Pollard v. Norman

[2007] QSC 39

[2007] QSC 039

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

MOYNIHAN J

No BS20727 of 2006

OWEN ALBERT POLLARD	Applicant
and
ROSS ANDREW NORMAN	Respondent

BRISBANE

..DATE 13/02/2007

JUDGMENT

HIS HONOUR:  This is an application for summary judgment in an action, in effect, for the recovery of a loan pursuant to an agreement between the parties.  The claim and statement of claim was filed on the 24th November 2006.  The defence was filed on 2nd January and subsequently the application for summary Judgment being dealt with today was brought.

The defence relevantly admits that there was an agreement negotiated between the parties that an amount of money in terms of the plenteous allegation was provided by the plaintiff and the signing of a document which is described as a personal guarantee of the loan sum.

The defence contends that certain of the terms relied on by the plaintiff were not included, puts in issue that there was a binding or enforceable agreement and, the demand for repayment and denies that the acknowledgement and liability was enforceable because of absence of a demand.  It also is alleged that the plaintiff has failed to acknowledge the payment of $70,000.

The defence is to be now considered in the light of an affidavit filed on behalf of the defendant.  It is sworn on the 12th February, yesterday.  It essentially sets up a case denying that the agreement or any obligation in respect of the money paid by the plaintiff was an obligation of the defendant as distinct from an obligation to a company Gemcrown Proprietary Limited in relation to the purchase of a specified property.
There is a denial of the term of payment of interest and it is justly said that, particularly in the context of the allegation of the money being held in the trust account of a solicitor, that 30 per cent is a significant rate of interest.  Without undertaking a detailed analysis of the pleadings it is sufficient, in my mind to say, that the defence does not raise effectively the issues which are now sought to be relied on.

To the extent to which, in terms of the plaintiff's analysis of the defence, it constitutes admissions by not pleading  leave to withdraw the admissions would be requested.  As I say, in any event, the defence it seems to me to be unsatisfactory in terms of raising the case which the affidavit of the 12th now purports to raise.

There is an issue about the receipt in evidence of a letter of the 12th February which is said to have been made without prejudice.  That letter contains an acknowledgement of personal liability by the defendant in the amount of $449,394.29 of which it is said $70,000 has been "paid back".

That is a curious proposition one might think in the circumstances of the denial of the loan.  The question though, at the moment, is whether the letter was written without prejudice.  It is not described to be written without prejudice.  There is some assertion of an exchange of correspondence and endeavours to settle and it may be accepted, for the moment, that there was.

The issue is another unsatisfactory consideration but I am inclined to think that the letter ought to be treated as without prejudice.  The affidavit of Mr Norman of which I have already referred to does set up factual issues some of which have some relation to the defence.  I find it difficult in the circumstances to avoid the conclusion that lurking in the material is a sufficient indication of factual matters to be tried to justify declining to enter summary Judgment.

There at least ought to be a condition of the filing of a defence in compliance with the rules.  Subject to what submissions are made I suspect that that is a better exercise than trying to tinker with the existing defence.  I will hear submissions on any further conditions that might be imposed and as to costs before I conclude the matter.

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HIS HONOUR:  I order that the defendant file a defence within  - what by the 20th?  Reply to that defence within seven days.

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HIS HONOUR:  On the issue then of the payment of money into Court.  The view that I have taken that although in terms of the way in which it has arisen that there was without prejudice discussions and that the amount in question in those discussions emerged in that course the dispute essentially is going to be a credibility dispute.
On reflection therefore I am not at the moment prepared to order a payment of money into Court pending resolution. 

The question as to costs; it is true in one sense that it may have been apparent that this was always going to be a credibility issue.  Having regard, however, to the fact that the nature and extent of the case, in terms of Court documentation, appeared really for the first time in the affidavit filed yesterday in my view the defendant ought to pay the applicant/plaintiff's costs of this application to be assessed on the standard basis.

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