Boyd-King & Anor v Evans & Anor [2002] QDC 72

DISTRICT COURT OF QUEENSLAND CITATION: Boyd-King & Anor v Evans & Anor [2002] QDC 072 PARTIES: TREVOR BOYD-KING and DORIS IVY WILLIAMS (AKA TARA IVY WILLIAMS) (plaintiffs) V KEVIN GEORGE EVANS (first defendant) MARGARET ISABEL EVANS (second defendant) FILE NO/S: 544/01 DIVISION: District Court at Maroochydore PROCEEDING: Application DELIVERED ON: 5 April 2002 DELIVERED AT: Maroochydore HEARING DATE: 25 March 2002 JUDGE: Dodds DCJ ORDER: Judgment for the plaintiffs against the first defendant for $10 000.00 and interest on $10 000.00 calculated at 9.5% per annum from 12 November 2001 to the date of judgment. The first defendant pay the plaintiff’s costs. The cost of the proceeding otherwise be reserved until finalisation of the proceeding CATCHWORDS: Olgivie v Adams [1975] VR 1041; Young v Queensland Trustees Ltd (1952) 99 CLR 560; Uniform Civil Procedure Rules 1999, r 292; Supreme Court Act 1995. COUNSEL: G Garrick for the plaintiffs R Clarke for the first and second defendants SOLICITORS: Quinn & Box for the plaintiffs Hemming & Hart for the first and second defendants [1] This is an application by the plaintiffs for summary judgment against the first defendant. [2] On 17 December 2001 the plaintiffs sued the first and second defendants for $214 937.14 for monies owing, interests and costs. -- 1 of 3 -- 2 [3] The statement of claim alleged that the first defendant had held himself out as an operator of ventures in to which third parties could invest for reward, offered third parties the opportunity to participate in joint ventures for reward and conducted meetings of third parties to promote such ventures under the name and style of “The Sunshine Coast Investment Club”. It further alleged that on or about 7 December 1999 at the first defendant’s invitation the plaintiffs attended a meeting of the Club after which the first defendant invited the plaintiffs and others to pay money to him for investment on the following terms - • the money was received by the first defendant on or before 14 December 1999; • the money would be applied to a venture by the first defendant for a period of one month following 14 December 1999; • at the expiry of one month the money would be returned to the plaintiff with interest thereon at the rate of 500% for the month; • the investment was “a sure thing” and was “too good to pass up”; and • the first defendant would administer the venture and be in day to day control over the venture. It further alleged that the plaintiffs paid to the first defendant $34 156.19 on 14 December 1999, $34 156.19 and interest of $170 780.95 should have been repaid on or before 13 January 2000 but was not, and on or about 10 February 2000 at the request of the first defendant the plaintiffs advanced a further $10 000.00 to the first defendant repayable on demand which despite demand by letter of 12 November 2001 has not been repaid. [4] In his defence filed 25 January 2002 the first defendant alleged he was at all times to the knowledge of the plaintiffs acting as the facilitator (or agent) of one Joseph Horvath in offering to third parties the opportunity to participate in certain ventures for reward. He admitted - • the plaintiffs, at his invitation, attended a meeting of The Sunshine Coast Investment Club on 7 December 1999; • he invited the plaintiffs to pay him money on terms that the money be received by him on or before 14 December 1999; that the money would be applied to a venture for a period of one month following 14 December 1999 on the advices of Horvath; that at the expiry of one month the money would be returned to the plaintiffs with interest at 500%, that he would monitor as best he could Horvath’s activities, that as facilitator for Horvath the money paid to him by the plaintiffs was paid to the account of the first defendant and the second defendant at the Westpac Bank Nambour branch on 14 December 1999, and that he borrowed $10 000.00 from the plaintiffs but pursuant to an agreement which had not expired and the money alleged was not repayable on demand. [5] Rule 292 of the Uniform Civil Procedure Rules 1999 (UCPR) provides that “a plaintiff may at any time after a defendant files a notice of intention to defend, apply to the court for judgment against the defendant which the court may grant summarily if satisfied a defendant has no real prospect of successfully defending all -- 2 of 3 -- 3 or a part of the plaintiff’s claim and there is no need for a trial of the claim or the part of the claim”. [6] The rules regulating summary judgment are quite different from the pre-existing rules and should be applied according to their terms. So far as the plaintiff’s application is concerned, it should be granted if the defendant has no real prospect of successfully defending all or a part of the defendant’s claim (my underlining). In McPhee v Zarb [2002] QSC 4 Wilson J, speaking of the summary judgment rules in UCPR, said “The new tests (which apply to both the plaintiff’s application and the defendant’s application) call for a more robust approach by the court consistent with the overriding purpose of the Uniform Civil Procedure Rules which is – “to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense”. The court should give summary judgment if (according to whether it is an application by a plaintiff or one by a defendant); the prospects of defending the claim or succeeding on it are so slim as to be fanciful”. In CSR Limited v Casaron [2002] QSC 21 Holmes J referred to what Wilson J had said with apparent approval. [7] On this application, there should be judgment for the plaintiffs against the first defendant for $10 000.00 and interest pursuant to the Supreme Court Act 1995. [8] The first defendant has no real prospect of successfully defending that part of the claim and there is no need for a trial of it. The first defendant has admitted in his defence the loan, that he has not repaid it and that he received a letter of demand dated 12 November 2001. He has said the money was lent pursuant to an agreement that has not expired and is not repayable on demand but has included no detail at all of the alleged agreement. In an affidavit, which he filed and read in the proceeding, he admitted the loan and said the loan was to be repaid when the transaction with Horvath (whatever that means) was concluded. There is nothing to support some enforceable agreement to postpone repayment of the loan on some condition or other. “A loan of money payable on request creates an immediate debt”: Young v Queensland Trustees Ltd (1952) 99 CLR 560 at 566. In Ogilvie v Adams [1975] VR 1041 at 1043 Fullager J said “- - In my opinion there can be no doubt as to how the aforesaid question of construction should be answered, and indeed I consider that, from the late 17th century at the latest, there could be only one answer to it, namely that the case discloses a loan the only terms of which were those acknowledged in writing by the borrower to the lender, and no demand is necessary to found the cause of action for repayment, and the cause of action commenced instanter simpliciter (i.e. with nothing at all said as to repayment), the money is repayable instanter. Where there is a loan of money which is recorded or acknowledged by the parties to be a loan repayable on demand, again the money is repayable instanter”. [9] As to the other part of the claim there is dispute as to the nature of the arrangement to provide the money and whether the first defendant disclosed that he was acting as an agent for another. In the circumstances that part of the claim should go to trial. [10] I give judgment for the plaintiffs against the first defendant for $10 000.00 together with interest on $10 000.00 calculated at 9.5% per annum from 12 November 2001 to the date of judgment. I order the first defendant pay the plaintiffs’ costs of the application for summary judgment. I order the costs of the proceeding otherwise be reserved until finalisation of the proceeding. -- 3 of 3 --