New Capital Finance v Bottriell

[2005] QDC 21

[2005] QDC 021

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 494 of 2004

NEW CAPITAL FINANCE (ACN 089 216 464)	Plaintiff/Respondent
and
GLEN LIONEL BOTTRIELL	Defendant/Applicant

SOUTHPORT

..DATE 07/02/2005

ORDER

CATCHWORDS: Application by judgment debtor following summary judgment for a specified sum against him for determination of amount he "is truly indebted" for - no appeal - no case for relief order. Uniform Civil Procedure Rules, rule 388 and rule 667(2)(d) shown - evidence presented that interest calculation relied on in the judgment may be erroneous - application dismissed - whether rule 800 might be availed of considered - the summary did not provide for interest - plaintiff indicated it might accept Supreme Court Act interest rather than contractual interest - whether applicant might get a credit for any overcharge when that matter was resolved considered.

HIS HONOUR:  This is an application by a judgment debtor, which seeks, and I quote:

"That the Court make a determination as to the total amount and/or (2) alternatively that the Court appoint an accountant/auditor, for the purposes of determining the amount that the applicant is truly indebted to the respondent for."

The application was filed on the 21st of December 2004.  It follows a judgment under the summary judgment rules, which arose pursuant to an order of Senior Judge Skoien on the 22nd of November 2004, made after a contested hearing.

The defence which was suggested to exist was characterised by his Honour as hopeless in the circumstances.  As I understand the reasons, the defendant, that is the present applicant, asserted that although the documentation unequivocally declared that the credit hr had been proved with by relevant arrangements, was:  "to be applied wholly or predominantly for business purposes or investment purposes", that was not truly the case and that legislative provisions which entitled a borrower to have interest rates reviewed had some scope for operation.

Judge Skoien determined that the defence had nothing in it, in permitting the plaintiff to have a judgment for a sum of some $86,000.  He relied on a calculation exhibited to Mr Pyke-Nott's affidavit.

The only part of the claim that was live before his Honour  was the interest claim, the principal amount of the loan having been repaid several months overdue, on the eve of the hearing.

Somewhat too late, it seems to me, the defendant has got organised to review the appropriateness of the calculation made by his Honour.  The present application was filed on the 21st of December 2004.  It was supported by an uninformative affidavit of Mr Bottriell. 

Mr Maher, for the respondent/plaintiff, has consented to the tendering today of a calculation by an accounting consultant, A C Kelly, which indicates that the correct interest calculation was $76,816.34.  It is said that that would have been the correct judgment amount.

The rules offer possibilities of a judgment amount being changed.  Mr Grenacs identifies it‑‑‑‑‑

MR MAHER:  There were three.

HIS HONOUR: The application is brought under rule 388, which is the famous ”slip rule". The other rule mentioned was rule 667, and in particular sub rule (2)(d).

The boot was on the other foot, so to speak, in Valleyfield Proprietary Limited v. Primac Limited [2002] QSC 134, in which the plaintiff, after obtaining the judgment for interest which it had sought from Justice Cullinane, went back to his Honour under rule 388 with the assertion that the interest component of the judgment should be increased. The application failed.

It appears to me that there was no mistake, or frustration of any intention of Judge Skoien, in the present circumstances, and if the amount of the judgment is to be challenged, that has to be done on an appeal to the Court of Appeal, which would now require a special order since it is out of time.  That is not necessarily fatal.

The scanty material before the Court does not reveal anything about what is occurring at the moment in relation to enforcement of the judgment.  My understanding is that an enforcement warrant has issued although the only material on the Court file, a Registrar's note of the 14th of December 2004, records the Registrar declining to issue an enforcement warrant for possession of the land, "as costs claimed as being assessed have not been assessed by the Registrar, UCPR Rule 648."  Mr Maher tells me that on a following day, an enforcement warrant was obtained.

Rule 800 is potentially available to the present applicant, in principle.  I cannot see why it would not apply to permit a stay of enforcement which the justice of the case indicated was appropriate.  Circumstances which might lead to a conclusion to that effect may include the existence of a current appeal which had some prospect of success.

I am not prepared to say whether a demonstrated error in Mr Pyke-Nott's calculation would suffice.  Mr Maher certainly does not accept the correctness of Mr Kelly's work and indeed asserts there is an error clear on the face of it.  It does not compound interest.

He informs the Court that at this stage his client is seeking only Supreme Court Act interest on the judgment amount. Such interest was not sought from Judge Skoien and was not ordered.

The plaintiff's assertion is that it has a contractual entitlement to the much more generous interest provided for in the loan agreement.

The plaintiff will have to accept that the enforcement warrant will be of no avail in respect of interest, because it is simply no part of the judgment.

One can understand why the suggestion was made by Mr Maher that Mr Bottriell may wish to leave matters as they are, or at least enter into discussions given the possibilities that appear to exist of quite different interest outcomes referable to the period since the date of the judgment.

Mr Grenacs, who had not concealed that he faced difficulties in the application, sought to withdraw it, or invited the Court to dismiss it.  The matter was well advanced at that stage and it seemed to me useful for the Court to attempt to shed some light on matters.  The dispute is obviously very important so far as Mr Bottriell's interests at least are concerned, if I infer correctly, that he is at risk of having property sold up by the enforcement officer to see the judgment paid.

It may be that the subject matter of this highly problematic application can be ventilated whenever the issue of interest the plaintiff might get on its judgment is raised.  It would seem surprising if a credit could not be obtained then for a duly established over-payment of interest, assuming the judgment had been satisfied.  Judge Skoien's reasons support that the quantum of the judgment was not the subject of much argument or consideration.

The application filed on the 21st of December 2004, will be dismissed with costs to be assessed on the standard basis.

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