Australia and New Zealand Banking Group Ltd v Dixon (No 2)

[1989] TASSC 91

Serial No. B13/1989
List “B”

COURT:  SUPREME COURT OF TASMANIA

CITATION:      Australia and New Zealand Banking Group Ltd v Dixon (No 2) [1989] TASSC 91; B13/1989

PARTIES:  AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD
  v
  DIXON

FILE NO/S:  153/1989
DELIVERED ON:                2 May 1989
JUDGMENT OF:                 Crawford J

Judgment Number:  B13/1989
Number of paragraphs:  14

Serial No B13/1989
File No 153/1989

AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD
v DIXON (No 2)

REASONS FOR JUDGMENT  CRAWFORD J

2 May 1989

1. By reasons for judgment given by me on 22 February 1989 (Australia and New Zealand Banking Group Limited v Dixon, 7/1989) I held that a Commissioner of the Court of Requests was wrong in dismissing the appellant's application for summary judgment. The Commissioner held that he had no jurisdiction to give summary judgment. I held that he did. It is now necessary for me to determine the application for summary judgment on its merits.

1. The plaint and summons were filed on 20 June 1988 and the summons was served on the respondents, that is the defendants, on 24 June 1988. The grounds and particulars of claim were in the following terms:—

"The Plaintiff sues the Defendants for $3,241.42 and interest on the principal component thereof from the 15th day of June, 1988 until payment at the rate of $1.34 per day being monies due and owing to the Plaintiff by the Defendants pursuant to a fully drawn advance loan agreement between the parties TOGETHER WITH $906.17 and interest on the principal component thereof from the 15th day of June, 1988 until payment at the rate of 40 cents per day being monies due and owing to the Plaintiff by the Defendants pursuant to a current account agreement between the parties."

1. On 4 July 1988 the defendants filed a defence in the following terms:—

"1        The Defendants deny each and every allegation contained in Grounds and Particulars.

2         The Defendants say they are embarrassed in their Defence in that they are unable to plead thereto as a result of the absence of full and express particulars of the Plaintiff's claim as required by the Local Courts Act 1896 and the Rules of Court made thereunder."

1. On 7 October 1988, the appellant filed an interlocutory application seeking an order that the grounds and particulars of claim be amended into a form annexed to the application and containing eleven separate paragraphs. The application also sought summary judgment for $4,486.98 together with interest at the rate of $2.14 per day from 23 September 1988 until judgment and costs to be taxed. The form of the proposed amended grounds and particulars of claim was as follows:—

"1        The Plaintiff is and was at all material times a company incorporated in the State of Victoria and carrying on the business of banking in, inter alia, the State of Tasmania.

2         On or about the 9th day of April 1984 the Plaintiff agreed to provide fully drawn advance credit facilities to the Defendant.

3         It was a term of the said agreement that the Defendants would pay interest, administration and other charges normally charged by the Plaintiff in respect of similar accounts, with interest to be calculated to the account in March and September of each year and accruing on a daily balance, and with administration charges to be charged and capitalised when they fell due.

4         Pursuant to the aforesaid agreement, the Plaintiff advanced to the Defendants the sum of $2,200.00 on or about the 13th day of April 1984.

5         Pursuant to the aforesaid fully drawn advance agreement the Plaintiff advanced a further $1,600.00 to the Defendants on or about the 25th day of July 1985.

6         Pursuant to the aforesaid agreement, the Plaintiff' advanced a further $1,800.00 to the Defendants on or about the 19th day of November 1985.

7         The amount presently outstanding from the Defendants to the Plaintiff pursuant to the aforesaid fully drawn advance agreement is $3,514.60 and interest on the principal component thereof from the 23rd day of September 1988 until payment at the rate of $1.65 per day.

8         On or about the 3rd day of August 1987 the Plaintiff agreed to provide to the Defendants overdraft credit facilities (hereinafter called "the overdraft agreement").

9         It was a term of the overdraft agreement that the Defendants would pay to the Plaintiff interest, administration and other charges normally charged by the Plaintiff in respect of similar accounts, with interest to be capitalised to the account. in March and September of each year and accruing on a daily balance, and with administration charges to be charged and capitalised when they fell due.

10       Pursuant to the said overdraft agreement, the Plaintiff provided overdraft credit to the Defendants from time to time.

11       The amount currently outstanding from the Defendants to the Plaintiff pursuant to the said overdraft agreement is the sum of $972.38 together with interest on the principal component thereof from the 23rd day of September 1988 until payment at the rate of 49 cents per day.

AND THE PLAINTIFF CLAIMS $4,486.98 together with interest at the rate of $2.14 per day from the 23rd day of September 1988 until payment."

1. The application for summary judgment was supported by an affidavit of the appellant's branch manager, Mr D M Snowdon. The application was part heard by the Commissioner on 28 October 1988 and adjourned for further argument to 11 November. Following further argument the decision was reserved. At about the same time a further affidavit, in support of the application for summary judgment, was filed. It was dated 9 November 1988 and sworn by the appellant's solicitor, Mr Hudson. It dealt with the question of delay in making application for summary judgment.

1. On 15 December the learned Commissioner ruled that he had no jurisdiction to give summary judgment and he dismissed the application for it. He then ordered by consent that there be leave to deliver an amended grounds and particulars of claim in the terms sought, the order noting that the document had already been delivered. Leave was also given to the defendants to file an amended defence on or before 16 January 1989. Since then I have held that the learned Commissioner did have jurisdiction to give summary judgment.

1. The first question which arises is whether I should consider the application for summary judgment upon the basis of the original grounds and particulars of claim or on the basis of the amended form. The respondent's solicitor argued the former, because at the time the Commissioner said that he dismissed the application, only the original form existed, the order for amendment being made immediately after the order dismissing the application for summary judgment.

1. Order 15, r1 of the Rules of the Supreme Court authorises an application for summary judgment to be made "(w)here a statement of claim has been served on a defendant in an action to which this rule. applies and the defendant has entered an appearance in the action." As the Local Courts Act 1896 and its rules of practice make no express provision for applications for summary judgment, s138(2) of the Act applies. It provides that "the general principles of practice in the Supreme Court shall be adopted and applied". In accordance with this, I am of the view that grounds and particulars of claim stand in the place of a statement of claim and that a notice of defence stands in the place of an appearance. General principles dictate that an application for summary judgment should not be made until it is known whether the defendant intends to take some active part in the proceedings, or instead intends to do nothing and allow the plaintiff to obtain default judgment.

1. In Roberts v Plant [1895] 1 QB 597, an action upon a dishonoured cheque was commenced by the payee against the drawer. The writ was specially endorsed with a statement of claim which did not allege that notice of dishonour had been given to the drawer. The defendant entered an appearance and the plaintiff filed an application for summary judgment. At the first hearing of the application the defendant submitted that the endorsement was not good because of the omission to allege notice of dishonour. The hearing was adjourned. The plaintiff then, as entitled to do by the rules of practice , amended the endorsement by adding a statement that the defendant had notice of the dishonour of the cheque. The application for summary judgment was further heard and judgment was ordered. The Court of Appeal held, on appeal, that there being a good special endorsement at the time of the adjudication on the summons, the order was rightly made. I intend to follow that case. My function is to determine the application for summary judgment on its merits. It is unrealistic to suggest that I should determine it on the basis of a pleading which has been replaced by a different one. In Roberts v Plant (supra) it was argued that a fresh summons for summary judgment ought to have been taken out after the amendment. Lord Esher M R at p604 dealt with that argument as follows:— "Could there possibly be a more frivolous technicality? The result would be a mere waste of money."

1. I emphasise that I am determining the application on its merits for the first time. This is not a case of the Commissioner determining the application on its merits before the amendment was made. If such was the case and the appeal raised the question whether the decision on the merits was correct, I would have to determine that question without regard to the amendment. But such circumstances have not arisen here. Accordingly, I propose to consider the application upon the basis of the form of the amended grounds and particulars of claim.

1. The respondent's solicitor submitted that the application should be dismissed on the ground of delay in filing the application. As already stated it was filed on 7 October, which was about three months after the defence was filed on 4 July. The affidavit of Mr Hudson established that he has had the carriage of the plaintiff's file and that, having received the defence on 5 July, he was away on leave from 11 to 31 July, not having begun preparing for the application until his return. He attested to the fact that after then "short delays" were necessarily caused by the need to obtain materials from the appellant's archives for preparation of Mr Snowdon's affidavit, which was sworn on 29 September. Whether it should necessarily have taken over eight weeks to prepare and have sworn the affidavit, has not been established. Mr Hudson also attested that the appellant's solicitors received no communication from the respondent's solicitors between receipt of the defence and the filing of the application for summary judgment.

1. I follow what Cox J said in Deputy Commissioner of Taxation v Hobart Tug Company Pty Ltd 21/1986. There is nothing in O15 which requires an application to be made at any particular time or even within a reasonable time. A delay in applying, particularly where some other steps in the proceedings have been taken, or the defendant has been prejudiced, may persuade a Court to decline to grant the relief sought. However, in this case, the simple fact that it took three months for the application to be made after the defence was filed and served does not persuade me that the application should be dismissed.

1. The respondents have not sought to establish that they have an arguable defence to the appellant's claim.

1. After considering the amended grounds and particulars of claim and the affidavit of Mr Snowdon, I am satisfied that the appellant is entitled to judgment. The affidavit verifies the facts on which the claim is based and states that the deponent believes that the respondents have no defence. However, I will seek submissions as to the amount for which judgment should be given, particularly taking into account that the respondents may have made payments or that there may need to be a capitalisation of interest at some date. Hopefully agreement can be reached as to the amount of the judgment sum.