Ge Finance Australasia Pty Ltd v Abbott

[2016] VCC 1345

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for publication

AT MELBOURNE

COMMERCIAL DIVISION
BANKING & FINANACE LIST

Case No. CI-04-04731

GE FINANCE AUSTRALASIA PTY LTD	Plaintiff
v.
JOHN MURRAY ABBOTT	Defendant

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JUDGE:	His Honour Judge Anderson
WHERE HELD:	Melbourne
DATE OF HEARING:	8 September 2016
DATE OF JUDGMENT:	13 September 2016
CASE MAY BE CITED AS:	GE Finance Australasia Pty Ltd v. Abbott
MEDIUM NEUTRAL CITATION:	[2016] VCC 1345

REASONS FOR JUDGMENT

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Catchwords:             Practice and procedure – Application to set aside default judgment entered in December 2004 – Application to set aside judgment made in January 2005 dismissed in May 2005 – Summary judgment entered for the plaintiff in December 2005 in subsequent Supreme Court proceeding arising from the same matters – No further relevant material filed in present application – Application dismissed.    

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M. D Tehan of Counsel	King & Wood Mallesons
For the Defendant	Mr J. Abbott (in person)

HIS HONOUR:

1John Abbott has made application to set aside a judgment entered against him in this Court on 7 December 2004 in default of defence. A previous application to set aside the judgment made by Mr Abbott by summons filed 5 January 2005 was dismissed by order made by His Honour Judge Stott on 9 May 2005.

2The application in 2005 was supported by an affidavit sworn by Mr Abbott on 31 December 2004 (“the 2004 affidavit”). The present application, by summons filed 22 August 2016 is supported by two affidavits sworn by Mr Abbott on 11 May 2016 and 5 July 2016.

3The application in 2005 and the present application raised two matters by way of defence:

a.the capacity of the plaintiff to sue;

b.whether any money was owing by Mr Abbott to the plaintiff at the time of the judgment.

4In relation to the capacity of the plaintiff to sue:

a.the proceeding was issued by writ dated 5 October 2004 in the name of “Australian Guarantee Corporation Pty Ltd (ACN 000 015 485) formerly trading as Australian Guarantee Corporation Ltd”;

b.in the 2004 affidavit, Mr Abbott asserted his understanding that “Australian Guarantee Corporation Limited ceased to be a legal identity when GE [GE Finance Australasia Pty Ltd] purchased it from Westpac and then had it registered as Australian Guarantee Corporation Pty Ltd”;

c.the ASIC historical company extract in relation to ACN 000 015 485 shows that:

i.from 18 June 1925 to 24 July 2002, the name of the company was Australian Guarantee Corporation Limited, being an Australian public company;

ii.from 25 July 2002 to 14 October 2004, the name of the company was Australian Guarantee Corporation Pty Ltd and it was an Australian proprietary company;

iii.from 15 October 2004, the name of the company has been GE Finance Australiasia Pty Ltd, an Australian proprietary company.

5When the writ was issued on 5 October 2004, the plaintiff was appropriately described as “Australian Guarantee Corporation Pty Ltd (ACN 000 015 485)” although the words which followed, “formerly trading as Australian Guarantee Corporation Ltd”, were suplusage.

6At the time the default judgment was entered on 7 December 2004, it would have been appropriate to correct the name of the plaintiff. It was not, however, a matter which affected the validity of the judgment, either then or now.

7In relation to the issue of whether Mr Abbott was indebted to the plaintiff, the following matters are relevant:

a.the writ claimed $162,530.70 together with interest and costs in respect of Mr Abbott’s failure to repay advances made by the plaintiff pursuant to a business line of credit provided on about 28 March 2001;

b.in the 2004 affidavit, Mr Abbott said that it was his intention, if the judgment were set aside, “to vigorously contest the alleged debt as the debt was completed and closed by AGC on the 30/12/2001 as indicated in the BUSINESS LINE OF CREDIT MONTHLY STATEMENT from AGC… If the court considers that my closing balance as at 20/12/2001 with “AGC” LTD was zero and that “AGC” was subsequently sold to GE Finance in June 2002 (WHO THEN RE-REGISTERED AGC AS AGC PTY LTD) then GE Finance could not have purchase (sic) my account where there was no account … I have been assured by GE Finance that GE Finance have no claim whatsoever against me… I have no doubt whatsoever that I do not owe a debt to GE Finance Pty Ltd (presently known as GE Money) and ask that I be given the opportunity to make the Applicant prove their claim that I am in some way indebted to GE Finance Pty Ltd”.

8The 2004 affidavit exhibited a monthly statement to 30 December 2001 which showed, at that date, the “total closing balance” as “$0.00”.

9Mr Abbott’s application to set aside the judgment was dismissed by Judge Stott on 9 May 2005. In the present application, the summons filed 22 August 2016 and the affidavits sworn by Mr Abbott on 11 May 2016 and 5 July 2016 were not served on the plaintiff until 29 August 2016. An answering affidavit was filed by the plaintiff, sworn by its solicitor Samantha Jane Kinsey on 7 September 2016 (“the Kinsey affidavit”).

10The material before the Court on 8 September 2016 did not, in my view, further advance the matters that were before Judge Stott when he rejected the first application made in January 2005. It is appropriate, however to refer to the following further material:

a.at the hearing on 8 September 2016, Mr Abbott handed up 3 further monthly statements for his business line of credit, for the periods to 30 July 2001, 30 August 2001 and 30 September 2001. The statement to 30 July 2001 contains the following entries:

“Opening balance @ 9.5%		$163,889.91
05/07/2001	ADJUSTMENT	$92,1370.50 CR
05/04/2001	ADJUSTMENT	$468.71 CR
05/07/2001	ADJUSTMENT	$22,450.00 CR
05/07/2001	ADJUSTMENT	$47,532.99 CR
27/07/2001	REPAYMENT, THANK YOU	$1,300.72 CR
30/07/2001	TOT. INTEREST 9.5%	$220.72
Total closing balance as at 30/07/01		$220.71”

A series of small adjustments over the next two months left a credit balance of $1.20. An adjustment on the statement for the period to 30 December 2001 resulted in the nil balance;

b.in the Kinsey affidavit, it is noted that in June 2005, the plaintiff (GE Finance Australasia Pty Ltd) commenced a separate proceeding against Mr Abbott in the Supreme Court of Victoria seeking an order for possession of the properties which secured the advance to Mr Abbott pursuant to the business line of credit (“the secured property”). The statement of claim in the proceeding noted that as at 20 June 2005, the balance owing by Mr Abbott was $178,162.52;

c.the Kinsey affidavit exhibits the following documents from the Supreme Court proceeding namely, the statement of claim, Mr Abbott’s defence, a summary judgment application, the affidavit in support of the application sworn on 9 November 2005 by John Boyden, the Vice President Strategic Asset Finance Group of the plaintiff (“the Boyden affidavit”), the affidavit in response sworn by Mr Abbott on 8 December 2005 and the order of Master Evans made on 16 December 2005 granting summary judgment to the plaintiff for possession of the security property;

d.the Boyden affidavit included the following statements:

i.“28. In or about May 2001, the plaintiff inadvertently transferred the defendant’s loan from its Commercial ICBS Accounting System (ICBS), to the plaintiff’s Merchant Clearing Account (Merchant Clearing) within its Consumer Balance Sheet”;

ii.“29. In so transferring the defendant’s loan, the plaintiff inadvertently credited the defendant’s account and produced a business line of credit monthly statement dated 30 December 2001 indicating that the total closing balance of the Loan Agreement was $0.00 (the statement). The statement was then posted to the defendant”;

iii.“42. By letter dated 25 February 2004 David Attwood from Australian Guarantee Corporation wrote to the defendant … In that letter amongst other things David Attwood referred to an amount of $162,589.20 as being owing, and that the defendant’s loan had been inadvertently moved to the wrong general ledger”;

iv.“43. On or about 5 October 2004 the plaintiff via its previous solicitors Rotman & Morris issued County Court Proceeding no. CI-14-04731 against the defendant seeking payment in the sum of $162,530.70”;

v.“44. On 7 December the plaintiff obtained default judgment for debt against the defendant (County Court Default Judgement)”;

vi.“47. I am informed by Mr St.John Hibble of Counsel who appeared on behalf of the Plaintiff at the return date of the Defendant’s Summons, and verily believe that on 9 May 2005 His Honour Judge Stott dismissed the Defendant’s Summons and the defendant was ordered to pay the Plaintiff’s costs fixed in the sum of $968”;

vii.“48. I am informed by Mr St.John Hibble of Counsel, and verily believe that in dismissing the Defendant’s Summons to set aside the Default Judgment for Debt His Honour Stated that:

a.   there was no basis to set aside the judgment;

b.   if the Plaintiff had been paid as claimed by the Defendant, then it would be a simple matter for the Defendant to provide evidence of that;

c.   the Defendant had attempted to rely on erroneous statements issued by the Plaintiff, but those statements did not show that the debt had been paid; and

d.   the Defendant provided no evidence that the debt had been paid”;

e.in the Kinsey affidavit, it is stated that, “Shortly after the granting of the Possession Order, the defendant and the plaintiff negotiated an arrangement pursuant to which [the defendant] paid all amounts owing to the [plaintiff] (namely, $229,267.30, which included the principal sum owed to the [plaintiff] in respect of both the Debt Recovery Proceeding and the Possession Order). As consideration for that payment, the [plaintiff] discharged its mortgage over the Secured Property”.

f.Mr Abbott, in his affidavit sworn 5 July 2016, exhibited two letters he had received from Ms Agi Ferguson, a Senior Customer Resolution Officer with GE Money, dated 16 July 2015 and 7 August 2015. In his submissions to the Court on 8 September 2016, Mr Abbott referred to the following statements in the letters:

i.in the letter dated 16 July 2015, “As discussed with you during our telephone conversation yesterday, please accept this letter as confirmation that your AGC Account was not transferred to GE Money as the Account had been paid out”;

ii.the letter dated 7 August 2015, “As discussed with you during our telephone conversation on the 16^th July 2015 and confirmed by letter, your AGC Account was not transferred to GE Money. The Account had been paid out prior to the purchase of AGC, therefore, GE Money did not receive any payments for the Account”;

g.in the Kinsey affidavit, it is stated that, “the [plaintiff] has issued many communications to the [defendant]. The letters sent to the [defendant] by Ms Agi Ferguson on 16 July 2015 and 7 August 2015 contain several statements which are inaccurate. The [plaintiff] has since sought to clarify these statements by way of further letter sent by the [plaintiff] to the [defendant] on 7 September 2016. The letter includes, inter alia, the following statements:

‘By way of clarification of Ms Ferguson’s statements, when AGC was acquired by GE, your AGC Account continued to be held with AGC and came under the management of AGC’s Commercial Finance division, not GE Money (being the retail division of GE). Ms Ferguson’s statement that the AGC Account had been paid out prior to the purchase of AGC is incorrect. As discussed with you on various other occasions, the AGC Account was not paid out prior to the acquisition of AGC by GE.

As you are aware, your AGC Account was paid out by you on or around 11 January 2006 as consideration for the release of the mortgage held by AGC over the properties located at 23-25 Leslie Street, Brunswick and 8-14 Russell Street, Brunswick in the State of Victoria. These funds were received by AGC and applied in discharge of all amounts owing by you on the AGC Account and as such, GE (and AGC) consider that all matters with you have been resolved and finalised’”;

h.the Kinsey affidavit further stated, “… there is no longer any debt owing by the [defendant] to the [plaintiff]. The [plaintiff] provided a discharge of its registered Mortgage in exchange for full repayment of that debt by the [defendant]. As such the Default Judgment has been fully satisfied and the [plaintiff] no longer has any security over the Secured Property”;

11During Mr Abbott’s submissions, I indicated to him that I would, in the absence of any new evidence that he had made the payments marked as “adjustments” in the monthly statement for the period to 31 December 2001, be bound to follow the decisions reached by Judge Stott and in the Supreme Court proceeding.

12Later, Mr Abbott sought an adjournment of his application for a period of two months so that he could investigate the matter further to see if there was any alternative explanation for the “adjustments”. I refused the application for an adjournment as I considered that any such investigations should have been made before the present application was made.

13I dismissed Mr Abbott’s application and delivered brief oral reasons for my decision. At his request, I have prepared these written reasons which will be emailed to the parties.

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Certificate

I certify that the preceding 6 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 13 September 2016.

Dated:  13 September 2016

Carla Cianfaglione   

Associate to His Honour Judge Anderson