Chen v Australian and New Zealand Banking Group Ltd

[2001] QCA 519

[2001] QCA 519

COURT OF APPEAL

McPHERSON JA
MACKENZIE J
MULLINS J

Appeal No 2531 of 2001

WEI XIN CHEN (ABN 93 586 746 984)       Plaintiff/Appellant

and

AUSTRALIAN AND NEW ZEALAND
BANKING GROUP LIMITED
(ABN 005 357 522)          First Defendant/First Respondent

and

KENMORE MANAGEMENT PTY LTD
(ABN 005 709 478)        Second Defendant/Second Respondent

BRISBANE

..DATE 20/11/2001

JUDGMENT

MULLINS J: This is an appeal by the appellant from orders made by her Honour Justice Atkinson on 22 February 2001 striking out the statement of claim under rule 171 of the UCPR on the basis that no reasonable cause of action is disclosed and granting summary judgment in favour of the respondent under rule 293 of the UCPR.

In order to put this proceeding in context, it is necessary to set out some of the earlier events and proceedings involving the parties.  On 16 October 1998 the appellant completed her purchase of a townhouse being unit 6 at 28 Stackpole Street, Wishart in Wishart Village and being lot 6 on GTP3782 in the county of Stanley parish of Bulimba, to which I shall refer as "the property", for the sum of $140,000 and the management rights for Wishart Village for the sum of $55,000.

The appellant had obtained approval for a loan of $112,000 from the respondent in connection with the purchases and executed a bill of mortgage on 28 September 1998 in favour of the respondent in respect of the loan which was provided to enable the completion of the appellant's purchases.  The bill of mortgage was lodged for registration on 5 November 1998 under number 702991204 over the property.

The mortgage shows that the appellant was the mortgagor.  It appears that the appellant took possession of the property after completion of her purchase and commenced exercising the rights which had been assigned to her under the management agreement and letting agreement for Wishart Village.

The appellant did not make any of the payments which were required to be made under the mortgage.  The respondent commenced proceeding number 8088 of 1999 in this Court for recovery of possession of the property and obtained judgment in default of the appellant's filing a notice of intention to defend.  After obtaining an enforcement warrant the respondent recovered possession of the property on 4 December 1999. 

As the appellant successfully regained possession with the assistance of locksmiths on three separate occasions, the respondent ultimately obtained an interlocutory injunction from this Court on 21 March 2000 restraining the appellant from entering upon or coming within 100 metres of the property.

In the meantime, the body corporate for Wishart Village took steps at a meeting on 26 October 1999 to terminate the appellant's management agreement and letting agreement.  The appellant and the respondent then negotiated a settlement of their respective claims against each other which resulted in the appellant's paying to the respondent the sum of $30,278 in respect of amounts claimed by the respondent under the mortgage and the respondent's allowing the appellant to retake possession of the property on 6 April 2000 on the basis that she use her best endeavours to sell the property within six months of the deed of agreement and that, whilst she remained in occupation of the property, she would pay $830 each month in reduction of the moneys owing under the mortgage.

The copy of this deed of agreement which is exhibited to the affidavit of Mr M J Crouch filed on 7 February 2001 in proceeding number 10789 of 2000 is undated but shows that it was signed by the appellant in the presence of her then solicitor, Mr Christopher Toogood. 

The appellant seeks to rely on the fact that the copy of the deed in the material has not been signed by the respondent.  The respondent clearly acted pursuant to the deed in allowing the appellant back into possession of the property.  This deed also contains an acknowledgment by the appellant as to the validity of the subject mortgage and that the amount of $117,086.19 was owing under the mortgage by the appellant as at 14 July 1999.

As no payments were then made by the appellant under the mortgage after being allowed to resume possession of the property, the respondent commenced proceeding number 6890 of 2000 in this Court to obtain a further order for recovery of possession of the property.  Judgment in default of a defence was entered against the appellant on 19 September 2000.  Recovery of possession by the respondent was obtained pursuant to an enforcement warrant issued on 3 October 2000. 

Subsequently the appellant unsuccessfully sought an injunction to restrain the respondent's taking possession of the property.  The order pursuant to which the respondent recovered possession in October 2000 was not only made in default of any defence by the appellant, but the appellant did not seek to set that order aside.  Instead, the appellant commenced proceeding number 10789 of 2000 seeking recovery from the respondent of the losses she claims to have suffered as a result of the respondent's retaking possession of the property and the inability of the appellant to continue to conduct the businesses which she had conducted from the property.

In the statement of claim, the appellant makes allegations of misconduct against officers of this Court and the respondent which are not supported by any evidence.  The appellant asserts that no moneys were lent to her by the respondent, but makes no attempt to deal with the deed which she executed in about March 2000 acknowledging the amount of the loan and existence of the mortgage nor the signing of the subject mortgage by the appellant. 

In the hearing of the appeal today, the appellant conceded that she was the owner of the property, although the appellant was still contending that she had no evidence of the making of the loan to her by the respondent.

It should be noted that solicitors acted for the appellant in the purchase of the property.  The statement of claim also raises issues in respect of the claim made by the appellant in Brisbane District Court plaint number 838 of 1998 which was settled by her in February 2000 and the claims made in that action have no relevance to the issues between the appellant and the respondent.

The statement of claim raises allegations about the value of the loss of the Wishart Village management business.  To the extent that the loss of that business was a consequence of the respondent's recovering possession of the property, no claim for that loss can be pursued against the respondent, unless the appellant can attack the action of the respondent in recovering possession of the property for which no basis has been shown by the appellant. 

There is no basis for the appellant to raise against the respondent the allegations made in the statement of claim relating to the alleged breaches of the Body Corporate and Community Management Act 1997 relating to the appellant's management agreement for Wishart Village and to the conduct of the body corporate at Wishart Village.

The grounds of appeal seek to agitate allegations similar to those set out at length in the statement of claim.  Nothing which is raised in the statement of claim, the grounds of appeal, the appellant's additional material or the outlines of argument in connection with the appeal including the supplementary outline of argument tendered by the appellant at the commencement of the hearing today casts any doubt on the correctness of the decision at first instance.

The appellant also filed an application in this Court on 1 August 2001 seeking an order that she retake possession of the property and for recovery of loss of income and other orders related to the same matters which are sought to be agitated in this appeal.  Apart from the lack of any procedural basis for the filing of such an application, there is nothing in the material which gives any support whatsoever to the claims that underlie that application. 

It, therefore, follows that the application filed on 1 August 2001 should be dismissed and the appeal should be dismissed.
...
McPHERSON JA:  I agree with the reasons that have been delivered by Justice Mullins and also that the appeal and the application should be dismissed, each with costs.

MACKENZIE J:  I agree.

McPHERSON JA:  The order of the Court is that the appeal is dismissed with costs and the application is dismissed with costs and this Court is adjourned.

-----