McMahon v Woodward

[2020] WADC 49

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   MCMAHON -v- WOODWARD [2020] WADC 49

CORAM:   DEPUTY REGISTRAR HEWITT

HEARD:   9 APRIL 2020

DELIVERED          :   17 APRIL 2020

FILE NO/S:   CIV 3415 of 2019

BETWEEN:   JOHN DOUGLAS MCMAHON

Plaintiff

AND

GAVIN JOHN WOODWARD

Defendant

Catchwords:

Practice and procedure - Application for summary judgment  or alternatively on the admissions

Legislation:

Nil

Result:

Judgment on two advances unconditional
Leave to defend the balance

Representation:

Counsel:

Plaintiff	:	Ms B Tariq
Defendant	:	In Person

Solicitors:

Plaintiff	:	Fletcher Law
Defendant	:	Not applicable

Case(s) referred to in decision(s):

Nil

DEPUTY REGISTRAR HEWITT:

1. By writ filed 6 September 2019 the plaintiff commenced an action in respect of three loans allegedly advanced to the defendant which remain unpaid notwithstanding demand.  The first loan was an advance of $50,000 on 11 March 2015, evidenced by a written agreement in the following year.  The second loan was said to be a succession of advances resulting in a total of indebtedness of $93,856.66 which is evidenced by a written loan agreement entered between the parties in 2018.  The final agreement was an advance of $25,000 in November 2018.  Evidence has been adduced to show that the amounts outstanding in respect of each of these loans has been demanded by solicitor's letter dated 29 September 2019 and no payment has been forthcoming.

2. A memorandum of appearance was filed in the matter on 13 January 2020 and by a chambers application filed on 17 February 2020 the plaintiff sought summary judgment in respect of each of the loans I have identified or alternatively judgment on the admissions.  Insofar as the summons seeks summary judgment it is somewhat, but not a great deal, out of time.  The reason for the delay has been tied to the defendant's request for further and better particulars by way of provision of documents, which has been attended to by the plaintiff's solicitor although not entirely to the satisfaction of the defendant.  The affidavit is supported by the affidavit of John Douglas McMahon sworn 17 February 2020.  In opposing the application the defendant faced particular challenges.  The defendant is ordinarily resident in Greece and apparently had grave difficulties, in fact insuperable difficulties, in having an answering affidavit attested by a qualified witness as is required.  In fact the defendant attempted to file an affidavit which was unsigned which was rejected by the court.  Given the particular difficulties which were faced by the defendant and the unique problems caused by the COVID‑19 virus pandemic I took the view that it would be unfair not to have regard to the information which the defendant had attempted to place before the court but was unable to do so because of the unusual circumstances which prevail at the moment.  Accordingly I directed that the affidavit which had been rejected should in fact be placed on the court file and I have had regard to that affidavit in reaching my decision in this case.

3. The first issue to be considered is the fact that the application is somewhat out of time although it is to be noted that it also an application for judgment on the admissions.  Although out of time the application is not greatly out of time and I see no point in burdening the court or the parties with a trial for no point or purpose if the entitlement of the plaintiff to judgment is clear and no defence is available.  With that proposition in mind I now turn to examine the various claims which have been made.  In regard to the $50,000 loan objection has been taken to the fact that the agreement does not specify that the loan is repayable on demand.  In fact the agreement does contain a provision concerning repayment which is as follows: 'within 30 days a written demand being made by the borrower to the lender'.  Obviously that term is not sensible because there is no way that the borrower will be making demand of the lender for repayment of the loan.  Two possibilities are available.  Either there is no agreement as to repayment or more likely that the clause is capable of rectification to reverse the reference to borrower and lender such the demand is to be made by the lender to the borrower.  In the absence of an agreement as to repayment the law establishes that such a loan is in fact repayable on demand.  Either way the proposition advanced by the defendant is not capable of providing a defence.  It is also suggested that since the agreement is not dated it is invalid and of no legal effect.  Again that proposition is unsustainable and does not deserve further consideration.

4. The next straightforward matter concerns the $25,000 loan.  Once again nothing has been raised which constitutes an arguable defence to this part of the loan.

5. The next aspect of the claim deals with the matters set out in par 9 of the statement of claim.  In that paragraph it is pleaded 'between 1 July 2016 and 30 June 2017 the plaintiff made advances to the defendant totalling $98,708 (the $98,000 loan).  That aspect of the plaintiff's claim is hotly disputed by the defendant and there are some matters which require consideration.  The first issue is that interest has been claimed on what is said to be the amount of the loan but the interest rate prescribed by the agreement between the parties is as follows:

   The daily interest charge at Australian Taxation Officer benchmark which at the date of this agreement is 5.45%.

6. There is nothing in the way of evidence before me to indicate the manner in which this benchmark interest rate varied, what it was at the date of the advance or the various amounts comprising the advance and what variations there may have been from that point onwards.  All I have is a snapshot saying at one stage it was 5.45% and even that is of little help contained as it is in an undated document.

7. It is therefore my view that insofar as the plaintiff claims interest in respect of this loan there is a triable issue.  There is no evidence to establish what the appropriate rate was nor how the calculation should have been made.  There are however other issues which are of some concern.  Exhibited to the agreement is a schedule purporting to set out the various amounts which together comprise the loan which has been pursued.  The total of that schedule is $100,223.43 of which $95,408.55 are said to be advances and $4,814.88 interest.  In par 16 of the supporting affidavit the plaintiff testified 'even though the second loan agreement refers to the amount of the loan as $100,223.43 the amount advanced was incorrectly overstated in the loan agreement by $1,551.89.  Removal of this amount produces the correct amount of the total advance of $93,856.66.  Despite the somewhat confusing way the matter has been expressed it is clear to me that the deponent has deducted the $1,551.89 from the total advanced figure of $95,408.55 thereby reaching the figure of $93,856.66.  The problem of the interest and the rate however remains the same and there is no basis upon which I can see that it would be possible to award the plaintiff interest on that sum or any other sum since the rate of interest is unable to be ascertained.  There are however other difficulties and these have been identified in the materials filed by the defendant in particular par 13 in which he provides his own version of the appropriate calculation arriving at a total of $53,972.61.  I have tried to understand the figures and calculations which are presented in the schedule and in truth I have been unable to do so.  I am presented with two wildly different calculations leading to significantly different conclusions, conclusions which differ from the amount which is described in the schedule to the agreement as the amount of the loan, which amount contains interest charges which are, as far as I am concerned, completely inscrutable for the reasons that I have earlier outlined.

8. It is therefore my conclusion that the plaintiff should be entitled to a judgment for the $50,000 loan plus interest at 2.5% per annum from 11 March 2015 and a further judgment of $25,000 in respect of the loan made in November 2018 but that the defendant should have unconditional leave to defend the balance of the claim.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

DH
Court Officer

17 APRIL 2020