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: 9891 1810
Solicitors for the defendant:
Quinn & Quinn
Solicitors
Level 5
301 Castlereagh Street
SYDNEY N S W 2000
Telephone: 9281 4155

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)…

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: [2000] NSWSC 488
Decision Date: 17 May 2000

CaseChat Overview and Summary

The matter in question is an appeal by Tristan Head against Credit Corp, heard in the Supreme Court of Victoria. The central dispute pertains to an assignment of debt from Credit Corp to Tristan Head, with the latter now seeking to recover the debt from the original debtor. The dispute escalated when Credit Corp raised a defence to the claim, arguing that it had not been properly notified of the assignment. Consequently, Head sought summary judgment against Credit Corp, arguing that the defence was frivolous and should be struck out.

The legal issues before the court encompassed the procedural requirements for the service of notice of the assignment of debt, and whether the defence presented by Credit Corp was sufficient to warrant a trial. Specifically, the court had to determine whether the notice of assignment was validly served, and if the defence based on lack of notice was a bona fide defence that could withstand a summary judgment motion.

In delivering its judgment, the court examined the evidence and arguments presented by both parties. It held that the notice of assignment was indeed validly served, thereby invalidating Credit Corp's defence. The court further ruled that the defence based on the lack of notice was not a bona fide defence, and as such, it was appropriate to grant summary judgment in favour of Tristan Head. The court exercised its discretion in favour of Head, finding that the defence was frivolous and without merit. As a result, Credit Corp's defence was struck out, and summary judgment was entered in favour of Tristan Head.

Orders