BOQ Equipment Finance v. Thomas

[2008] QDC 192

[2008] QDC 192

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 2364 of 2007

BOQ EQUIPMENT FINANCE	Plaintiff
and
ALAN JAMES THOMAS and RHONDA MARGARET THOMAS	Defendants

BRISBANE

..DATE 23/07/2008

ORDER

CATCHWORDS: Uniform Civil Procedure Rules r 171, r 292 - judgment ordered on basis defendants had no prospect of successfully defending and there being no need for a trial, rather on the basis of striking out a defective defence

HIS HONOUR:  The defendants haven't appeared when called.  That's unsurprising as the Court has from them a facsimile communication which came in two days ago advising inability to attend the Court today, "owing to work commitments".  What was sought was an adjournment to a later date, "to enable us to complete arrangements with our solicitor to act on our behalf."  A request was made of the Court that advice be given of the "new date" so that the solicitor could be instructed accordingly.

Mr Cooke, appearing for the plaintiff/applicant which seeks judgment under rule 292, or alternatively judgment in default on the basis of the notice of intention to defend and defence being struck out, was unaware of the defendants' communication to the Court. His instructions to proceed today were confirmed.  There may be an appearance of lack of consideration for the defendants in the Court's refusal of an adjournment; however, it's difficult to think that anything would be gained by it in all the circumstances.  Those include the defendants' having at an earlier stage engaged solicitors Messrs Grant and Simpson who sent correspondence on their behalf.  The firm subsequently ceased to be retained and appear to have played no part in the filing of documents by the defendants which are in the Magistrates Court form with the heading changed. 

On 15th of October 2007 there was filed a joint notice of intention to defend and defence.  The former document should perhaps have been identified as conditional.  It makes two points.  The first, "The claim made by the plaintiff has not been substantiated to the defendant as to the total amount of monies paid on the debt or monies paid to the plaintiff after the date the goods were repossessed."  The other that the proceedings were not started in the correct District Court and ought to have been started in Emerald where the defendants reside and carry on business.  That latter aspect is now irrelevant.  There is a single District Court of Queensland and the relevant geographical jurisdictional area is the whole of the State.  It has of course always been open to the defendants to seek a transfer of this proceeding instituted in Brisbane to Emerald.  That's not what they've done.

The attached defence is almost entirely useless, being replete with blanks that ought to have been completed if the document was to be at all informative, although it does contain the assertion that "No amount of monies paid off debt has ever been substantiated to defendants."  There may be grounds here to strike out the pleading under rule 171.  In my view that would not really advance the plaintiff's position.  The practice of the Court would require that the defendants be given an opportunity to re-plead in more appropriate form.  So I treat the application as one under rule 292. 

On material put before the Court, the defendants have no and are not likely to be able to conjure up any real prospect of successfully defending the plaintiff's claim and there is no need for a trial of it in Brisbane, Emerald or anywhere else.  It appears to be an all too typical case of agricultural type equipment being made available to the defendants, here on the basis of chattel lease arrangements, which as events turned out could not be utilised in a sufficiently productive way to fund the satisfaction of the financial obligations undertaken to the finance provider.  Under the relevant agreements an amount of $33,000 or thereabouts was to be paid on the 21st of July 2004, that to be followed by six semi-annual instalments of about $17,500.  The agreement date was 21st of October 2003.

The agreement which is in evidence contemplated title being acquired to the equipment for an agreed residual value of $44,000 payable on 21st of October 2007.  The initial instalment was not paid until the 24th of March 2005. The plaintiff advised its intention to terminate the lease agreement within days of the default in July 2004.  From that point its demand was for the full payment of the outstanding amount, which for all that appears accorded with its contractual entitlements.  The defendants' assertion that monies they paid have not been accounted for is not supported by, indeed is contradicted by, material before the Court.

The material acknowledges rental payments in amounts in excess of $10,000, $35,000 and $15,000 respectively between 2nd of December 2004 and 24th of March 2005 which are acknowledged in the claim.  The plaintiff merits no criticism for not having acknowledged a further $3,000 amount paid on the 22nd of October 2007, which is of course after the commencement of the proceeding.  The plaintiff's claim today has been adjusted downwards to give appropriate credit for that payment.

In the circumstances, it's appropriate for the judgment to be ordered today.  The defendants will have the usual right of anyone in whose absence orders are made to approach the Court to seek to have them set aside or challenged if that's what the law or the interests of justice should require. 

I alluded to, without going into any detail about them above, the filing of further documents on the 15th of October 2007, one by each of the defendants.  Those simply relate to sworn assertions that to enable the defendants to attend the proceedings they ought to be in Emerald and take the matter no further. Ordinarily one would expect sworn material from defendants in an application by a plaintiff under rule 292 indicating some factual basis for the issues which are to be tried.  There's nothing of that kind here and no basis whatever, so far as I could see, for speculating that there might be something the defendants could come up with.

There will be an order in terms of the initialled draft which is that the defendants suffer a judgment under rule 292 for $87,414.09 which includes interest of $7,428.78.  There's also an order for costs. 

‑‑‑‑‑