Psal Ltd v Woods

[2010] QDC 328

[2010] QDC 328

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 559 of 2010

PSAL LIMITED	Plaintiff
and
JAMES WOODS & ORS	Defendant

BRISBANE

..DATE 13/08/2010

ORDER

CATCHWORDS

Uniform Civil Procedure Rules, r 292

Summary judgment given for possession of mortgaged premises and those parts of the asserted mortgage debt were clearly due and owing - no sound reason for deferring entire claim to a trial

HIS HONOUR:  The court makes an order in terms of the initialled draft on this summary judgment application under rule 292.

The order gives the plaintiff recovery of possession of a residential property and a money judgment in the amount of $181,237.49, inclusive of interest, which, as the order said, is "calculated from the date of the claim at the rate of 9.50 per cent a month", the money judgment going against the corporate defendant as well as Mr and Mrs Woods.

The draft order supplied included a larger judgment sum and did not include a deferral of the date for recovery of the land to 21 August 2010.  The plaintiff, which sues as mortgagee, sought possession immediately.

Its priority follows that of the Bendigo Bank and the court is told that arrangements exist whereby the Woods will hand the keys of the home to the bank on 21 August 2010.

The present plaintiff's rights to possession under the order are only as against Mr and Mrs Woods, which will preserve the Bendigo Bank's priority.  There is little point in the plaintiff gaining possession in the interim, adding to the hardship on the Woods.

The reason for the reduction in the judgment amount is Mr Cooke's inability today to demonstrate by reference to the relevant loan agreement or mortgage that the plaintiff is entitled to three monthly amounts of $2,000 charged in September, October and November 2009 as "processing fees".

There is thus a further reduction for "default management" fees charged in the following three months of $2,970, $5,115 and $1,980, respectively.

There is an aggregate reduction of $10,065 from the amount claimed as per Mr Booth's solicitor's affidavit sworn yesterday and the subject of leave to read and file.

There has been a further reduction of $18,000 conceded by the plaintiff by the presentation of that affidavit in apparent acceptance of the defendants' assertion in their irregular notice of intention to defend and defence filed 11 March 2010 that $18,000 had, by that date, been paid to the plaintiff.

If the plaintiff is so minded, this proceeding may go ahead as a means of possibly recovering additional amounts.  It is appropriate for the court to be careful, as it has been, to ensure that the amount of a monetary judgment granted summarily is seen to be correct.

Except as indicated above, the account exhibited by Mr Booth to his affidavit is in a form similar to one claiming a larger amount exhibited to Mr Dormer's affidavit earlier filed.

Mr Woods has represented himself, his wife and the third defendant company, of which he is an officer.  He explains the difficult situation they are in by reference to the failure of an anticipated sale of their home to materialise.  In expectations that a sale at a favourable price would go ahead, arrangements were made with the plaintiff to provide a short-term loan, one of two months, in the amount of $70,000.  The loan money, if I understand correctly, was to assist the company's business to carry on.

Mr Woods, and he would say correctly, describes himself even in the pleading as "an idiot to sign the contract".  One has only to look to the figures to understand why he takes that position.  The original loan amount was $70,000.  With fees and the like, the indebtedness at the commencement on 13 or 14 July 2009 was $86,000.  That had increased with fees and interest by the time of the claim, which was filed on 17 February 2010, to a few dollars short of $116,000. 
It has now increased by more than another $100,000.

Mr Woods was critical of the plaintiff for moving too slowly in the sense that the judgment amount would have been much less had judgment been sought sooner.

He draws unfavourable comparisons between the way he has been treated by the plaintiff and the way he has been treated by the bank.  While the court understands his position, there is really nothing that the court can do about it.

No legislation which would entitle the court to adjust the parties' contractual rights has been pointed to.  In my opinion, it would be contrary to proper practice and the court's duty to adopt the course which Mr Woods suggested of leaving this matter to go to trial in its entirety with the potential judgment amount inexorably increasing.

The plaintiff brings its claim under rule 292, which is, at least to the extent of the orders made, an unanswerable one by reference to the evidence before the court, and the right course is for the plaintiff to have its judgment.  The plaintiff would fare at least as well at trial as it does today.

The schedules setting out relevant figures are instructive, revealing annual interest rates applied to be 60 per cent "normal interest" and a further 42 per cent "default interest" which, in the contractual documents, represented an addition of 4.5 per cent per month to the standard 5 per cent per month which one reads in the documents.

I have carefully checked the documents to ensure that they support the plaintiff's claims to interest and to costs which are sought on an indemnity basis.  That is something covered by clause 10.1 of the mortgage.

HIS HONOUR:  Order as per initialled draft.

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