Amos v Citibank Ltd [1991] QSC 301

TRANSCRIPT OF PROCEEDINGS State Reporting Bureau, 4th Floor, The Law Courts, George Street, BRISBANE, 0. 4000 Tel. (07) 227.4360 (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.) j SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION WHITE, Master No 1497 of 1991 EDWARD AMOS and CITIBANK LIMITED BRISBANE .. DATE 18/10/91 9.30 A.M . . . DAY 1 JUDGMENT 1 Plaintiff Defendant -- 1 of 12 -- 10 30 40 50 60 181091 D.l JUDGMENT MASTER: In this matter it is ordered that the within Supreme Court action be stayed pending hearing and determination of plaint number 2979 of 1991 in the District Court, or until some other or earlier order be made. The order as to costs will be that the costs of and incidental to this application be costs in the cause in plaint 297~ of 1991 presently pending in the District Court. I publish my reasons. ,,,..---·· ~~ A(9. ·--~----·· ·- ·-- ... 10 20 I ; e .i [i . c;;: 30 I I 40 50 60 2 -- 2 of 12 -- IN THE SUPREME COURT OF QUEENSLAND No. 1497 of 1991 BETWEEN: EDWARD AMOS Plaintiff AND: CITIBANK LIMITED Defendant REASONS FOR JUDGMENT - MASTER M. WHITE Delivered the Eighteenth day of October, 1991 CATCHWORDS: COUNSEL: SOLICITORS: Remitter to District Court - Same facts subject of action in District Court with parties reversed - Jurisdiction of District Court to give relief sought - Monetary value within the District Court limit - Discharge of bill of sale based on accord and satisfaction. Mr. P. Freeburn for the applicant/defendant Mr. B. Muldoon for the respondent/plaintiff Henderson Trout for the applicant/defendant J.R. Manners Esq., for the respondent/plaintiff HEARING DATE: 24th September, 1991 -- 3 of 12 -- IN THE SUPREME COURT OF QUEENSLAND BETWEEN: AND: EDWARD AMOS CITIBANK LIMITED No. 1497 of 1991 Plaintiff Defendant REASONS FOR JUDGMENT - MASTER M. WHITE Delivered the Eighteenth day of October, 1991 This application is brought by the defendant to remit the within action to the District Court pursuant to s. 77 of the District Courts Act and for orders that it be consolidated and heard with the action commenced by it in the District Court against the plaintiff herein as defendant. For convenience I shall refer to the parties by their names to avoid confusion. The plaintiff in this action is Mr. Amos and the defendant is Ci tibank Limited. Their roles are reversed in the District Court action. The two actions arise out of the same facts. Mr. Amos, the respondent to this application, through his counsel, Mr. Muldoon, expresses willingness to have the action remitted to the District Court and to have it consolidated with Citibank's action but submits that the District Court has no jurisdiction to entertain his action, or, more specifically, to grant him the relief which he seeks. Although invited to do so, there has been no consent to extend the jurisdiction of the District Court as provided for in s.73 of the District Courts Act. -- 4 of 12 -- Mr. Amos has drawn his own pleadings in both jurisdictions. In the District Court the action was commenced by Citibank against Mr. Amos pursuant to a registered bill of sale to recover money and interest said to be due under the bill and to recover possession of a Jaguar motor car. The money was advanced by Citibank to Mr. Amos to purchase the car under a hire purchase agreement. The plaint issued on the 29th August, 1991 and an entry of appearance and defence was filed on the 10th September, 1991 . The writ in the Supreme Court action issued on the 30th August, 1991. Citibank's summons to remit and consolidate was issued on the 16th September, 1991. Mr. Amos seeks in his prayer for relief in the Supreme Court action:- " (a) Execution by the Defendant of a discharge or memorandum of satisfaction of . registered Bill of Sale No. M119108/89 and delivery by the Defendant to the Plaintiff of duly discharged Bill of Sale No. M119108/89 and/or memorandum of satisfaction of Bill of Sale No. M119108/89. (b) An injunction restraining the Defendant from taking possession of, selling or otherwise disposing of jaguar sovereign sedan Queensland registration number 668-ARK. ( c) The sum of Three Thousand Six Hundred and Eighty Four Dollars and Ninety Seven cents ($3,684.97) being monies had and received by the Defendant to the Plaintiff's use at Brisbane in the State of Queensland on the 18th day of December, 1990. (d) Interest under the Common Law Practice Act 1867 as amended; and ( e) Costs." The matters pleaded by way of defence in .the District Court action are the same as those pleaded to support the Supreme Court action. understanding that It might be supposed that Mr. Amos' the District Court does not have -- 5 of 12 -- J. jurisdiction to grant him the relief sought ( apart from the money claim) precluded him from bringing a counter-claim to the Citibank action in the District Court. The apparently uncontested facts are that Citibank lent Mr. Amos $58, 662 to purchase a Jaguar motor car and those moneys were secured pursuant to a bill of sale dated the 8th December, 1989. The date for final repayment of the loan plus interest is the 8th December, 1994. Mr. Amos agreed to repay the loan and interest by way of 60 monthly instalments of $1,182.06 paid on the 8th of each month commencing on the 8th December, 1989 with a final payment of $29,331 to be made on the 8th December, 1994 (the statement of claim pleads 1989 but this must be an error). The bill of sale was not before me but certain clauses are set out in the pleadings. Clause 10 provides that in the event of default by Mr. Amos of the full amount of any instalments on the loan or other default "at the option of the mortgagee" the full amount of the unpaid balance plus interest and other monies payable were to become at once payable and Citibank was to be entitled to seize the car and to sell it. On each of the 8th August, September and October, 1990 the plaintiff failed to pay the monthly instalments due. Mr. Amos pleads that on several occasions between the 8th August and 2nd November, 1990 Ci tibank demanded "differing amounts" from him supposedly representing the amounts due and thereby, he pleads, it elected not to exercise the option conferred in Clause 10, namely, to call up the whole of the monies and to seize the motor vehicle. Mr. Amos pleads that having elected -- 6 of 12 -- .! not to exercise that option it is estopped from exercising it. Mr. Amos maintains that apart from the monies said to be owing there are no other defaults under the bill of sale. On the 2nd November, 1990 Citibank wrote to the plaintiff and noted that the arrears including the amount due on the 8th November, 1990 were in the sum of $4,466.31 and that those monies were to be paid "on or before the 8th November, 1990 and the amount due on that date is $1182.76". Mr. Amos wrote to Citibank disputing that the amounts nominated were the correct sum of the arrears ( there being a dispute about 70 cents owed on each monthly instalment) . He maintains that there were no arrears for which he was liable pursuant to the agreement until he had received a signed copy of the hire purchase agreement. He received that on the 2nd November, 1990 and concluded "therefore I attach hereunto my cheque for $1,200 in full and final settlement of payment of the sum of $4,866.31." duly met. The plaintiff's cheque was passed for payment and Mr. Amos pleads that he has thus entered into a binding accord and satisfaction with Citibank in relation to those past instalments in dispute. Citibank continued to assert that monies were outstanding on past monthly instalments and on the 22nd November it served a notice pursuant to the Property Law Act intending to exercise its power of sale in relation to the motor vehicle. The default nominated was an amount of $3,944.35. In order to avoid possession of his motor vehicle, which he has pleaded is essential to his business as a real estate agent, on the 13th December, 1990 under protest, Mr. Amos tendered the sum of -- 7 of 12 -- $2,794.35 to Citibank's solicitors being the amount said to be due and owing less the previous settlement sum of $1200. The solicitors for Ci tibank refused to accept the tender and on the 18th December, 1990 Mr. Amos tendered payment in the sum of $3,684.97 which Citibank accepted, acknowledging that it was paid under protest. On the 13th February, 1991 Citibank wrote that an amount of $4,884.97 was required to bring Mr. Amos' account up to date and that a further rental sum of $1,182.76 would fall due on the 8th March, 1991. On the 2nd March, 1991 Mr. Amos sent a cheque for $1,500 to Citibank with a letter attached to the cheque which read in part:- "In all the circumstances of this agreement and with a view to finally settling all matters and monies in dispute between us amicably but without prejudice to my reserved rights in respect of the monies I have paid under protest and rather than go the full term of the balance of sixty payments and the final payment as set out in the agreement I am attaching to this letter and tendering to you my cheque for $1500 in full and final settlement of all principal, interest, instalment, costs, stamp duty, registration fees and all other amounts, if any, of whatsoever nature which have been debited or are intended to be debited to the account and only on the basis my attached cheque, if it is accepted by you, is to be accepted by you only on the basis you accept it and the proceeds of my cheque in full and final payment as aforesaid and that you forward to me a memorandum of satisfaction of the agreement and this finally determine for all time all disputes between us (excepting my reserved rights in respect of monies paid under protest) and neither one of us shall have any claim against the other and we can close our files and get on with our business and put the experience of this matter behind US• • • II The cheque was passed for payment and met. Mr. Amos therefore pleads that he entered into a binding accord and satisfaction with respect to the whole of the amount of the monies due and -- 8 of 12 -- owing and all incidental costs pursuant to the bill of sale and he seeks the relief which I have set out above. The civil jurisdiction of the District Court is provided for in Part V by s. 66 of the District Courts Act 1967 as amended. The powers of a Judge of District Courts exercising jurisdiction pursuant to Part V are set out in s. 67. In short, subject to any other exclusory provision, they are the powers of a Judge of the Supreme Court. But the powers are for the purpose of exercising the jurisdiction conferred by s.66, see Startune Pty. Ltd. v. Ultra-Tune Systems (Aust) Pty. Ltd. [1991] 1 Qd.R. 192 per McPherson J. at p.197. Section 77 ( 1 ) of the District Courts Act pursuant to which this application is brought provides:- " If proceedings are pending in the Supreme Court that in the absence of a memorandum signed under section 73 - (a) might have been brought in a District Court within its jurisdiction under this Part; ... a party to the proceedings may at any time apply to the Supreme Court or a Judge thereof for an order remitting the proceedings to a District Court .... " In Skewes v. Samra [1987] 2 Qd.R.659 Master Weld at p.660 concluded that what had to be looked at was the character of the action and not the amount claimed on the writ, at p.660. Mr. Amos seeks "an execution by the defendant of a discharge or memorandum of satisfaction of registered Bill of Sale ... " or deli very of a discharged Bill of Sale; an injunction restraining Citibank from seizing and disposing of the Jaguar motor car and the sum of $3,684.97 being monies had and received. The basis for the order sought for discharge is that there has been accord and satisfaction of the debt owing -- 9 of 12 -- l pursuant to the bill of sale. It does seem to me that the principal relief sought cannot be described as a personal action within s. 66 (a) , al though the claim for money had and received clearly is. Neither does the claim for principal relief seem to fall into any of the various heads of jurisdiction specified in s.66(b). In particular, it does not appear to come within s.66(b)(iii), (iv) or (xiii) to which my attention has been drawn by counsel for Citibank. provide:- They "(iii) (iv) (xiii) for specific performance of an agreement for the sale or other disposition of land or an interest in land or of any other property, where the value of the land or interest or property does not exceed the monetary limit; orin lieu of or in addition to specific performance, damages not exceeding the monetary limit; for rectifying, delivering up or cancelling any agreement, where the amount in dispute or the value of the property affected does not exceed the monetary limit; for the determination of any question of construction arising under a deed, will or other written instrument, and for a declaration of the rights of the persons interested where the sum or the property in respect of which the declaration is sought does not exceed in amount or value the monetary limit; ... " It is agreed by both counsel that the value of the subject matter of the action is well within the monetary limit of the District Court. The value of the Jaguar is in the vicinity of $60,000. The debt which Mr. Amos pleads has been extinguished by accord and satisfaction, even with interest, is under $100,000. All matters in issue between the parties have been raised by the pleadings in the District Court -- 10 of 12 -- action. It seems to me that the general intention of the legislature in amending ss. 66 and 67 of the District Courts Act, subject to specific exceptions, was that parties involved in disputes where the value of the subject matter lies within the jurisdiction of the District Court, ought not to be put the expense of litigating in the Supreme Court. In this particular case, the relief sought has not however been provided for by the legislature. The facts of this case would suggest, with respect, that some general power of remitter residing in this Court would be desirable. The District Court plaint was commenced prior in time to the Supreme Court action al though nothing could be said to turn on this. From my knowledge of the civil list in this Court and from what is well known as to the civil list in the District Court at Brisbane, it is very likely that the action in the District Court, if prosecuted diligently, will be offered trial dates well before dates could be offered in the Supreme Court. Ci tibank' s summons in addition to the specific relief sought also seeks:- " ( e) such further or other Orders as to the Master may seem meet" I propose to order that the Supreme Court action be stayed pending the hearing and determination of the District Court action. If Mr. Amos is successful in his defence in the District Court he may then, should he be so desirous, proceed, no doubt in a summary way, to obtain such relief in this Court as he may be advised in relation to the bill of sale. Accordingly, it is ordered that the within action be stayed -- 11 of 12 -- i pending the hearing and determination of plaint no. 2979 of 1991 in the District Court or until some other or earlier order be made. Unless there are submissions to the contrary it seems that the appropriate order as to costs should be that the costs of and incidental to this application be costs in the cause in plaint no. 2979 of 1991 presently pending in the District Court. -- 12 of 12 --