Citigroup Pty Limited v Burchard

[2019] QDC 23

DISTRICT COURT OF QUEENSLAND

CITATION:

Citigroup Pty Limited v Burchard [2019] QDC 23

PARTIES:

CITIGROUP PTY LIMITED (ACN 004 325 080)
(Plaintiff)

v

JENNIFER MAY BURCHARD
(Defendant)

FILE NO/S:

593/18

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

14 February 2019 (delivered ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

14 February 2019

JUDGE:

Porter QC DCJ

ORDER:

1.     Dismiss the application.

2.     The defendant pay the plaintiff’s costs of the application on the standard basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – DEFAULT JUDGMENT – where the plaintiff sought recovery of possession of property following mortgage default – where default judgment was entered against the defendant – where the plaintiff was issued enforcement warrant – where the defendant now applies to set aside the default judgment and for other declarations – whether judgment should be set aside and other declarations made.

Cases

Commonwealth Bank of Australia v Jackson (1992) V ConvR 54-447

Embrey v Smart [2014] QCA 75

Legislation

Land Title Act 1994 (Qld) s 78

Uniform Civil Procedure Rules 1999 (Qld) r 5

COUNSEL:

B A Reading for the plaintiff

Defendant, J M Burchard, appearing in person

SOLICITORS:

HWL Ebsworth for the plaintiff

The application

1. On 11 January 2019 Jennifer May Burchard filed an application in this court.  The application named the plaintiff, in substance, as the respondent.  The application sought six orders from this court (paraphrasing):

(1)           That the plaintiff’s Citibank Mortgage Power loan product on her two accounts be reinstated with interest arrears capitalised, instead of being classified as in default;

(2)           That excessive and unnecessary legal charges be reversed from the account balances and that the plaintiff meet its own legal costs; 

(3)           That any adverse credit reference reports filed by the plaintiff or any party authorised by them against her be removed; 

(4)           That the enforcement warrant for eviction [sic, possession] of her and for possession of her home and land at 81 Lambros Drive, Benowa, be set aside; 

(5)           That the default judgment dated 16 February 2018 for repayment of the loan principal, including capitalised interest and for possession of her home be repealed [sic, set aside]; and

(6)           That the plaintiff provide ongoing finance to her, secured against her home on a flexible loan product, which she can manage at a reasonable rate of interest for the duration of the original contract without application and other costs, and without onerous provisions. 

Background to the application

1. That application was filed in the following context.

1. Ms Burchard is the registered proprietor of a property located at 81 Lambros Drive, Benowa, Queensland (the property).  It is a residential house property.  She is the registered proprietor.  On 3 August 2006, the plaintiff lent Ms Burchard two sums, one of $171,000 and one of $151,400.  Pursuant to the terms of the loan agreement, she agreed to make monthly repayments of those sums and pay interest on the loan monies.  On 4 September 2006, she executed,…