Freesport Pty Ltd v Salvato

[2011] QDC 191

[2011] QDC 191

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 3800 of 2010

FREESPORT PTY LTD

Plaintiff

and

CARLO SALVATO

and

ANTHONY SALVATO

Defendant

Defendant

BRISBANE

..DATE 12/08/2011

ORDER

CATCHWORDS

Uniform Civil Procedure Rules r 292

Summary judgement refused notwithstanding lack of affidavit material in support of the defences where plaintiff could not show any contractual entitlement to interest (claimed at 3.9% per month) and where the pleaded defence was that a debt agreed to be taken over was only $125,000, not $320,000 as allegedly represented - claim placed on commercial list and set down for early trial.
HIS HONOUR:  There's a summary judgment application before the court by the plaintiff which has been self-acting through its director, Mr Freeman, although today it was represented by Mr Rouyanian who has been a solicitor in private practice and now is employed by the plaintiff.  As always, it's helpful to the court to have parties represented by persons with legal skills. 

There are deficiencies in the plaintiff's pleadings, both the original statement of claim of claim which was too brief - too brief if one ignores the bulky attachments - and the new one which is probably too long and too confusing.

The defendant respondents, who essentially are sued for repayment of loan moneys and interest, and are inconveniently located in Sydney, have been self-acting except for the last mention of the matter in court before Judge Kingham on the 17th of June when a barrister, Ms McNeil, appeared for them.  Today Ms Jorgensen of Taylor Solicitors Caboolture appears for the defendants.  The second defendant has been in touch with my Associate in recent times when the possibility of a telephone appearance by him was apparently raised, he having difficulties, apparently, in coming from Sydney on short notice.  The court is pleased to have Ms Jorgensen here.  She suffers from the disadvantage of having no documents at all except for her clients' identical notices of intention to defend and defence which were filed on the 11th of April 2011 in response to the original statement of claim.  The court has provided her with copies of the original claim and the amended statement of claim filed on the 2nd of June.

The defendants in ordinary circumstances would not be well-placed to defend the summary judgment application.  There's no affidavit material from them.  I might say Ms Jorgensen asked for an adjournment of the summary judgment application, suggesting she'd need about a week.  It's certainly remiss of her clients not to have provided her with any information.  To the list of what she lacks or ought to be added Mr Freeman's affidavit of the 2nd of June 2011.

A curious story emerges from the material before the court of persons called Dutri, who purchased a property at 18 Carramatta place, Cronulla, in New South Wales on a basis which saw them indebted to the plaintiff.  They encountered difficulties in meeting the obligations they were said to have undertaken and, perhaps unsurprisingly, as the court was told, the interest rate was 10 per cent per month.  It appears that matters were resolved by the defendants being permitted, in the face of a caveat which the plaintiff had over the property, to become the registered owners of it.

The basis of that was their acknowledging themselves indebted to the plaintiff in the sum of $320,000, which is the basis of the claim before the addition of interest being charged at a default rate of 3.9 per cent per month simple.  At the date of filing of the claim in December last year the amount of interest claimed was $112,500.  Various other fees from a mercantile research company, New South Wales Land Department in respect of caveat, ASIC searches, and the like were also claimed.

The claim has now been expanded, at least so far as the statement of claim is concerned, I'm not sure about the claim, to amount to $435,952.95 by the 2nd of June 2011, the additional interest being claimed at "the Court rate of 10 per cent per annum simple" on what is called "the outstanding debt of $435,952.95". 

The plaintiff has made unsuccessful attempts to obtain default judgment which the Registrar twice refused on the basis that notices of intention to defend had been filed.

The defendants dispute the plaintiff's claim to interest.  Mr Rouyanian was unable to point to any written agreement for interest and indeed was apparently not in a position to assert any oral agreement for interest payable by the defendants.  The interest claimed at 3.9 per cent per month appears to be explained only by demands made in communications sent by Mr Freeman.  There's a clear issue in respect of interest, for one, that ought to be capable of easy resolution.  What the filed defences indicate is that the defendants committed themselves to the $320,000 figure on the basis that that was said to be what was owing by Dutri.  They now say that what was owing by Dutri was in fact $125,000, that the whole transaction was tainted by aspects of misleading and deceptive conduct and the like.  They have become the registered proprietors of the property and for all that appears have done so without paying anything.  It seems difficult in the larger picture to justify that.

The differences between the parties seem to me ones of a commercial nature capable of being sorted out quite easily by the court once evidence is given.  Doubtless cross-examination of witnesses upon their accounts will be required so that the truth can emerge or that's what one must hope.

As indicated, the defendants have not filed affidavit material.  I'm not sure whether their location in New South Wales explains their difficulties.  They haven't had terribly long to prepare for this application.  The court has a discretion about awarding summary judgment under rule 292 in the circumstances although the defendants haven't followed the usual course of providing sworn evidence of facts entitling them to defend.  The circumstances are sufficiently concerning and the plaintiff's material is sufficiently untidy to make the awarding of summary judgment today inappropriate.

I don't think it's appropriate either to adjourn it, that is, the summary judgement application, as Ms Jorgensen suggested.  If that course doesn't resolve the entire proceeding, the parties have been put to additional expense.  As it happens, it's possible for the court to offer trial dates in the very near future; indeed the week after next, so that matters can be finally resolved. 

It's somewhat oppressive to the defendants to find themselves sued in Queensland.  This is not only the case because they reside in Sydney but also the case because the proceeding is very much concerned with real estate in New South Wales and an existing caveat or caveats lodged by the plaintiff.  Nonetheless the defendants didn't take the steps they were entitled to, to complain about this court being the appropriate venue to determine the parties' dispute.

As far as I can tell there's no prejudice to either side, once it's accepted that the venue is Brisbane, in having an early trial.  My appreciation is that the crucial issues are extremely limited.

The orders are:

1. Order that the address for service of the defendants in accordance with a notice that Ms Jorgensen undertakes to file is Taylaw Solicitors, Level 1, 13-15 King street, Caboolture, Queensland, 4510, fax: [phone], email: [email protected]

2. Order that any amended defence in response to the amended statement of claim filed 2 June 2011 be served (electronically if appropriate) by 15 August 2011.

3. Order that any request for particulars made by either the plaintiff or defendants be responded to within 2 business days.

4. Order that the proceeding be placed on the Commercial List and set down for Trial on 25 and 26 August 2011.

5. Adjourn the plaintiff’s summary judgement application to Trial.

6. Costs reserved.

7. Order that the parties make disclosure by list by 18 August 2011.

8. Liberty to apply on notice.

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