Credit Corp Services Pty Ltd v Hodges; Secure Funding Pty Ltd v Atkinson; Secure Funding Pty Ltd v Kelso [2016] QMC 22

MAGISTRATES COURTS OF QUEENSLAND CITATION: Credit Corp Services Pty Ltd v Hodges [2016] QMC 22 PARTIES: FILE 278/16 CREDIT CORP SERVICES PTY LTD (Applicant) v LEONARD CARL HODGES (Respondent) FILE 279/16 SECURE FUNDING PTY LTD (Applicant) v PETER ADAM ATKINSON (Respondent) FILE 280/16 SECURE FUNDING PTY LTD (Applicant) v BRETT TROVOR KELSO (Respondent) FILE NO/S: 278/16, 279/16 and 280/16 DIVISION: Magistrates Court of Queensland PROCEEDING: Application ORIGINATING COURT: Cleveland DELIVERED ON: 18 November 2016 DELIVERED AT: Cleveland HEARING DATE: 11 November 2016 MAGISTRATE: Magistrate Simpson -- 1 of 6 -- 2 ORDER: On each application: 1. The applicant has leave to re-file any originating process in accordance with the rules; 2. The originating process is to be served on the respondent in accordance with the rules; 3. No order as to costs. CATCHWORDS: PROCEDURE – QUEENSLAND – PROCEDURE UNDER COURT RULES – where non-compliance with rules relating to an originating process - whether a commercial agent can sign an originating process – whether a commercial agent can appear on an application – whether an application to recover possession of a motor vehicle under a credit contract can be heard without service of the application Motel Marine Pty Ltd v. IAC (Finance) Pty Ltd (1964) 110 CLR 1 McRae v. Coulton (1986) 7 NSWLR 644 Walsh v Toyota Finance Australia Ltd T/A Toyota Financial Services [2016] QDC 92 s. 18 Magistrates Court Act 1921 rr 17, 19, 22(2)(c), 26(8), 35, 38, 250, 373 and 985 Uniform Civil Procedure Rules 1999 Forms 2, 5, 9, 16 Uniform Civil Procedure Rules 1999 COUNSEL: James Friel (Commercial Agent) given leave to appear for the applicants in each matter SOLICITORS: No solicitors for the applicants No appearance of the respondents [1] Each applicant is a mortgagee or its assignee seeking to take possession of a motor vehicle following an alleged default on a loan by the respondents. These applications brought under r 250 Uniform Civil Procedure Rules 1999 (“UCPR”) have been heard together because of the similarities of each matter. [2] The applicants wanted these applications dealt with on the papers without an appearance in court. For reasons set out below I was not prepared to deal with them in that way and arranged for the appearance of the applicants. The respondents did not appear at the hearing of the applications because they had not been served. This decision will deal with preliminary matters that need to be rectified prior to any formal hearing of the applications. -- 2 of 6 -- 3 Have the applications been properly started? [3] Each application has been commenced by filing a Form 9 Application. A filing fee corresponding with an interlocutory application was paid. There are no other court proceedings. Without determining whether these matters should be dealt with by way of originating application (Form 5 UCPR) or claim and statement of claim (Forms 2 and 16 UCPR) I note that there is no compliance with the rules for the filing of an originating process. The court should not be overly rigid about the rules relating to forms having regard to the overall philosophy of the UCPR but the present matters would constitute an irregularity that can and should be rectified. There is no power to set the proceedings aside because of the problems I have identified (r 373 UCPR). [4] However, compliance with the requisite forms would have brought the following issues into focus before putting these applications before a court because each style of originating process requires contact and service details as provided for in r 17 UCPR and the originating process must be signed by the plaintiff or applicant or the person’s solicitor (r 19 UCPR). Further, an originating process must be started in a relevant district and the material must disclose the court has jurisdiction to decide the claim (rr 22(2)(c), 26(8) and 35 UCPR) Can commercial agents sign, file and appear on proceedings on behalf of a party? [5] The applications have been signed and filed by a commercial agent not the applicants nor their solicitors. [6] In file 278/16 the footer on the application and draft order indicates that Wise McGrath Pty Ltd of Castlereagh Street Sydney filed the material. In files 279/16 and 280/16 the documents indicate Asset Recovery Australia Pty Ltd of Fern Tree Gully took on the same role. Neither Wise McGrath nor Asset Recovery Australia are firms of solicitors. They are debt collectors. [7] In each application Mr James Friel, whose occupation and employer is undisclosed in the material but who informed the court at the hearing that he is a commercial agent, deposes that he is the authorised person to make the application on behalf of the applicant. He refers to a letter of authority purporting to give him such authority. The letter referred to in file 278/16 does not disclose any authority from the applicant to him for any purpose. The letters referred to in files 279/16 and 280/16 appear to give authority from the applicant to Asset Recovery Australia and its agents to “attend court for the purpose of obtaining an order for possession and will be engaged to execute the order”. It is says nothing about whether he is an employee or agent of Asset Recovery Australia. On the face of the material he does not appear to be an agent or employee of the applicants. [8] A commercial agent does not have a right of appearance before the court even if a party purports to give him/her such authority. A party may appear in person, by their lawyer or with the court’s leave by another person (s. 18 Magistrates Court Act 1921). In the current applications I have granted leave for Mr Friel to appear for the purpose of these preliminary matters. -- 3 of 6 -- 4 [9] A company can sign documents by an agent: Motel Marine Pty Ltd v. IAC (Finance) Pty Ltd (1964) 110 CLE 9. The line of authorities considered in McRae v. Coulton (1986) 7 NSWLR 644 at 663 to 666 per Hope JA suggest that such an agent who signs for a company would be doing so in the course of his/her duties in the business of the company or with the requisite authority of the company. [10] As noted earlier, Mr Friel does not appear to be an employee or agent of the applicant companies. He holds an authority from a third party and as such I am not satisfied that he has the authority to file and sign the applications on behalf of the applicants. [11] The preparing and signing of these applications should be done by the applicants or their solicitors not by a debt collector or commercial agent (r 19 and 985 UCPR). Can these applications be heard without service on the respondent? [12] The applications filed indicate that the respondents were to be served yet there is no proof of service filed. It was confirmed by Mr Friel that none of the respondents had been served. [13] The issue of whether these types of matters can be dealt with ex parte was dealt with by Smith DCJA in the appeal Walsh v Toyota Finance Australia Ltd T/A Toyota Financial Services [2016] QDC 92 at [26] to [34] Whether the hearing should have been ex parte [26] The usual rule is that an application must be served on the opposing party at least three days before the date of hearing Rule 27(2) Uniform Civil Procedure Rules though provides that the time limit does not apply if the rules or another act permit the application to be heard and decided without being served. [27] Under r 27(3) Uniform Civil procedure Rules if the application is not served the Court must not hear and decide the application unless the Court considers it just to hear and decide the application on the day of the hearing if one of the following applies: “... (a) the court is satisfied delay caused by giving notice of the application would cause irreparable or serious mischief to the applicant or another person; (b) the court is satisfied the respondents to the application will suffer no significant prejudice if it hears and decides the application on the day set for hearing; (c) the respondents to the application consent to the court hearing and deciding the application on the day set for hearing. Example of subrule (3)— The court may decide subrule (3) has been satisfied if the application is a cross application by a respondent to another application and it is convenient for the applications to be heard together. (4) For an application not served as required by subrule (1)— -- 4 of 6 -- 5 (a) the court may make an order on an undertaking given by the applicant and acceptable to the court; and (b) a person affected by the order may apply to the court for it to be set aside.” [28] In this matter the respondent argues that the matter was able to be heard ex parte. However, I am of the view that an error occurred here. [29] The material relied on to support the application was the affidavit of Robert Foster. It was a very short affidavit and provided no evidence upon which one could rely to engage any of the sub paragraphs of r 27(3). There is no transcript of the hearing below so the Court is left in a position of not being able to examine the reasons given. [30] The respondent relied on the decision of Ndjamba v Toyota Finance Australia. In that decision Blokland J held that the application could be heard ex parte. However, in that case there was evidence giving rise to a strong inference that the appellant would take steps to prevent repossession if served. Her Honour noted at [8]: “The primary considerations on whether or not to proceed ex parte concern whether there is urgency; whether irreparable damage would flow from making an ex parte order; whether hardship would flow to a party against whom an order is made and whether such an order can be set aside.” [31] In the present case there was no such evidence. Indeed, there was a real chance of prejudice to the appellant if the order was made. As it now turns out the vehicle has been sold. [32] The making of an ex parte order is a significant step and it should only be undertaken with due care. [33] In the circumstances the magistrate should not have made the order ex parte and was in error in doing so. The Magistrate should have been adjourned to enable service on the appellant. [34] In any event, as it turns out, the appellant was “shut out” from making an application to set aside the order. [14] One reason put forward for a decision on the papers was that Mr Friel says that respondents in these types of applications are too hard to serve. No evidence of any attempts at service were put forward in these matters. An application for substituted service following an unsuccessful service attempt would be an appropriate way to remedy any respondent avoiding the court process. Further, there was no evidence of any prejudice or damage that might be suffered by the applicants if the respondents were served. [15] In addition to the substantive relief sought, the jurisdiction of this court may be a contested issue. In file 278/16 the respondent lives in Parkwood (a suburb falling within the Southport district of the court). In file 279/16 the respondent lives in Redlynch (a suburb located in the Cairns district of the court). In file 280/16 the respondent lives in Caboolture (the Caboolture district of the court) and the vehicle -- 5 of 6 -- 6 is apparently at Virginia (a suburb in the Brisbane district of the court). None of these applications appear to have any connection with the Cleveland district. The respondents, if served, may wish to challenge the venue of any hearing (r 38 UCPR). [16] The respondents should know about the applications and be heard if they wish. Orders [17] The applicants will need to refile their material to address the issues I have determined and serve the respondents with the material. In those circumstances the order will be as follows on each application: 1. The applicant has leave to re-file any originating process in accordance with the rules; 2. The originating process is to be served on the respondent in accordance with the rules; 3. No order as to costs. -- 6 of 6 --