Commonwealth Bank of Australia v Stamp & Anor [2001] QSC 109

4,t5 {ot;' 01-I_.OC1 SL S (a Queensland Government tate Reporting Bureau ~Oeμ~rtmentoflustl~3ndM~y~~l Transcript of Proceedings Copyright in th1s transcript 1s 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 MUIR J No 11189 of 2000 COMMONWEALTH BANK OF AUSTRALIA ACN 123 123 124 and JOHN WESLEY STAMP AND JOHN PATRICK O'HALLORAN BRISBANE .. DATE 02/04/2001 ,, JUDGMENT floor, The Law Courts, George Street, Brisbane, a. 4000 REVISED COPIES ISSUED State Reporting Bureau Date / <f I O I Plaintiff Defendants Telephone: (07) 3247 4360 Fax: (07) 3247 55:32 -- 1 of 5 -- 02042001 T4&11/JAP22 M/T 1&2/2001 (Muir J) HIS HONOUR: The plaintiff/applicant seeks summary judgment against the defendant John Wesley Stamp. It has already obtained judgment against the other defendant in the action. The defendants guaranteed to the plaintiff the obligations to the plaintiff of Marlin Mushrooms NQ Pty Ltd. That company ("the debtor") borrowed a substantial sum of money from the plaintiff bank. The material discloses that it defaulted in its obligations to the plaintiff which then made demand on the defendant guarantors. When the matter came before me last week I noticed that the plaintiffs right to recover from the defendants was dependent upon the plaintiff's first making demand on the debtor. There was no evidence that any such demand had been made and the statement of claim did not allege the making of any such demand. The matter was adjourned. Evidence has now been provided of the making of demand on the debtor and accordingly any impediment in the way of the plaintiff to obtaining judgment has gone. Mr 'stamp, who appears in person, does not contend that the plaintiff did not lend the money or that there has not been default. He says, not surprisingly, that he really is not in much of a position to know just what has happened. The debtor has had receivers or administrators appointed to it. He is 2 JUDGMENT 1 10 30 4 50 60 -- 2 of 5 -- 02042001 T4&11/JAP22 M/T 1&2/2001 (Muir J) concerned that the plaintiff will proceed to sell the property at under value. He submits, not unreasonably, that if the plaintiff does that and it has judgment against him that it will proceed to bankrupt him and any cause of action will then be vested in his trustee in bankruptcy. He will thus lose his freedom to bring claims against the bank in respect of any wrongful conduct on its part. It seems to me that it is not open to me to defer ruling on the application. There is no affidavit evidence which supports any allegations of possible wrongdoing on the part of the plaintiff but, apart from that, the plaintiff has a contractual right based on the guarantee to the payment of the subject moneys. It is entitled to come to a Court and have that right vindicated. I cannot assume that in realising the secured property it will behave improperly. If it does then the debtor and you, Mr Stamp, will have a separate claim against it which will need to be enforced in a separate proceeding to this one. I order that the applicant have leave to amend the statement 1 10 20 30 40 of claim as it may be advised so as to allege the making of 50 demand on the debtor Marlin Mushrooms NQ Pty Ltd in the manner sworn to in the affidavit of Leneen Veronica Forde sworn here on 2 April 2001 on or before 4.00 p.m. on Friday 6 April. 60 3 JUDGMENT -- 3 of 5 -- 02042001 T4&11/JAP22 M/T 1&2/2001 (Muir J) HIS HONOUR: I give judgment against the first defendant John Wesley Stamp in the sum of $3,304,816.76. (That amount is, of course, calculated in the manner referred to in paragraph 4 of the further affidavit of Ms Forde filed by leave today and for costs on the basis that I previously intimated.) An error having been detected in the plaintiff's calculation of the amount owing, another affidavit swearing to the method of calculation was obtained. The judgment is together with costs of the action to be assessed on the standard basis until and including 26 March 2001. I give judgment only upon an undertaking by the plaintiff's solicitors on behalf of the plaintiff to file and serve an amended statement of claim on or before 4.00 p.m. on Friday 6 April. Now, is that undertaking forthcoming? MS FORDE: Yes, it is your Honour. HIS HONOUR: Thank you. I think it would be better that the judgment not pose any such qualifications because that complicates matter but, of course, the bank will not be free to enter judgment until such time as the amended statement of claim is filed and served. MS FORDE: That is right your Honour. HIS HONOUR: I wish to make that perfectly plain. MS FORDE: Yes, your Honour. I hope to do that this afternoon and have it filed. Your Honour, I will also say a full break-down of the claim has been provided to Mr Stamp's solicitor recently to show how the amount was calculated on 2 November. 4 JUDGMENT 1 10 30 4Pj ; 50 6 -- 4 of 5 -- 02042001 T4&11/JAP22 M/T 1&2/2001 (Muir J) HIS HONOUR: Yes. I would hope that your client has enough sense to explain clearly and comprehensively to Mr Stamp what it needs to give----- MS FORDE: Your Honour, I will make recommendations that they do meet with Mr Stamp. 1 HIS HONOUR: -----a clear and comprehensive explanation in 10 respect of the matters that concern him in the statement that he has provided today. MS FORDE: Yes, your Honour. HIS HONOUR: I should record formally that I am, through a superannuation fund, the holder of a relatively modest number of shares in the Commonwealth Bank which are in the name of the superannuation fund. I do not believe that the shares would - I cannot say how many there are - but I doubt that they would come on current market values to $20,000. I thought I should disclose that. I cannot see that it could serve as a grounds of disqualification but it is desirable that I mention that to the parties. MS FORDE: Thank you, your Honour. 5 JUDGMENT 20 30 40 50 60 -- 5 of 5 --