Atlantic 3-Financial (Aust) P/L v Dowdle [2001] QSC 399

L) s-q39 State Reporting Bureau · Queensland Government ~ '. .: ~ ...;: Department oi justice and Attorn,:y-Gffl<:ral Transcript of Proceedings Copyrighi in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION MULLINS J No S5719.of 2001 ATLANTIC 3-FINANCIAL (AUST) PTY LTD and PAUL ANTHONY DOWDLE BRISBANE .. DATE 10/10/2001 JUDGMENT REVISED COPIES ISSUED State Reporting Bureau Date / q liO Io I Plaintiff Defendant th Floor, The Law Courts, George Street, Brisbane, a. 4000 Telephone: (07) 3247 4360 Fax: (07) :3247 5532 1 -- 1 of 7 -- 10102001 T24/SA2 M/T 3/2001 (Mullins J) HER HONOUR: The plaintiff applies for summary judgment pursuant to Rule 292 of the UCPR. The plaintiff is a lender of funds to the defendant and to a company, Outback Cuisine Pty Ltd, which is now in liquidation. The plaintiff's statement of claim relies on a loan 1 10 agreement between the plaintiff and the defendant dated 6 2 o October 1999 pursuant to which the plaintiff advanced to the defendant the sum of $270,000. Default has occurred in relation to that loan and when the statement of claim was filed on 27 June 2001, the amount 30 that was owed at that date was $372,532.10. The defendant has no defence to that claim. The basis on which the defendant seeks to defer judgment being entered in respect of the loan moneys which he has not repaid is 40 that the plaintiff is exercising its rights over a secured property which will result in a fairly substantial sum being paid on account of the indebtedness. On the plaintiff's own material, the sale of that property which is at Collarenebri will not pay out the current amount of the loan with interest. 2 JUDGMENT . 50 60 -- 2 of 7 -- 10102001 T24/SA2 M/T 3/2001 (Mullins J) The other aspect of the claim relates to a guarantee provided by the defendant in respect of the indebtedness of Outback Cuisine Pty Ltd. The statement of claim pleads a second loan agreement entered into on or about 9 November 1999. That loan was secured over an abattoir at Rockhampton which has subsequently been sold. 1 10 20 The indebtedness that remains owing in respect of that loan at the date the statement of claim was filed was $52,908.29. In respect of both loans, the plaintiff is claiming interest at the rate of 24 per cent per annum which it claims pursuant to the respective deeds of loan. 30 There have been a number of applications in this Court concerning the plaintiff, the defendant and Outback Cuisine Pty Ltd. Outback Cuisine Pty Ltd has filed a claim and statement of claim in this Court in proceeding number 1381 of 2001 in respect of which Outback Cuisine Pty Ltd is seeking to recover damages from the defendant and other parties in respect of the sale of the secured property which is the Rockhampton abattoir. That proceeding has not been served on the plaintiff. Obviously the delay in prosecuting the proceeding is due to 40 50 the fact that Outback Cuisine Pty Ltd is in liquidation. 60 3 JUDGMENT -- 3 of 7 -- 10102001 T24/SA2 M/T 3/2001 (Mullins J) Earlier today, I heard submissions from Mr North of senior counsel on behalf of the plaintiff and solicitor, Mr Baseler, on behalf of the defendant. On the basis of the material that was before me, I was of the view that the plaintiff was entitied to judgment but I was willing to entertain the application for adjournment which Mr Baseler made on behalf of his client on terms in order to enable the defendant to consider amending its defence in this action to raise a claim against the plaintiff which could be raised by the defendant personally in respect of the actions taken by the plaintiff with respect to the Rockhampton abattoir. I was prepared to entertain an application for an adjournment for seven days on the basis that the defendant paid the interest to the plaintiff that would accrue over those seven days. In round terms I calculated that interest at $2,000. I also indicated that the price of an adjournment would be a payment of $1,000 to the plaintiff on account of the plaintiff's costs thrown away by the adjournment. When the matter came on for hearing this afternoon, Mr Baseler tendered a trust account authority, which his client had signed, directed to Harts Pty Ltd Trust Account which stated that Mr Dowdle had deposited the sum of $10,000 to Harts Pty Ltd Trust Account and authorised Harts 4 JUDGMENT 1 10 20 30 40 50 60 -- 4 of 7 -- 10102001 T24/SA2 M/T 3/2001 (Mullins J) Pty Ltd to disburse $3,000 to the Supreme Court, $500 to Mr Dowdle and $6,500 to Deacons Solicitors Trust Account. The trust account authority has been tendered to the Court and has not been given to Harts Pty Ltd. Harts Pty Ltd is a company which itself is in receivership. The letter from Mr Graham Bendeich which accompanied the trust account authority that Mr Haseler tendered states that, as a result of the appointment of the receiver and manager over Harts Pty Ltd, he is unable to obtain the cheques today and that the request would be forwarded to the receiver and manager immediately. HER HONOUR: In the course of giving these reasons Mr Haseler has informed me that Mr Dowdle has, in fact, handed the trust account authority to Harts. That fact 1 10 20 30 does not alter the basis of the reasoning that I am in the 40 process of giving. The sum of $10,000.00 was deposited by Mr Dowdle with Harts in order to meet the costs of a public examination of the plaintiff in relation to unconscionable conduct, undue 50 influence and the sale of the Rockhampton Abattoir at an undervalue. In the affidavit filed by leave today of the defendant, he stated that the liquidator of Outback Cuisine Pty Ltd - 5 JUDGMENT 60 -- 5 of 7 -- 10102001 T25/PB19 M/T 3/2001 (Mullins J) "Intends to publicly examine the plaintiff on other matters that I h~ve raised in the above paragraphs. It is not until these matters have been fully explored and that a proper amended defence can be prepared and filed." In the course of making submissions this afternoon Mr Haseler informed me that the only source of funds which Mr Dowdle had in order to pay the sum of $3,000.00 as the price of obtaining the adjournment for one week was the funds that had already been deposited to Harts' trust account. The difficulty with this is that it was the very fact of the deposit of $10,000.00 to the trust account of Harts that Mr Dowdle was relying on in order to convince me that summary judgment should not be entered against the plaintiff because there was a prospect that at some time in the future a public examination of persons associated with Outback Cuisine Pty Ltd might obtain the information that the defendant requires in order to plead a counterclaim in this action that would enable him to stave off summary judgment. I had already remarked this morning during the submissions that I did not think that Mr Dowdle could use any information obtained on a public examination of the plaintiff for that purpose. In any case, the course adopted by the defendant in order to meet the price of the adjournment indicates to me that there is little point in an adjournment being granted. 6 JUDGMENT 1 10 20 30 40 - 50 60 -- 6 of 7 -- 10102001 T25/PB19 M/T 3/2001 (Mullins J) If Mr Dowdle has no other funds other than the sum of $10,000.00 that's in Harts' trust account he is not in a position to pursue any claim that would be necessary in order to defend the plaintiff's claim. On the material that is before me there is no real prospect of the defendant successfully defending all or part of the plaintiff's claim. There is also no need for a trial of the action on the basis of that which is pleaded by the plaintiff. I consider it appropriate to bring this matter to an end at this point in time rather than allowing it to drag on when 1 10 20 there does not seem to be any real purpose in adjourning 30 the matter. I therefore order that judgment be given for the plaintiff in the sum of $464,681.65. HER HONOUR: I order that the defendant pay the plaintiff's costs of the application and the proceeding to be assessed. I will make the trust account authority and the copy of the letter from Graham Bendeich, Exhibit 3. 7 JUDGMENT 40 . 50 60 -- 7 of 7 --