AMP Bank Limited v Eckhardt - [2018] QDC 92

DISTRICT COURT OF QUEENSLAND

CITATION:

AMP Bank Limited v Eckhardt [2018] QDC 92

PARTIES:

AMP BANK LIMITED ACN 081 596 009
(plaintiff)

v

JULIA DIANNE ECKHARDT
(defendant)

FILE NO/S:

BD4779/17

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

24 May 2018

DELIVERED AT:

Brisbane

HEARING DATE:

10 April 2018

JUDGE:

Jarro DCJ

ORDER:

1. THE APPLICATION TO SET ASIDE DEFAULT JUDGMENT IS DISMISSED.

2. SUBJECT TO ANY FURTHER WRITTEN SUBMISSIONS WITHIN 14 DAYS, THE DEFENDANT IS TO PAY THE PLAINTIFF’S COSTS OF AND INCIDENTAL TO THE APPLICATION (INCLUDING ANY RESERVED COSTS) TO BE AGREED OR OTHERWISE ASSESSED.

CATCHWORDS:

PROCEDURE – DISTRICT COURT PROCEDURE – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES – APPLICATION TO SET ASIDE DEFAULT JUDGMENT – WHETHER DEFAULT JUDGMENT BE SET ASIDE

COUNSEL:

Mr S Lee for the plaintiff

Defendant self-represented, with friend Mr D G McCoy

SOLICITORS:

HWL Ebsworth Lawyers for the plaintiff

The defendant has applied for an order setting aside default judgment entered against her on 5 March 2018. She is a self-represented litigant who appeared at the hearing with the assistance of her friend. In the interests of affording natural justice to the defendant, both she and her friend were allowed to make submissions. The plaintiff did not object to this course.

Before addressing the substance of the defendant’s application to set aside default judgment, it is necessary to identify some factual matters giving rise to the default judgment.

Background facts

By contract made on or about 7 August 2008 and varied on or about 17 February 2010, the plaintiff loaned the defendant a total of $243,600. The funds were advanced and the defendant gave a registered mortgage over property located at 2/4 Hepburn Court, Oxenford more particularly described as Lot 2 on Group Titles Plan 259, County Ward, Parish Barrow in the State of Queensland (“the land”).

The standard provisions of the loan agreement[1] included as follows:
[1]See affidavit of Florence Nguyen sworn 18 October 2017 at “FN-2”, pp 47 and 48.

“Part 4:Default

4.(a) When will you be in default?

(i)Events of Default

You will be in default under the mortgage if:

-
any money that you owe us is not paid when it is due to be paid

…

(b) What happens if you default?

If an event of default occurs, we may:

- require that you pay all of the money owing to us immediately

- deal with the property as if we owned it (that includes selling the property in any way we think fit)

- take possession of the property

...

Before we exercise any powers we will give any notice that we are required, by law, to give.”

When the defendant defaulted under the loan agreement because she failed to make the necessary repayments, the plaintiff issued a default notice on or about 17 December 2015 under section 84 of the Property Law Act 1974 (Qld). By 12 May 2016, the plaintiff sought recovery of possession of the land and repayment of the monies owed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AMP Bank Limited v Eckhardt

Details

AGLC: AMP Bank Limited v Eckhardt [2018] QDC 92
Case: [2018] QDC 92
Decision Date: 24 May 2018

CaseChat Overview and Summary

The case of AMP Bank Limited versus Eckhardt was heard in the District Court, where the plaintiff sought to enforce a default judgment against the defendant. The plaintiff, AMP Bank Limited, claimed that the defendant, Eckhardt, had failed to repay a loan in accordance with the terms of their agreement. After the defendant did not respond to the summons, a default judgment was entered in favour of the plaintiff. The defendant subsequently applied to set aside the default judgment, arguing that they had a valid defence to the plaintiff's claim.

The court was required to determine whether the defendant's application to set aside the default judgment should be granted. The court considered the relevant legal principles and precedents, including the criteria for setting aside a default judgment under the Uniform Civil Procedure Rules. The court also considered the evidence and submissions presented by both parties. The court found that the defendant had not provided a satisfactory explanation for their failure to respond to the summons and that they had not demonstrated a valid defence to the plaintiff's claim.

In light of the above, the court dismissed the defendant's application to set aside the default judgment. The court ordered that the defendant pay the plaintiff's costs of and incidental to the application, including any reserved costs, to be agreed or otherwise assessed. The court also noted that the defendant had the opportunity to make further written submissions within 14 days, which may have affected the costs order. Overall, the court's decision reinforced the importance of timely and proper responses to legal proceedings, and the potential consequences of failing to do so.

Orders

Orders of the court

1. THE APPLICATION TO SET ASIDE DEFAULT JUDGMENT IS DISMISSED.

2. SUBJECT TO ANY FURTHER WRITTEN SUBMISSIONS WITHIN 14 DAYS, THE DEFENDANT IS TO PAY THE PLAINTIFF’S COSTS OF AND INCIDENTAL TO THE APPLICATION (INCLUDING ANY RESERVED COSTS) TO BE AGREED OR OTHERWISE ASSESSED.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	AMP Bank Limited v Eckhardt [2018] QDC 92
PARTIES:	AMP BANK LIMITED ACN 081 596 009 (plaintiff) v JULIA DIANNE ECKHARDT (defendant)
FILE NO/S:	BD4779/17
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	Brisbane
DELIVERED ON:	24 May 2018
DELIVERED AT:	Brisbane
HEARING DATE:	10 April 2018
JUDGE:	Jarro DCJ
ORDER:	1. THE APPLICATION TO SET ASIDE DEFAULT JUDGMENT IS DISMISSED. 2. SUBJECT TO ANY FURTHER WRITTEN SUBMISSIONS WITHIN 14 DAYS, THE DEFENDANT IS TO PAY THE PLAINTIFF’S COSTS OF AND INCIDENTAL TO THE APPLICATION (INCLUDING ANY RESERVED COSTS) TO BE AGREED OR OTHERWISE ASSESSED.
CATCHWORDS:	PROCEDURE – DISTRICT COURT PROCEDURE – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES – APPLICATION TO SET ASIDE DEFAULT JUDGMENT – WHETHER DEFAULT JUDGMENT BE SET ASIDE
COUNSEL:	Mr S Lee for the plaintiff Defendant self-represented, with friend Mr D G McCoy
SOLICITORS:	HWL Ebsworth Lawyers for the plaintiff