Price v Credit Corp Services Pty Ltd

[2006] QDC 186

[2006] QDC 186

DISTRICT COURT
CIVIL JURISDICTION

JUDGE McGILL SC

No BD1278 of 2005

ROBERT JAMES PRICE	Appellant
and
CREDIT CORP SERVICES PTY LTD	Respondent
ACN 082 928 872
BRISBANE ..DATE 07/02/2006
ORDER

07022006 T6-7/VC2 M/T 1/2006 (McGill DCJ)

HIS HONOUR: This is an appeal from the order of a Magistrate	1
who on 16 March 2005 gave judgment under Rule 292 in respect of the whole amount of the plaintiff's claim against the defendant. The Magistrate also ordered that the defendant's defence be struck out but that is not an appropriate order to

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make under Rule 292. Presumably it was made because it was
sought in the application.

Unfortunately although the Magistrate gave oral reasons they were either not recorded or the recording has been lost,

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because the parties have not been able to obtain a copy of the
transcript of the Magistrate's reasons.

In those circumstances, and in the light of the issues raised in the outlines of arguments of the parties, I have looked at

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the material on the Magistrates Court file to see whether it discloses material on the basis of which it seems to me that summary judgment could properly be given.

The plaintiff's claim is for an amount of $22,391.14 as

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assignee of Westpac Banking Corporation, on the basis that the
defendant owed Westpac that amount on a credit card account
held by the defendant with Westpac. The debt was said to have
been assigned by Westpac on 31 December 2002 and notice of the

assignment forwarded to the defendant on or about 31 December

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2002, with a further notice on 31 January 2003.

The defendant filed a Notice of Intention to Defend and
defence on 18 August 2004. The defendant made a couple of
07022006 T6-7/VC2 M/T 1/2006 (McGill DCJ) 2 ORDER 60

non-admissions and otherwise denied all the allegations in the	1
Statement of Claim on the basis that the defendant had not incurred $22,391.14 owed to Westpac Banking Corporation Limited, that no agreement exists between Westpac and the defendant entitling Westpac to charge 16.65 per cent interest

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on credit charges not incurred by the defendant, and that no
valid assignment has been effective between Westpac and the

plaintiff.

It is I think sufficient, for present purposes, to say that

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one of the matters raised by the defendant was that he did not
ever incur the debt to Westpac in the first place. The
plaintiff put in evidence an application for a credit card
account which was signed by the defendant on the 7th of July

1999 but that document does not contain any of the terms and

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conditions of the contract.

The plaintiff also put in evidence a document described as face of it the documents declares that it does not "on its own

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contain all the terms applying to your credit card". It
states that full details of current terms and conditions,
including bank fees and charges, are available on application.

However, it does contain some terms and conditions.

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Basically the defendant could have been liable to Westpac in respect of this credit card in one of two ways: first on the basis that there were transactions by him using the card so

that he became liable to pay for those transactions under
07022006 T6-7/VC2 M/T 1/2006 (McGill DCJ) 3 ORDER 60

condition 5(a) of the Conditions of Use of the Card. There is	1
however no evidence in the material that any of the transactions giving rise to the balance on the account were transactions incurred by the defendant. Indeed there is nothing in the material to provide any information about any

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of the actual debit transactions which were alleged to give
rise to the balance in the account.

There are a number of what are said to be statements of the account exhibited but these date only from April 2002 and the

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only transactions on them are the additions of interest each
month, the addition from time to time of contract stamp duty,
the addition of a missed payment and, on a couple of

occasions, a reference to a payment of an amount off the debt.

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They contain no particulars of any debits which gave rise to the balance and in particular no indication of how the opening balance on the first statement of $20,712.27 is made up. One of the matters the defendant has said he is complaining about is that he has been unable to obtain a record of the

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transactions. I should say that he exhibits some
correspondence but none of the correspondence actually
exhibited in terms seeks information as to the transactions

concerned.

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The correspondence refers to a letter dated 28 February 2003, a copy of which he says he has lost, or at least a copy of which he says he has been unable to locate, but the plaintiff 07022006 T6-7/VC2 M/T 1/2006 (McGill DCJ) 4 ORDER 60

also claims not ever to have received a letter of that date	1
from the defendant, so it does look rather suspicious.
However, whether or not there really have been specific requests of the plaintiff to provide details of the actual

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transactions relied on as generating at least the foundation
of this claim, prior to the addition of interest, there is no

evidence of any such transactions in the material before me.

The other basis upon which the defendant could be liable to

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the plaintiff is if the plaintiff is - or at least Westpac was - entitled to recover for amounts included in statements which were not challenged by the defendant. There is a reference in Clause 6.2 of the Conditions of Contract to the proposition
that if the defendant wishes to dispute an amount charged he

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must bring the dispute to Westpac's attention in writing
before the due date shown on the account statement.

That, standing alone, may indicate that the defendant would be liable in any event if no such dispute arose. However, it is

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not the only relevant provision in the contract. Clause 10.2,
headed "Your Liability" provides that "you may be liable for
unauthorised transactions made to your card account" until
notice of a lost or stolen card, or of unauthorised

transactions is received.

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It goes on to provide that, "In transactions which did not involve use of the card and PIN through an electronic banking terminal, the liability will not exceed $50." It provides 07022006 T8/PCC1 M/T 1/2006 (McGill DCJ) 5 ORDER 60

also that, "The cardholder will not be liable for any	1
unauthorised transactions made after we receive notice from you." It provides that there are other conditions of use, which are not before me and were not before the Magistrate, dealing with a situation where there was an authorised - or,

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at least, there is alleged to have been an authorised - use of
the card and PIN through electronic banking terminals.

I do not know - and the material does not disclose -whether any of the transactions which gave rise to this balance of

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$20,000-odd were transactions made through, or alleged to have
been made through, electronic banking terminals. But, on the
face of it, if the transactions were unauthorised the contract

limits the liability of the defendant to $50.

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There is, however, a further provision in clause 10.2, paragraph (b): "If you have unreasonably delayed notifying us of the loss or theft of your card, or of any unauthorised transactions, you may be liable for the loss incurred before notification is received by us." The difficulty with that is

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that it seems to give rise to a claim for unliquidated damages if there is unreasonable delay. Whether there is unreasonable delay depends on a number of things but, at the very least, it will be necessary to show when it was that notice of the
transactions was first given to the defendant, and there is no

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evidence of that, as I say.

In those circumstances, it is really impossible, I think, to
argue on the present evidence that Westpac was - and,
07022006 T8/PCC1 M/T 1/2006 (McGill DCJ) 6 ORDER 60

therefore, the plaintiff is - entitled to recover the full	1
amount of the claims on the basis of clause 10.2(b) of the conditions of contract. The position, therefore, is that on the affidavit material the plaintiff had simply not proved its case, even assuming - which I have not investigated - that the

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affidavit material does demonstrate that there was a valid
assignment of the debt.

In my opinion, it is not the case on an application under rule 292 that the onus is on the defendant to prove a good

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defence. On the face of it, it is necessary for the plaintiff
to show that the plaintiff not only has a good cause of
action, but that the defendant has no real prospect of
successfully defending all or part of the plaintiff's claim

and that there is no need of a trial of the claim or part of

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the claim. That depends on the true situation, rather than
what is stated in the pleadings.

If a plaintiff is proceedings or seeks to support an application under section 292 on a basis not pleaded, that

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might well have consequences in terms of costs. And,
similarly, if a defendant successfully resists an application
under rule 292 on a basis which has not been pleaded, that

could also have consequences in terms of costs.

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But rule 292 is not concerned with what can or cannot be shown on the face of the pleadings, but whether the defendant has any real prospect of successfully defending all or part of the plaintiff's claim. That is a reference to what would happen 07022006 T8/PCC1 M/T 1/2006 (McGill DCJ) 7 ORDER 60

at a trial if the matter went to trial. So it is not a	1
question of whether the defendant can prove that he has a good defence. I have referred to some matters in the defendant's material which might be thought to cast some doubt upon the bona fides of the defendant, and there are some others which I

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have not mentioned.

But it is not appropriate for the Magistrate to be rejecting affidavit evidence and to be giving judgment under rule 292 on the basis of a lack of confidence in the issues raised on

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affidavit by the defendant, at least in circumstances where
the affidavit material in support of the plaintiff really does
not show that the plaintiff has such a strong case that the
defendant has no real prospect of successfully defending it.

The material currently available does not show that the

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plaintiff has such a strong case at all.

Indeed, if the plaintiff has a strong case, it seems to me that the material currently available largely does not disclose that. Whether or not the defendant was seeking

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proper documentation of this claim at an appropriate time, I
think the Court is entitled to have proper documentation of
the claim at the time when it was asked to give judgment on

it, and that did not occur.

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In my opinion, on the material available, the Magistrate ought not to have given judgment under rule 292. It follows that the appeal should be allowed and judgment set aside. The notice of appeal also seeks an order for costs. I suppose 07022006 T8/PCC1 M/T 1/2006 (McGill DCJ) 8 ORDER 60

there were some legal costs involved in the appeal, although	1
they did not include the costs of anyone appearing on the hearing of the appeal to argue in support of it. However, I did have the benefit of the appellant's outline of argument filed on the 14th of June last year.

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So the appeal is allowed with costs to be assessed. The judgment of 16th of March 2005 is set aside and, in lieu, the plaintiff's application filed 1st December 2004 is dismissed.

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