Tristan Head v Credit Corp

[2000] NSWSC 488

CITATION:	Tristan Head v Credit Corp [2000] NSWSC 488
FILE NUMBER(S):	SC 10441/00
HEARING DATE(S):	17 May 2000
JUDGMENT DATE:	17 May 2000
PARTIES :	Tristan Head v Credit Corp Services Pty Limited
JUDGMENT OF:	O'Keefe J

LOWER COURT JURISDICTION :	Local Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :	Mr D Price LCM

COUNSEL :	Mr I McClusky for Plaintiff Mr P Gerber for defendant
SOLICITORS:	Solicitor for the plaintiff: T A Murphy Solicitor Legal Aid Commission of NSW 323 Castlereagh Street SYDNEY N S W 2000 Telephone: [phone] Solicitors for the defendant: Quinn & Quinn Solicitors Level 5 301 Castlereagh Street SYDNEY N S W 2000 Telephone: [phone]
CATCHWORDS:	Appeal - Nature of Appeal - Assignment of debt - Notice of Assignment - Service of Notice - Striking out defence - Summary judgment - Discretion
LEGISLATION CITED:	Conveyancing Act 1919 (s.170) The Justices Act 1902 (s.104) Local Court Rules Pt 8 r 3, Pt 10A r 2
CASES CITED:	Anning v Anning (1907) 4 CLR 1049 William Brandt's Sons and Co v Dunlop Rubber Co (1905) AC 454 Denney Gasquet and Metcalfe v Conklin (1913) 3 KB 177 Holt v Heatherfield Trust Limited (1942) 2 KB 1 Lloyd v Banks (1868) LR 3 Ch App 488 Ex parte Dally-Watkins; Re Wilson (1955) (NSW) 454 Cushing v Lady Barkly Goldmining Co (1883) 9 VLR (E) 108 House v The King (1936) 55 CLR 499
DECISION:	Summons and Amended Summons dismissed.; Plaintiff to pay defendant's costs

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

O'KEEFE J

WEDNESDAY 17 MAY 2000

10441/00 - TRISTAN HEAD v CREDIT CORP SERVICES PTY LIMITED

JUDGMENT

1    HIS HONOUR: This is an appeal by the plaintiff, Tristan Head, the unsuccessful defendant in the Local Court held before a magistrate at the Downing Centre, on 28 January 2000. On that date a magistrate struck out his defence and gave leave to Credit Corp Services Pty Limited to enter judgment for the amount claimed.

2    The plaintiff in the present proceedings (the plaintiff), was sued by Credit Corp Services Pty Limited, (the defendant), on a statement of liquidated claim, that was filed on 4 December 1998, in which an amount of $16,365.73 was claimed. The grounds of that claim were that the plaintiff in these proceedings had run up a debt on a credit card issued by Citibank Ltd and that the value of the purchases together with interest and charges totalled the amount claimed by Credit Corp Services Pty Limited. The claim by that company was based upon an assignment, which was alleged to have been forwarded to the plaintiff in these proceedings on 25 November 1998.

3    The plaintiff in the present proceedings filed a defence in the Local Court, which stated:

"I do not believe the plaintiff is able to establish legal title to the alleged debt to Citibank Ltd."

4 A motion was made by the defendant in these proceedings (the plaintiff in the Local Court) to strike out that defence. It was based on Pt 8 r 3 of the rules of the Local Court. Relevantly, that rule provides:

"1. Where a relevant document -

(a) Discloses no reasonable...defence
... the court may at any stage of the proceedings on terms order that the whole or any part of the document be struck out."

5    The rules of the Local Court, like the rules of the District Court and the rules of this Court require a defendant when filing his or her defence to depose to matters of fact that constitute a defence.

6    The defence filed by the plaintiff in these proceedings to the action against him in the Local Court deposed to one fact only, namely the belief of the defendant. The belief of the defendant is totally irrelevant as a defence to the action brought against him in the Local Court and, thus, the document filed discloses no defence to the action brought.

7    The magistrate, however, considered not merely the form of the defence filed (although having regard to the form of the defence his decision to strike it out was clearly correct as a matter of law), but also what the nature of the defence in essence was, namely putting in issue the efficacy of the assignment or, as I was informed on the first day that matter was before me, the notification of assignment to the plaintiff in these proceedings.

8 Section 12 of the Conveyancing Act 1919 provides that:

"Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal chose in action, of which express notice in writing has been given to the debtor...from whom the assignor would have been entitled to receive or claim such debt...shall be, and be deemed to have been effectual in law (subject to all equities which would have been entitled to priority over the right of the assignee if this Act had not passed) to pass and transfer the legal right to such debt or chose in action from the date of such notice, and all legal and other remedies for the same...Provided always that if the debtor...has had notice that such assignment is disputed...he shall be entitled, if he or she thinks fit, to call upon the several persons making claim thereto to interplead concerning the same...".

9    It is well established that notice of assignment of a debt may be given either by the assignor or the assignee (Anning v Anning (1907) 4 CLR 1049 at 1059, Griffith CJ). That notice need not be formal in its nature as the example referred to by Lord Macnaughten in William Brandt's Sons & Co v Dunlop Rubber Co [1905] AC 454 at 462 indicates. The example given by Atkin J (as he then was) in Denney, Gasquet and Metcalfe v Conklin [1913] 3 KB 177 at 180 confirms this.

10    Those two cases involved notices that were far less formal than the notice of assignment dated 25 November 1998 which is annexure B to the affidavit of Mr Templeton, the affidavit that was before the Magistrate. That notice of assignment advises the date of the assignment, the name and address of the assignee. It also advises the debtor that payment to the assignee will be a sufficient discharge of the debt.

11    It is sufficient for the purposes of the law of New South Wales if notice of the assignment is given at any time before action (Holt v Heatherfield Trust Ltd [1942] 2 KB 1 at 4, per Atkinson J). Indeed, prior to the passing of the Conveyancing Act 1919 and its English equivalent, notice in the newspaper of such an assignment had been held to be enough (see Lloyd v Banks [1868] LR 3 Ch App 488).

12 In New South Wales it is sufficient under the Conveyancing Act 1919 (s 170(1)(c)) if notice required by the Act is sent:

“By post in a registered letter addressed to the person to be served by name at his place of abode or business and if that letter is not returned through the Post Office undelivered, such service shall be deemed to have been made at the time when the registered letter would in the ordinary course be delivered".

13    In Ex parte Dally-Watkins; Re Wilson (1955) 72 WN (NSW) 454 at 456 and 457 it was held by this Court that s 170 of the Conveyancing Act was not an exclusive prescription of the mode of service. Indeed, under the common law, which was preserved by that section, there is a presumption that even an unregistered letter, if properly addressed, stamped and posted and not returned to the writer has reached its destination. Furthermore the mere non-recollection that the letter had not been received is not sufficient to rebut the presumption. The judgment in Cushing v Lady Barkly Goldmining Co [1883] 9 VLR (E) 108 at 122 is clear authority for this.

14 In the instant case there was appended to the affidavit of Mr Templeton evidence not merely that the notice of assignment was sent by registered post, as contemplated by s 170(1)(c) of the Conveyancing Act,1919 but also notification from the Post Office to the sender that delivery had been effected. There was thus ample evidence before the magistrate to substantiate that notice of the assignment had been given to and received by the plaintiff in these proceedings.

15 By virtue of Pt 10A of the rules of the Local Court summary judgment may be entered where there is evidence of the facts on which the claim is based and evidence given by the plaintiff in those proceedings, or some responsible person on behalf of such party, as to the belief of the person giving the evidence that the defendant has no defence to the claim or, in cases where it is not a liquidated claim but a claim for unliquidated damages, no defence to the action except as to the amount of the damages claimed.

16    There was before the magistrate an affidavit of 22 November 1999. In that affidavit, which was admitted into evidence over the objection in part of the solicitor for the plaintiff in these proceedings, there was a statement that:

"On 2 November 1998 Citibank Ltd assigned its right, title and interest in the agreement to Credit Corp Services Pty Limited for value consideration".

17 That same affidavit deposed to the defendant in those proceedings being in default and to the belief in the deponent that there was no bona fide defence. The prerequisites of Pt 10A r 2 had been complied with.

18    That being so, the magistrate had the power, not merely to strike out the defence but, in the exercise of his discretion, also to enter or allow judgment to be entered in favour of the plaintiff in those proceedings.

19    Whilst it would be common or perhaps usual for a party whose pleading had been struck out in summary proceedings to be given an opportunity to plead over, it is not invariably the situation that this is done. Whether it is done or not, whether time is allowed or not, would depend upon the exercise by the judicial officer in question of a discretion. That discretion will be exercised in accordance with well established principles, one of which is whether or not there is, in the judgment of the judicial officer in question, a bona fide defence to the action.

20    The magistrate in this case decided that:

"The submission that the defendant has a bona fide defence now, as distinct from the one he filed more than a year ago, is simply not maintainable".

21    In other words, the magistrate formed the view on the material before him that there was no defence to the action. In forming this view, he had the evidence of the deponent, Mr Templeton. Further, no defence was proffered to the magistrate as to the defence that was then relied upon by the party whose defence had been struck out.

22    The magistrate was told that a defence would be filed, but as the facts clearly showed more than a year had passed since the first defence had been filed. So the magistrate had material from which he could form the view that there was no bona fide defence.

23    The decision to which he came fell within the parameters of the decisions that were legally open to him and the fact that he exercised his discretion on that evidence and in those circumstances in a particular way does not bespeak any error of law. It is not for this court to substitute its own discretion for that of the magistrate.

24    Small debts cases are argued in Local Courts, not the Supreme Court of New South Wales, except where there is a point of law arising out of the decision below. To interfere with the exercise of the discretionary function by a judicial officer of an inferior court, it is necessary that certain well known, indeed hallowed, principles should be observed. These are set out in detail in the much referred-to judgment of, Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505.

25    The categories of error in relation to exercise of discretionary function that are so clearly set out in that case are not satisfied or met in this case. No error of law therefore emerges from the material that is before me.

26 It is argued that under s 104 of the Justices Act, 1902 a person such as the plaintiff in these proceedings, against whom an order has been made by a magistrate in summary proceedings, may appeal, not only on a ground that involves a question of law (s.104(1)(a)), but also on a ground that involves a question of mixed fact and law (s.104(1)(b)). However, this last mixed ground will only be permitted with the leave of the Supreme Court.

27    Even assuming that there is an appeal to this Court on a mixed question of fact and law (an assumption that has been held not to be justified in Carr v Neill (1999) NSWSC 1263, unreported, Sully J) having examined the material in this matter, I am satisfied that not only is no error of law disclosed, but in addition no mixed question of fact and law that was in error is disclosed.

28    Furthermore, in dealing with these matters the leave of the court would not normally be given in relation to a matter of mixed fact and law unless there was some special consideration, for example that there was some question of principle that might be of value in other cases. This is the situation a fortiori where the amount involved, although perhaps of significance to at least one of the parties, can only be described as very small, very small indeed, when compared with the ordinary matters that come before the Supreme Court. Whilst $16,000 may be a lot to the plaintiff in these proceedings, it is indeed a very small amount and, as the legislation which governs Local Courts recognises, there is a hierarchy of financial significance which is a basis on which the Parliament has said that in some matters, however wrong the courts below may be, there is no appeal.

29 I think the a like type of reasoning is appropriate to apply or to take into account when determining whether or not any discretion conferred on this Court by s 104(1)(b) of the Justices Act, 1902.

30    However, in the present case as I have already determined, even on the assumption that there may by leave be an appeal to this Court on a mixed question of fact and law, I do not come to the question of exercise of any such discretion, since I do not believe there was any error that involved a mixed question of fact and law in the Court below.

31    For these reasons the summons and the amended summons of the plaintiff are dismissed.

32    Costs should follow the event in accordance with the usual rule. The plaintiff is to pay the costs of these proceedings and of the proceedings below.

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Last Modified: 09/26/2000