Commonwealth Bank Of Australia v Boothby [2014] QDC 208

DISTRICT COURT OF QUEENSLAND CITATION: Commonwealth Bank Of Australia v Boothby [2014] QDC 208 PARTIES: COMMONWEALTH BANK OF AUSTRALIA (ABN 48 123 123 124) (plaintiff) v STEPHEN ATIS BOOTHBY (defendant) FILE NO/S: 306/14 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court of Queensland DELIVERED ON: 10 September 2014 Ex tempore DELIVERED AT: Brisbane HEARING DATE: 10 September 2014 JUDGE: Samios DCJ ORDER: 1. Strike out the conditional notice of intention to defend of the defendant filed 17 April 2014. 2. Dismiss the application by the defendant filed 30 July 2014. 3. Dismiss the application by plaintiff filed 5 May 2014. 4. Order the plaintiff send by post to the defendant a true copy of the loan agreement and the mortgage referred to in the statement of claim and a calculation of how the sum claimed is calculated up to the date of calculation within 14 days. 5. Order the defendant to file and serve on the plaintiff’s solicitors a notice of intention to defend within 28 days after the step taken in the previous order. 6. Reserve the costs on both applications. CATCHWORDS: PRACTICE - DEFAULT JUDGMENT - DEFENCE AND COUNTERCLAIM - NON-COMPLIANCE WITH ORDER - STAY OF PROCEEDINGS - where the plaintiff initiated -- 1 of 13 -- 2 proceedings for the recovery of property and money from the defendant pursuant to a loan agreement and a mortgage - where the defendant filed a conditional notice of intention to defend but no defence - where the plaintiff obtained default judgment against the defendant - where the defendant obtained an order from his Honour Judge Durward setting aside the default judgement against the defendant and ordering the defendant to file and serve a defence or defence and counterclaim within 21 days of the order - where the defendant did not file and serve a defence or defence and counterclaim within 21 days of the orders made by his Honour Judge Durward - where the defendant filed an application seeking a stay of the proceedings - where the plaintiff filed a fresh application for default judgment against the defendant - where the plaintiff by its solicitor sent to the defendant a number of documents of which the mortgage agreement was not one of them - whether sufficient material was provided by the plaintiff to the defendant for the purposes of granting default judgment against the defendant - whether the defendant’s conditional notice of intention to defend should be struck out for not containing anything of substance - whether the plaintiff and the defendant’s respective applications should proceed Legislation Uniform Civil Procedure Rules 1999 (Qld) r 144, r 171, r 435(4) COUNSEL: The plaintiff was not represented by Counsel The defendant represented himself SOLICITORS: Gadens Lawyers for the plaintiff [1] HIS HONOUR: All right. Well, look, I’m sorry this seems to have been somewhat tortuous. This is my reasons. The plaintiff is a bank. It seeks recovery of possession of a property at Biloela. It also seeks a large sum of money within the jurisdiction of the District Court from the defendant pursuant to the terms of a loan agreement and a mortgage. The statement of claim was filed on the 29th of January 2014 and served on the defendant on the 20th of March 2014. The defendant filed a conditional notice of intention to defend on the 17th of April 2014. The plaintiff then obtained default judgment against the defendant. The registrar gave that default judgment on 20 May 2014. The judgment was for the amount of $448,684.11, including $7357.60 for -- 2 of 13 -- 3 interest to 13 May 2014 and $2729.10 for costs. Further, the plaintiff recovered against the defendant possession of the property. [2] The defendant applied to set aside the judgment by an application filed on 10 June 2014. This application came before his Honour Judge Durward. His Honour Judge Durward ordered that the default judgment granted on 20 May 2014 be set aside, further, that the defendant be granted leave to file and serve a defence or defence and counterclaim within 21 days of the date of the order, further, that the parties be at liberty to apply on five days notice to the other party to the Court for further directions or after 21 days from 16 July 2014. His Honour reserved the costs of the application. [3] As the evidence shows, the defendant did not file and serve a defence or defence and counterclaim within 21 days of the date of Durward DCJ’s order, namely, 16 July 2014. However, the defendant did file an application for a number of orders. This application was filed on 30 July 2014. For a number of reasons, the defendant seeks a stay of the proceedings. One of his complaints is that he has not been provided proof of the claim and verification of the debt. I take him to mean that he has not been given proof of the claim by way of the original contract and security. There are other claims made by him in his application for stay, however, I do not accept they are of any substance. [4] The plaintiff has also filed an application on 5 September 2014, which comes before me today. That application seeks that judgment be entered in default against the defendant. The defendant’s submissions do not help me. They are voluminous. They refer to statutes which are not relevant to my jurisdiction, except that I think he is -- 3 of 13 -- 4 entitled to complain that he has not been given at least a copy of the mortgage. The plaintiff by its solicitor, sent to him a number of documents. However, it is accepted the mortgage was not one of them. I am concerned that the plaintiff is seeking to have judgment entered against the defendant when I consider the material is not sufficient for this purpose today, that is, to my mind, there should be an affidavit from a person with authority to swear on behalf of the bank as to the creation of the loan agreement and the creation of the mortgage and to produce copies, that is, true copies of these documents. [5] Copies are permitted under rule 435(4),1 because I would consider it would be impracticable to exhibit the document, that is, the original document. Presumably, the original document is something that should not be sent from place to place when it could become lost. With respect to the mortgage, I assume that has been registered and the original would be in the control of the relevant officer. So therefore, copies, depending on the circumstances, can be appropriate. In addition, though, a responsible person authorised by the bank should swear as to how the money claim is made up and in particular, up to the date of the hearing, when judgment is sought. However, they are matters for the plaintiff, I think, to look at for the future. [6] I return to the defendant’s notice of intention – conditional notice of intention to defend. Again, in my opinion, it has no substance. However, the rules, I think, need to be looked at. As – as best as I can do today, it seems to me that under rule 144(4)2 – that provides that: If a defendant files a conditional notice of intention to defend, the defendant must apply for an order under rule 16 within 14 days after filing the notice. 1 Uniform Civil Procedure Rules 1999 (Qld). 2 Ibid. -- 4 of 13 -- 5 [7] The notice was filed on 17 April 2014 and no application was filed by the defendant within 14 days. [8] Therefore, sub-rule (5) of rule 1443 provides: If the defendant does not apply for an order under rule 16 within the 14 days, the conditional notice of intention to defend becomes an unconditional notice of intention to defend. [9] However, sub-rule (6) of rule 1444 provides: Within seven days after a conditional notice of defence becomes an unconditional notice of intention to defend, the defendant must file a defence. [10] The defendant has not done so. He has not filed a defence or a defence and counterclaim as order by his Honour Judge Durward. He does rely on this unconditional notice of intention to defend to say the application made by the plaintiff should not proceed. However, as I have said, the conditional notice of intention to defend, which became an unconditional notice of defence, contains nothing of any substance. [11] His Honour Judge Durward did not strike it out. It seems to me, while it may not follow that it is something to be struck out because of the rules I have mentioned earlier, nevertheless, because the defendant seeks to rely on it – and it contains nothing of substance, I consider it should be struck out. The power for doing so, I consider, flows from rule 171 of the UCPR.5 To my mind, it discloses no reasonable defence and is having a tendency to prejudice or delay the fair trial of the proceeding or is unnecessary or scandalous or is frivolous or vexatious and is otherwise an abuse of the 3 Ibid. 4 Ibid. 5 Ibid. -- 5 of 13 -- 6 process of the Court. Therefore, I do order that the conditional notice of intention to defend filed 17 April 2014 be struck out. [12] However, that is not the end of the matter. I would not proceed to judgment or allow judgment to be entered against the defendant because of those concerns I have about the plaintiff’s evidence. I do dismiss the application by the defendant filed 30 July 2014 because it contains many issues that are irrelevant and of no substance, except, as I have said, my concern here today is that he be given a true copy of the loan agreement and the mortgage and the – and the calculation of how the indebtedness is said to arise. So there will be an order, then, that his application filed on 30 July 2014 is dismissed. I’d also dismiss the plaintiff’s application filed 5th May 2014. However, I order the plaintiff send by post to the defendant a true copy of the loan agreement and the mortgage referred to in the statement of claim and a calculation of how the sum claimed is calculated up to the date of calculation within 14 days. I order the defendant to file and serve on the plaintiff’s solicitors a notice of intention to defend within 28 days after the step taken in the previous order. [13] DEFENDANT: Excuse me, can you repeat that, thank you? [14] HIS HONOUR: Yes. I order the defendant to file and serve on the plaintiff’s solicitors a notice of intention to defend within 28 days after the step taken in the previous order. [15] DEFENDANT: So is that to mean after – after they’ve obviously [indistinct] copy? -- 6 of 13 -- 7 [16] HIS HONOUR: Yes, they give you copies - - - [17] DEFENDANT: Yes. [18] HIS HONOUR: - - - and the calculation with 14 days - - - [19] DEFENDANT: Yes, yes. [20] HIS HONOUR: - - - and then – and then - - - [21] DEFENDANT: Can I just add something there? Within my correspondence to the bank, it was always my intention to – when a true and verified copy was presented, that I would make payment. [22] HIS HONOUR: Well, we’ll get to that stage. They’re the orders at this stage. That’s how I am trying to progress this dispute. [23] DEFENDANT: Yes. [24] HIS HONOUR: Now, Mr Boothby, do you say there’s – any other orders should be made? [25] DEFENDANT: In regards to what happened? [26] HIS HONOUR: To follow – to follow from what I’ve ordered. -- 7 of 13 -- 8 [27] DEFENDANT: No. From – from the day that I requested those documents, that’s all I sought. [28] HIS HONOUR: Yes. [29] DEFENDANT: Was to – to make sure that the bank was in possession of that; they were bearers of those documents and that I wasn’t paying an obligation [indistinct] because they’d sold it to someone else or sold it into mortgage-backed securities. [30] HIS HONOUR: All right. Ms Couper, is there any comment you want to make on the orders I’ve already made or any other order that should be made? [31] MS COUPER: No, your Honour. [32] HIS HONOUR: All right. What do you say about the costs of everything that’s happened here today? [33] MS COUPER: Costs be reserved. [34] HIS HONOUR: Reserve them? Mr Boothby, what do you say about the costs of today? [35] DEFENDANT: Costs of today? I can’t – can’t see how I’m liable for them. [36] HIS HONOUR: Well, what I’ll do is I’ll reserve the question of costs on – reserve -- 8 of 13 -- 9 the costs on both applications. [37] DEFENDANT: So that 14 days is 14 days from today? [38] HIS HONOUR: Yes. [39] MS COUPER: Your Honour, just to clarify - - - [40] HIS HONOUR: Yes? [41] MS COUPER: - - - order 3, a calculation to be sent to the defendant. Would a copy of loan statements from the date or - - - [42] HIS HONOUR: No, I think – I think you’ve got – I think you’ve got to – I think you’ve got to be, you know, a bit more particular, you know? It’s not for me to give you advice but, you know, I – I think you’re just going to run into trouble again, you know? I think you’ve got to, you know, have – have – you know, somebody’s got to really look pretty hard at this file and say “We’ve got to do a bit of work on it”. And, you know, that is the problem. You know, I think somebody’s got to do a calculation. And where – where they get the – the input to – and I don’t know; I’m just a Judge. But I just, you know, people in your office would be used to doing it, but they mightn’t do it in a way that, you know, is clear. And I hope I haven’t made it harder for you. [43] MS COUPER: No, your Honour. -- 9 of 13 -- 10 [44] HIS HONOUR: But I just – I’m trying to make it easy for you. And, you know, shall I say, you know, a calculation in the form of Mr [indistinct]? [45] MS COUPER: The – the reason I ask is that calculation is based on interest which is claimed under the claim and the statement of claim - - - [46] HIS HONOUR: Yes. [47] MS COUPER: - - - but from what I understand, you’re after a calculation up to that figure that’s contained in the claim and statement of claim. Is that correct? [48] HIS HONOUR: No, no. I would’ve thought it would be up to the date that you’re going to say the money’s owing, right to this – the day you send the calculation to Mr Boothby, it’s up to date. [49] MS COUPER: And it is from – sorry, I’m just to trying to clarify. [50] HIS HONOUR: Yes. [51] MS COUPER: From the date that the advance has taken place or from the date the claim was filed? [52] HIS HONOUR: I – I would’ve thought it was right from the beginning. [53] MS COUPER: Right. Okay. -- 10 of 13 -- 11 [54] HIS HONOUR: Right from the beginning through to the end. They should be able to do it - - - [55] MS COUPER: Yes. [56] HIS HONOUR: - - - you know? [57] MS COUPER: I just wanted to clarify, yes. [58] HIS HONOUR: I just think you’ll run into trouble if you say “Look, we’re going to – we’re going to come in at such and such a date.” The first question is “Well, where’d you – how’d you get to there?” [59] MS COUPER: Yes. [60] HIS HONOUR: So you start at the beginning. I mean, if – I don’t know. This isn’t an old transaction; they’re pretty new transactions. So I wouldn’t have thought the records are lost. All right. I’ll just give all this material back to my associate so it’s not lost. Yes, Mr Boothby? [61] DEFENDANT: With – within those loan agreements, do they say any of the terms and conditions along with them? [62] HIS HONOUR: Well, it should be, yes. -- 11 of 13 -- 12 [63] DEFENDANT: Yes. [64] HIS HONOUR: That’s what I’d assume it’d be. You – you just don’t send somebody a couple of pages of a loan agreement, you send the whole loan agreement. [65] DEFENDANT: Yes. [66] HIS HONOUR: You know, you send the whole loan agreement and you send the whole mortgage. And if – and if the loan agreement says “It is subject to our usual terms and conditions,” well then the usual terms and conditions should be attached to it. And if the mortgage says “It’s subject to the usual covenants,” you – you know, then somebody’s got to press the button, pull out the covenants and attach it. [67] DEFENDANT: Yes. [68] HIS HONOUR: So you might get a big bundle of documents, presumably. [69] DEFENDANT: Well, that’s - - - [70] HIS HONOUR: I hope so. I – I – I hope – I hope you don’t have to come back. [71] DEFENDANT: That’s – that’s what I was – I’m – I’m hoping not to either. That’s all I asked for in – from in the beginning. [72] HIS HONOUR: Yes. All right. Yes. Thank you, Ms Couper and thank you, Mr -- 12 of 13 -- 13 Boothby. [73] MS COUPER: Thank you, your Honour. [74] HIS HONOUR: Adjourn the Court, Madam Bailiff. -- 13 of 13 --