Barker v GE Mortgage Solutions Limited - [2013] QCA 137

SUPREME COURT OF QUEENSLAND

CITATION:

Barker v GE Mortgage Solutions Limited [2013] QCA 137

PARTIES:

CAROL ELLENA BARKER
(appellant)
v
GE MORTGAGE SOLUTIONS LIMITED
ACN 070 797 894
(respondent)

FILE NO/S:

Appeal No 11663 of 2012
DC No 525 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

31 May 2013

DELIVERED AT:

Brisbane

HEARING DATE:

2 May 2013

JUDGES:

White JA and Philippides and Ann Lyons JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Dismiss the appeal.

2. The appellant pay the respondent’s costs of the appeal.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES – SUMMARY JUDGMENT – where appellant in default under loan agreement – where respondent was granted summary judgment – where appellant alleges mortgage broker misrepresented appellant’s income to respondent – whether appellant has a real prospect of successfully defending respondent’s claim pursuant to UCPR – whether trial judge applied relevant consumer credit legislation – whether trial judge gave due and proper regard to the provisions of the consumer credit legislation – whether mortgage broker was respondent’s agent – whether trial judge erred in failing to grant an adjournment so that the mortgage broker could be joined as a party

Consumer Credit Code (Qld), s 70, s 74(2), s 117
Consumer Credit(Queensland) Act 1994 (Qld)
National Credit Code (Cth), s 76
National Consumer Credit Protection Act 2009 (Cth)

Australian Society Group Financial Services (NSW) Ltd v Bogan [1989] ASC 55-938, cited
Custom Credit Corporation Ltd v Lynch [1993] 2 VR 469; [1993] VicRp 86, cited
Hilton v Gray [2008] ASC 155-094; [2007] QSC 401, cited
Kowalczuk v Accom Finance Pty Ltd (2008) 77 NSWLR 205; [2008] NSWCA 343, cited
Morlend Finance Corporation (Vic) Pty Ltd v Westendorp [1993] 2 VR 284; [1993] VicRp 72, cited
RHG Mortgage Corporation Ltd v Sava [2011] QSC 372, cited
West v AGC (Advances) Ltd (1986) 5 NSWLR 610, cited

COUNSEL:

The appellant appeared on her own behalf
J P Morris for the respondent

SOLICITORS:

The appellant appeared on her own behalf
Gadens Lawyers for the respondent

WHITE JA: I have read the reasons for judgment of Philippides J in which she comprehensively canvasses the arguments advanced by the appellant. I agree with her Honour for those reasons that the appeal should be dismissed with costs.

PHILIPPIDES J:

The applications at first instance

The appellant, Carol Ellena Barker, was the defendant in proceedings in the District Court brought by the respondent, GE Mortgage Solutions Limited, as plaintiff in respect of a claim for money due and owing under a loan agreement and for recovery of possession of certain property, provided as security for the loan. The property in question concerns land situated at 9 Tortuga Street, Deception Bay in the State of Queensland, being Lot 151 on RP 226901 in the county of Stanley,…

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: [2013] QCA 137
Decision Date: 31 May 2013

CaseChat Overview and Summary

Barker, the appellant, faced off against GE Mortgage Solutions Limited, the respondent, in a case before the court of appeal. Barker defaulted on a loan agreement and the respondent was granted summary judgment. Barker's appeal centred on whether the trial judge correctly assessed if Barker had a real prospect of successfully defending the respondent's claim under the Uniform Civil Procedure Rules, if the consumer credit legislation was properly considered, and if the trial judge erred in not allowing a postponement to join the mortgage broker as a party. The appeal also questioned if the mortgage broker was the respondent's agent.

The court had to determine if the trial judge properly applied the Uniform Civil Procedure Rules in assessing whether Barker had a real prospect of defending the respondent's claim. It also had to consider if the trial judge gave appropriate weight to the consumer credit legislation. Further, the court needed to examine whether the mortgage broker was the respondent's agent and if the trial judge was wrong in not granting an adjournment for the broker to join as a party. The court needed to decide if the trial judge's decision was based on a correct interpretation of the law and if all relevant factors were taken into account.

The court found that the trial judge correctly applied the Uniform Civil Procedure Rules and the consumer credit legislation. The court held that the trial judge properly assessed Barker's chances of successfully defending the claim. The court also concluded that the trial judge did not err in deciding that the mortgage broker was not the respondent's agent and that no adjournment was required. The appeal was dismissed, with Barker ordered to pay the respondent's costs of the appeal.

The court's final orders were to dismiss the appeal and for Barker to pay the respondent's costs of the appeal. The court found that the trial judge's decision was well-reasoned and in accordance with the law. The appeal did not succeed, and Barker was left to bear the respondent's costs of the appeal.

Orders

Orders of the court

1. Dismiss the appeal.

2. The appellant pay the respondent’s costs of the appeal.

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:	Barker v GE Mortgage Solutions Limited [2013] QCA 137
PARTIES:	CAROL ELLENA BARKER (appellant) v GE MORTGAGE SOLUTIONS LIMITED ACN 070 797 894 (respondent)
FILE NO/S:	Appeal No 11663 of 2012 DC No 525 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	31 May 2013
DELIVERED AT:	Brisbane
HEARING DATE:	2 May 2013
JUDGES:	White JA and Philippides and Ann Lyons JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Dismiss the appeal. 2. The appellant pay the respondent’s costs of the appeal.
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES – SUMMARY JUDGMENT – where appellant in default under loan agreement – where respondent was granted summary judgment – where appellant alleges mortgage broker misrepresented appellant’s income to respondent – whether appellant has a real prospect of successfully defending respondent’s claim pursuant to UCPR – whether trial judge applied relevant consumer credit legislation – whether trial judge gave due and proper regard to the provisions of the consumer credit legislation – whether mortgage broker was respondent’s agent – whether trial judge erred in failing to grant an adjournment so that the mortgage broker could be joined as a party Consumer Credit Code (Qld), s 70, s 74(2), s 117 Consumer Credit(Queensland) Act 1994 (Qld) National Credit Code (Cth), s 76 National Consumer Credit Protection Act 2009 (Cth) Australian Society Group Financial Services (NSW) Ltd v Bogan [1989] ASC 55-938, cited Custom Credit Corporation Ltd v Lynch [1993] 2 VR 469; [1993] VicRp 86, cited Hilton v Gray [2008] ASC 155-094; [2007] QSC 401, cited Kowalczuk v Accom Finance Pty Ltd (2008) 77 NSWLR 205; [2008] NSWCA 343, cited Morlend Finance Corporation (Vic) Pty Ltd v Westendorp [1993] 2 VR 284; [1993] VicRp 72, cited RHG Mortgage Corporation Ltd v Sava [2011] QSC 372, cited West v AGC (Advances) Ltd (1986) 5 NSWLR 610, cited
COUNSEL:	The appellant appeared on her own behalf J P Morris for the respondent
SOLICITORS:	The appellant appeared on her own behalf Gadens Lawyers for the respondent