Australian Central Credit Union v Malone - [2008] NTMC 70

CITATION: Australian Central Credit Union v Malone [2008] NTMC 070

PARTIES: AUSTRALIAN CENTRAL CREDIT UNION

TERENCE JAMES MALONE

TITLE OF COURT: Local Court

JURISDICTION: Local Court

FILE NO(s): 20804128

DELIVERED ON: 30 October 2008

DELIVERED AT: Darwin

HEARING DATE(s): 29 September 2008

JUDGMENT OF: Jenny Blokland CM

CATCHWORDS:

Practice and Procedure – Application for Default Judgement – “Reasonable Enforcement Expense” – Interest on Interest - Local Court Rule 39 –
Small Claims Rule 25

Consumer Credit Act (NT)
District Court Act

Spain v The Union Steamship Company of New Zealand Ltd (1923) 32 CLR 138
Jovista Pty Ltd T/As SDR Construction v T O’Connor and Sons Pty Ltd, SA (SC), 18 February 1993, (unreported)
Geeveekay Pty Ltd, Keogh and Keogh v Director of Consumer Affairs Victoria, [2008] VSC 59
Hansmar Investments Pty Ltd v Perpetual Trustee Co Ltd [2007] NSWSC 103
Credit Corporation Ltd v Dalton and Others

REPRESENTATION:

Counsel:
Plaintiff: Ms Tillman
Defendant: N/A

Solicitors:
Plaintiff: Cridland MB Lawyers
Defendant: N/A

Judgment category classification:
Judgment ID number: [2008] NTMC 070
Number of paragraphs: 16

IN THE LOCAL COURT
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA

No. 20804128

BETWEEN:

AUSTRALIAN CENTRAL CREDIT UNION
Plaintiff

AND:

TERENCE JAMES MALONE
Defendant

REASONS FOR DECISION

(Delivered 30 October 2008)

JENNY BLOKLAND CM:
Introduction
1. These proceedings sought judgement on the outstanding balance on a loan agreement between the plaintiff and the defendant filed 7 February 2008 in the Small Claims jurisdiction of the Local Court. The original claim for $3803.36 plus interest at $1.33 per day has not been finalised due to two outstanding issues. Firstly, the question of whether “reasonable enforcement expenses” not particularised in the Statement of Claim but included in the total sum claimed could be included in a default judgement without being set down for assessment for damages. The second issue is whether the judgement sum may include “interest on interest”, as although prohibited under the Small Claims Rules (“SCR”) r 25.04, (in the same terms to Rule 39.03 Local Court Rules (“LCR”), the question is whether this is a case that admits of the exception under SCR 25.04(3)(c). The learned Judicial Registrar referred the application for default judgement to a Magistrate to be heard: (Reasons for Judgment, 21 August 2008). The Defendant was served with the Statement of Claim but has not entered an appearance or defence and did not appear at the hearing.
Reasonable Enforcement Expense
2. The Statement of Claim includes “reasonable enforcement expenses for which the defendant is liable under the Loan Agreement”. The “reasonable enforcement expenses” are not particularised, however the loan agreement between the plaintiff and the defendant is annexed to the affidavit of Bronwyn Alice Kitson sworn 22 July 2008. The loan agreement (Annexure “A”) to the affidavit of Bronwyn Alice Kitson provides at para 14:
“14. Enforcement Expenses
14.1 We may charge you enforcement expenses we reasonably incur. We may debit these to your loan account.
14.2 An enforcement expense includes an expense for doing any of the following…

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: [2008] NTMC 70
Decision Date: 30 October 2008

CaseChat Overview and Summary

In the Local Court of the Northern Territory, the Australian Central Credit Union filed a claim against Terence James Malone for the outstanding balance on a loan agreement. The original claim was for $3803.36 plus interest at $1.33 per day. The case was heard by Chief Magistrate Jenny Blokland who was tasked with resolving two key issues: whether "reasonable enforcement expenses" could be included in a default judgement without being specifically detailed in the Statement of Claim, and whether the judgement sum could include "interest on interest". The defendant did not appear or enter a defence.

The Court found that the reasonable enforcement expenses were permitted by the terms of the Loan Agreement and could be included in the debt claimed. The Court determined that the debt claimed was a liquidated amount as it could be ascertained by calculation or fixed by any scale or charges, or other positive data. The Magistrate concluded that if there were any uncertainty in ascertaining the sum, there is still a discretion to set the matter down for assessment but in this case, it was not necessary. The Court also found that the Terms of the Loan Contract permitted the interest to be added according to its terms and that the plaintiff could enter final judgment against the defendant for an amount not exceeding the amount claimed in the statement of claim together with interest from the commencement of the proceeding up to and including the date of judgment.

The Magistrate ordered that default judgement be entered for $3,803.36 together with interest at the rate of 12.75% per annum from 5 February 2008 until entry of judgement. Further, the plaintiff was awarded 10% interest on the judgment sum inclusive of pre judgment interest. The matter was listed for 30 October at 3.30pm where the final orders were made after provision of the calculations.

Orders