Commonwealth Bank of Australia v Boothby
[2015] QDC 26
•19 February 2015
DISTRICT COURT OF QUEENSLAND
CITATION: Commonwealth Bank of Australia v Boothby [2015] QDC 26 PARTIES: COMMONWEALTH BANK OF AUSTRALIA ABN 4812312124
(plaintiff)
v
STEPHEN ATIS BOOTHBY
(defendant)and
GADENS LAWYERS ABN 30326450968
(defendant added by counterclaim)FILE NO: 306/14 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT:
Brisbane
DELIVERED ON: 19 February 2015 DELIVERED AT: Brisbane HEARING DATE: 27 January 2015 JUDGE: Reid DCJ
ORDERS: 1. That the defendant’s application be dismissed.
2. That the time for the hearing of the application of Gadens Lawyers filed 23 January 2015 be abridged, and that the application be heard on 27 January 2015.
3. That time for service of the application also be abridged, and that service thereof on the defendant be deemed effectual service.
4. That the defendant’s counterclaim against Gadens Lawyers be struck out without leave to replead.
5. That Gadens Lawyers be removed as a party to the proceedings.
6. That the defendant pay the costs of the plaintiff of the application filed 12 January 2015 to be assessed on an indemnity basis.
7. That the defendant pay the costs of Gadens Lawyers of and incidental to their joinder as a party to the proceedings, including the costs of the application filed 23 January 2015, all such costs to be assessed on an indemnity basis.
CATCHWORDS:
APPLICATION – where no reply and answer filed – defendant added by counterclaim – untenable claim – removal of party from proceedings – striking out of counterclaim without leave to replead
General Steel Industries Incorporated v Commissioner for Railways (1964) 112 CLR 125 – referred to
Stanley-Clarke v Australia Health Practitioner Regulation Agency & Anor [2012] QSC 250 – referred to
LEGISLATION:
Uniform Civil Procedure Rules 1999 rr 69, 171, 371
COUNSEL:
K. Gothard for the plaintiff
Defendant appeared on his own behalf
SOLICITORS:
Gadens Lawyers for the plaintiff
Defendant appeared on his own behalf
In this action the plaintiff has sued the defendant, who is self-represented, for recovery of possession of a property at Biloela and for recovery of a debt of $438,597.41, as at 16 January 2014, plus interest thereon pursuant to the terms of a loan agreement and mortgage. The defendant has filed a defence of 8 October 2014 denying his indebtedness and seeking removal of the mortgage from his certificate of title, damages for “threatening and harassing behaviour” and other relief. He also claims damages from the plaintiff’s solicitor, hereafter referred to as “Gadens Lawyers”, for “threatening and harassing behaviour”. Those solicitors are described in the material as “defendant added by counterclaim”.
Both the defendant and Gadens Lawyers filed applications returnable before me on 27 January 2015. The defendant’s application was filed on 12 January 2015. He sought the following orders:
1. “The defendant seeks relief from the plaintiff as per the defendants Defence and Counterclaim due to the fact that:
(a) The plaintiff failed to comply with the court order from Judge Samios dated 10th day of September of the year 2014, document number 24 of this matter, thus rendering the plaintiff’s claim as invalid;
(b) The plaintiff failed to file an answer to the defendants Defence and Counterclaim within the 14 day limit;
2. The defendant seeks to paid relief by the Defendant added by Counterclaim as per the defendants Defence and Counterclaim. This comes about by way of the fact the Defendant added by Counterclaim has failed to submit an Intention to Defend within the 28 day limit and has not shown any intention to defend the Counterclaim.”
Gadens Lawyers filed an application on 23 January 2015 seeking orders:
1. Abridging time for service of the application returnable on 27 January 2015;
2. Removing them from the proceedings pursuant to r 69(1)(a) of Uniform Civil Procedure Rules 1999 (Qld) (UCPR) or, alternatively;
3. Striking out the counterclaim against them filed 8 October 2014 against them be struck out pursuant to r 171 of UCPR.
The defendant did not oppose the abridgment of time sought, but opposed the orders otherwise sought by Gadens Lawyers.
The plaintiff and Gadens Lawyers submitted that the defendant’s application ought to be dismissed because:
(a) The plaintiff complied with the orders of Samios DCJ;
(b) The failure to file a reply and answer by Gadens Lawyers within 14 days of service was an irregularity only which can be cured under r 371 of UCPR; and
(c) Gadens Lawyers may file a defence at any time before judgment, and the defendant’s claim against them was, in any case, unsustainable.
It is necessary to briefly note some of the history of the matter.
After the claim was filed and served, the defendant entered a conditional notice of intention to defend and defence. The defendant did not however file the requisite application under r 16 of UCPR. Consequently the plaintiff obtained judgment by default on 25 May 2014. On 16 July of that year the court set aside the default judgment. The defendant was given 21 days in which to file a defence. The defendant did not do so. Instead, he filed an application on 30 July 2014 seeking a stay of the proceedings until such time as:
(a) the jurisdiction of the court was established; and
(b) the plaintiff produced proof of claim and verification of the debt.
The plaintiff filed a cross-application for default judgment.
On 10 September 2014 Samios DCJ ordered:
(a) the plaintiff within 14 days post to the defendant a true copy of the loan agreement and mortgage and a calculation of the sum claimed;
(b) the defendant file a defence within 28 days.
The plaintiff submits it complied with those orders on 24 September 2014 when it sent to the defendant an affidavit of Charmaine Mary Lester filed on 25 September 2014. She is an employee of the plaintiff. Exhibited to the affidavit were what she described as true copies of the Loan Agreement (Exhibit CML-1) and of the Mortgage (Exhibit CML-2). Exhibit CML-3 was the loan account calculation for the defendant’s loan as at 23 September 2014 (the amount owing at the time of the order of Samios DCJ). Exhibit CML-4 was a calculation of the payout figure as at 16 January 2014 (when proceedings were instituted).
On 8 October the defendant filed its defence and counterclaim. Importantly, in his defence, he:
(a) admits the loan agreement;
(b) denies the mortgage because he says he had only been provided with a copy of it and of its terms and conditions;
(c) denies the principal sum had been advanced because, he alleges, his statement shows a debit entry and not a credit entry, which, he says, would have occurred if the sum had been advanced.
In his counterclaim, the defendant seeks orders for:
(a) removal of the mortgage;
(b) damages for $1.1m for “threatening and harassing behaviour”;
(c) the return of funds paid to the plaintiff on settlement of the property at Collingwood Park;
(d) damages against Gadens Lawyers for $1.1m, again for “threatening and harassing behaviour”.
The pleading is largely irrelevant and nonsensical. I am unable to understand any defence on the basis of any claim against Gadens Lawyers.
The plaintiff filed its reply and answer only on 10 December. Gadens Lawyers has not yet filed a defence to the counterclaim against them, but filed a cross-application, as I have earlier said, seeking their removal from the proceedings or, alternatively, that the defendant’s counterclaim against them be struck out.
The defendant’s application for relief from the plaintiff’s claim appears to be based on the assertion that the claim is invalid by reason of the plaintiff’s non-compliance with the order of Samios DCJ. This submission appears to be based on the defendant’s view that the documents provided were photocopies and not “true and verified” copies. Ms Lester’s affidavit attests to their authenticity. The documents are admissible as business records pursuant to s 92 of the Evidence Act.
In any case, even if that were not so, that would not entitle the defendant to judgment.
The defendant also asserts that he is entitled to judgment because the plaintiff’s reply and answer to the defence and counterclaim was not filed until 10 December 2014, more than 14 days after service thereof.
In circumstances where it was delivered long before any trial and where there was no prejudice to the defendant, failure to file a reply within 14 days is merely an irregularity. To the extent it is required, I declare that the filing of the plaintiff’s reply and answer on 10 December 2014 and its subsequent service on the defendant constitute effectual filing and service of that document.
Gadens Lawyers have also cross-applied for orders striking out the defendant’s claim against them and that they be removed from the proceeding.
Before considering that application, it is necessary to consider Gadens Lawyers’ application for abridging time for the hearing of their application. The defendant did not oppose such an order. I would in any case make it. No prejudice is suggested. r 7(2) of UCPR effectually provides that a court may shorten time set under the rules. It is appropriate that that be done. To do otherwise would unnecessarily delay the disposition of this matter.
The claim against Gadens Lawyers is set out at page six of the defendant’s counterclaim. In it, he alleges:
(a) No contract exists between the defendant and Gadens Lawyers;
(b) Gadens Lawyers “are a third party interloper not involved in any commercial arrangement between the plaintiff and the defendant”;
(c) The defendant has “obligations” to Gadens Lawyers;
(d) Gadens Lawyers issued a default notice “despite being aware that the defendant had no obligation towards them”;
(e) The defendant enquired whether proof of claim had been provided to Gadens Lawyers by the plaintiff, and if not, what basis was there for issuing the default notice;
(f) The defendant stated that seeking to enforce the default notice “would been seen to be threatening and harassing behaviour”;
(g) Gadens Lawyers had acted in “threatening, harassing and coercive behaviour” (presumably because they sought to enforce the default notice);
(h) Gadens Lawyers committed criminal offences against s 399(b) of the Criminal Code, by fraudulently concealing documents.
The allegations are nonsensical. The defendant fails to disclose any basis for joining Gadens Lawyers as a party to the proceedings. Furthermore, I conclude that the claim to join Gadens Lawyers as a party is so untenable that the defendant should not be given an opportunity to replead (see General Steel Industries Incorporated v Commissioner for Railways (1964) 112 CLR 125 at 130 and Stanley-Clarke v Australia Health Practitioner Regulation Agency & Anor [2012] QSC 250 per McMeekin J).
In the circumstances, I order:
1. The defendant’s application is dismissed.
2. Time for the hearing of the application of Gadens Lawyers filed 23 January 2015 be abridged, and that application be heard on 27 January 2015.
3. Time for service of the application also be abridged, and service thereon on the defendant be deemed valid service.
4. The defendant’s counterclaim against Gadens Lawyers be struck out without leave to replead.
5. Gadens Lawyers be removed as a party to the proceedings.
6. The defendant pay the costs of the plaintiff of his application filed 12 January 2015 to be assessed on an indemnity basis.
7. The defendant pay the costs of Gadens Lawyers of and incidental to their joinder as a party to the proceedings, including the costs of their application filed 23 January 2015, all such costs to be assessed on an indemnity basis.
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