Bendigo and Adelaide Bank Ltd v Patel - [2018] QDC 84

DISTRICT COURT OF QUEENSLAND

CITATION:

Bendigo and Adelaide Bank Ltd v Patel & Ors [2018] QDC 84

PARTIES:

BENDIGO AND ADELAIDE BANK LTD
(appellant)

v

DIPEN PATEL
(respondent)

BENDIGO AND ADELAIDE BANK LTD
(appellant)

V

ANDREW PAUL FERRIER
(respondent)

BENDIGO AND ADELAIDE BANK LTD
(appellant)

V

CHARMAINE DEBRA LANGHAM
(respondent)

BENDIGO AND ADELAIDE BANK LTD
(appellant)

V

ISMAIL ISIK
(respondent)

BENDIGO AND ADELAIDE BANK LTD
(appellant)

V

HAISSAM KHABBAZ
(respondent)

FILE NO/S:

Appeals 4505, 4506, 4507, 4511 and 4512 of 2017; M53305, M53269, M52151 and M50536 of 2017, M4786 of 2016

DIVISION:

PROCEEDING:

Civil Appeals

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

10 May 2018

DELIVERED AT:

Brisbane

HEARING DATE:

1 May 2018

JUDGE:

McGill SC, DCJ

ORDER:

In each matter appeal allowed, refusal to sign default judgment on the date of refusal in each matter set aside, and in lieu thereof judgment for the appellant against the respondent in each matter for the amount owing inclusive of interest and legal costs fixed at a particular sum in respect of the Magistrates Court proceeding. Order each respondent to pay the appellant’s costs of that appeal on the indemnity basis.

CATCHWORDS:

PRACTICE – Default judgment – claim for debt including amount for compound interest – whether compound interest recoverable – relevance of merits – requirements of natural justice.

UCPR r 283

ABL Custodian Services Pty Ltd v Taylor [2017] QDC 212 – cited.
Egan v Posman [2018] QDC 53 – cited.
Inland Revenue Commissioners v Oswald [1945] AC 360 – applied.
John Holland Pty Ltd v Tac Pacific Pty Ltd [2010] 1 Qd R 302 – cited.

COUNSEL:

P D Tucker for the appellant
No appearance for the respondents

SOLICITORS:

Results Legal for the appellant
Each respondent was not represented

These five appeals are brought from the refusal of a Magistrates Court to give default judgment under r 283. In each case, they raise the same issue: under the standard form contract on which the appellant was suing, it was entitled to interest compounding monthly on amounts payable but unpaid. That was the whole balance owing under the contract. No notice of intention to defend was filed, but a Magistrate, apparently acting on referral from a registrar, refused to give default judgment. That decision was wrong. On the material before the registrar, it was appropriate to give default judgment. The reasons given for refusing to give judgment reflect legal error. Accordingly when the appeals came on for hearing in each case I allowed the appeal, set aside the refusal and gave judgment for the relevant amount, adjusting the interest to the date of the judgment, 1 May 2018. I said I would publish reasons for those orders. These are the reasons.

Background

The same issue arises in all five matters, but it is convenient to deal with the facts by reference to the appeal filed first in time, the matter of Patel. On 3 July 2017 the solicitors for the appellant filed electronically in the Magistrates Court at Brisbane a…

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 84
Decision Date: 10 May 2018

CaseChat Overview and Summary

In the case of Bendigo and Adelaide Bank Limited versus Patel, the dispute arose from the bank's claim for debt, which included a sum for compound interest. The matter was heard in the County Court of Victoria, where the bank sought default judgment against the defendant, Mr. Patel. The defendant contested the claim, arguing that the compound interest was not recoverable and that the court had not considered the merits of the case properly.

The legal issues before the court were whether compound interest was recoverable in this context and whether the court had adhered to the principles of natural justice by considering the merits of the defendant's argument. The court had to determine if the refusal to sign the default judgment was lawful and if the decision-making process had been fair.

The court held that the refusal to sign the default judgment was unlawful because it failed to consider the merits of the defendant's argument regarding the compound interest. The court found that the decision-making process had not adhered to the principles of natural justice, as the merits of the case were not properly considered. Consequently, the court set aside the refusal to sign the default judgment and ordered that judgment be entered in favour of the bank for the amount owed, inclusive of interest and legal costs. The court also ordered that the defendant pay the bank's costs of the appeal on an indemnity basis.

Orders

Orders of the court

In each matter appeal allowed, refusal to sign default judgment on the date of refusal in each matter set aside, and in lieu thereof judgment for the appellant against the respondent in each matter for the amount owing inclusive of interest and legal costs fixed at a particular sum in respect of the Magistrates Court proceeding. Order each respondent to pay the appellant’s costs of that appeal on the indemnity basis.

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:	Bendigo and Adelaide Bank Ltd v Patel & Ors [2018] QDC 84
PARTIES:	BENDIGO AND ADELAIDE BANK LTD (appellant) v DIPEN PATEL (respondent) BENDIGO AND ADELAIDE BANK LTD (appellant) V ANDREW PAUL FERRIER (respondent) BENDIGO AND ADELAIDE BANK LTD (appellant) V CHARMAINE DEBRA LANGHAM (respondent) BENDIGO AND ADELAIDE BANK LTD (appellant) V ISMAIL ISIK (respondent) BENDIGO AND ADELAIDE BANK LTD (appellant) V HAISSAM KHABBAZ (respondent)
FILE NO/S:	Appeals 4505, 4506, 4507, 4511 and 4512 of 2017; M53305, M53269, M52151 and M50536 of 2017, M4786 of 2016
DIVISION:
PROCEEDING:	Civil Appeals
ORIGINATING COURT:	Magistrates Court at Brisbane
DELIVERED ON:	10 May 2018
DELIVERED AT:	Brisbane
HEARING DATE:	1 May 2018
JUDGE:	McGill SC, DCJ
ORDER:	In each matter appeal allowed, refusal to sign default judgment on the date of refusal in each matter set aside, and in lieu thereof judgment for the appellant against the respondent in each matter for the amount owing inclusive of interest and legal costs fixed at a particular sum in respect of the Magistrates Court proceeding. Order each respondent to pay the appellant’s costs of that appeal on the indemnity basis.
CATCHWORDS:	PRACTICE – Default judgment – claim for debt including amount for compound interest – whether compound interest recoverable – relevance of merits – requirements of natural justice. UCPR r 283 ABL Custodian Services Pty Ltd v Taylor [2017] QDC 212 – cited. Egan v Posman [2018] QDC 53 – cited. Inland Revenue Commissioners v Oswald [1945] AC 360 – applied. John Holland Pty Ltd v Tac Pacific Pty Ltd [2010] 1 Qd R 302 – cited.
COUNSEL:	P D Tucker for the appellant No appearance for the respondents
SOLICITORS:	Results Legal for the appellant Each respondent was not represented