Marando v Tsopanidis

[2013] QDC 249

[2013] QDC 249

DISTRICT COURT OF QUEENSLAND

CIVIL JURISDICTION

JUDGE ROBIN QC

No 690 of 2013

DAMIANO MARANDO  Plaintiff

and

NICHOLAS TSOPANIDIS  Defendant

BRISBANE

11.27 AM, TUESDAY, 23 JULY 2013

JUDGMENT

CATCHWORDS

On summary judgment application, the defendant not appearing, this court had concerns about the quantum of the interested claimed and the basis for indemnity costs – those aspects are adjourned for later determination

Uniform Civil Procedure Rule r 292

HIS HONOUR:   This is an application for summary judgment in a proceeding transferred from the Supreme Court by order of Atkinson J on the 19^th of October 2012.  It’s perhaps a little intriguing that on the 19^th of December 2012, Daubney J made a consent order granting the plaintiff leave to amend the summary judgment application filed the 18^th of September 2012 so that it might authorise an order that the plaintiff recover possession of one of two properties of the defendant which he had mortgaged to the plaintiff in support of a loan agreement in respect of a sum of $57,982.  The material before the court indicates that another property was mortgaged as well, but the plaintiff is hopeful that the sale of the property expressly dealt with by Daubney J will realise enough to cover what is due to him from the defendant, who  has not appeared today when called.  How did you show service, incidentally?  Is that in either of the affidavits?

MR ERSKINE:   That’s the affidavit of Ms Thornborough by leave, your Honour.  Your Honour will see that it has a letter ‑ ‑ ‑ 

HIS HONOUR:   Although served 

MR ERSKINE:   It was sent on the 12^th of July.

HIS HONOUR:   Well in advance as Ms Thornborough’s affidavit establishes.  Mr Erskine appearing for the plaintiff has abandoned, for the purposes of today and a summary judgment, pursuit of further interest, leaving the sorting out of the defendant’s obligation in that regard to another day.  This is perhaps unsurprising as the interest claimed in what was envisaged as a short-term loan for a three month period was charged at 10 per cent per month, so that the interest has escalated spectacularly, given that the advance was made in 2009. 

I have noted another concerning aspect in relation to the interest claimed, namely, that the judgment sum includes almost $10,000 for interest which was withheld.  That, to an extent, explains the defendant’s contention that he received only $44,000, none of which he claims to have repaid.  Notwithstanding that the first three months’ interest were dealt with in the way indicated, the claim includes interest at the full 10 per cent rate for each of those first three months.  For reasons indicated, there’s no necessity for the court to embark on deciding questions of interest today.  Those can await later determination.  In the circumstances, I’ve also, in the order, deferred for later consideration whether the plaintiff is entitled to indemnity costs as sought in the meantime, awarding only standard costs. 

I would’ve been amenable to ordering indemnity costs today had there been evidence before the court to show that the defendant committed himself to paying them.  As it happens, the affidavit of the plaintiff, in exhibiting the loan agreement, failed to include as part of it the page said to include a provision apt to make indemnity costs appropriate.  Hopeful that a later affidavit by the plaintiff’s solicitor, Mr Bentley, which exhibits much of the same material, would supply the omission, I was disappointed.  In my view, the court should not, on the basis of speculation or surmise or even Mr Erskine’s offer to supply the missing page from the bar table,

take the serious step of augmenting the evidence to be had by the court.  The order made does not irrevocably shut the plaintiff out of the entitlement that he may have to costs on the penal basis.  Order as per initialled draft.

______________________