Sweeney v Credit Union Australia Ltd
[2025] QDC 19
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- Unreported Judgment
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- Sweeney v Credit Union Australia Ltd[2025] QDC 19
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Sweeney v Credit Union Australia Ltd[2025] QDC 19
Sweeney v Credit Union Australia Ltd[2025] QDC 19
DISTRICT COURT OF QUEENSLAND
CITATION: | Sweeney v Credit Union Australia Limited (ACN 087 650 959) (t/as Great Southern Bank) [2025] QDC 19 |
PARTIES: | BRANDON NICHOLAS SWEENEY (appellant) v CREDIT UNION AUSTRALIA LIMITED (ACN 087 650 959) (TRADING AS GREAT SOUTHERN BANK) (respondent) |
FILE NO: | 2267/24 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Brisbane Magistrates Court |
DELIVERED ON: | 4 March 2025 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 28 February 2025 |
JUDGE: | Farr SC, DCJ |
ORDERS: |
|
CATCHWORDS: | APPEAL – CIVIL APPEAL – NATURE OF APPEAL – APPEAL AGAINST SUMMARY JUDGMENT – where the respondent brought a claim against the appellant to recover monies owing under a loan agreement – where the respondent applied for and obtained summary judgment in the Magistrates court – where the appellant contends no loan contract was signed – where the appellant contends the learned Magistrate did not provide adequate reasons for decision – whether the learned Magistrate erred in granting summary judgment to the respondent |
LEGISLATION: | Magistrates Court Act 1921 (Qld) Uniform Civil Procedures Rules 1999 (Qld) |
CASES: | Agar v Hyde (2000) 201 CLR 552 Allesch v Maunz (2000) 203 CLR 172 Builders Licencing Board v Sperway Constructions (Syd) Pty Ltd & Anor (1976) 135 CLR 616 Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 462 Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471 Fox v Percy (2003) 214 CLR 118 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 House v The King (1936) 55 CLR 499 Jorgensen v Body Corporate for Cairns Central Plaza Apartments [2020] QDC 300 Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 404; [2009] FCFCA 117 Lunapas Pty Ltd v Murphy [2019] QDC 111 Masters v Cameron (1954) 91 CLR 353 Queensland Pork Pty Ltd v Lott [2003] QCA 271 Queensland University of Technology v Project Constructions (Aust) Pty Ltd (in liq) [2003] 1 Qd R 259 Re: Minister for Immigration and Multicultural Affairs; Ex parte v Durairajasingham (2000) 168 ALR 407 Shaw v Deputy Commissioner of Taxation [2016] QCA 275 Sun Alliance Insurance Ltd v Massoud [1989] VR Suncorp Insurance and Finance v Hill [1998] QCA 112 Swain v Hillman [2001] 1 All ER 91 Walsh v Toyota Finance Australia Ltd (No 3) [2016] QDC 336 Willmot v McLeay [2013] QCA 84 |
COUNSEL: | |
SOLICITORS: | The appellant is self-represented. HWL Ebsworth, lawyers for the respondent |
Introduction
- [1]This is an appeal against an order made in the Magistrates Court at Brisbane on 26 July 2024 granting summary judgment for the plaintiff (the respondent in this appeal) for the recovery of $39,967.10 as a debt owed under a loan agreement plus costs.
- [2]The appellant’s grounds of appeal are:
- the learned Magistrate gave inadequate reasons;
- the learned Magistrate erred in granting summary judgment, because the Loan Contract was not signed by the appellant and, therefore, cannot be enforced, as no genuine cause of action existed.
- [3]The respondent submits that the learned Magistrate’s reasons were adequate and that his Honour did not err in granting summary judgment.
The claim
- [4]
- [5]The principal sum under the Loan Contract was advanced to a bank account in the appellant’s name. Such account was created and held with the respondent pursuant to the Loan Contract.[3]
- [6]The appellant has admitted receiving $40,000 into that bank account.[4]
- [7]The account records show that the appellant subsequently drew down on the loan - a fact which has been admitted by the appellant.[5]
- [8]The Loan Contract required the payment of interest at the rate of 9.39 percent per annum.[6] In default, the Terms and Conditions at clauses 11 and 12 of the Loan Schedule provided that the respondent was entitled to recover the whole amount owed under the Loan Contract together with any reasonably incurred enforcement expenses.
- [9]Default under the contract occurred on or about 29 October 2021 by the appellant’s alleged failure to make monthly instalments.[7]
- [10]The respondent provided the appellant with a default notice pursuant to s 88 of the National Credit Code on or about 9 February 2022. This notice required remedy of the default, in the amount of $3,366.36, to be paid by 12 March 2022.[8] This was admitted by the appellant, as was his receipt of such notice.[9]
- [11]The appellant failed to rectify the default, and in fact, denied that any money was owed, and alleged that the respondent owed him money instead.[10]
- [12]Pursuant to clause 11 of the Loan Contract, all amounts owing under the contract thereby became immediately due and payable.
- [13]As at the date of summary judgment, the amount owed was $39,967.10.[11]
The appellant’s defence
- [14]
Relevant law
- [15]The respondent, in its outline of submissions, has correctly identified the relevant law and principles which apply in applications of summary judgment and on appeals of this nature.
- [16]
- [17]The relevant consideration on a strict appeal is “whether the order appealed from was right on the material which the lower court had before it”.[17] The appellant must therefore show that the decision under appeal is wrong.[18] The court can only give the decision which should have been given at first instance.[19]
- [18]The decision to grant summary judgment involves the exercise of a discretion which depends upon the pre-conditions in r 292 of the Uniform Civil Procedures Rules 1999 (Qld) (UCPR) first being satisfied.[20] Those conditions are that:
- the defendant has no real prospect of successfully defending all or a part of the plaintiff’s claim; and
- there is no need for a trial.
- [19]The question for this Court is therefore whether the Magistrate was correct in finding that the pre-conditions in r 292 were met and, if so, whether his Honour erred in exercising the residual discretion to grant summary judgment.[21] Insofar as the appeal concerns that discretion, the appellant must show some error in the House v The King[22] sense; that is, that the Magistrate acted on a wrong principle or mistaken view of the facts, failed to take a material consideration into account, or took into account an immaterial consideration.
- [20]The principles concerning summary judgment are well settled. Summary judgment will only be granted in the “clearest of cases” where the factual issues do not require a trial to be determined.[23] The discretion must be exercised with “great care” to ensure that a party is not improperly deprived of its opportunity for a trial of its case under the guise of achieving expeditious finality.[24]
- [21]The words “no real prospect” speak for themselves; they are directed to “realistic” as opposed to “fanciful” prospects of success.[25] The applicant bears the onus of proving the claim and persuading the Court that there is no real prospect of the appellant succeeding, though once a prima facia case has been made out, the evidentiary onus shifts to the respondent.[26] If there is no real prospect, then “ordinarily” the applicant is entitled to judgment.[27]
Consideration and determination of the appellant’s submissions
- [22]The appellant’s admission that the learned Magistrate erred by ordering summary judgment because the appellant had not signed the Loan Contract is without merit.
- [23]The evidence before the Court included a Personal Loan Acceptance Form bearing the appellant’s digital signature. That acceptance form comprehensively and accurately identified and referred to the Loan Contract in question. The appellant’s digital signature on the acceptance form was to the same effect as a signature on the contract itself, and resulted in it being a binding contract. Regardless of that fact however, it is well established that an agreement need not be signed to be binding. An agreement can also be made and accepted by conduct.[28]
- [24]The appellant has also submitted that as the Statement of Claim only referred to ‘two documents that comprise the Loan Contract’, they being
- the Offer and Loan Contract (Loan Schedule) dated 24 March 2021; and
- the Terms of Personal Loan Contract (Terms and Conditions);
then, the ‘Personal Loan Acceptance Form’ is an irrelevant document to the issue at hand. He also submits that, the respondent is not permitted to rely upon conduct as evidence of acceptance of conduct, as it was not specifically pleaded.
- [25]Such submissions are demonstrably without merit. The Statement of Claim correctly identifies the contract documents, as it must, and asserts that such contract was accepted by the appellant. How it was accepted by the appellant, however, is a matter for evidence, and need not be specifically pleaded.
- [26]In this matter, the respondent adduced evidence of:
- the Loan Contract;
- the credit of the loan amount to the appellant’s account;[29] and
- the fact that the appellant drew down on the loan (a fact admitted by the appellant).
- [27]So in this matter, evidence of a binding contract, based both on written form and on conduct, was before the Court.
- [28]The learned Magistrate’s rejection of the appellant’s submissions on this point was without fault.
- [29]The appellant also submits that the appeal should succeed on the ground that the learned Magistrate’s reasons were inadequate.
- [30]
“… is required to give reasons which disclose what was taken into account and in what manner, and thus whether an error has been made … There have been many attempts to elaborate; indicating for example, the need for findings of fact, usually related at least in broad terms to the evidence on which each finding is based, and an explanation of the reasoning process; vague general statements, or unexplained conclusions are not sufficient …”
- [31]
- [32]However, reasons would be considered to be inadequate if:
- the Appeal Court is unable to ascertain the reasoning upon which the decision is based; or
- justice is not seen to be done.[34]
- [33]That is not the situation in this matter. The learned Magistrate rejected the appellant’s assertion that the Loan Contract was not binding. In so finding, it is a clear matter of inevitable and overwhelming inference, that the learned Magistrate accepted that the respondent had proved its claim and that the appellant had no real prospect of successfully defending it, and that no trial was therefore needed.
- [34]Whilst his reasons were brief, they were not less than that which the evidence and the issues required, and they did not result in this Court being unable to ascertain the reasoning upon which the decision was based, nor did they result in justice not being seen to be done.
- [35]The reasons were therefore not inadequate.
Orders
- Appeal dismissed.
- The appellant is to pay the respondent’s costs of and incidental to this appeal on the standard basis.
Footnotes
[1] Affidavit of Julie Mills filed 7 September 2023 at p 2 [8]-[10]; Exhibits JM-3-JM-4
[2] Affidavit of Julie Mills filed 7 September 2023 at p 1 [5]; Ex. JM-2, p [9] – signed by B. Affidavit of Brandon Sweeney filed 6 October 2023.
[3] Affidavit of Julie Mills filed 7 September 2023 at pp [7]-[10], Ex. JM-3, p 10; Ex. JM-4, p 11.
[4] Statement of Claim at [4]; Amended Defence filed 6 October 2023 at [4]. Though the appellant later purported to withdraw these admissions in subsequent iterations of his defence, he did not have leave to do so, nor is there any reason why he would have been granted such leave; r 187 of the UCPR. Moreover, he subsequently admitted elsewhere that he had received money from the respondent: see the appellant’s Outline of Submissions at first instance at p 2 [4] (a), p 4 [20] (a); Outline of Submissions on Appeal p 3 [12], p 5 [16]; Transcript of Hearing at p 20.
[5] Affidavit of Julie Mills filed 7 September 2023 at p 11, Ex. JM-4.
[6] Affidavit of Julie Mills filed 7 September 2023; Ex. JM-1 (Loan Schedule at p 1).
[7] Affidavit of Julie Mills filed 7 September 2023 at p 2[11].
[8] Affidavit of Julie Mills filed 7 September 2023 at p 3[15]; Ex. JM-8 at p 44.
[9] Appellant’s Outline of Submissions at first instance at p 3[7]; Amended Defence filed 6 October 2023 at [6].
[10] Affidavit of Sandra Miller filed 7 September 2023, Ex. SM-1, p 5.
[11] Affidavit of Julie Mills filed 25 July 2024 at [6]-[8].
[12] Further Amended Defence signed 19 July 2024 at [3], [4].
[13] Further Amended Defence signed 19 July 2024 at [3] and [5]; Affidavit of Brandon Sweeney filed 29 August 2024 at [5]-[14].
[14] Further Amended Defence signed 19 July 2024 at [6]; Affidavit of Brandon Sweeney filed 29 May 2024 at [16]-[74]; [85]-[91]; The appellant does not rely on the point about the promissory note on appeal.
[15] UCPR, r 765(2) (which applies by virtue of r 785); “brought by way of an appeal” means an appeal in the strict sense: Jorgensen v Body Corporate for Cairns Central Plaza Apartments [2020] QDC 300 at [9] per Muir DCJ as her Honour then was. (Though r 765(4) of the UCPR grants a discretion to proceed by way of rehearing if in the interests of justice to do so, it is submitted that it is unnecessary to do so here.)
[16] Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 404; [2009] FCFCA 117 at [40], applied in Jorgensen at [12]-[14].
[17] Jorgensen at [15] citing Fox v Percy (2003) 214 CLR 118 at 129 and Builders Licencing Board v Sperway Constructions (Syd) Pty Ltd & Anor (1976) 135 CLR 616 at 619 (there are some indicia, but the UCPR have created a hybrid of a strict appeal and an appeal by rehearing, as the court has the power to draw inferences from facts and to allow further evidence: Jorgensen at [19] referring to UCPR r 766(1)(c) and 766(2). But nothing turns on this in this matter.)
[18] Allesch v Maunz (2000) 203 CLR 172 at [23], applied in respect of an appeal against summary judgment in Walsh v Toyota Finance Australia Ltd (No 3) [2016] QDC 336 at [2]. This is the case even on an appeal by rehearing, unless statute provides otherwise: Allesch at [23].
[19] Allesch at [23].
[20] Willmot v McLeay [2013] QCA 84 at [17].
[21] Willmot at [17]; Lunapas Pty Ltd v Murphy [2019] QDC 111 at [14].
[22] (1936) 55 CLR 499 at 504-505.
[23] Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 at 233 per McMurdo P citing Agar v Hyde (2000) 201 CLR 552 at 576 [57].
[24] Queensland University of Technology v Project Constructions (Aust) Pty Ltd (in liq) [2003] 1 Qd R 259, 265 (approving observations of Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130, affirmed in Shaw v Deputy Commissioner of Taxation [2016] QCA 275 at [32].
[25] Swain v Hillman [2001] 1 All ER 91 at 92, approved in Salcedo at 242 [47].
[26] Queensland Pork Pty Ltd v Lott [2003] QCA 271 at [41].
[27] Salcedo at 234 [11] and 242 [47].
[28] Masters v Cameron (1954) 91 CLR 353.
[29] The appellant argued at first instance that the credit of an account did not evidence an advance. This is contrary to the decision of Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ in Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471 at [45]-[47], where their Honours held that the crediting of a bank account is a legally effective transaction capable of assigning value, and that a loan does not require “real” money to be lent.
[30] [1998] QCA 112.
[31] [1996] 2 Qd R 462.
[32] Sun Alliance Insurance Ltd v Massoud [1989] VR at 19; cited with approval in Cypressvale at 477 and 482.
[33] Re: Minister for Immigration and Multicultural Affairs; Ex parte v Durairajasingham (2000) 168 ALR 407 at [65].
[34] Sun Alliance at 18.