John Patrick Davey v Valerie Herbst

[2013] HCASL 36

JOHN PATRICK DAVEY

v

VALERIE HERBST & ORS

[2013] HCASL 36
C1/2012

1. In 2008, the first respondent brought proceedings in the Magistrates Court of the Australian Capital Territory against the applicant and the third respondent seeking to recover amounts owing under a loan agreement formalised by a deed executed in 2005.  On 14 December 2009, a Registrar of the Magistrates Court entered summary judgment for the first respondent in the amount of $39,247.44 plus interest.

2. The applicant and third respondent filed an appeal against the Registrar's decision.  On 28 April 2010 and before the appeal was determined, Doogan M in the Magistrates Court granted the first respondent leave to amend her statement of claim to accurately reflect the nature of the debt she sought to recover.  On 4 May 2010, Doogan M dismissed the appeal with costs. His Honour held that there was no substance to arguments that the loan agreement was not legally enforceable or that it should be set aside for duress.

3. On 20 July 2011, the Supreme Court of the Australian Capital Territory (Gray J) dismissed an appeal by the applicant and the third respondent from those orders with costs.  The Court of Appeal (Higgins CJ, Penfold and Rares JJ) dismissed an appeal from the decision of Gray J and awarded indemnity costs.  It rejected the claim that Doogan M should not have permitted an amendment to the first respondent's statement of claim to permit her to proceed in her own right and without joining her husband's estate.  The issue had not been contested by the applicant and Gray J was correct to refuse leave to reopen it.  There was no error in his Honour's finding that the deed was not entered into under duress.  The claim of illegitimate pressure was doomed to fail and was tantamount to an abuse of the process of the Court.

4. The application for special leave is without merit.  It concerns the application of well-established principles to findings of fact.  The interests of the proper administration of justice do not warrant the grant of leave. Special leave is refused.

5. The first respondent seeks an order for costs on an indemnity basis.  She points out that the initial claim was for a small sum, out of proportion to the costs involved in the successive appeals and the application to this Court.  This application was also doomed to failure.  In all the circumstances, the first respondent should have indemnity costs.

6. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs on an indemnity basis.

S.M. Kiefel
13 March 2013 S.J. Gageler