Ask Funding Limited v Kenny - [2018] QDC 78

DISTRICT COURT OF QUEENSLAND

CITATION:

Ask Funding Limited v Kenny [2018] QDC 78

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:

4 May 2018

DELIVERED AT:

Brisbane

HEARING DATE:

9 February 2018

13 April 2018

JUDGE:

Porter QC DCJ

ORDER:

The plaintiff recover from the defendant possession of:

(a)    Lot 58 on CP AG901, County of Aubigny, Parish of Motley, Title Reference 16938032; and

(b)    Lot 211 on CP A342593, County of Aubigny, Parish of Motley, Title References 12780230, 12780231 and 12780232.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR PLAINTIFF OR APPLICANT – FOR DEBT OR DEMAND OR FOR POSSESSION OF LAND – where there is an application for summary judgment pursuant to rule 292(2) for possession by the plaintiff as mortgagee of two properties owned by the defendant – whether the defendant has reasonable prospects of defending the claim for possession advanced by the plaintiff – whether there is a need for trial of the claim.

Cases

Bernstrom v National Australia Bank Ltd [2003] 1 Qd R 469

Commonwealth Bank of Australia v Jackson (1992) V Conv R 54-447

Deputy Commission of Taxation v Salcedo [2005] 2 Qd R 232

Dubois v Ong & Anor [2004] QCA 185
Garra Water Investments Pty Ltd (in Liq) v Ourback Yard Nursery Pty Ltd & Anor [2012] SASC 44
Gullco International Pty Ltd v Brisbane Parcel Deliveries Pty Ltd [2003] QDC 341
Haller v Ayre [2005] 2 Qd R 410

Queensland Pork Pty Ltd v Lott [2003] QCA 271
Robertson v Hollings & Ors [2009] QCA 303
Ross v Hallam [2011] QCA 92

Vacuum Oil Company Pty Limited v Wiltshire (1945) 72 CLR 319
Xebec Pty Ltd (in liq) v Enthe Pty Ltd (1987) 18 ATR 893

Legislation
Land Title Act 1994 (Qld) s 78
National Consumer Credit Protection Act 2009 (Cth), Schedule 1 National Credit Code ss 76, 88
Property Law Act 1974 (Qld) s 84
Trusts Act 1973 (Qld) s 72
Uniform Civil Procedure Rules 1999 (Qld) r 292(2)

Other
J W Carter, Contract Law in Australia (6^th Edn, 2013) at [22.18]

J D Heydon and M L Leeming, Jacobs’ Law of Trusts in Australia (7^th Edn, 2016) at [2102]
E L G Tyler, P W Young & C E Croft, Fisher and Lightwood’s Law of Mortgage (3^rd Aust. Edn, 2013) at [19.24]

COUNSEL

C Templeton for the plaintiff

L Kenny for the defendant (appearing in person on 9 February 2018, no appearance on 13 April 2018)

SOLICITORS:

Boyd Legal for the plaintiff

This is an application for summary judgment pursuant to rule 292(2) for possession by the plaintiff as mortgagee of two properties owned by the defendant. For the reasons that follow, I order summary judgment in favour of the plaintiff.

Background

The plaintiff, until 2012, carried on business as…

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 78
Decision Date: 4 May 2018

CaseChat Overview and Summary

In the case of Ask Funding Limited v Kenny, the plaintiff, a mortgagee, sought summary judgment for possession of two properties owned by the defendant. The application for summary judgment was made pursuant to rule 292(2) of the relevant court rules. The defendant opposed the application, arguing that there were reasonable prospects of defending the claim for possession. The court was tasked with determining whether the defendant indeed had reasonable prospects of defending the claim and if a trial was necessary to resolve the dispute.

The central legal issue was whether the defendant had a viable defence to the claim for possession and, if so, whether the case required a trial to be fully adjudicated. The court considered the evidence and submissions presented by both parties to assess the likelihood of the defendant successfully defending the claim. This involved examining the terms of the mortgage agreements, the nature of the defendant's defence, and the overall merits of the case.

After carefully evaluating the submissions and evidence, the court concluded that the defendant did not have reasonable prospects of defending the claim for possession. The court determined that the claims were straightforward and that there was no genuine dispute requiring a trial. Consequently, the plaintiff was granted summary judgment for possession of the two properties in question.

The final orders of the court directed that the plaintiff recover possession of the specified properties from the defendant. This decision effectively resolved the dispute in favour of the plaintiff, allowing the mortgagee to take possession of the properties without the need for a full trial.

Orders

Orders of the court

The plaintiff recover from the defendant possession of:

(a) Lot 58 on CP AG901, County of Aubigny, Parish of Motley, Title Reference 16938032; and

(b) Lot 211 on CP A342593, County of Aubigny, Parish of Motley, Title References 12780230, 12780231 and 12780232.

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 78
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:	4 May 2018
DELIVERED AT:	Brisbane
HEARING DATE:	9 February 2018 13 April 2018
JUDGE:	Porter QC DCJ
ORDER:	The plaintiff recover from the defendant possession of: (a) Lot 58 on CP AG901, County of Aubigny, Parish of Motley, Title Reference 16938032; and (b) Lot 211 on CP A342593, County of Aubigny, Parish of Motley, Title References 12780230, 12780231 and 12780232.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR PLAINTIFF OR APPLICANT – FOR DEBT OR DEMAND OR FOR POSSESSION OF LAND – where there is an application for summary judgment pursuant to rule 292(2) for possession by the plaintiff as mortgagee of two properties owned by the defendant – whether the defendant has reasonable prospects of defending the claim for possession advanced by the plaintiff – whether there is a need for trial of the claim. Cases Bernstrom v National Australia Bank Ltd [2003] 1 Qd R 469 Commonwealth Bank of Australia v Jackson (1992) V Conv R 54-447 Deputy Commission of Taxation v Salcedo [2005] 2 Qd R 232 Dubois v Ong & Anor [2004] QCA 185 Garra Water Investments Pty Ltd (in Liq) v Ourback Yard Nursery Pty Ltd & Anor [2012] SASC 44 Gullco International Pty Ltd v Brisbane Parcel Deliveries Pty Ltd [2003] QDC 341 Haller v Ayre [2005] 2 Qd R 410 Queensland Pork Pty Ltd v Lott [2003] QCA 271 Robertson v Hollings & Ors [2009] QCA 303 Ross v Hallam [2011] QCA 92 Vacuum Oil Company Pty Limited v Wiltshire (1945) 72 CLR 319 Xebec Pty Ltd (in liq) v Enthe Pty Ltd (1987) 18 ATR 893 Legislation Land Title Act 1994 (Qld) s 78 National Consumer Credit Protection Act 2009 (Cth), Schedule 1 National Credit Code ss 76, 88 Property Law Act 1974 (Qld) s 84 Trusts Act 1973 (Qld) s 72 Uniform Civil Procedure Rules 1999 (Qld) r 292(2) Other J W Carter, Contract Law in Australia (6^th Edn, 2013) at [22.18] J D Heydon and M L Leeming, Jacobs’ Law of Trusts in Australia (7^th Edn, 2016) at [2102] E L G Tyler, P W Young & C E Croft, Fisher and Lightwood’s Law of Mortgage (3^rd Aust. Edn, 2013) at [19.24]
COUNSEL	C Templeton for the plaintiff L Kenny for the defendant (appearing in person on 9 February 2018, no appearance on 13 April 2018)
SOLICITORS:	Boyd Legal for the plaintiff