Chen v ANZ Banking Group Ltd

[2001] QSC 43

SUPREME COURT OF QUEENSLAND

CITATION:

Chen v Australian & New Zealand Banking Group Ltd & Anor [2001] QSC 043

PARTIES:

WEI XIN CHEN (ABN 93 586 746 984)
(plaintiff)
v
AUSTRALIAN AND NEW ZEALAND BANKING GROUP LIMITED (ACN 005 357 522)
(first defendant)
KENMORE MANAGEMENT PTY LTD
(ACN 005 709 478)
(second defendant)

FILE NO/S:

S10789 of 2000

DIVISION:

Trial Division at Brisbane

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland, Brisbane Registry

DELIVERED ON:

22 February 2001

DELIVERED AT:

Brisbane

HEARING DATE:

16 February 2001

JUDGES:

Atkinson J

ORDER:

Application granted. Statements of Claim struck out. Summary judgment given in favour of first defendant.

CATCHWORDS:

PROCEDURE – PRACTICE UNDER UNIFORM CIVIL PROCEDURE RULES - STATEMENT OF CLAIM – STRIKING OUT – SUMMARY JUDGMENT- application for order striking out statements of claim pursuant to r 171 Uniform Civil Procedure Rules – application for summary judgment pursuant to r 293 Uniform Civil Procedure Rules – whether statements of claim are intelligible and disclose reasonable cause of action such as to conform with r 149 Uniform Civil Procedure Rules – whether deficiencies in form and content are capable of amendment

Uniform Civil Procedure Rules, rules 149, 171, 293

General Steel Industries Inc v Commissioner for Railways (NSW)(1964) 112 CLR 125

COUNSEL:

The plaintiff appeared in person
M Kent for the first defendant

SOLICITORS:

Nicol Robinson Halletts for the first defendant

1. This is an application by the first defendant (ANZ Bank) for an order that the Statement of Claim be struck out pursuant to r 171 of the Uniform Civil Procedure Rules (UCPR) and for summary judgment against the plaintiff pursuant to r 293 of the UCPR. The jurisdiction to enter summary judgment in favour of the defendant because the Statement of Claim does not disclose a cause of action should of course be exercised sparingly.[1]  The jurisdiction to dismiss the plaintiff’s action should only be exercised where the plaintiff cannot improve its position by a proper amendment of the pleading.  It would appear that this is such a case.

   [1]General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129

1. The factual background to this case is that on 28 September 1998 an agreement was entered into between the plaintiff and the first defendant whereby the first defendant lent the amount of one hundred and twelve thousand dollars ($112,000.00) to the plaintiff to assist in the purchase of a unit at 6/28 Stackpole Street, Wishart (the unit) and the management rights to a development located at that address.  The security for the loan was a first registered standard mortgage given by the plaintiff over the unit.  Settlement of the purchase of the unit was effected on 16 October 1998.

1. The plaintiff made default in monthly repayments and on 19 October 1999 the first defendant obtained a default judgment against the plaintiff.  On 12 November 1999 the first defendant obtained an Enforcement Warrant and possession was recovered by the first defendant on 4 December 1999. 

1. The plaintiff was allowed to retake possession of the property after she agreed to make a payment to ANZ Bank.  That payment was not made and a Notice of Exercise of Power of Sale was served on the plaintiff by the first defendant on 30 June 2000.  On 3 October 2000 an Enforcement Warrant was obtained against the plaintiff and possession was taken of the property.

1. On 15 November 2000 the plaintiff unsuccessfully applied to this Court to restrain the first defendant from taking possession. On 8 December 2000, the plaintiff then commenced an action by Claim in which she filed the Statement of Claim which is the subject of this application made by the first defendant. The plaintiff also relies on a further Statement of Claim in this matter. The Statement of Claim contains a number of wild allegations and poses a number of questions rather than briefly stating all the material facts on which the plaintiff relies to make out a cause or causes of action. It does not conform to the requirements of r 149 of the UCPR. The deficiencies in the form and content are not remedied in the Further Statement of Claim.

1. The Statements of Claim are unintelligible and do not disclose a cause of action.  It appears that no surgery could solve the problem and that no amendment to the Statement of Claim on the facts as presently known or pleaded could sustain any cause of action. 

[7] Accordingly it is appropriate to strike out the Statement of Claim pursuant to rule 171(1)(a) of the UCPR and to grant summary judgment in favour of the first defendant pursuant to r 293(2)(a) of the UCPR.