Civex Trst Pty Ltd v Melnike [2014] QDC 211

DISTRICT COURT OF QUEENSLAND CITATION: Civex Trst Pty Ltd v Melnike [2014] QDC 211 PARTIES: CIVEX TRST PTY LTD (ACN 118 196 820) AS TRUSTEE FOR THE CIVEX TRUST (plaintiff) v JAMES ANDREW MELNIKE (defendant) FILE NO/S: 766/14 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court of Queensland DELIVERED ON: 12 September 2014 Ex tempore DELIVERED AT: Brisbane HEARING DATE: 12 September 2014 JUDGE: Samios DCJ ORDER: 1. Order as per draft. CATCHWORDS: PRACTICE - SUMMARY JUDGMENT - where the plaintiff claims against the defendant moneys due and owing under or alternatively as damages for breach of a deed of acknowledgement of debt and guarantee as well as interest and costs - where the plaintiff applies to the Court for summary judgment against the defendant - where the defendant alleges undue influence by the plaintiff - where the defendant filed a defence but did not file any affidavit material to support the defence - whether the defendant has a real prospect of successfully defending against the plaintiff’s claim Legislation Uniform Civil Procedure Rules 1999 (Qld) r 292 COUNSEL: The plaintiff was not represented by Counsel The defendant represented himself SOLICITORS: Birch & Co for the plaintiff [1] HIS HONOUR: The plaintiff claims against the defendant $260,884.25 as moneys -- 1 of 5 -- 2 due and owing under or alternatively as damages for breach of a deed of acknowledgement of debt and guarantee dated 27 May 2013. The plaintiff also claims against the defendant interest and costs. The amended claim was filed on 12 March 2014. The defendant has filed in this Court defences, the most recent of which is dated 4 September 2014 and was filed in this court on 8 September 2014. [2] The plaintiff has brought an application for summary judgment pursuant to rule 292 of the Uniform Civil Procedure Rules.1 That application was filed on 25 July 2014. It has been adjourned to today. The defendant appears by telephone. He has made submissions in opposition to the application for summary judgment. The defendant has not filed an affidavit putting in issue any fact relied upon by the plaintiff and supported by the affidavits filed by the plaintiff. [3] Looking at the defendant’s latest defence, he claims that he entered into the relevant deed and guarantee under pressure and undue influence by the plaintiff. He says that it was known he was not financially sound to take on a guarantee of this magnitude. In addition, he says that a head contractor, the Cloncurry Shire Council, should be pursued by the plaintiff using the subcontractor’s charges processes. [4] Neither of these defences are sound in law in this case. It is not a defence that a person who might be a larger corporation with more substantial assets requires a deed to be executed for consideration of delaying taking proceedings to enforce an otherwise due and owing debt. Further, it is not the law that a creditor must pursue subcontractor charges processes. Therefore, the defendant has not shown to me any 1 Uniform Civil Procedure Rules 1999 (Qld). -- 2 of 5 -- 3 reason for why the plaintiff should not have judgment today against him. That is, I am satisfied the defendant has no real prospect of successfully defending the plaintiff’s claim and there is no need for a trial of the claim in this instance. Therefore, I give judgment for the plaintiff against the defendant. [5] The judgment of the court is that the defendant pay to the plaintiff $293,479.13 including $32,594.88 interest to this day. I also order the defendant pay the plaintiff’s costs of these proceedings including the application filed 4 July 2014 to be assessed on the standard basis. Mr Lambert, I did not hear from you as to the basis of the costs. Why do you pursue them on an indemnity basis? [6] MR LAMBERT: Under the guarantee, your Honour, we are indemnified for all costs. [7] HIS HONOUR: All right. The costs will be on the indemnity basis. There will be an order then as per the draft initialled by me and left with the papers. Thank you, Mr Melnike. That’s the end of these proceedings. [8] DEFENDANT: Okay, sir. Thank you. [9] HIS HONOUR: Thank you. [10] DEFENDANT: What happens now? [11] HIS HONOUR: Well, the plaintiff has a judgment against you. How they pursue it is their business and I can’t give you legal advice, I’m sorry, as to what might happen -- 3 of 5 -- 4 next or what you should do next, but the judgment could be enforced against you in due course. [12] DEFENDANT: Okay, sir. [13] HIS HONOUR: Thank you, Mr Melnike. [14] DEFENDANT: Thank you. Thank you. [15] HIS HONOUR: Bye bye. [16] DEFENDANT: Bye bye. [17] HIS HONOUR: Yes. Nothing else, Mr Lambert. [18] MR LAMBERT: No, your Honour. Thanks very much. [19] HIS HONOUR: If you’ll just give me a moment, I wrote over your indemnity, I hope that won’t stop the - - - [20] MR LAMBERT: I have given you three copies there, your Honour. [21] HIS HONOUR: Three. Just to make sure. All right. [22] MR LAMBERT: They’re just spares. -- 4 of 5 -- 5 [23] HIS HONOUR: Well, look, just – I will get a clean copy if I can find it. I will just return these to my associate so they’re out of my way. I give you leave to read and file your submissions and the interest rate calculation. I will just give that to my associate. Now, you’ll have to help me. I - - - [24] MR LAMBERT: Sorry, your Honour. I think I – perhaps I gave you the wrong bundle there. I beg your pardon, your Honour. I’ve got several more copies here. [25] HIS HONOUR: Well, one more copy and I will just put a line through this one. I just don’t want the registry being confused with my handwriting. Thank you. Yes. Thank you, Mr Lambert. [26] MR LAMBERT: Thank you, your Honour. [27] HIS HONOUR: There’s an order as per the draft then left with the papers. -- 5 of 5 --