was not her that incurred these debits to this account.  The plaintiff says, well, she received statements of the account subsequent to the time that she says that she informed the bank that she was closing the account and that she cut up her card.  The – that is denied by her – that is, the fact that she received those things.  It is a strange case in that someone has made payments on that account in payment of the debts incurred on the account.

Why I say it is strange is that, well, if it was a fraudulent transaction on the account, one would not expect there to be payments made in reduction of the debt on the account.  And well over 40 years, now, in the criminal courts, I find that that would be incredibly peculiar for a fraudulent holder of a credit card to make a payment in reduction of the account.  But the plaintiff does not even have access to the relevant accounts from the ANZ as to payments – which account from ANZ was making those payments to this particular credit card subsequent to the time that the defendant says that she stopped the account.  It would, of course, be compelling if the plaintiff had those records.  But for some reason, they do not have those records.

And that is an example of the fact that the delay in this particular matter has or could lead to a fair trial being – well, not occurring.  I think the delay is too long.  I think the prejudice is so much to the defendant that it outweighs the other matters and the delay is not at her feet in the main.  It is more at the feet of the plaintiff and its lawyers.  And the onus on satisfying the court that the action should be allowed to proceed is, of course, on the applicant as per Justice Chesterman in Lillyville Proprietary Limited v Colonial Mutual Life Assurance Society [1999] QSC 372 at paragraph 2.  For those reasons, then, the plaintiff’s application for an order allowing for the taking of the new step in the proceeding is dismissed.  The defendant’s application to dismiss the proceedings for want of prosecution is granted.  I will hear the parties as to costs.” [emphasis added].

  1. [43]
    None of the grounds of appeal alleged inadequacy in the magistrate’s reasons. But it was implicit in the overall analysis of his decision and in the arguments developed before me that the intellectual process which led to the magistrate’s conclusions was challenged as inadequate. [33]  Particularly in relation to the “assignment of the debt” issue which is discussed in more detail later in these reasons.  When considering the adequacy of a magistrate’s reasons, the observations of Chief Justice Martin in the Western Australian Supreme Court decision of Strahan – v – Brennan [2014] WASC 190 are most apposite:

“90  Having regard to that section and the context in which the magistrates of this state conduct their judicial business it is not appropriate to scrutinise the reasons for decision given by magistrates with a fine-tooth comb or with an eye keenly attuned to the identification of error. Nor is it appropriate for the court to infer from infelicity of language that error is thereby demonstrated. That is because, of necessity, magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts and in that context it is to be expected that some infelicity of language is likely to occur from time to time.

91  Nevertheless it is clear that the reasons of a magistrate must disclose the underlying intellectual process which has given rise to the conclusions - Tran v Claydon [2003] WASCA 318; (2003) 40 MVR 506 [36] [37] (McLure J, Steytler P & Johnson J agreeing). It is also clear that the adequacy of any magistrate's reasons is to be assessed by looking at the reasons as a whole and includes not only findings expressly made but findings to be inferred from the findings expressly made - Bennett v Carruthers [2010] WASCA 131 [27] (Mazza JA, McLure P & Newnes JA agreeing).

92  Further, the adequacy of the magistrate's reasons in any particular case must be assessed in the context of that particular case so that what might appear to be unacceptable economy of language might be justified by the manner in which the case was conducted or by the evidence that was adduced - Francis v Todd [2011] WASC 185 [18] (Edelman J).

 Emphasis added

Analysis

  1. [44]
    Turning then to the grounds of appeal. By its notice of appeal, the applicant submitted that 11 errors were made by the magistrate as follows:

“(a) erred in his assessment of the appellant’s prospects of success in the action and, in particular, in his finding that the appellant’s prospects of success were less than reasonable;

  1. (b)
    erred in placing undue weight on the delay caused by the appellant;
  1. (c)
    failed to give sufficient weight to the delay caused by the respondent’s complaint to the regulator (the Australian Financial Complaints Authority (AFCA)), and in particular, that it precluded the appellant from advancing its claim while the complaint was being considered;
  1. (d)
    erred in concluding that the appellant could have taken a step in the action (either to preserve its rights or with the consent of AFCA) in the absence of evidence (or facts from which an inference may be drawn) that a step was possible or that consent would be forthcoming from AFCA);
  1. (e)
    failed to take into account that AFCA sought evidence from the respondent in support of her complaint;
  1. (f)
    erred by taking into account an irrelevant consideration, being the evidence the respondent wanted to obtain to support her defence;
  1. (g)
    erred in finding that, on the evidence before the Court, the respondent was unable, given the passage of time, to obtain the evidence she needed to support her defence;
  1. (h)
    failed to give sufficient weight to the evidence that was before the Court (or easily obtained for trial);
  1. (i)
    in the circumstances of sub-paragraphs (e), (f), (g) and (h), erred in concluding that the respondent suffered prejudice because of the delay leading to an inability to ensure a fair trial;
  1. (j)
    erred by failing to take into account that the proceeding was a simple one and could be readied for trial within months;
  1. (k)
    erred by failing to take into account the directions that could have been made to ensure a timely trial.”
  1. [45]
    There is an overlap between the grounds of appeal, which are discussed under the following headings below:
    1. (a)
      Grounds (a) and (h) under the heading: “Were the applicant’s prospects of success reasonable?”; (Ground 1); and
    2. (b)
      Grounds b, c, d, e, f, g and i under the heading: “Has the delay sufficiently impacted on the prospects of a fair trial”; (Ground 2) and
    3. (c)
      Grounds, j and k under the heading: “Whether directions could ensure a timely trial?” (Ground 3)

Ground 1: Were the applicant’s prospects of success reasonable?

  1. [46]
    Ultimately, to succeed on its claim, it was accepted that the applicant must prove:
    1. (a)
      The Contract [between the applicant and the Bank of Western Australia Limited] on 20 March 2008; and
    2. (b)
      The charges were incurred on the credit card issued to the respondent pursuant to the Contract between October 2012 and June 2013;[34] and
    3. (c)
      The assignment of the debt for the outstanding credit card charges from the Bank of Western Australia (or whatever entity that bank was at the relevant time) to the applicant on 5 February 2014; and
    4. (d)
      Notice of the assignment of the debt to the respondent; and
    5. (e)
      The interest and fees for which the respondent is liable to pay to the applicant pursuant to Contract; and 
    6. (f)
      Non-payment of the outstanding debt and interest and fees.[35]

The relevant Contract

  1. [47]
    As to (a) and (e) above: The respondent accepted that she obtained a credit card from the Bank of Western Australia in 2008.[36]  What emerged from the evidence below was that the respondent: applied in March 2008 for a credit card in her maiden name; she then transferred other credit cards to this card in 9 April 2009 and she changed her name and upgraded her card on 9 May 2011.[37] None of these material facts are currently pleaded. Counsel for the applicant before me referred to the evidence showing that there was a variation to the Contract which contained an acknowledgement of the Contract and to the terms to have continued and to be unchanged.[38]  The Contract as currently pleaded and as apparently varied remained one that the applicant would be relying on “at the trial of this action for its full terms and effect.”[39] But this Contract is not in evidence.  The respondent’s solicitors requested a copy of this Contract in May 2017 and it is yet to be produced.    I referred counsel for the applicant to the document in evidence entitled Bankwest Credit Cards Conditions of use dated 31 May 2019 in evidence.[40] The relevance of this document given its date is not apparent but counsel for the applicant before me accepted that “it’s [sic] an issue we face as well” and submitted that the better inference was that the applicant did not have “them” [the relevant ones]  yet.[41]  
  2. [48]
    Without the relevant terms and conditions in evidence it is not possible to assess the applicant’s claim for interest and fees as is currently pleaded.

The assignment

  1. [49]
    As to (c) and (d) above: I accept the applicant’s submission that the magistrate does not expressly refer to the issue of the assignment. But this fact must be considered in light of there being considerable time devoted to this issue in the submissions below.  Relevantly, it was submitted by the  respondent’s counsel below, that the evidence produced by the applicant failed to prove that the assignment actually occurred and that the applicant also failed to produce any evidence that it had satisfied the condition precedent to the assignment of the debt from the Bank of Western Australia to the applicant.[42]
  2. [50]
    It follows that the magistrate decision must be considered in this context and that the applicant conceded below that there was going to have to be further evidence produced on this issue.[43]
  3. [51]
    It was argued by the respondent below that any alleged assignment could not be valid[44] because the Bank of Western Australia was deregistered on 1 October 2012 and the business name “Bankwest” was registered to the Commonwealth Bank of Australia on 22 March 2013.[45] 
  4. [52]
    The applicant submitted that there was sufficient evidence before the magistrate from which he should have concluded that the applicant “had reasonable prospects on the assignment point” but the magistrate erred by not giving the issue any sufficient consideration when determining prospects.[46]  The applicant pointed to there being evidence before the magistrate that:
    1. (a)
      the Bank of Western Australia used the business name “Bankwest”;[47]
    2. (b)
      the Commonwealth bank bought the Bank of Western Australia in 2008 and the respondent was aware of this;[48]
    3. (c)
      Bankwest sent an Excel spreadsheet to the applicant titled “Cards – Sale – Final” which included the respondent’s credit card account;[49]
    4. (d)
      Bankwest issued account statements to the respondent;[50] and
    5. (e)
      From March 2013[51] the business “Bankwest” was a division of the Commonwealth Bank of Australia;[52]
  5. [53]
    Accepting that properly pleaded, the applicant had reasonable prospects of overcoming the issue of the de-registration of the Bank of Western Australia, the applicant’s submission overlooks that on the pleadings and the evidence before the magistrate the “assignment point”  was multifaceted. 
  6. [54]
    In her first affidavit for the applicant, Ms Pagan swears that “ [on] 5 February 2014, the Plaintiff obtained the benefit of the Contract between the Defendant and the Originator.”[53] Although she does not produce any document to support this assertion, Ms Pagan refers to having “reviewed the books and records of the Plaintiff including its records on a database called Wincollect (“the database’) which I have access to, and verily believe all records relating to the matter are accurate and up to date.”[54]
  7. [55]
    On 5 March 2020 the solicitor for the respondent, Mr Rieck, requested a copy of the books and records relied upon in Ms Pagan’s affidavit.  But he was told by the solicitors for the applicant that there are no specific “books and records’ to produce other than those already contained in the affidavit.[55]
  8. [56]
    Despite the pleaded case, there was some confusion in the argument below about when the relevant debt was assigned.[56]  Although not part of the applicant’s pleaded case, the debt sale agreement between the Bank of Western Australia and the applicant dated 28 September 2012 was in evidence[57] and at one point during the argument below there was a suggestion that this was the date of the assignment.[58]  But if the assignment was at that date, the relevant debts were yet to be incurred because at that time the respondent’s account was 4 cents in credit.
  9. [57]
    The resolution of the confusion is found in the terms of the debt sale agreement. As the applicant submitted before me, pursuant to this document, the Bank of Western Australia agreed to assign its bad debts to the applicant for consideration.  Amongst other things, under this agreement it was agreed that; debts were to be assigned to the applicant in tranches by email;[59] and that the assignment date is the date on which the Bank of Western Australia emailed details of each debt tranche to the applicant.[60]  It follows that the applicant’s case is that the relevant assignment date is not the 28 September 2012 but the date that details of the respondent’s debt were emailed to the applicant.
  10. [58]
    But the difficulty for the applicant is that despite repeated assertions in the submissions and material below (and reiterated before me) about the debt having been assigned on 5 February 2014, there is no evidence of a debt tranche including the respondent’s debt being emailed to the applicant on 5 February 2014 – or indeed on any particular date. Although I accept that there is evidence of some heavily redacted Excel spreadsheets titled “Cards – Sale – Final” which included the respondent’s credit card account which were provided to the applicant by Bankwest (on some unknown date) “as part of a forward flow Debt Sale Agreement between Bankwest and the Plaintiff.”[61]   It is all rather circular and unsatisfactory. As stated above, Ms Pagan swears that the applicant obtained the benefit of the Contract on 5 February 2014, but she does not state the source of this information other than it is from a review of the books and records of the applicant. The difficulty is, of course, as discussed above, the books and records do not reveal where this date came from. 
  11. [59]
    As was set out in the affidavit material before the magistrate, the respondent’s solicitors have been requesting a copy of the assignment dated 5 February 2014 referred to in paragraph 6 of the statement of claim since 22 May 2017. It has not been produced nor has there been any explanation for why it has not been. There is no suggestion that the assignment was an oral one. Ms Pagan’s evidence was that on 17 December 2018 Bankwest provided all the documentation they had on file in relation to this matter.[62] During cross-examination of Ms Pagan below, it was established by the respondent that:
    1. (a)
      the applicant had requested all the information held by Bankwest in relation to the file;[63] and
    2. (b)
      there was no information that the applicant had been provided that was not in the material produced.[64]
  12. [60]
    Section 3 of the debt sale agreement provided for ‘Notices of Assignment” as follows:

“3.1 Notices of Assignment

  1. (a)
    In respect of any Bad Debt included in a Debt Tranche which arises under a Credit Contract regulated under the NCCP Act, the Acquirer must give the Debtor a credit guide in the manner and by the time required under section 127 of the NCCP Act.
  1. (b)
    without limiting the Acquirer’s obligation under paragraph (a), at the same time as giving any credit guide required under paragraph (a), and in any event, within 10 business Days after the Assignment Date, the Acquirer must cause a Notice of Assignment to be sent to each Debtor on behalf of the Bank at their last known address.
  1. (c)
    The Bank authorises the Acquirer to complete any Notice of Assignment on behalf of the Bank.
  1. (d)
    The Bank will provide the Acquirer, an electronic signature of a person authorised by the Bank, for the sole purpose of giving effect to, perfecting and/or completing, the Notice of Assignment, to be sent to each Debtor in respect of each Bad Debt, but only for the purpose of perfecting the assignment of the Bad Debts and Credit Contracts under the agreement.
  1. (e)
    The Acquirer will not take any recovery action in respect of any Bad Debt before a Notice of Assignment has been sent to the Debtor or before the Acquirer’s credit guide is given, or deemed under the NCCP Act to be given, to the Debtor.
  1. (f)
    The Acquirer must keep a proper record of all Notices of Assignment sent (including a record of Notices of Assignment returned to the Acquirer for any reasons) and must allow the Bank Access to those records as required by the Bank from time to time.
  1. [61]
    A notice of assignment of debt from the applicant to the respondent (and as pleaded) dated 10 February 2014 is in evidence. But it is not in the terms or form[65] of the debt sale agreement and refers to the debt owed to the Bank of Western Australia having been assigned to Pioneer Credit Acquisition Services Pty Ltd.[66]  Leaving aside the fact that the Bank of Western Australia was de-registered at this time, this notice was not signed for an on behalf of Bankwest under the debt sale agreement.[67]
  2. [62]
    Before me counsel for the applicant submitted as follows:[68]

“We didn’t – it’s not in – the Notice from the bank, as opposed to the appellant is not in evidence.  So that is something we cannot point to as we stand here today.  But there is other evidence which we point to which we say can your Honour some confidence that there was in fact an assignment of this particular debt.  But we freely accept that it’s an area of weakness for us but we urge your Honour to not conduct a trial on the issue in this summary proceeding.  But rather that is a matter firstly for pleading.  As I said earlier, it might be that once a fulsome pleading is put on that the issue falls away completely.  But if not that there needs to be discovery about it – or disclosure about it – in preparation for a trial.” [emphasis added]

  1. [63]
    During the hearing before me, counsel for the applicant also submitted that the “missing evidence” of the notice of assignment under the master debt sale agreement was a hole in the evidence which would have to be faced if the applicant was given the opportunity to conduct a trial.[69]
  1. [64]
    The evidence was that the documents relevant to the dispute between the parties in this case had been provided to AFCA during its investigation.[70] All of these documents were before the magistrate.  Counsel for the applicant frankly conceded that it was reasonable to infer (as I do) that all the documents relevant to this case that exist have been disclosed.

Charges on the credit card

  1. [65]
    As to (c) above: The applicant submitted that implicit in the magistrate’s conclusion that a fair trial had little prospects was the respondent’s evidence about not being able to now adduce evidence to show that she did not incur the charges after September 2012 because it was no longer available.[71] For example: the respondent’s evidence was that she had tried to obtain copies of her bank statements from the ANZ Bank at the relevant time but they were not available; and she had made enquiries in an attempt to obtain security footage of some of the various places where items were said to have been purchased – to no avail.[72]  I accept that the magistrate took these matters into account in refusing the application for leave below; but not in the way submitted by the applicant. These facts are more relevant to the issue of any prejudice suffered by the respondent in obtaining a fair trial due to the delay (as discussed under the heading ‘Ground 2’ in these Reasons). 
  2. [66]
    The applicant also submitted that the magistrate erred in finding that the applicant had little prospects of success by not considering that there was objective evidence that after September 2012: telephone calls were made between a representative of Bankwest and the respondent about her account; account statements were issued to the respondent at her address; payments were made to Bankwest on the account from an unknown ANZ bank account; the respondent held an ANZ bank account.[73] 
  3. [67]
    I accept that these facts, if the applicant was able to adduce evidence of them in admissible form at trial, may assist it in proving that charges were incurred on the relevant credit card. But I otherwise reject the applicant’s submission that the  magistrate erred in the way contended, for two main reasons.
  4. [68]
    First, the magistrate did not find that the applicant had “little prospects of success.”  Rather, he found that the applicant “does have some prospects of success, though not overwhelming. And I do not know whether one could class them in that the plaintiff has reasonable prosects.”[74]
  5. [69]
    Secondly, in reaching the conclusion that there was some prospects of success, it is implicit in the magistrate’s reasons that he factored in the matters that the applicant now says he overlooked. These issues were drawn to his attention by the applicant in both the written and oral arguments below and the magistrate expressly observed in his reasons that it was “strange” and “incredibly peculiar” that someone paid the debts on the account after it was said to be in the hands of a third party.

Conclusion re: prospects of success

  1. [70]
    The magistrate quite fairly and reasonably observed that he could not assess the applicant’s prospects any higher than “some prospects” due to the number of documents having been lost or destroyed in the general course of business because the matter is so old.[75]
  2. [71]
    As the above analysis reveals and as was the case before the magistrate,  those lost or missing documents included: the relevant terms of the Contract sued upon; the   assignment of the applicant’s debt on 5 February and the notice of that assignment from Bankwest  to the respondent.   It is reasonable to infer that these documents would not be available for trial. It follows that I am not satisfied that the magistrate erred in his assessment of the applicant’s prospects at trial. In my view it was a generous assessment given both the state of the applicant’s pleadings and the evidence before him. 
  3. [72]
    I therefore find that Ground 1 fails. 

Ground 2: Has the delay sufficiently impacted on the prospects of a fair trial?

  1. [73]
    The magistrate found that the applicant was more culpable for the delay than the respondent.  In my view there was no error in reaching this conclusion. It was, in my view, a more than reasonable assessment of the evidence.  The magistrate apportioned fault for the delay to both sides – namely to the respondent for the filing of her AFCA complaint (a delay he identified as 13 months). In my view, this was a generous finding (in the applicant’s favour). Particularly given that the applicant instructed it solicitors not to take a step during the AFCA investigation and its solicitors (it is uncontroversial that the solicitors for the applicant are owned by the applicant)[76] overlooked that the applicant was entitled to take the “necessary” steps in legal proceedings currently on foot.[77]  For example, the applicant could have filed its reply. 
  2. [74]
    Regardless, the more relevant question in this case is whether the effect of the delay is that the prospects of a fair trial being conducted have been lost.  In my view the magistrate did not make any error in determining that the delay denied the respondent the opportunity to fairly defend the case against her. However, the magistrate overlooked, in my view, that another consequence of the delay was that the applicant had lost, by the passage of time, the ability to adduce cogent and relevant evidence necessary to support a maintainable cause of action against the respondent.
  3. [75]
    This oversight in my view does not mean the magistrate’s reasons were infected by error such that I would set it aside.  
  4. [76]
    I therefore find that Ground 2 fails. 

Ground 3: Whether directions could ensure a timely trial?

  1. [77]
    There were no directions requested by the applicant below other than that the applicant file a reply. It follows that the criticism by the applicant that the magistrate erred in not considering making directions to bring about a timely trial are unfair.
  2. [78]
    It was accepted below and developed further before me on behalf of the applicant that the statement of claim in its current form required amendments and that further disclosure was necessary. These matters in themselves do not mean that an application for leave to proceed ought to be refused.[78] 
  3. [79]
    The applicant submitted that the applicant’s claim is a straightforward debt claim, that minor amendments were necessary, and that limited disclosure would be exchanged.[79]  But for the reasons discussed under the heading ‘Ground 1’ above, I do not accept that this is an accurate summary of these matters.
  4. [80]
    The full extent of the amendments to be made was not clear before the magistrate.  During oral argument before me, counsel for the applicant submitted that:

“[t]here are things which need to be identified and pleaded.  For example, to render it a legal assignment there needs to be compliance with the Property Law Act as opposed to an equitable assignment;” and

“… if we can’t prove legal assignment, then it’s likely we have to plead equitable assignment, which is equally available to us.  And we would have to prove[sic] the material [sic] facts relevant to an equitable assignment.”

  1. [81]
    What emerged was that the applicant would essentially have to go back to the beginning and assess what its case was, re-plead its case accordingly and that the respondent would then need to do the same.[80] It follows that the magistrate’s assessment that the proceeding was in its early stages and would take some time to be ready for trial was a fair one. It is also not clear what further directions the magistrate could have made about disclosure given that it was accepted on appeal that all the relevant documents in existence or able to be located had been disclosed to the respondent.
  2. [82]
    It follows that I am not satisfied that the magistrate erred in not considering or making directions to bring about a timely trial. Further, implicit in the magistrate’s reasons is that any trial would have to be a fair one. As discussed in relation to Ground 2, I am not satisfied that there was any error by the magistrate in reaching the view that there could not be a fair trial to the respondent in this case. It follows that there was no utility in the magistrate making directions for the future conduct of the trial.
  3. [83]
    I therefore find that Ground 3 fails.

Conclusion

  1. [84]
    The applicant submitted and I accept that “it is a very strong thing to deny a plaintiff a trial in a case where it appears to have reasonable prospects of success, preparation of the matter is well advanced, and the delay does not mean that a fair trial cannot be ensued”.[81] But as the above analysis reveals the present case is not one that falls into any of these three categories.    
  2. [85]
    For the reasons discussed below, I am satisfied that the magistrate undertook a careful consideration of the evidence and arguments before him. I am not satisfied that any material error infected the process or that the magistrate’s decision and the orders are unreasonable, unjust or wrong. 
  3. [86]
    I accept that the explanation for the delay in filing the notice of appeal in this case is a reasonable one. But for the reasons discussed above, I am not satisfied that the appeal is sufficiently meritorious; and that overall considerations of fairness warrant the exercise of my discretion to grant the applicant leave to appeal out of time.
  4. [87]
    I therefore order that the application is dismissed.   

Costs

  1. [88]
    The applicant has been unsuccessful in its application for leave to appeal. Ordinarily, costs follow the event. It follows that the appropriate order as to costs in this case is that the applicant is to pay the respondent’s costs of the application.  But I will allow the parties the opportunity to make submissions as to why another order as to costs is appropriate in this case.  To that end, I direct that any submissions in respect of costs (no longer than 2 pages), or alternatively a proposed draft order if the parties are agreed, be exchanged and emailed to my Associate by 4:00pm Friday 12 February 2021. Otherwise the order foreshadowed will be made.

Footnotes

[1]As expressed by the respondent in an email to the applicant dated 18 April 2018; exhibited at CP-17 to the second affidavit of Chloe Pagan sworn 17 March 2020.

[2]These grounds are set in full at paragraph 44 of these Reasons.

[3]Affidavit of Malini Tanabalan filed 14 July 2020.

[4]UCPR r 786 (8). KGK Constructions Pty Ltd v East Coast Earthmoving Pty Ltd [1985] 2 Qd R 13 at 15.

[5]Di Iorio v Wagener [2016] QCA 97 at [28]; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 349; Horne v Commissioner of Main Roads [1991] 2 Qd R 38 at 41.

[6]AGL Sales (Qld) Pty Ltd v Dawson Sales Pty Ltd [2009] QCA 262 at [52.

[7]Ferrari Estate Holdings Pty Ltd v Cooktown Earthmoving & Quarrying Pty Ltd & Anor [2016] QCA 266 at [22].

[8](1936) 55 CLR 499, 504-506.

[9]Defence at [4]. The respondent’s evidence was she spoke to a representative of  “BankWest” in September 2012 about closing her account and she returned the credit card by post to BankWest shortly afterwards; and that in November 2012 she received her last statement which showed that she had overpaid her account by 4 cents.

[10]Exhibit LJR-3 to the Rieck affidavit. The documents provided were; statements issued by BankWest showing a 4 cents credit balance in September 2012; a notice of assignment dated 10 February 2017; a notice issued pursuant to s 88 of the National Consumer Credit Protection Act (Cth).

[11]Exhibit LJR 19 to the Rieck affidavit. As the magistrate observed in his Decision (at pp3 l1 15-17), the applicant: was reminded again by a representative from AFCA that they could “do things” within the litigation to protect their legal rights – and their solicitors ought to have known this in any event.

[12]The letter from AFCA requested further evidence from the respondent (to support her contention that this was a case of mistaken identity, fraud or fabrication) including her ANZ bank statements. But there was no evidence that this information was ever provided.

[13]Exhibit LJR-4 to Mr Rieck’s affidavit.

[14]Exhibit LJR -9 (which excludes the exhibits) to the Rieck affidavit.

[15]As discussed later in these Reasons, the only terms and conditions in evidence are the terms and conditions dated 31 May 2019.   

[16]Para 1 3(o) and Exhibit LJR10 to the Rieck affidavit 10.

[17]As identified by Morrison JA in Ferrari Estate Holdings Pty Ltd v Cooktown Earthmoving & Quarrying Pty Ltd & Anor [2016] QCA 266 at [20].

[18]At [2]; per Atkinson J, with whom McMurdo P and McPherson JA agreed.

[19]Tyler at [5].

[20]Tyler at [5].

[21]Tyler at [2].

[22]Between 9.50a.m. and 12.21p.m.

[23]The substance of the transcript of the magistrate’s decision is five pages.

[24]Transcript Magistrates Decision T 2   to T 3 (l 22).

[25]With reference and the order set out by Atkinson J at [2] in Tyler– and as set out in paragraph 32 of these Reasons.

[26]Transcript Magistrates Decision 4, ll 15 – 21.

[27]Transcript Magistrates Decision 4, ll 30 – 35.

[28]Transcript Magistrates Decision 4, ll 27 – 28.

[29]Transcript Magistrates Decision 5, l 4. The Magistrate characterised the delay between May 2017 and March 2018 of some 10 months in the applicant’s favour as a period “when the plaintiff was negotiating, as responsible plaintiffs do, without rushing forward, of course”.

Transcript Magistrates Decision 4, ll 30 – 35.

[30]Transcript Magistrates Decision p. 5, ll 13 to 17.

[31]Transcript Magistrates Decision 5, ll 25 – 38.

[32]Transcript Magistrates Decision 5, ll 40 – 45.

[33]Appeal hearing transcript 1-9, ll 15-20.

[34]These dates are not currently pleaded but it was accepted that the evidence showed that as at September 2012 the credit card account showed a credit balance of 4 cents.

[35]Non- payment by the respondent of the amount claimed is of course not an issue.

[36]Danielle Hyatt affidavit at [2] but the respondent’s defence pleads a non-admission to the Contract and terms as pleaded; Defence at [2] and [3].

[37]Rieck affidavit at LJR-10.

[38]T1-50 ll 1 to 28.

[39]Statement of claim at [3].

[40]Part of exhibit B to Ms Pagan’s third affidavit.

[41]Appeal hearing; T1-16 l 33; and T1-26 ll 30 to 36.

[42]Transcript 1-38, l 17; 1-39, l 26.

[43]Hearing below Transcript 1-33, ll 31-39.

[44]Defendant’s submissions below, paras 20-26.

[45]Rieck affidavit paras 15-16, Exhibit LJR-16 and LJR-17.

[46]Applicant’s outline of argument at [20].

[47]Third Pagan affidavit, Exhibit B (forms filled in by the respondent).

[48]Second Pagan affidavit, CP-17.

[49]Third Pagan affidavit, para 9 and Exhibit D.

[50]Rieck affidavit, Exhibit LJR-10.

[51]Rieck affidavit, para 16 and Exhibit LJR-17.

[52]Third Pagan affidavit, Exhibit B (credit card conditions, Clause 1, Definition of “we, us, the Bank, Bankwest”.

[53]As pleaded in the statement of claim [6].

[54]Para 3 of Pagan’s first affidavit.

[55]Exhibit LJR-13 to the Rieck affidavit.

[56]Transcript of hearing below; T1-35.l 41, 46.

[57]This document was provided to the respondent’s solicitors on 24 January 2020; Rieck affidavit at paragraph 3(o), Exhibit LJR-10.

[58]Transcript 11-34, l 24.

[59]Rieck affidavit, Exhibit LJR-10, Clauses 2.1 and Annexure A.

[60]Rieck affidavit, Exhibit LJR-10. Clause 1.1, Definition of Assignment.

[61]Ms Pagan’s third affidavit at para 9 exhibit D.

[62]Ms Pagan’s third affidavit at para 6 exhibit C.

[63]Transcript 1-29, ll 5-6.

[64]Transcript 1-29, ll 8-10.

[65]Annexure B to the debt sale agreement

[66]It is uncontroversial that this was an earlier name of the applicant.

[67]Exhibit CP1 to Ms Pagans first affidavit.

[68]Appeal hearing transcript 1-14 ll 30 to 39.

[69]Appeal hearing transcript T 1-15 ll3 to 6. The applicant’s list of documents in evidence is opaque [Exhibit F to Ms Pagan’s third affidavit]. For example, it lists the applicant to be in possession of “various’ Bankwest Notices. It is not apparent what notices are being referred particularly when it is conceded that the relevant notices are not in the applicant’s possession.  

[70]Ms Pagans third affidavit at para 5.

[71]Applicants submission at [21].

[72]Hyett affidavit [13] to 35].

[73]Ibid.

[74]Transcript Magistrates Decision 4, ll 30 – 35.

[75]Transcript Magistrates Decision 4, ll 30 – 35.

[76]Exhibit LJR 18, page 175 of the Rieck affidavit; Reasons at 5 ll 17-21; Appeal hearing Transcript 1-31, ll 5.

[77]Exhibit LJR 19 page 178 of the Rieck affidavit.

[78]Artahs Pty Ltd v Galls Stanfield & Smith (a firm) [2013] 2 Qd R 202 at [76].

[79]Applicant’s outline of argument at [56].

[80]Appeal hearing transcript T1-19 ll 33 43; and T1-25 ll 34-35.

[81]With reference to the observations of Peter Lyons (McMurdo P and Fraser JA agreeing) in Artahs Pty Ltd v Galls Stanfield & Smith (a firm) [2013] 2 Qd R 202, 218 [77].

Close

Editorial Notes

  • Published Case Name:

    Pioneer Credit Solutions Pty Ltd v Hyett

  • Shortened Case Name:

    Pioneer Credit Solutions Pty Ltd v Hyett

  • MNC:

    [2021] QDC 11

  • Court:

    QDC

  • Judge(s):

    Muir DCJ

  • Date:

    04 Feb 2021

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
AGL Sales (Qld) Pty Ltd v Dawson Sales Pty Ltd [2009] QCA 262
2 citations
Jump To
Cite 1 - [2009] QCA 262
Cite 2 - [2009] QCA 262
Artahs Pty Ltd v Gall Standfield & Smith (A Firm)[2013] 2 Qd R 202; [2012] QCA 272
3 citations
Jump To
Cite 1 - [2013] 2 Qd R 202
Cite 2 - [2013] 2 Qd R 202
Cite 3 - [2013] 2 Qd R 202
Bennett v Carruthers [2010] WASCA 131
2 citations
Jump To
Cite 1 - [2010] WASCA 131
Cite 2 - [2010] WASCA 131
Di Iorio v Wagener [2016] QCA 97
2 citations
Jump To
Cite 1 - [2016] QCA 97
Cite 2 - [2016] QCA 97
Ferrari Estate Holdings Pty Ltd v Cooktown Earthmoving & Quarrying Pty Ltd [2016] QCA 266
3 citations
Jump To
Cite 1 - [2016] QCA 266
Cite 2 - [2016] QCA 266
Cite 3 - [2016] QCA 266
Francis v Todd [2011] WASC 185
2 citations
Jump To
Cite 1 - [2011] WASC 185
Cite 2 - [2011] WASC 185
Horne v Commissioner of Main Roads [1991] 2 Qd R 38
2 citations
Jump To
Cite 1 - [1991] 2 Qd R 38
Cite 2 - [1991] 2 Qd R 38
House v The King (1936) 55 CLR 499
2 citations
Jump To
Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499
Hunter Valley Dev Pty Ltd v Cohen (1984) 3 FCR 344
2 citations
Jump To
Cite 1 - (1984) 3 FCR 344
Cite 2 - (1984) 3 FCR 344
KGK Constructions Pty Ltd v East Coast Earthmoving Pty Ltd [1985] 2 Qd R 13
2 citations
Jump To
Cite 1 - [1985] 2 Qd R 13
Cite 2 - [1985] 2 Qd R 13
Lilyville Pty Ltd v Colonial Mutual Life Assurance Society Ltd [1999] QSC 372
1 citation
Jump To
Cite 1 - [1999] QSC 372
Strahan v Brennan [2014] WASC 190
2 citations
Jump To
Cite 1 - [2014] WASC 190
Cite 2 - [2014] WASC 190
Tran v Claydon [2003] WASCA 318
2 citations
Jump To
Cite 1 - [2003] WASCA 318
Cite 2 - [2003] WASCA 318
Tran v Claydon (2003) 40 MVR 506
2 citations
Jump To
Cite 1 - (2003) 40 MVR 506
Cite 2 - (2003) 40 MVR 506
Tyler v Custom Credit Corp Ltd [2000] QCA 178
5 citations
Jump To
Cite 1 - [2000] QCA 178
Cite 2 - [2000] QCA 178
Cite 3 - [2000] QCA 178
Cite 4 - [2000] QCA 178
Cite 5 - [2000] QCA 178

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.