Asset Loan Company P/L v Ogun

[2004] QDC 479

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 438 of 2004

ASSET LOAN COMPANY PTY LTD (ACN 101 054 997)	Plaintiff
and
SINAN OGUN	Defendant

SOUTHPORT

..DATE 29/11/2004

ORDER

CATCHWORDS: Uniform Civil Procedure Rule, r 171(a) - application for striking out of defences pursuant to the Credit Act 1987, the sections relied on having been relevantly repealed - defendant's solicitors had agreed to award appropriately but failed to do anything - applicant awarded indemnity costs under r 704.

HIS HONOUR: This is an application by the plaintiff pursuant to Rule 171(a) of the UCPR. It may well gain support from the following sub-paragraphs as well. The claim arises out of a loan transaction. A number of defences raised are some based on the Credit Act 1987. The Act was capable of applying in respect of controlling interest charges and the like, but it ceased to be available for that purpose (except for certain pre-existing arrangements) in November 1996.

The difficulty was made known to the defendant's solicitors in correspondence.  They accepted the point by their letter of 4th of October 2004, which is exhibited to the affidavit of Mr Shaw filed the 20th of October 2004.  It confirmed that, "Due to the provisions of Section 21A and Section 21B of the Act, we will need to amend our amended defence and counter-claim to remove reference to the Act.  We propose to do this within seven days from today's date."

The response by fax was to insist that the amendment be made within the time indicated.  It was not, and still has not been, so far as the Court file reveals, hence this application. 

Ms Hindman, appearing in support of it, in the absence of any representation of the respondent who did not appear when called, tells the Court that last Friday, two separate difficulties were raised against the application.

The first, there was no "Rule 444" letter.  The other that the application had not been served, which seems to have been associated in some way with the departure from the firm of the person with actual conduct of the file.

The Rule 444 difficulty is non-existent since the application is not of the kind listed in Rule 443.  So far as service of the application is concerned, service by both letter and facsimile transmission is established, at least from the applicant's end.  As Ms Hindman says, it would be astounding if both communications had gone astray.

The defendant's principal difficulty is the failure of him and his legal advisers to amend in the way and at the time which they themselves made a commitment to. 

There seems to me to be an error in paragraph 1 of the letter of 4th of October 2004 which is in terms of paragraphs 7 to 11 of the defence references to the Credit Act also appear in paragraphs 5 and 6, prior to the heading, "The Credit Act 1987 (Qld)", which precedes paragraph 7. I think it is tolerably clear from the balance of the letter that all references to the Credit Act are to go - as they should.

So, the Court's order is that pursuant to Rule 171, paragraphs 5 to 11 inclusive are struck out of the amended defence and counter-claim filed the 25th of August 2004.

Further, paragraph 19(c) is struck out, and in paragraph 19(d), the words, "The Credit Act and", and in paragraph 19(f), the words, "and the Credit Act".

It is probably unnecessary to strike out or change paragraph 18 as offered by the letter, its purpose being to pick up "paragraphs 2-16 inclusive of the defence".

Indeed, the introductory words of paragraph 19 are similar in effect, but no difficulty arises.  If those words remain, it is simply the position that there would be nothing left in the defence for them to refer to.

...

HIS HONOUR:  I will order the respondent to pay the applicant's costs with the application to be assessed on the basis set out in Rule 704.

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