[2015] QDC 180

DISTRICT COURT OF QUEENSLAND

CIVIL JURISDICTION

JUDGE BOWSKILL QC

No 306 of 2014

COMMONWEALTH BANK OF AUSTRALIA	Plaintiff

and

STEPHEN ATIS BOOTHBY	Defendant

BRISBANE

11.14 AM, WEDNESDAY, 15 JULY 2015

JUDGMENT

HER HONOUR:   By proceedings commenced in this court on the 29th of January 2014, the plaintiff, the Commonwealth Bank, seeks to enforce its rights under a mortgage given by the defendant over his property at Biloela, which secured a loan given by the plaintiff in February 2009.  The plaintiff, on this application, seeks summary judgment in respect of this claim under rule 292.  The defendant opposes the relief sought by the bank and also purports to bring a counter-claim against the bank.  The bank also seeks summary judgment in respect of that counter-claim under rule 293.  

There is a lengthy procedural history to this matter which it is not necessary for me to go through.  It is summarised in the reasons of his Honour Judge Reid in an earlier decision in this proceeding, Commonwealth Bank of Australia v Boothby [2015] QDC 26. 

Mr Boothby did not appear today at the hearing of this application.  I am satisfied that Mr Boothby was served with the application and the supporting material on the basis of the affidavit of Georgina Mary Cooper, sworn on the 15th of July 2015, and filed by leave today.  In addition, it is clear that Mr Boothby has received that material and taken a conscious decision not to appear in court today, and I say that having regard to his email to my Associate, which is exhibit 1 in these proceedings, annexed to which he provided submissions and stated, “Be informed that there is no consent for this matter to proceed.  The reasons are outlined in the submission”. In the attached submissions Mr Boothby makes reference to the time at which he was served with the material and the time at which it was set down for hearing, not being enough for him to reorganise work and family commitments, describes this as a tactic, purely having the intention to ensure that he couldn’t be in attendance, and states that he does not consent to a hearing without his presence.  

Today being the 15th of July, Mr Boothby has had a considerable amount of time since the material was served on him, both by email on the 24th of June 2015, and in correspondence posted to him on the 24th of June 2015, such that there was no basis, in my view, for this matter not to proceed today.  Even if I was to allow for the four to five days he asserts in his submissions for mail to arrive, that would mean he received the documents on about the 29th or 30th of June, and that is still sufficient time.  For that reason I consider it appropriate to proceed to determine the application.  

Nonetheless, Mr Boothby has, as I have said, provided submissions, which I have read and had regard to in considering the plaintiff’s application.  One of the matters that is raised in that submission deals with, as far as I can understand it, jurisdiction.  There is a convoluted argument articulated there as to why there are jurisdictional issues.  It is convoluted but also confused, because it makes reference to QCAT, the Queensland Civil and Administrative Tribunal, and outlines numerous objections to that tribunal dealing with this matter.  This is, of course, not QCAT.  This is the District Court of Queensland, and I have no concerns that this matter does not fall within the jurisdiction of this court. This court plainly has jurisdiction, under section 68 of the District Court of Queensland Act, to deal with the matter.  In terms of the value of the subject land, there is reference in the affidavit of Ms Lester, filed on the 24th of June 2015 at page 105 of the exhibits, to the contract price of the land when it was purchased by the defendant on the 23rd of February 2009 of $440,000.  There has been no evidence or for that matter submission by the defendant to suggest that the monetary value of the land is not within the monetary jurisdiction of this court.  So I proceed on the basis that I have jurisdiction to deal with this matter.  

There are some matters that are not in dispute and that is apparent from the pleadings.  Significantly, that a written agreement dated the 18th of February 2009, described as the loan agreement, was entered into between the plaintiff and the defendant, under which the plaintiff agreed to lend the defendant the sum of $426,191, the defendant agreed to repay that and agreed to execute a mortgage over the Biloela property to secure the monies owing under the loan agreement.  

However, although admitting the loan agreement, the defendant denies ever receiving the principal sum and also seems to deny executing the mortgage, but in his defence the only explanation for that denial is that the plaintiff has not provided a true and verified mortgage document.  This seems to refer to an earlier order made by Judge Samios, requiring the plaintiff to provide copies of the loan agreement and mortgage document to the plaintiff, which it did.  

This issue was referred to by his Honour Judge Reid, in the earlier decision I have already referred to, [2015] QDC 26, in particular at paragraph 15, and I note there the point that his Honour makes, namely that Ms Lester’s affidavit (which is the affidavit filed on 25 September 2014) attests to the authenticity of those documents and the documents being admissible as business records pursuant to section 92 of the Evidence Act.  

The defendant also denies that there was any default.  But again that is not on the basis of a substantive position but rather on the basis of a pleading connected with the challenge to the validity or existence of the loan agreement and mortgage.  

The loan agreement appears as exhibit CML1 to the affidavit of Ms Lester, filed on the 25th of September 2014. It is apparent from the first page of that exhibit that the loan agreement comprises the consumer credit contract schedule as well as the usual terms and conditions (UTC).  The defendant is identified as the borrower and also at page 1 the amount of the principal sum is identified, the interest rates are identified and the repayments are identified, and following on from that the various fees, etcetera.  Item K of that schedule, which is at page 4 of the exhibit, records that the security for the loan will be a registered mortgage over the property at 315 Meissner’s Road, Biloela.  Page 6 of the exhibits records the document being signed under the name of the defendant as the borrower, and commencing at page 25 of the exhibits is the usual terms and conditions. 

In that regard I make reference, briefly, to clause 3.2, which provides that the borrower, that is the defendant’s, obligations under the contract are to be secured by the security stated at item K; clause 5.1, which provides that the bank will make the full amount of the loan available to the borrower by a single loan drawing unless the contract provides otherwise;  clause 6, which deals with interest;  clause 9, which deals with when the borrower will be in default under the loan agreement;  the requirement for a notification of default in clause 9.2; the consequences of being in default under clause 9.3; and the requirement under clause 9.4, for the borrower to pay the bank any expenses they reasonably incur in enforcing or protecting its rights under the contract or a security.

The mortgage is exhibit CML2 to Ms Lester’s affidavit, starting at page 103 of the exhibits. The mortgage was registered on the 10th of March 2009.  Again, just briefly, I note the provisions of clause A4.1 and 4.2 of the mortgage, on page 109 of the exhibits, obliging the mortgagor to pay every amount owing for which he is liable at the time agreed by him and requiring him to ensure that he is not in default under the mortgage; clauses A21 and A22, dealing with when there will be default and what can happen if there is default; clause A22.2, dealing with the giving of notice of default; clause A22.5, dealing with what happens if default is not rectified; and clause A22.8 dealing with the payment of reasonable enforcement expenses reasonably incurred by the bank in exercising its rights in relation to default.  

As I have mentioned, one of the issues that is raised by the defendant in opposing the bank’s claim, is that the money was not advanced to him.  This is expressed in the defence in terms, simply, (paragraph 7) that the defendant did not receive a principal sum from the plaintiff.  He makes reference in that same paragraph to requesting a receipt to verify the alleged transaction, and requesting accounting records to verify the transfer of the funds, and then makes reference to certain obligations to keep records on behalf of the bank.  

The evidence before me of the advance of the principal sum by the plaintiff to the defendant appears in exhibit CML1 to Ms Lester’s later affidavit filed on the 24th of June 2015, which comprises statements of the loan account, number 523102903, being the account established pursuant to the loan agreement, commencing from February 2009. It is apparent that is an account in the name of the defendant, Mr Stephen Atis Boothby. It records the amount of $417,000 by way of loan drawings being allocated to that account, together with bank fees of $9,291.  The total of those two amounts comes to $426,291.  That is in fact $100 more than the principal sum referred to in the loan agreement, but that is explained on page 2 of the exhibit, because there is the addition of a fee of $100 for attending settlement. 

In addition to that, Ms Lester’s affidavit, at paragraph 20 and exhibit CML3, provides details of the purchase agreement, when the defendant purchased the Biloela property in 2009, and then how the loan monies were dealt with on the settlement of that purchase on the request of the defendant’s solicitor.  That appears in the settlement statement at page 105, which refers to a request for bank cheques to be issued,  on the one hand to the defendant’s solicitor’s trust account, Cam Schroder Trust Account, in a particular amount, and on the other hand to Kawarra Partnership.  Then there is a third amount that is deposited into another account of the defendant’s.

On my calculations the three amounts referred to in paragraph 21(a)(ii) of Ms Lester’s affidavit amount to the figure of $417,000, which is the loan drawings allocated to the loan account referred to at page 1 of the exhibit.  As counsel for the plaintiff also noted, the bank statements, which are CML1 to the affidavit of 24 June 2015, go on to record a number of payments being made by the defendant – repayments being made in respect that loan.  

On all of that material I am satisfied, for the purposes of this application, that the principal sum was advanced.  I have nothing more than an assertion from the defendant in his defence to the contrary.  There has been nothing provided which would challenge the evidence adduced by the plaintiff, and it is not an issue in respect of which I would consider there is any need for a trial. 

Following on from that, that there has been default in repayment of the loan is apparent both from the affidavit evidence filed on behalf of the plaintiff, but also, again, from the bank statements which I have been referring to. One can see, starting at about page 49 of CML1 to Ms Lester’s affidavit of 24 June, that although up until that point a number of repayments have been made, problems start to occur in about, as far as I read the documents, May of 2013, when presumably direct debit payments are dishonoured.  Once again the fact of default is not in substance challenged by the defendant.  His only basis for denial of there being a default or breach relates back to his challenge to the existence or validity of the loan agreement and the mortgage.

Evidence of the notice of default being given to the defendant is also before me.  That is exhibit CL2 to Ms Lester’s affidavit, appearing at page 69 of the exhibits.  The notice was dated the 3rd of September 2013. It is apparent that the default has not been remedied, and in that regard I refer to paragraph 19 of Ms Lester’s affidavit. 

Turning then to the relevant principles regarding the grant of summary judgment, the court’s discretion to give judgment under rule 292 arises if the court is satisfied that the defendant has no real prospect of successfully defending all or part of the plaintiff’s claim, and that there is no need for a trial of the claim or part of the claim.  The principles are well established, under which that power is to be exercised, but I refer briefly to the approval by his Honour, Justice Williams in the Court of Appeal’s decision in Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 at 13, of a statement made by Lord Hobhouse in an English decision, that the criteria which the judge has to apply is not one of probability, it is the absence of reality. 

I am also conscious that rule 292 must be applied keeping in mind the purpose of the Uniform Civil Procedure Rules, articulated in rule 5, to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.  But of course that does not detract from the need to exercise caution.  

However, it seems to me that the plaintiff’s claim is one in respect of which the defendant does not have any real prospect of successfully defending it, and there is no need for a trial of the claim.  Neither in his defence nor in his submissions is there anything articulated which would be inconsistent with that finding.  The matters that are raised in the submission are, in some respects, irrational and illogical and not relevant and applicable to a proceeding to recover possession under a mortgage and to recover a debt in this court.    

Turning then to the defendant’s counter-claim, the principles under rule 293 are effectively the same.  What I need to be satisfied of is that the defendant, in his counter-claim, has no real prospect of succeeding on all or part of that claim, and that there is no need for a trial.  

It is difficult to understand or discern from the counter-claim any justiciable cause of action by the defendant against the plaintiff bank.  There is a reference to the defendant having acted in honour and good faith with repeated and continued offers to pay after receiving proof of claim.  There is a reference to practices of the bank involving what is described as “fractional reserve banking” which does not appear to me to give rise to any cause of action. 

There is a reference to the plaintiff having acted fraudulently to conceal documents. To the extent that I might infer this is a reference to earlier disputes and requests by the defendant for the provision of the loan agreement and the mortgage, it does not seem to me to give rise to any cause of action, and the documents have plainly been provided quite some time ago.  The counter-claim reiterates matters raised in the defence, such as that the principal sum was not forwarded, and I have made a finding about that in dealing with the plaintiff’s claim.  There are some, what I might describe as, nonsensical paragraphs suggesting that, rather than a loan agreement there was a credit contract, and some consequences of that by reference to other legislation. 

Overall I cannot discern from the counter-claim any cause of action by reference to which I could form any view that the defendant would have any prospect of succeeding, even adopting a very generous view of it because the defendant is an unrepresented person.  With knowledge of the plaintiff’s application for summary judgment under rule 293 the defendant has taken no steps to try to provide any evidence in support of the matters that are raised in that counter-claim.  In saying that, I am not sure what evidence the defendant could produce because the allegations are a mixture of allegations about, as I have said, not acting in good faith by concealing documents, and then other allegations about the effect of the loan agreement by reference to irrelevant legislation.  But in any event it seems to me appropriate that I accede to the plaintiff’s application for summary judgment in respect of the counter-claim also.

In terms of the order, the amount that is outstanding as at today is dealt with in paragraph 3 of the affidavit of Georgina Mary Cooper, which was filed by leave today. 

... 

Clause 9.4 of the usual terms and conditions of the loan agreement and clause 22.8 of the mortgage gives the plaintiff a contractual right to recover its costs, and it is on that basis that I am prepared to make the order in 4(c).  

I will make an order in terms of the draft which I’ll sign and place with the papers.  I will request that a transcript of my reasons be sent to Mr Boothby.