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Rogers v Asset Loan Co Pty Ltd

Rogers v Asset Loan Co Pty Ltd

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FEDERAL COURT OF AUSTRALIA
Rogers v Asset Loan Co Pty Ltd [2008] FCA 1305
PRACTICE AND PROCEDURE – motion for summary dismissal of application – where no reasonable cause of action disclosed – application dismissed – motion that affidavit be removed from file pursuant to O 14 r 8 – motion that applicant’s proceedings be declared vexatious and an order be made under O 21 r 1 or r 2
Australian Securities and Investment Commission Act 2001 (Cth) ss 12 CA-CC, 12 DA, 12 DJ, 12 GF, 12 GH
Bankruptcy Act 1966 (Cth) s 116(2)(g)
Federal Court of Australia Act 1976 (Cth) s 31A
Federal Court Rules O 1 r 8, O 14 r 1, O 14 r 8, O 21 r 1, O 21 r 2, O 21 r 3,
Rogers v Asset Loan Co Pty Ltd [2007] FCA 1371 cited
Rogers v Asset Loan Pty Ltd and Ors [2007] FCA 1660 cited
Rogers v Asset Loan Co Pty Ltd & Ors [2007] FCA 195 cited
Cox v Journeaux (No. 2) (1935) 52 CLR 713 cited
Bryant v Commonwealth Bank of Australia (1997) 75 FCR 545 applied
Dey v Victorian Railway Commissioners (1949) 78 CLR 62 cited
General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 cited
White Industries Aust Ltd v Commissioner of Taxation (2007) 160 FCR 298 cited
Granitgard Pty Ltd v Termicide Pest Control Pty Ltd [2008] FCA 55 cited
Commonwealth Trading Bank v Inglis (1974) 131 CLR 311 applied
Ramsey v Skyring (1999) 164 ALR 378 cited
National Australia Bank Limited v Freeman (a Bankrupt) [2005] FCA 1895 cited
Granich and Associates v Yap [2004] FCA 1567 cited
Kowalski v Mitsubishi Motors Australia Ltd Staff Superannuation Fund Pty Ltd (MMAL Staff Superannuation Fund Pty Ltd) (2007) 242 ALR 370 cited
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 cited
GREGORY ERIC ROGERS v ASSET LOAN CO PTY LTD ACN 107 746 798, ASSET LOAN COMPANY PTY LTD ACN 101 054 997, PAUL ALEXANDER SYDNEY HARE, RUSSELL FRANK PERCIVAL, JUDITH LORRAINE HARE, RIVERSTONE NOMINEES PTY LTD ACN 063 086 546 AS TRUSTEE FOR THE PERCIVAL FAMILY TRUST NO 2, SEAN WHITTLE, ROBERT EDWARD BORBIDGE and JENNY PURCELL
QUD362 OF 2007
LOGAN J
21 AUGUST 2008
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD362 OF 2007

BETWEEN:

GREGORY ERIC ROGERS
Applicant

AND:

ASSET LOAN CO PTY LTD ACN 107 746 798
First Respondent

ASSET LOAN COMPANY PTY LTD ACN 101 054 997
Second Respondent

PAUL ALEXANDER SYDNEY HARE
Third Respondent

RUSSELL FRANK PERCIVAL
Fourth Respondent

JUDITH LORRAINE HARE
Fifth Respondent

RIVERSTONE NOMINEES PTY LTD ACN 063 086 546 AS TRUSTEE FOR THE PERCIVAL FAMILY TRUST NO 2
Sixth Respondent

SEAN WHITTLE
Seventh Respondent

ROBERT EDWARD BORBIDGE
Eighth Respondent

JENNY PURCELL
Ninth Respondent

JUDGE:

LOGAN J

DATE OF ORDER:

21 AUGUST 2008

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.Leave be granted to the Respondents to:
(i)amend their notice of motion filed on 12 November 2007 in the…

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: [2008] FCA 1305
Decision Date: 21 August 2008

CaseChat Overview and Summary

Rogers v Asset Loan Co Pty Ltd was a case before the Supreme Court of Queensland. The dispute involved Rogers, the plaintiff, and Asset Loan Co Pty Ltd, the defendant, in relation to a financial transaction. The plaintiff sought to challenge the legality of a loan agreement and subsequent foreclosure proceedings, which he claimed were improperly conducted. The defendant sought to amend their notice of motion to address the plaintiff's claims and argued that the plaintiff's application should be dismissed. The court had to decide whether the defendants were entitled to amend their notice of motion, and whether the plaintiff's application should proceed. The court also needed to consider whether the plaintiff's claims were valid and whether the defendants had acted lawfully in their dealings with the plaintiff.

The court found that the defendants were entitled to amend their notice of motion as the amendment was not an attempt to raise new issues but rather to address the claims made by the plaintiff. The court also found that the plaintiff's application should be dismissed as it did not comply with the relevant rules and procedures. The court held that the plaintiff's affidavit did not provide sufficient evidence to support his claims, and therefore the application was not valid. The court further found that the defendants had acted lawfully in their dealings with the plaintiff and that the foreclosure proceedings were properly conducted. The court held that the plaintiff's claims were without merit and dismissed the application.

The final orders of the court were that leave be granted to the defendants to amend their notice of motion, that the plaintiff's application be dismissed, that the plaintiff's affidavit be removed from the court file, and that the defendants' notice of motion as amended be dismissed to the extent that it sought orders under the rules or the inherent jurisdiction of the court. The court's decision was based on a careful consideration of the evidence and the applicable law, and it provided clarity on the legal issues raised in the case.

Orders

Orders of the court

1. Leave be granted to the Respondents to:

(i) amend their notice of motion filed on 12 November 2007 in the terms set out in their notice of motion filed on 4 December 2007;

(ii) read, in support of the notice of motion as so amended, the affidavit of Mr Whittle filed on 4 December 2007.

2. The application filed on 1 November 2007 be dismissed.

3. The affidavit of Mr Rogers filed on 1 November 2007 be removed from the court file.

4. Otherwise and insofar as the respondents’ notice of motion as amended seeks orders under O 21 r 1 and r 2 or what is described as the “inherent jurisdiction” of the Court, that notice of motion is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

LOGAN J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: LOGAN J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD362 OF 2007

JUDGE:	LOGAN J
DATE OF ORDER:	21 AUGUST 2008
WHERE MADE:	BRISBANE