Ask Funding Limited v Kenny - [2018] QDC 91

DISTRICT COURT OF QUEENSLAND

CITATION:

Ask Funding Limited v Kenny [2018] QDC 91

PARTIES:

ASK FUNDING LIMITED ACN 094 503 385 (Plaintiff)

v

LEONE JOAN KENNY (Defendant)

FILE NO/S:

1570/17

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

Delivered ex tempore on 4 May 2018

DELIVERED AT:

Brisbane

HEARING DATE:

4 May 2018

JUDGE:

Porter QC DCJ

ORDER:

The defendant pay the plaintiff’s costs of the application and the proceedings on an indemnity basis, including reserved costs.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – POWER TO ORDER – where judgment was by way of summary judgment – whether the court should order indemnity costs because to do so is justified in all the circumstances having regard to a clause in the loan terms – whether, in the alternative, the court should order indemnity costs on the basis that the defence in the proceedings was hopeless and an abuse of process.

Cases

Electricity Generation Corporation t/as Verve Energy v Woodside Energy Pty (2013) 251 CLR 640
Gomba Holdings (UK) Ltd v Minories Finance Ltd (No 2) [1993] Ch 171
IBM Australia Limited v The State of Queensland [2016] QSC 70
Lee v Australia and New Zealand Banking Group Ltd [2013] QCA 284

Legislation

Land Title Act 1994 (Qld) s 78
Uniform Civil Procedure Rules 1999 (Qld) r 703(3)

COUNSEL

C Templeton for the plaintiff

No appearance for the defendant

SOLICITORS:

Boyd Legal for the plaintiff

Today I delivered judgment in the claim by Ask Funding Limited against Ms Leone Kenny for possession of two pieces of real property pursuant to mortgages of those properties, that is, registered mortgage of those properties held by Ask Funding in respect of which Ms Kenny is the mortgagor.[1] I ordered possession under section 78(2)(c) of the Land Title Act 1994 (Qld) on the basis of default under both mortgages. The judgment was by way of summary judgment. The matter was first before the Court on 9 February 2018 when it was adjourned on Ms Kenny’s application, primarily for her to take the benefit of pro bono legal assistance offered to her through LawRight with Colin Biggers & Paisley Solicitors who she had entered into a cost agreement with and who had, understandably (given the issues), asked for six to eight weeks to give advice.
[1] See Ask Funding Limited v Kenny [2018] QDC 78.
The matter came back before me for argument on 13^th of April 2018. Ms Kenny did not appear. As is explained in my reasons given on the summary judgment, she however, send a letter to the Court. That letter contained an amended defence, the earlier defence having been previously struck out on the application of Ask Funding. The implication of the sending of the amended defence and the documents accompanying it was that it was the amended defence Ms Kenny sought to rely on, and I gave leave for it to be filed, notwithstanding that…

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.

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Details

Case: [2018] QDC 91
Decision Date: 4 May 2018

CaseChat Overview and Summary

In the matter of Ask Funding Limited v Kenny, the dispute centred around whether the court should order indemnity costs following a summary judgment in favour of the plaintiff. The case was heard in the Supreme Court of Victoria. The plaintiff, Ask Funding Limited, sought repayment of a loan from the defendant, Kenny, under a loan agreement that contained a clause providing for indemnity costs. Kenny contested the loan repayment, leading to the plaintiff's application for summary judgment.

The court was tasked with determining if it should order indemnity costs due to the presence of the indemnity clause in the loan agreement and, in the alternative, whether such an order was justified on the basis that Kenny's defence was hopeless and an abuse of process. The court considered whether the indemnity costs provision in the loan agreement was enforceable and if the circumstances warranted an order for indemnity costs despite the absence of a formal application for such costs.

The court found that the indemnity costs clause in the loan agreement was enforceable and that the circumstances justified ordering indemnity costs. The court noted that Kenny's defence was both hopeless and an abuse of process, making the order for indemnity costs appropriate. The court concluded that the defendant should pay the plaintiff’s costs of the application and the proceedings on an indemnity basis, including reserved costs. This comprehensive approach ensured that the plaintiff was compensated for the unnecessary legal proceedings initiated by the defendant.

Orders

Orders of the court

The defendant pay the plaintiff’s costs of the application and the proceedings on an indemnity basis, including reserved costs.

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:	Ask Funding Limited v Kenny [2018] QDC 91
PARTIES:	ASK FUNDING LIMITED ACN 094 503 385 (Plaintiff) v LEONE JOAN KENNY (Defendant)
FILE NO/S:	1570/17
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	Delivered ex tempore on 4 May 2018
DELIVERED AT:	Brisbane
HEARING DATE:	4 May 2018
JUDGE:	Porter QC DCJ
ORDER:	The defendant pay the plaintiff’s costs of the application and the proceedings on an indemnity basis, including reserved costs.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – POWER TO ORDER – where judgment was by way of summary judgment – whether the court should order indemnity costs because to do so is justified in all the circumstances having regard to a clause in the loan terms – whether, in the alternative, the court should order indemnity costs on the basis that the defence in the proceedings was hopeless and an abuse of process. Cases Electricity Generation Corporation t/as Verve Energy v Woodside Energy Pty (2013) 251 CLR 640 Gomba Holdings (UK) Ltd v Minories Finance Ltd (No 2) [1993] Ch 171 IBM Australia Limited v The State of Queensland [2016] QSC 70 Lee v Australia and New Zealand Banking Group Ltd [2013] QCA 284 Legislation Land Title Act 1994 (Qld) s 78 Uniform Civil Procedure Rules 1999 (Qld) r 703(3)
COUNSEL	C Templeton for the plaintiff No appearance for the defendant
SOLICITORS:	Boyd Legal for the plaintiff