John Patrick Davey v Valerie Herbst - [2013] HCASL 36

JOHN PATRICK DAVEY
v
VALERIE HERBST & ORS
[2013] HCASL 36
C1/2012

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.
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.
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.
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.
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.
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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] HCASL 36
Decision Date

CaseChat Overview and Summary

In this case, John Patrick Davey, the applicant, appealed against a series of judgments that were made in the Magistrates Court, Supreme Court, and Court of Appeal of the Australian Capital Territory. The judgments related to a loan agreement executed in 2005 between Davey, the third respondent, and the first respondent, Valerie Herbst. Herbst sought to recover amounts owing under the loan agreement through the Magistrates Court. Davey and the third respondent appealed the decisions of the Magistrates Court, Supreme Court, and Court of Appeal. The High Court of Australia was asked to grant special leave to appeal against the decision of the Court of Appeal.

The legal issues that the High Court of Australia considered were whether the amendments to the statement of claim were appropriate and whether the loan agreement was enforceable. The Court of Appeal had dismissed the appeal and awarded indemnity costs, rejecting the claim that the amendment to the statement of claim was not appropriate and that the deed was entered into under duress.

The High Court of Australia held that the application for special leave was without merit. The Court held that the Court of Appeal had correctly applied well-established principles to the findings of fact. The interests of the proper administration of justice did not warrant the grant of leave. The Court also held that the first respondent should have indemnity costs as the application was doomed to failure. The Court directed the Registrar to draw up, sign and seal an order dismissing the application with costs on an indemnity basis.

Therefore, the High Court of Australia dismissed the application for special leave and ordered that the first respondent should have indemnity costs.

Orders