Fels v Permanent Custodians Limited [2016] QDC 296

DISTRICT COURT OF QUEENSLAND CITATION: Fels v Permanent Custodians Limited [2016] QDC 296 PARTIES: ROSS GREGORY FELS (plaintiff) v PERMANENT CUSTODIANS LIMITED (defendant) FILE NO/S: D22 of 2016 DIVISION: Civil proceeding PROCEEDING: Application ORIGINATING COURT: Queensland District Court DELIVERED ON: 25 November 2016 DELIVERED AT: District Court at Beenleigh HEARING DATE: 8 November 2016 JUDGE: Chowdhury DCJ ORDER: 1. Application granted. 2. Claim and Statement of Claim of Plaintiff struck out. 3. Plaintiff ordered to pay costs to the Defendant. CATCHWORDS: LEGISLATION: Application – Strike out Claim – No reasonable cause of action – Abuse of process Uniform Civil Procedure Rules 1999 (Qld) -- 1 of 9 -- 2 CASES: Permanent Custodians Limited v Fels [2012] QDC General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 COUNSEL: Mr M. Alexander for the Defendant. The Plaintiff in person. SOLICITORS: Gadens Lawyers for the Defendant. [1] By way of application dated 22 September 2016, the defendant applies to this court for the following orders: 1. That pursuant to rule 16 of the Uniform Civil Procedure Rules 1999 (Qld) the proceeding commenced on 27 July 2016 be set aside on the bases that it: (a) Discloses no reasonable or justiciable cause of action against the defendant; and (b) Is an abuse of process and is otherwise embarrassing. 2. Further or in the alternative, that pursuant to rule 171 of the Uniform Civil Procedure Rules 1999 (Qld), the plaintiff’s statement of claim files 27 July 2016 be struck out. 3. That pursuant to rule 16(e) and/or rule 171(2) of the Uniform Civil Procedure Rules 1999 (Qld) the plaintiff pay the defendant’s costs of and incidental to this application calculated on the indemnity basis or alternatively, as fixed by the court. 4. Further or other orders as the court deems appropriate. [2] By way of a claim filed in the registry of the District Court at Beenleigh on 27 July 2016, the plaintiff claims the following: -- 2 of 9 -- 3 1. The sum of $152,070.48 paid to the defendant under duress on or about 21 February 2014 to stop the defendant from illegally depriving the plaintiff’s daughter and his grandchildren of their home. 2. The sum of $60,000 paid to the defendant under protest on or about 4 March 2014 to stop the defendant from illegally depriving the plaintiff’s daughter and his grandchildren of their home. 3. The sum of $14,358.45 paid to the defendant under duress on or about 3 April 2014 to stop the defendant from illegally depriving the plaintiff’s daughter and his grandchildren of their home. 4. The sum of $452,000 in exemplary damages. 5. Costs. 6. Interest of 11 per cent per annum calculated daily from date of service. Background to the litigation [3] The background to the current application is succinctly set out in the judgment of Kingham DCJ in Permanent Custodians Limited v Fels [2012] QDC (no number attached). In brief, the defendant had lent money to the daughter of the plaintiff which was secured by the daughter’s home. The plaintiff’s daughter, Patricia Fels, was unable to make payments under the loan and fell into arrears. As a consequence a claim was lodged seeking the recovery of possession of Ms Fels’ property, as well as the amounts of money owed under a line of credit, and the loan agreement. The defendant sought a summary judgment in front of Kingham DCJ. At the hearing of that applicant the current plaintiff appeared for his daughter. [4] It was common ground on that hearing that Ms Fels had fallen into arrears in 2009. The defendant issued a notice of demand in October of that year. On 30 December 2009 Ms Fels applied for hardship relief. By letter dated 1 February 2010, the -- 3 of 9 -- 4 defendant offered to capitalise the arrears, $4,865.49, provided she met her minimum monthly repayments for three consecutive months, the first of which fell due on 2 February 2010. [5] It appears that Ms Fels was unhappy with the proposed arrangement which required her to make a minimum monthly payment. [6] By 6 September 2010, it seems the defendant had received $3,000 from Ms Fels. On that day it made contact with Ms Fels, who said that she did not know when she would be able to make further repayments. The defendant indicated in a phone conversation that it may take legal action, given that the terms of the hardship agreement had not been complied with. Months later, a notice of demand was issued. [7] At para [20] of her judgment, Kingham DCJ said this: “Apart from reciting the difficult circumstances Ms Fels faced at the time she went into arrears and her unhappiness with the response by Permanent Custodians to her hardship application, the defence and counterclaim does not raise any discernible defence to the claim. As it is currently pleaded, Ms Fels does not have any real prospect of defending the claim or part of it.” [8] Accordingly, her Honour granted summary judgment for the then plaintiff, the current defendant. [9] On 21 June 2013, the matter came back before Kingham DCJ where Ms Fels applied to set aside or to stay the enforcement warrant of the summary judgment. The current plaintiff, Mr Fels, appeared for his daughter and spoke on her behalf. Significantly during the course of that hearing, one of the grounds for setting aside the enforcement warrant was that the summary judgment had somehow been affected by error. At R1- -- 4 of 9 -- 5 8 of the transcript of the hearing;1 her Honour made it clear to Mr Fels that the only application before her was to set aside an enforcement warrant. She further advised that if he wanted to challenge the judgment she gave, then he had to appeal the decision. It is apparent that grounds 2 and 3 of that application to set aside the enforcement warrant were that her Honour erred or because there was information unavailable to the court at the time the judgment was entered. [10] It was clear from the discussion before her Honour that Ms Fels, and her father, were anxious to settle the matter with the defendant. As a result, her Honour at R1-18 indicated that she would stay the enforcement warrant for “a reasonable period,” to enable discussions to take place between the parties about costs. Ultimately the enforcement warrant was stayed for a period of two months. Her Honour fervently hoped that the matter could be resolved without coming back to the court, incurring further costs: R1-20. The plaintiff’s claim [11] Accompanying the plaintiff’s claim is a 27 page statement of claim, which recites a lot of detailed facts which in essence complain of the conduct of the defendant, and alleges misleading and deceptive conduct on its part in the litigation before her Honour Judge Kingham, and also before his Honour Judge McGill SC. [12] It is apparent from the material that the plaintiff in order to help his daughter made various payments as a result of court orders. In para [145] of the statement of claim it is asserted that the plaintiff paid the defendant $152,070.84 on 21 February 2014. It appears on 4 March 2014 a bank cheque for $60,000 was made out to the defendant, but the cheque was not accepted by the Brisbane Registry of the District Court 1 Part of Exhibit “GMC-1” to the affidavit of Georgina Mary Couper, filed on behalf of the defendant. -- 5 of 9 -- 6 because it did not comply with the Court Funds Regulation 2009. Ultimately the solicitors for the defendant accepted the cheque, it seems in unusual circumstances if one takes at face value the statements made by the plaintiff in paragraphs [119]-[124] of his statement of claim. [13] It appears from para [136] of the statement of claim that the plaintiff on 11 March 2014 tried to raise his concerns about the falsity of evidence stated in exhibits attached to the affidavit of one Andrew Patterson. He claims that his Honour Judge McGill SC denied or rejected his submissions concerning the falsity of such evidence. To put it simply, the statement of claim of the plaintiff is replete with serious allegations that a number of lawyers deliberately made false statements in affidavits and in other material placed before the courts in the earlier hearings. It appears that no appeals have been sought from either the decisions of Kingham DCJ or McGill DCJ. As it was made clear to the plaintiff at the hearing of this matter on 8 November 2016, I could not sit in judgment of decisions of other judges of the District Court, and therefore could not entertain the myriad claims he was making about widespread perjury and attempts to pervert the course of justice. [14] The failure to lodge any appeals is part explicable by the fact that of course the plaintiff was not a party to the proceedings between his daughter and the defendant. The relevant rules [15] Rule 16 of the Uniform Civil Procedure Rules 1999 reads as follows: The court may – (a) Declare that a proceeding for which an originating process has been issued has not, for want of jurisdiction, been properly started; or (b) Declare that an originating process has not been properly served; or -- 6 of 9 -- 7 (c) Set aside an order for service of an originating process; or (d) Set aside an order extending the period for service of an originating process; or (e) Set aside an originating process; or (f) Set aside service of an originating process; or (g) Stay a proceeding; or (h) Set aside or amend an order made under rule 127; or (i) Make another order the court considers appropriate. [16] Rule 171 states as follows: (1) This rule applies if a pleading or part of a pleading – (a) Discloses no reasonable cause of action or defence; or (b) Has a tendency to prejudice or delay the fair trial of the proceeding; or (c) Is unnecessary or scandalous; or (d) Is frivolous or vexatious; or (e) Is otherwise an abuse of the process of the court. (2) The court, at any stage of the proceeding, may strike out all or part of the pleading and order the costs of the application to be paid by a party calculated on the indemnity basis. (3) On the hearing of an application under subrule (2), the court is not limited to receiving evidence about the pleading. [17] In General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, Barwick CJ said this at 128-129: “The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used -- 7 of 9 -- 8 except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion…At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or ‘so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument’”. [18] At 130 his Honour said this: “Although I can agree with Latham CJ in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.” Conclusion [19] It is undoubted that the plaintiff has been put to considerable expense in order to allow his daughter and his grandchildren to remain living in the house which was the subject of the recovery of possession claim lodged by the defendant in 2011. It is also undoubted that the plaintiff is very unhappy with the defendant, and the lawyers that -- 8 of 9 -- 9 have represented the defendant in the past in the current proceedings. The reality is however that the plaintiff decided to provide the financial support for his daughter to allow her to keep the house. He was not a party to the earlier proceedings before Kingham DCJ and McGill DCJ, and as I stated earlier, no appeals have been brought from their respective decisions. [20] In my view the claim lodged by the plaintiff on 27 July 2016 does not disclose any reasonable cause of action. I therefore strike out all of that claim pursuant to rule 171(2). Costs [21] I order that the plaintiff pay the costs of the defendant on the indemnity basis. -- 9 of 9 --