Bridge Wholesale Acceptance Corporation (Australia) Ltd v Mambrin Pty Ltd & Ors [1993] QSC 352

·\t~ State Reporting Bureau ~\ r r.-m~_,, ·.~d ~ \ \ \ ...\ '1 -// ~:;...:·-" ·--------------------------------- \ \~-~ \ j TRANSCRIPT OF PROCEEDINGS ··~- (Copyright 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 RYAN J No 625 of 1993 BRIDGE WHOLESALE ACCEPTANCE CORPORATION (AUSTRALIA) LTD and MAMBRIN PTY LTD and PASQUALI DIMUCCIO ~I":\ ·~~:-~·-~:-l-_u..:;;.:~";~ ;·~SUED r\1!. '.J • ••• ;.u ..... ...,. ' ' . ·-- State Beport:ng Bureau Date l3t f /.J q_:s I Plaintiff First Defendant Second Defendant -'~) and SYLVIA ANN DIMUCCIO Third Defendant and AUSTIN LEONARD FARNHAM Fourth Defendant and CHERYL RAE FARNHAM ·Fifth Defendant and WILFRED RICHARD FARNHAM Sixth Defendant and SANDRA FARNHAM Seventh Defendant 1 -- 1 of 8 -- and ELK IRA COURT PTY LTD Eight Defendant and FARNHAM BROS PTY Ninth Defendant and 10 JOEBILL NOMINEES PTY LTD Tenth Defendant BRISBANE .. DATE 27/10/93 JUDGMENT 0 -.~'. 40 0 50 60 2 -- 2 of 8 -- ~~ \ ' \... _ _j () () 271093 mmb (Ryan J) HIS HONOUR: I give leave to defend on condition that within 14 days the defendants pay into Court the sum of $100,000. In default of such payment, there will be judgment for the plaintiff for $221,219.69, together with interest on the sum of $188,922.99 at the rate of 12 percent per annum from the date of the writ to the date of judgment. I give liberty to apply and I reserve the costs of the summons. I publish my reasons. JUDGMENT 3 10 20 30 40 50 60 -- 3 of 8 -- ) IN THE SUPREME COURT OF QUEENSLAND No. 625 of 1993 Brisbane Before Mr Justice Ryan[Re: Bridge Wholesale Acceptance Corp] BETWEEN: AND: AND: AND: AND: AND: BRIDGE WHOLESALE ACCEPTANCE CORPORATION (AUSTRALIA) LTD Plaintiff MAMBRIN PTY LTD First Defendant PASQUALI DIMUCCIO Second Defendant SYLVIA ANN DIMUCCIO Third Defendant AUSTIN LEONARD FARNHAM Fourth Defendant CHERYL RAE FARNHAM Fifth Defendant WILFRED RICHARD FARNHAM Sixth Defendant SANDRA FARNHAM Seventh Defendant ELKIRA COURT PTY LTD Eighth Defendant FARNHAM BROS PTY LTD Ninth Defendant JOEBILL NOMINEES PTY LTD Tenth Defendant REASONS FOR JUDGMENT - RYAN J. Judgment delivered 27/10/1993 Counsel: Solicitors: Hearing Date(s): Mr J McKenna for the Applicant Mr A Stone for the Respondent Kreis Barry & Foote for the Applicant Biggs & Biggs Francis & McGregor for the Respondent 28 September 1993 -- 4 of 8 -- IN THE SUPREME COURT OF QUEENSLAND No. 625 of 1993 Brisbane Before Mr Justice Ryan[Re: Bridge Wholesale Acceptance Corp] BETWEEN: BRIDGE WHOLESALE ACCEPTANCE CORPORATION (AUSTRALIA) LTD Plaintiff AND: MAMBRIN PTY LTD First Defendant PASQUALI DIMUCCIO Second Defendant SYLVIA ANN DIMUCCIO Third Defendant AUSTIN LEONARD FARNHAM Fourth Defendant CHERYL RAE FARNHAM Fifth Defendant WILFRED RICHARD FARNHAM Sixth Defendant SANDRA FARNHAM Seventh Defendant ELKIRA COURT PTY LTD Eighth Defendant FARNHAM BROS PTY LTD Ninth Defendant JOEBILL NOMINEES PTY LTD Tenth Defendant REASONS FOR JUDGMENT- RYAN J. Judgment delivered 27/10/1993 The applicant Bridge Wholesale Acceptance Corporation (Australia) Ltd applies for orders against eight of the defendants that judgment be entered against them pursuant to 0. 18 r. 1 in the sum of $230, 121 . 19 together with interest thereon. -- 5 of 8 -- 2 It is deposed by Mr Ferguson on behalf of the applicant that in early April 1990 the plaintiff received an application for the lease of a certain cruise vessel. This was approved, and a lease agreement was executed between the plaintiff and first defendant. Prior to its execution, the plaintiff received from the defendants a deed of secured guarantee executed by them. The first defendant was granted possession of the vessel in June 1990. It fell into default in payment of the instalments on or about 20 January 1991. It had previously been late in payment of the instalments and interest was charged on the overdue payments. (! Details are set out as to how the sum of $221,219.69 which () is endorsed on the writ is made out. A defence was delivered by the first and fourth to tenth defendants. I gave leave to deliver an amended defence as set out in an annexure to the affidavit to Mr Peter Ryan sworn 27 September 1993. This matter came originally between de Jersey J. His Honour observed that the approach of the defendants was to query the calculation of the amount verified on behalf of the applicant rather than to refuse to acknowledge that anything was due. In the circumstances, he directed the parties to confer as to the true amount owing so that judgment might be entered for that amount~ There is no dispute in relation to the making of the chattel lease agreement, the supply of the vessel to the first defendant, the faJ.lure of the first defendant to pay the monthly rent instalments (thought there is a dispute as to whether this (J (I -- 6 of 8 -- 3 occurred on 17 June 1991 or 21 June 1991) and that such failure still continues. The defendants admit also the repossession of the vessel by the plaintiff, and that the first defendant has failed to pay to the plaintiff when due all rent instalments under the loan. The main submissions by the defendants before me related to the basis of calculation. A comparison of the calculations in the affidavits by Mr. Ferguson shows that there has been an extensive recasting of the method of calculation. In the latest affidavit, the calculations show the defendants' indebtedness to the plaintiff as amounting to $230, 121 . 19. In an earlier affidavit, it was calculated to be $302,399.08. Material has been placed before me on behalf of the respondent in relation to the assertion that the lease's provisions amounting to a penalty. At the hearing before de Jersey J., it was asserted that the contest between a 10 per cent rate provided for in Clause 7 of the leasing agreement used in the rebate calculation and the 19 per cent overdue interest rate in Clause 4 of the agreement indicated that a penalty rather than a genuine pre-estimate of loss was involved. His Honour did not consider that this was enough to raise the issue, there being evidence that the figure used accorded with interest rates at relevant times. To overcome this difficulty, the defendants rely upon a report by an actuary. This indicates that a rate such as 19 per cent taken in isolation is not unreasonable for a lease that commenced in 1990, and that the 10 per cent simple rebate rate represents reasonable protection for the finance company, I \ I --- 1 -- 7 of 8 -- 4 but they become unreasonable if there is an attempt to apply them both during the same period. This report does, I consider raise a triable issue as to whether Clause 4(b) combined with Clause 7 is to be treated as a penalty. No material was placed before me ort behalf of the defendants challenging the calculations contained in the latest affidavit by Mr. Ferguson. This is a case where, in my opinion, it is proper to give (_) leave to defend, but to make this leave conditional upon payment of an amount into court. I gave leave to defend on condition that within 14 days the () defendants pay into court the sum of $100,000. In default of such payment in, there will be judgment for the plaintiff for $221,219.69,a together with interest on the sum of $188,922.99 at the rate of 12 per cent per annum from the date of the writ to the date of judgment. I give liberty to apply and reserve the costs of the summons. (, l \ [> \ / \ / / -- 8 of 8 --