Lindsay and Schneider v Kneipp - [2022] QDC 34

DISTRICT COURT OF QUEENSLAND

CITATION:

Lindsay & Schneider v Kneipp [2022] QDC 34

PARTIES:

DENIS BONAR LINDSAY & DIANNE MARY SCHNEIDER

(Plaintiff)

v

WENDY GUINEVERE HEIDI KNEIPP

(Defendant)

FILE NO:
116 of 2021

DIVISION:

Civil

PROCEEDING:

Judgment

ORIGINATING COURT:

District Court

DELIVERED ON:

4^th March 2022

DELIVERED AT:

Townsville

HEARING DATE:

13^th December 2021

JUDGE:

Coker DCJ

ORDERS:

1. That the plaintiffs have summary judgment against the defendant in the sum of $249,493.30 and that the defendant pay interest on the amount ordered by summary judgment from 26^th July 2018 until the debt is paid calculated in accordance with the interest rate prescribed in the loan agreements between the parties dated 26 August 2015 and 11 August 2016.

2. That the defendant pay the costs of the plaintiffs in terms as agreed pursuant to the loan agreements between the parties dated 26 August 2015 and 11 August 2016 and failing agreement to be taxed in accordance with the terms of the loan agreements.

CATCHWORDS:

PROCEDURE – RULES OF COURT – APPLICATION FOR SUMMARY JUDGMENT – where the plaintiffs lent money to the defendant to pay the defendant’s ongoing legal fees – where the nature of the loan and the terms of the agreement was set out in 2 loan agreements – where the plaintiffs seek summary judgment against the defendant for repayment of the loans, plus interest and costs – whether there should be summary judgment for the plaintiffs – applicable principles.

UNCONSCIONABLE CONUDCT – whether the lender under loan agreements drawn by the borrowers solicitors bore any responsibility to assess the borrowers capacity to repay the loans – whether the plaintiffs were in a stronger position than the defendant and took advantage of that position of strength – whether the defendant was at a special disadvantage.

PROCEDURE – RULES OF COURT – APPLICATION FOR CORRECTION OF MISNOMER – where application to correct the spelling of one of the plaintiff’s names is not opposed.

LEGISLATION:

Civil Proceedings Act 2011 (Qld), s 58
Uniform Civil Procedure Rules 1999 (Qld), r 292, r 375(3)

CASES:
Deputy Commissioner of Taxation v Salcedo [2005] 2 QCA 227, considered
Gray v Morris [2004] Qd R 118, considered
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87, cited
Jessup v Lawyers Private Mortgages Ltd [2006] QSC 3, cited
Greig & Anor v Commissioner of Taxation & Anor [2010] QSC 247, considered
Attorney-General of New South Wales v World Best Holdings Ltd [2005] 63 NSWLR, cited
Australian Securities and Investments Commission v National Exchange Pty Ltd [2005] 148 FCR 132, cited
Tonto Home Loans Australia Pty Ltd v Tavares [2011] NSWCA 389, cited
Jams 2 Pty Ltd & Ors v Stubbings (No 3) [2019] VSC 150, considered
Elkofairi v Permanent Trustee Co Ltd [2002] NSWCA 413, considered
Perpetual Trustees Aus Ltd v Schmidt & Anor [2010] VSC 67, considered

COUNSEL:
S. Kelly for the Plaintiff

D.M. Worrell for the Defendant

SOLICITORS:
Connolly Suthers for the Plaintiff

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: [2022] QDC 34
Decision Date: 4th March 2022

CaseChat Overview and Summary

The case of Lindsay and Schneider v Kneipp involved a dispute between the plaintiffs, Lindsay and Schneider, and the defendant, Kneipp. The plaintiffs sought summary judgment against the defendant for the repayment of loans made to the defendant, plus interest and costs. The loans were made to pay the defendant's ongoing legal fees and were documented in two loan agreements. The plaintiffs argued that the defendant had failed to repay the loans as per the terms of the agreements, and sought summary judgment to enforce the repayment.

The court was required to decide whether the plaintiffs were entitled to summary judgment and whether the defendant's conduct amounted to unconscionable behaviour. The court considered whether the plaintiffs, who had drawn up the loan agreements, had any responsibility to assess the defendant's capacity to repay the loans. The court also examined whether the plaintiffs had taken advantage of their position of strength and whether the defendant was at a special disadvantage. The court applied the relevant principles of law to determine the outcome of the case.

In its reasoning, the court found that the defendant had indeed failed to repay the loans as per the terms of the agreements. The court held that the plaintiffs were entitled to summary judgment for the repayment of the loans, plus interest and costs. The court also found that the defendant's conduct did not amount to unconscionable behaviour, and that the plaintiffs had not taken advantage of their position of strength or placed the defendant at a special disadvantage. The court granted the plaintiffs' application for summary judgment and ordered the defendant to repay the loans, plus interest and costs.

The final orders of the court included the grant of summary judgment in favour of the plaintiffs for the sum of $249,493.30, plus interest from 26 July 2018 until the debt is paid. The court also ordered the defendant to pay the costs of the plaintiffs as per the terms of the loan agreements, or, in the absence of agreement, to be taxed in accordance with the terms of the agreements. The court also granted the application to correct the spelling of one of the plaintiff's names.

Orders

Orders of the court

1. That the plaintiffs have summary judgment against the defendant in the sum of $249,493.30 and that the defendant pay interest on the amount ordered by summary judgment from 26th July 2018 until the debt is paid calculated in accordance with the interest rate prescribed in the loan agreements between the parties dated 26 August 2015 and 11 August 2016.

2. That the defendant pay the costs of the plaintiffs in terms as agreed pursuant to the loan agreements between the parties dated 26 August 2015 and 11 August 2016 and failing agreement to be taxed in accordance with the terms of the loan agreements.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Lindsay & Schneider v Kneipp [2022] QDC 34
PARTIES:	DENIS BONAR LINDSAY & DIANNE MARY SCHNEIDER (Plaintiff) v WENDY GUINEVERE HEIDI KNEIPP (Defendant)
FILE NO:	116 of 2021
DIVISION:	Civil
PROCEEDING:	Judgment
ORIGINATING COURT:	District Court
DELIVERED ON:	4^th March 2022
DELIVERED AT:	Townsville
HEARING DATE:	13^th December 2021
JUDGE:	Coker DCJ
ORDERS:	1. That the plaintiffs have summary judgment against the defendant in the sum of $249,493.30 and that the defendant pay interest on the amount ordered by summary judgment from 26^th July 2018 until the debt is paid calculated in accordance with the interest rate prescribed in the loan agreements between the parties dated 26 August 2015 and 11 August 2016. 2. That the defendant pay the costs of the plaintiffs in terms as agreed pursuant to the loan agreements between the parties dated 26 August 2015 and 11 August 2016 and failing agreement to be taxed in accordance with the terms of the loan agreements.
CATCHWORDS:	PROCEDURE – RULES OF COURT – APPLICATION FOR SUMMARY JUDGMENT – where the plaintiffs lent money to the defendant to pay the defendant’s ongoing legal fees – where the nature of the loan and the terms of the agreement was set out in 2 loan agreements – where the plaintiffs seek summary judgment against the defendant for repayment of the loans, plus interest and costs – whether there should be summary judgment for the plaintiffs – applicable principles. UNCONSCIONABLE CONUDCT – whether the lender under loan agreements drawn by the borrowers solicitors bore any responsibility to assess the borrowers capacity to repay the loans – whether the plaintiffs were in a stronger position than the defendant and took advantage of that position of strength – whether the defendant was at a special disadvantage. PROCEDURE – RULES OF COURT – APPLICATION FOR CORRECTION OF MISNOMER – where application to correct the spelling of one of the plaintiff’s names is not opposed.
LEGISLATION:	Civil Proceedings Act 2011 (Qld), s 58 Uniform Civil Procedure Rules 1999 (Qld), r 292, r 375(3)
CASES:	Deputy Commissioner of Taxation v Salcedo [2005] 2 QCA 227, considered Gray v Morris [2004] Qd R 118, considered Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87, cited Jessup v Lawyers Private Mortgages Ltd [2006] QSC 3, cited Greig & Anor v Commissioner of Taxation & Anor [2010] QSC 247, considered Attorney-General of New South Wales v World Best Holdings Ltd [2005] 63 NSWLR, cited Australian Securities and Investments Commission v National Exchange Pty Ltd [2005] 148 FCR 132, cited Tonto Home Loans Australia Pty Ltd v Tavares [2011] NSWCA 389, cited Jams 2 Pty Ltd & Ors v Stubbings (No 3) [2019] VSC 150, considered Elkofairi v Permanent Trustee Co Ltd [2002] NSWCA 413, considered Perpetual Trustees Aus Ltd v Schmidt & Anor [2010] VSC 67, considered
COUNSEL:	S. Kelly for the Plaintiff D.M. Worrell for the Defendant
SOLICITORS:	Connolly Suthers for the Plaintiff