Capital at Call Pty Ltd v Toumpas

[2009] QDC 260

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 1928 of 2008

CAPITAL AT CALL PTY LTD

Plaintiff

and

KATHERINA TOUMPAS

and

STEPHEN JOHN PAUL MITCHELL

Defendant

BRISBANE

..DATE 30/06/2009

ORDER

CATCHWORDS: District Court of Queensland Act 1967 s 85 - Mortgagee's claim for recovery of possession of mortgaged property and a money judgment in excess of the court's jurisdiction by consent transferred to Supreme Court in accordance with compromise of the defendant's application for striking out

HIS HONOUR: The Court grants leave to Mr Hickey, representing the plaintiff's new solicitors, Elliott May, to read and file counterparts of a "consent order", one signed for his firm, the other signed for the solicitors for the respective defendants, which transfers the proceeding to the Supreme Court pursuant to section 85(2) of the District Court of Queensland Act 1967, the parties to bear their own costs.

The plaintiff's original solicitors made what appears to be an egregious error in filing a claim in the District Court which seeks an order for recovery of possession of property and also the sum of $409,653.88 plus interest and costs.

On its face that claim, which is in terms pursued in both the claim and the prayer for relief in the statement of claim, exceeds the monetary limit of the District Court's jurisdiction as it stands at present; this Court could not, in the absence of consent to enlargement of its jurisdiction by the defendants, which isn't forthcoming, have granted that monetary relief.

The defendants have disputed the jurisdiction of Court and the plaintiff, having seen the error of its former ways, accepts that it ought to proceed in the Supreme Court. Subsection (2) authorises a transfer only if its application is not prevented by subsections (4) or (5).

There is no material before the Court to indicate how the mistake happened. More importantly subsections (4) and (5) in the present circumstances ought to be treated as a protection to defendants wrongly brought to this Court. They have taken a cooperative, understanding attitude in the circumstances, not seeking costs and indeed accepting that the parties should bear their own costs of and incidental to the application filed the 9th of June 2009.

That is an application by the defendants for the striking out of the proceeding under section 85(4) and costs, alternatively, a transfer under subsection (2) and costs. The application invited the plaintiff to file a notice abandoning excess. The compromise reached and the way in which it's been brought to the Court's attention ought to be acceded to by the Court.

In the circumstances the parties have limited costs effectively by the arrangement which means that only Mr Hickey turns up today.

...

HIS HONOUR: So the Court will order pursuant to section 85(2) of the District Court of Queensland Act that the proceeding be transferred to the Supreme Court of Queensland at Brisbane, and that the parties bear their own costs of and incidental to the defendants' application filed the 9th of June 2009.

-----

CaseChat Overview and Summary

The parties involved in this case are Capital at Call Pty Ltd, the plaintiff, and Katerina Toumpas and Stephen John Paul Mitchell, the defendants. The dispute revolves around a mortgagee's claim for recovery of possession of mortgaged property and a monetary judgment. The case was initially filed in the District Court of Queensland but was later transferred to the Supreme Court due to the monetary claim exceeding the District Court's jurisdiction. The defendants disputed the jurisdiction of the Court, and the plaintiff acknowledged the error in filing the claim in the District Court.

The legal issue before the court was whether the proceeding should be transferred to the Supreme Court as per section 85(2) of the District Court of Queensland Act 1967. The court was required to decide if the application for transfer should be granted, considering the defendants' application for striking out the proceeding and the costs associated with the application. The court had to examine the circumstances surrounding the error in filing the claim and whether the defendants were prejudiced by the error.

The court decided to transfer the proceeding to the Supreme Court as per section 85(2) of the District Court of Queensland Act 1967. The court acknowledged that the defendants had taken a cooperative and understanding attitude in the circumstances and accepted that the parties should bear their own costs. The court noted that the defendants had not sought costs and had instead agreed to a compromise that effectively limited the costs. The court considered the circumstances and acceded to the compromise reached by the parties.

The court granted leave to Mr. Hickey, representing the plaintiff's new solicitors, to read and file counterparts of a "consent order" which transferred the proceeding to the Supreme Court. The parties were ordered to bear their own costs of and incidental to the defendants' application filed on the 9th of June 2009. The court concluded that the proceeding be transferred to the Supreme Court of Queensland at Brisbane, and the parties bear their own costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established