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Credit Corp Services Pty Ltd v Shahi[2024] QMC 12

Credit Corp Services Pty Ltd v Shahi[2024] QMC 12

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Credit Corp Services Pty Ltd v Shahi [2024] QMC 12

PARTIES:

Credit Corp Services Pty Ltd Limited ACN 082 928 872

(Plaintiff)

V

Priyanka Shahi

(Defendant)

FILE NO/S:

53766/19

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

2 August 2024

DELIVERED AT:

Brisbane

HEARING DATE:

On the Papers

MAGISTRATE:

Pinder

ORDER:

  1. 1)I give judgement for the plaintiff on the claim in the sum of $23,954.37.
  2. 2)I direct that in respect of a claim for interest and in respect of costs orders the parties file and serve written submissions (to be no more than 5 A4 typed pages) as follows.
  3. –The plaintiff within 14 days.
  4. –The defendant within 21 days.

CATCHWORDS:

PROCEDURE – RULES OF COURT – APPLICATION FOR SUMMARY JUDGEMENT ON CLAIM AND COUNTER CLAIM

Uniform Civil Procedure Rules 1999 (Qld) r 292 and r 293

Deputy Commissioner of Taxation v Salcedo [2005] QCA 227

Qld Building Services Authority v Orenshaw & Anor [2012] ASC 241

Jessup v Lawyers Private Mortgages Ltd and Ors [2006] QSC 3

Agar v Hyde [2000] 201 CLR 552

COUNSEL:

CH. Matthews for the Plaintiff

SOLICITORS:

Piper Alderman for the Plaintiff

Defendant – No Appearance

INTRODUCTION

  1. [1]
    The plaintiff brings suit claiming $23,954.37 as a liquidated debt owing by the defendant. The debt is alleged to arise from the provision of a credit facility by Westpac Banking Corporation to the defendant.
  1. [2]
    The plaintiff is a debt factoring company who alleges that the original debt, due and owing to Westpac Banking Corporation by the defendant, was lawfully assigned to it.

THE PARTIES’ MATERIAL

  1. [3]
    The plaintiff relies on the following material:
  1. A.Claim and Statement of Claim dated 23 July 2019.
  2. B.Amended Statement of Claim dated 4 November 2021.
  3. C.Notice of Intention to Defendant and Defence dated 29 July 2019.
  4. D.Plaintiff’s Application dated 7 March 2023.
  5. E.Affidavit of Anastasia Chye sworn 5 December 2022.
  6. F.Affidavit of Rebecka Sumsion sworn 28 February 2023.
  7. G.Orders of Magistrate Pinder dated 9 February 2024 (Hearing on the Papers).
  1. [4]
    The defendant has not filed any material in response to the application.

THE APPLICATION

  1. [5]
    The plaintiff applies for the following orders:
  1. 1)Summary judgement in favour of the plaintiff pursuant to rule 292 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR).
  2. 2)Any counterclaim of the defendant be struck out pursuant to rule 171 of the UCPR.
  3. 3)The defendant pay the plaintiff’s costs of this application on an indemnity basis.
  1. [6]
    The application was first returnable before the court on 3 April 2023 but subsequently adjourned on a number of occasions either upon application by the defendant or by consent. The application was last listed for hearing on 9 February 2024 when the defendant failed to appear but had again emailed the registry of the court seeking a further adjournment of the application.
  1. [7]
    The plaintiff did not oppose a further adjournment but sought directions for the further conduct of the application through to final determination effectively seeking that the application be determined without further oral hearing.
  1. [8]
    Directions orders were made on 9 February 2024 fixing a timetable for the parties to file and serve material including written submissions and the application was adjourned to the registry for decision. The plaintiff has filed an affidavit of FS Ammer sworn 15 March 2024 and filed 19 March 2024 which proves service by the plaintiff upon the defendant of:
  1. –The directions orders made 9 February 2024
  2. –The plaintiff’s written submissions.
  1. [9]
    The only response on behalf of the defendant is an email from a non-party identified as Douglas McCoy requesting the plaintiff’s solicitors to deal with him in respect of the matter. That correspondence (by email dated 11 March 2024) was copied to the registry of the court.
  1. [10]
    Mr McCoy is not a legal practitioner acting on behalf of the defendant and has no standing in the proceedings.
  1. [11]
    I am satisfied on the plaintiff’s material that:
  1. 1)The application for summary judgement and other relief was served upon the defendant at her address for service pursuant to the rules.
  2. 2)The directions orders and a copy of the plaintiff’s submissions were served upon the defendant at her address for service pursuant to the rules.
  1. [12]
    Notwithstanding the absence of a response from the defendant, the plaintiff’s application can be heard and determined (without oral hearing) pursuant to the directions orders made on 9 February 2024.

THE RELEVANT RULE

  1. [13]
    The UCPR empowers this court to grant summary judgement in respect of the plaintiff’s claim against the defendant.
  1. [14]
    Rule 292 provides:

“(1) The plaintiff may, at any time after a defendant files a notice of intention to defend, apply to the court under this part for judgement against the defendant.

(2) If the court is satisfied that –

(a) The defendant has no real prospect of successfully defending all or a part of the plaintiff’s claim; and there is no need to a trial of the claim or the part of the claim;

The court may give judgement for the plaintiff against the defendant for all or part of the plaintiff’s claim and may make any other order the court considers appropriate.

THE RELEVANT LEGAL PRINCIPLES

  1. [15]
    In determining applications for summary judgement (pursuant to rule 292 and rule 293) this court is bound by the statements of principle contained in Deputy Commissioner of Taxation v Salcedo[1] where it is held:

“Summary judgement will not be obtained as a matter of course and the Judge determining such an application is essentially called upon to determine whether the respondent to the application has established some real prospect at succeeding at trial, if that is established then the matter must go to trial.”

  1. [16]
    At paragraph 44 of the judgement Atkinson J stated:

“In the case of an application by the Plaintiff, the court must consider if it is satisfied that:

(a) The Defendant has no real prospect of successfully defending all or part of the Plaintiff’s claim; and,

(b) There is no need for trial of the claim or part of the claim.

If the court is satisfied of those circumstances then it has the discretion to give judgement for the Plaintiff and make any other order that it considers appropriate. Similar criteria apply to an application by a defendant pursuant to rule 293.”

  1. [17]
    Her Honour continued at paragraph 47 and further held:

“… The court must consider whether there exists a real, as opposed to fanciful, prospect of success. If there is no real prospect that a party will be successful in all or part of a claim and there is no need for a trial, then ordinarily the other party is entitled to judgement.”

  1. [18]
    In Queensland Building Services Authority v Orenshaw & Anor[2] Henry J said in respect of the relevant test:

“The words ‘no real prospect of proceeding’ mean what they say. They are to be applied in conjunction with required satisfaction that there is no need for a trial, so as to ensure before any summary intervention that there is a high degree of certainty about what the ultimate outcome of the proceeding would be if it were allowed to go to trial in the ordinary way.”

  1. [19]
    Whilst those authorities require the court to apply the rule giving the words their usual and ordinary meanings and without further amplification, their practical application to particular circumstances was considered comprehensively by Chesterman J in Jessop v Lawyers Private Mortgages Ltd & Ors.[3]
  1. [20]
    His Honour at paragraphs 18 and 19 of the decision considered the earlier authorities and the proposition that the wording of the rule ought to be given its “plain and unambiguous meaning.” His Honour adopted a convenient and practical approach to the application of the rule and held at paragraph 20.

“If summary judgement is not to work on an injustice it must be limited to those cases where it can be seen that a plaintiff or defendant, as the case may be, could not succeed at a trial of the action. It is only where a trial can be seen to be pointless that judgement should be entered summarily. Whatever form of words one uses the reality must be that it will only be just to deprive a party of its right to prosecute its claim or defence at trial where it can be seen that the claim or defence cannot succeed. If it might succeed, if there is a possibility of success, it cannot be just (though it might be expeditious) to enter summary judgement.”

  1. [21]
    His Honour continued at paragraph 21:

“In practical terms I suspect the rule means (as the old rules meant) that summary judgement should not be given where the facts upon which the parties respective rights depend are disputed, or where the respondent to the application for summary judgement adduces evidence as to the existence of facts, which if proved, would establish a defence or right to relief. In other words it is only where all the facts are known and/or established beyond controversy that the court should embark upon determining whether to give summary judgement. Where relevant facts are converted, or where it appears that facts may exist which would effect a right of action or defence, there should be a trial to determine the facts…”

  1. [22]
    In approaching the disposition of the present application I proceed adopting the test enunciated by Chesterman J at paragraph 23 of Jessop v Lawyers Private Mortgages Ltd & Ors[4] that is, I approach the plaintiff’s application on the basis that I should give judgement only if satisfied that there are uncontroverted facts proved by the material read in the application which show an entitlement in law to the relief claimed by the plaintiff, and that there is no evidence to suggest the existence of additional facts which, if provided would controvert those facts.

SUMMARY JUDGEMENT APPLICATION – THE TEST

  1. [23]
    In an application for summary judgement brought pursuant to rule 292 UCPR the first question is whether the defendant have no real prospect of succeeding in defending all or part of the plaintiff’s claim. In Deputy Commissioner of Taxation v Salcedo the court said that means no real prospects as opposed to fanciful prospects[5] (see paragraphs 11-13 – Deputy Commissioner of Taxation v Salcedo). The plaintiff satisfies that only if I consider that there is a high degree of certainty about the ultimate outcome of the proceeding if it were to go to trial in the ordinary way. (see Agar v Hyde).[6]
  1. [24]
    The second questions under rule 292 is whether there is no need to a trial of the relevant claim. That is, despite a defendant having no prospect of success, based on the evidence available at the hearing of the summary judgement application there may be reasons for the court to consider that there should be a trial in any event.
  1. [25]
    The plaintiff must satisfy the court that both of those tests are met to succeed in the application.
  1. [26]
    Both of those tests must be satisfied for the plaintiff to succeed in the application. The application should be refused if the court is satisfied that there are circumstances that ought to be investigated, notwithstanding that the defendants cannot identify a specific issue which ought to be tried. The onus is on the plaintiff to satisfy the court of those two requirements, and only when a prima facie entitlement to summary judgement has been established does the evidentiary burden shift to the defendants. (see Queensland Pork Pty Ltd v Lott).[7]
  1. [27]
    The power to order a summary judgement must be exercised with great care and only if it is clear that there is no real question to be tried (see Agar v Hyde ibid at paragraph 57).[8]

THE PLEADINGS

  1. [28]
    The relevant pleadings are:
  1. –Statement of Claim – filed 23 July 2019.
  2. –Defence – filed 29 July 2019.
  1. [29]
    The defendant appears pro se, without the benefit of legal advice or representation. The defence filed in the proceedings:
  1. –Denies the debt, effectively alleging that no proof of an advance or loan have been provided.
  2. –Denies the assignment of the debt.
  1. [30]
    The defence does not comply with the obligations in relation to pleading denials pursuant to rule 166 (4) of the UCPR at it is not accompanied by direct explanation for the party’s belief that the allegation is untrue or cannot be admitted.
  1. [31]
    The defence in its present form would likely give rise, as a result of that failure, to deemed admissions pursuant to rule 166 (5) UCPR. That issue is not pressed by the plaintiff, who relies rather on deemed admissions pursuant to rule 189 (2) UCPR.

THE DEEMED ADMISSIONS – NOTICE TO ADMIT FACTS

  1. [32]
    Rule 189 of the UCPR provides as follows:

Notice to admit facts or documents

  1. 1)A party to a proceeding may by notice served on another party ask the other party to admit for the proceeding only the facts or documents specified in the notice.
  2. 2)If the other party does not, within 14 days, serve a notice on the first party disputing the fact or the authenticity of the document, the other party is taken to admit, for the proceeding only, the fact or the authenticity of the document specified in the notice.
  1. [33]
    The affidavit of Ms Rebecka Sumsion sworn 28 February 2023 and filed 7 March 2023 proves that a notice to admit facts was served by the plaintiff’s solicitors upon the defendant on 6 April 2022. The defendant did not, as required by rule 189 (2), serve a notice disputing the facts.[9]
  1. [34]
    As a consequence, the defendant is taken to admit the following facts:
  1. 1)On or about 2 August 2015, the Defendant entered into a credit card agreement with the Westpac Banking Corporation (Facility).
  2. 2)The Defendant was issued with a credit card by the Westpac Banking Corporation (Westpac) bearing the card number 5163 1030 0377 1379 which related to the Facility (Credit Card).
  3. 3)The Defendant used the Credit Card from time-to-time.
  4. 4)As at 10 January 2019 the amount outstanding as owing by the Defendant to the Westpac Banking Corporation (Westpac) in relation to the Facility was $23,954.37.
  5. 5)On or about 10 January 2019, Westpac assigned to Lion Finance Pty Ltd (Lion Finance) its rights under the Facility (First Assignment).
  6. 6)On or about 31 December 2020, Lion Finance assigned to the Plaintiff the rights which had been assigned to it pursuant to the First Assignment (Second Assignment).
  7. 7)Following the Second Assignment, the Defendant received from Lion Finance notice of the Second Assignment dated 15 January 2021.
  8. 8)Interest on the balance outstanding from time-to-time accrues at the rate of 20.24% per annum pursuant to the terms of the Facility.
  9. 9)The defendant made payments to Westpac between September 2015 and March 2018 in partial repayment of the outstanding balance owing under the contract.
  1. [35]
    The affidavit of Ms Sumsion also uncontroversially proves, by reference to the books of account of the plaintiff the balance owing on the debt.[10]
  1. [36]
    That uncontroverted evidence proves that as at 10 January 2019, prior to institution of these proceedings, the debt owing by the defendant to Westpac was $23,954.37.

CONSIDERATION

  1. [37]
    The plaintiff has proved the deemed admissions made by the defendant pursuant to rule 189(2) of the UCPR.
  1. [38]
    The plaintiff has by the sworn evidence of Ms Sumsion similarly proved the amount owing on the debt by the defendant to Westpac.
  1. [39]
    That debt has been lawfully assigned to the plaintiff and that assignment of debt is similarly the subject of a deemed admission. I find that all of the facts pleaded in the Statement of Claim are established beyond controversy by the plaintiff’s material.
  1. [40]
    The plaintiff has established therefore, that:
  1. 1)The defendant has no real prospects of successfully defending all or part of the plaintiff’s claim.
  2. 2)There is no need for a trial of the relevant claim.
  1. [41]
    The plaintiff, having succeeded in establishing those matters is entitled to a summary judgement pursuant to rule 292.
  1. [42]
    The plaintiff claims interest on the debt pursuant to the terms of the agreement as between the parties and seeks to make further submissions in respect of both:
  1. –The interest payable on the judgement debt.
  2. –Costs.

DISPOSITION

  1. I give judgement for the plaintiff on the claim in the sum of $23,954.37.
  1. I direct that in respect of a claim for interest and in respect of costs orders the parties file and serve written submissions (to be no more than 5 A4 typed pages) as follows.
  1. –The plaintiff within 14 days.
  2. –The defendant within 21 days.

Magistrate J.N.L. PINDER

Dated – 02/08/2024

Footnotes

[1] [2005] QCA 227

[2] [2012] QCA 241

[3] [2006] QSC 3

[4] [2006] QSC 3

[5] Deputy Commissioner of Taxation v Salcedo

[6] Agar v Hyde [2000] 201 CLR 552

[7] Queensland Pork Pty Ltd v Lott [2003] QCA 271

[8] Agar v Hyde paragraph 57

[9] See Affidavit of Rebecka, submission filed 07/03/2023, paras 31–32.

[10] See Affidavit of R. Sumsion, paras 33–34.

Close

Editorial Notes

  • Published Case Name:

    Credit Corp Services Pty Ltd v Shahi

  • Shortened Case Name:

    Credit Corp Services Pty Ltd v Shahi

  • MNC:

    [2024] QMC 12

  • Court:

    QMC

  • Judge(s):

    Pinder

  • Date:

    02 Aug 2024

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
Agar v Hyde (2000) 201 CLR 552
2 citations
Jump To
Cite 1 - (2000) 201 CLR 552
Cite 2 - (2000) 201 CLR 552
Deputy Commissioner of Taxation v Salcedo[2005] 2 Qd R 232; [2005] QCA 227
2 citations
Jump To
Cite 1 - [2005] QCA 227
Cite 2 - [2005] QCA 227
Iwasaki Sangyo Co (Aus) Pty Ltd v Chief Executive, Department of Environment and Resource Management [2012] QCA 241
1 citation
Jump To
Cite 1 - [2012] QCA 241
Jessup v Lawyers Private Mortgages Ltd [2006] QSC 3
2 citations
Jump To
Cite 1 - [2006] QSC 3
Cite 2 - [2006] QSC 3
Qld Building Services Authority v Orenshaw & Anor [2012] ASC 241
1 citation
Jump To
Cite 1 - [2012] ASC 241
Queensland Pork Pty Ltd v Lott [2003] QCA 271
1 citation
Jump To
Cite 1 - [2003] QCA 271

Cases Citing

Case NameFull CitationFrequency
Credit Corp Services Pty Ltd v Shahi [2024] QMC 252 citations
1

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