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…

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: [2005] QDC 21
Decision Date: 07/02/2005

CaseChat Overview and Summary

The case of New Capital Finance v Bottriell involved the plaintiff, New Capital Finance, seeking to enforce a judgment against the defendant, Glen Lionel Bottriell, for an amount that was alleged to be owed by him. The dispute originated from a loan agreement between the parties, and the case was heard in the District Court of Queensland. The defendant had previously lost a summary judgment for a specified sum against him, and subsequently filed an application to determine the amount he was truly indebted to the plaintiff. The application was brought under rule 388 of the Uniform Civil Procedure Rules, and the court was required to decide whether the judgment debtor could have the amount of the judgment reviewed.

The court had to consider whether there was a valid basis for the defendant to challenge the amount of the judgment, and if so, whether the application should be dismissed or if there were any other options available to him. The court noted that the defendant had filed the application somewhat late, and that the evidence presented suggested that there might have been an error in the interest calculation relied upon in the judgment. The court also considered whether rule 800 of the Uniform Civil Procedure Rules might be available to the defendant, which could potentially allow for a stay of enforcement of the judgment.

After considering the arguments presented by both parties, the court dismissed the application, noting that there was no evidence of a mistake or frustration of any intention of the original judge. The court also noted that if the defendant wanted to challenge the amount of the judgment, he would have to do so on appeal to the Court of Appeal, which would now require a special order since it was out of time. The court also noted that the plaintiff was seeking Supreme Court Act interest on the judgment amount, which was not sought from the original judge and was not ordered. The court suggested that the issue of interest might be ventilated whenever the issue of interest the plaintiff might get on its judgment is raised.

The court dismissed the application filed on the 21st of December 2004, with costs to be assessed on the standard basis. The court did not find any valid basis for the defendant to challenge the amount of the judgment, and noted that there were other options available to him, such as appealing the decision or negotiating with the plaintiff to settle the matter. The court also suggested that the defendant might be able to obtain a credit for any overcharge when the issue of interest was resolved. Overall, the court's decision highlights the importance of ensuring that all calculations and legal arguments are carefully reviewed before a judgment is entered, and that parties should be aware of the options available to them if they believe that there has been an error in the judgment.

Orders