Malvyn Gregory Taylor and Brigitte Roswitha Taylor v Australia and New Zealand Banking Group Limited No. 4187 Judgment No. SCGRG 93/827 Number of Pages 5 Appeal Appeal from Summary Judgment

[1993] SASC 4187

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J

CWDS
Appeal - appeal from summary judgment - Defendants in person complained that they had not been given sufficient opportunity to obtain and consider particulars of substantial claim by bank with respect to indebtedness on various accounts relating to farming operations before Master granted application for summary judgment - no proper affidavit of merits placed on file at any stage of the proceedings - much material on file, and concessions made during the hearing of the appeal made it plain that adequate particulars had been given. Supreme Court Rules R.25.01 and 25.03

HRNG ADELAIDE, 15 September 1993 #DATE 15:9:1993
Appellants:                 In person
Counsel for respondent:     Mr A.J. Besanko
Solicitors for respondent: Knox and Hargrave

ORDER
Appeal dismissed.

JUDGE1 PERRY J In this matter, the plaintiff, Australian and New Zealand Banking Group Ltd, sues the defendants, Malvyn Gregory Taylor and Brigitte Roswitha Taylor, and a company, Maldarcarie Pastoral Co Pty Ltd, for substantial sums said to be due to it on accounts with the plaintiff. The proceedings were issued out of this Court by inter party summons on 14 May 1993. The summons was endorsed pursuant to Rules 25.01 and 25.03, with the result that the defendants were required to file an affidavit that they had a good defence on the merits, if they wished to avoid the entry of judgment against them. 2. At the same time as the issue of the inter party summons, an application for summary judgment was filed. 3. It appears that those documents were served on the defendants between 14 May 1993 and 31 May 1993, as it was on the latter date that notices of appearance were filed by the defendants Malvyn Gregory Taylor and Maldarcarie Pastoral Co Ltd ("Maldarcarie"). 4. On 16 June 1993, in the absence of the defendants, the application for summary judgment came on for mention before Master Bowen Pain. He adjourned the application to 30 June 1993 to coincide with the first hearing of the application for directions, which was to be held on that date. On that occasion the first named defendant, Mr Malvyn Taylor, was permitted to appear for all three defendants. The Court gave directions, including a direction that the defendants have leave to file affidavits in reply on or before 23 July 1993 and, at the same time, the application for summary judgment was fixed for hearing at 2.15 p.m. on 5 August 1993 before Judge Kelly. 5. Notwithstanding the fact that Mr Taylor was present when that order was made, no affidavits in reply were filed before the due date, that is, before 23 July 1993. 6. At an earlier stage, Mr Taylor had asked for some particulars of the claim to be given by the defendant bank. Particulars were given by letter dated 14 April 1993. There was a further letter dated 30 April 1993 from Maldarcarie requesting particulars of how the figure was reached pursuant to s.55b of the Law of Property Act. There followed a letter in reply dated 12 May 1993 from Knox and Hargreave, solicitors for the plaintiff, to Maldarcarie enclosing a list and summary of the relevant accounts. On 23 July 1993 there was a further letter from Knox and Hargreave to Maldarcarie giving further particulars of how the balance of the debt was arrived at. Knox and Hargreave wrote again on 3 August 1993 to Maldarcarie enclosing copies of the bank statements of the overdraft account of first and second named defendants, comprising over 100 pages, encompassing the period between 28 June 1984 to 30 April 1991. 7. On 4 August 1993 Mr W.H. Hall, solicitor, gave notice that he was acting in the matter for the defendants. The address of Maldarcarie is an address at 8 Brighton Road, Glenelg, which is an address which the defendant, Brigitte Taylor, indicates as her address for service in a notice that she is acting personally in the matter in lieu of Mr Hall, which was filed in this Court on 23 August 1993. 8. The application for summary judgment duly came on for hearing before Judge Kelly on 5 August 1993. He was confronted with a situation in which the only affidavit from any of the defendants was an affidavit of Mr Malvyn Taylor filed on 4 August 1993, shortly before the hearing. At the hearing Judge Kelly was asked by Mr Hall, on behalf of the defendants, to adjourn the matter. 9. In ex tempore reasons for judgment, which he went on to pronounce, Judge Kelly said:
    "I am now told that a Mr W. Hall, solicitor, has filed
    a notice of acting dated 4 August 1993, that he took some
    instruction from Mr Taylor on Saturday but has not as yet taken
    any direct instructions from Mrs Taylor. It is apparent that Mr
    Tennyson Turner, a person unfavourably known to this Court, has
    until now been advising these defendants. I am told Mr Hall
    believes that the defendants may well have a defence, but no
    specifics at all of that defence is given." He went on to say that:
    "The question of prejudice to the plaintiff was paramount in
    considering this adjournment. I would be hesitant in finding
    that it is not prejudiced but, in light of all of the
    circumstances, I believe this is a case where case flow
    management rules must apply and must apply firmly. This sort of
    adjournment application at the last gasp is not something that I
    am going to grant. Accordingly, I refuse that application in
    light of the history." 10. The learned Judge then went on to the merits of the application for summary relief. He stated:
    "I am in no doubt it is called for. No affidavit material
    on file suggests any possible defence. The plaintiff seems to
    have complied with all the necessary relevant legislation as to
    service of notices. There is no doubt in my mind on the
    material before me that the plaintiff is entitled to a judgment
    in the sum of $566,393.46, together with interest at the rate of
    9.75% per annum, together with costs and is clearly entitled to
    possession of both properties." He then proceeded to make an order for judgment accordingly. 11. A Notice of Appeal by the defendants Malvyn Gregory Taylor and Brigitte Roswitha Taylor was filed on 12 August 1993. The grounds set out in the notice are:
     1. Insufficient opportunity was granted to the defendants
    to deal with affidavits and substantial numbers of documents
    delivered less than 48 hours before 5 August 1993.
     2. Adequate particulars requested by the defendants of
    reasonable accounting were not given on 12 May 1993 but were
    served late on Tuesday 3 August 1993.
     3. The learned Judge erred in deciding that the plaintiff was
    affected adversely by an adjournment of the matter. At the
    hearing of the appeal Mr Taylor appeared on his own behalf and
    was given leave to represent Mrs Taylor. There was no
    appearance on behalf of Maldarcarie, but of course it is not a
party to the appeal. 12. Mr Taylor advanced various arguments in support of the appeal. He contended that no proper or reasonable particulars of the amount of the demand had been given pursuant to s.55b of the Law of Property Act. He suggested that there were considerable or substantial discrepancies in notices sent out by the bank. He suggested that the defendants were not able to ascertain the true amount due to the bank and were, accordingly, unable to exercise their equity of redemption. 13. He argued that the application for possession "had been joined with a monetary claim" and summary judgment should not have been given without an opportunity to defend the claim. He submitted that there was not a proper exercise of the discretion to make the orders appealed from. He submitted that the appeal should be allowed so as to deal further and fully with questions of discovery and inspection. He submitted that the application of case flow management rules was inappropriate and had given rise to a "travesty of justice". 14. The gravamen of the submissions which he made in amplification of those points was that he wished to have an opportunity to attack the particularity of the amount said to be due to the plaintiff. He conceded that moneys were due to the bank, and it was simply a question of how much was due. He admitted, during the course of the submissions made on the hearing of the appeal, that bank statements had been sent out regularly at intervals of, he thought, six months, during the period when the indebtedness now represented by the judgment built up. 15. Mr Besanko, who appeared on the hearing of the appeal for the respondent bank, contended that no error in the exercise of the discretion had been demonstrated on the part of the Judge appealed from, and that the summary judgment should be left to stand. 16. In my opinion, all indications in the case point to the fact that there is no meritorious defence. Regular bank statements were sent out to the defendants, as admitted by Mr Taylor, and I find it inconceivable that it could be suggested that they were not given particulars of the amounts due on the accounts from time to time as the accounts built up by means of those statements. 17. Exhibit TAD6, referred to in the affidavit of Thomas Alistair Doman, sworn on 3 August 1993 (Court file document 14F) makes it plain that in 1991 and 1992 there was a restructuring of the accounts, of which the defendants must necessarily have been aware and as a result of which they became further indebted to the plaintiff. That restructuring included the rolling over of a commercial bill of $260,000. That followed approval in November 1990 of facilities on another account to $149,000, which in turn followed the fixing of a limit on a further account of Mr and Mrs Taylor of $95,000 in 1989. 18. In a detailed letter dated 7 June 1991 addressed to Mr and Mrs Taylor at Bordertown, the bank set out a scheme to endeavour to "at least put your farming operation in a break even situation". The details of that scheme included the restructuring of various accounts and a detailed formula for the calculation of interest. 19. Mr Taylor admitted during the course of the hearing of the appeal that no moneys had been, in fact, paid by the defendants since 1991. 20. It is patently clear from the material in Court that a very substantial sum of money must, therefore, be due to the plaintiff bank. It was incumbent upon the appellants, once they had been served with the proceedings issued out of this Court, if they had any residual doubts as to the computation or calculation of the amount due to the bank, to promptly scrutinise the particulars which were furnished by the bank, in an endeavour to satisfy those doubts. 21. Given the volume of material which has been supplied by the bank, and which has been exhibited to the affidavit filed in support of the application for summary judgment, I am quite unpersuaded that there is any meritorious argument in favour of the appellants which could throw any doubt upon the adequacy of the particulars that have been furnished. The presentation of the appeal, and the conduct of the proceedings, both indicate very strongly an attempt to delay the inevitable and to divert the Court from a consideration of the merits of the case. 22. The plain fact of the matter is that, as the learned Judge appealed from pointed out, no affidavit material on file suggests any possible defence. But without wishing to rest on the technicality of that observation, I have been at pains during the hearing of the appeal to endeavour to elicit from Mr Taylor whether or not, in fact, there is some meritorious defence which has been overlooked until now or, at least, not presented for one reason or another, but he has failed completely to satisfy me that there is any such defence. 23. In those circumstances there is no possible ground upon which the appeal can be allowed. The appeal is dismissed. The judgment of Master Kelly will stand.