Walsh v Toyota Finance Australia Limited ABN 48002435181 Trading as Toyota Financial Services
[2016] QDC 92
•22 April 2016
DISTRICT COURT OF QUEENSLAND
CITATION:
Walsh v Toyota Finance Australia Limited ABN 48002435181 Trading as Toyota Financial Services [2016] QDC 92
PARTIES:
MICHAEL ANTHONY WALSH
(appellant)
v
Toyota Finance Australia Limited ABN 48002435181 Trading as Toyota Financial Services
(respondent)
FILE NO/S:
3782/2015
DIVISION:
Civil
PROCEEDING:
Appeal
ORIGINATING COURT:
Magistrates Court at Cleveland
DELIVERED ON:
22 April 2016
DELIVERED AT:
Brisbane
HEARING DATE:
19 April 2016
JUDGE:
Smith DCJA
ORDER:
The appeal is allowed.1.
The order of the Magistrates Court at Cleveland on 11 September 2015 is set aside.2.
The matter is remitted to the Magistrates Court at Brisbane.3.
I order that Magistrates Court of Queensland proceeding number 236 of 2015 proceed as though it was started by claim. 4.
The Respondent is to file and serve an amended statement of claim within 28 days.5.
The Appellant is to file and serve his defence and counter-claim within 28 days after the service of the statement of claim. 6.
I will hear the parties on the question of costs.7.
CATCHWORDS:
APPEAL AND NEW TRIAL- INTERFERENCE WITH DISCRETION- Whether any error- whether the Magistrates Court had jurisdiction to make an order for recovery of possession - whether the order should have been made ex parte
BILLS OF EXCHANGE- whether valid bill of exchange
Bills of Exchange Act 1909 (Cth) ss 8, 22, 25
National Consumer Credit Protection Act 2009 (Cth) s 187
National Credit Code ss 88, 99, 100 and 101
Credit (Commonwealth Powers) Act 2010 (Q) s 4
Civil Proceedings Act 2011 (Q) s 29
District Court Act 1968 (Q) s 113
Magistrates Courts Act 1921 (Q) ss 4, 47
Uniform Civil Procedure Rules 1999 (Q) rr 27, 765, 785
Allesch v Maunz (2000) 203 CLR 172
Atkinson v Commissioner of Taxation [2014] FCA 1217
Atkinson v Commissioner of Taxation (2015) 318 ALR 585; [2015] FCAFC 18
Cameron v Cole (1944) 68 CLR 571
Commissioner of Police v Tanos (1958) 98 CLR 383
Deputy Commissioner of Taxation v Sproule [2012] FMCA 1188
House v The King (1936) 55 CLR 499
JJ Richards & Sons Pty Ltd v Precast Concrete Pty Ltd [2010] QDC 272
Ndjamba v Toyota Finance Australia [2010] NTSC 23
Parsons v Raby [2007] QCA 98
Smirski v Macander [2010] NSWSC 929
Startune Pty Ltd v Ultra-Tune Systems (Aust) Pty Ltd [1991] 1 Qd R 192
Teelow v Commissioner of Police [2009] 2 Qd R 489
Warren v Coombes (1979) 142 CLR 531
Wilmink as Trustee for the Bangarra Trust v Westpac Banking Corporation [2014] FCA 872
Wilmink as Trustee for the Bangarra Trust v Westpac Banking Corporation (2015) 318 ALR 572; [2015] FCAFC 17
COUNSEL:
Self-represented appellant
Mr M. de Waard for the respondent
SOLICITORS:
Self-represented appellant
Forbes Dowling lawyers for the respondent
Introduction
This is an appeal against the decision of the Cleveland Magistrates Court on 11 September 2015 ordering the appellant to deliver up to the respondent a 2014 Toyota Hilux SR5 utility registered number: 101TSA. Various consequential orders were made.
Nature of appeal
The appeal is pursuant to s 47 of the Magistrates Court Act 1921 (Q). This section provides
“47 Jurisdiction of the District Court
On the hearing of an appeal or special case, the District Court may do any of the following—(a) draw inferences of fact from facts found by the Magistrates Court, or from admitted facts or facts not disputed;
(b) order a new trial on such terms as it thinks just;
(c) order judgment to be entered for any party;
(d) make any other order, on such terms as it thinks proper, to ensure the determination on the merits of the real questions in controversy between the parties;
(e) as regards any special case, remit the matter to the Magistrates Court with the opinion of the District Court thereon;
(f) make such order with respect to the costs of the appeal or special case as it thinks proper.”
Further, s 113 of the District Court of Queensland Act 1967 (Q) provides:
“The District Court has, for an appeal from a Magistrates Court, the same powers as the Court of Appeal has to hear an appeal.”
In JJ Richards & Sons Pty Ltd v Precast Concrete Pty Ltd[1] McGill SC DCJ noted that r 785 of the Uniform Civil Procedure Rules 1999 (Q) also applies such that r 765(1) is picked up. Therefore, this appeal is by way of rehearing. In such an appeal the Court must make up its own mind on the evidence that was before the Magistrates Court giving “due deference and weight” to the learned magistrate’s view but ultimately the appellant must show the decision appealed from was wrong.[2] In Warren v Coombes[3] their Honours stated:
“Where the question depends on the proper inference to be drawn from undisputed facts, the appellate court, although bound to form its own conclusions, will still give proper regard to the findings of the trial judge at first instance.”
[1][2010] QDC 272.
[2]See Parsons v Raby [2007] QCA 98 at [24]; Allesch v Maunz (2000) 203 CLR 172 at 180-1; and Teelow v Commissioner of Police [2009] 2 Qd R 489 at [4] per Muir JA.
[3](1979) 142 CLR 531 at 551.
In Teelow v Commissioner of Police [2009] 2 Qd R 489 Muir JA held at [4]:
“It is a normal attribute of an appeal by way of rehearing that the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all of the evidence now before the appellate court, the order that is the subject of the appeal is a result of some legal, factual or discretionary error …”
As to the exercise of a discretion in House v The King[4] it was held at 504:
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.”
[4](1936) 55 CLR 499 at 504.
Background to the matter
On 11 September 2015 the respondent filed an application in the Magistrates Court at Cleveland seeking orders that the respondent deliver the Toyota to the respondent. An affidavit of Robert Foster was filed in support of this application.[5] The affidavit alleged that the appellant had defaulted on a loan with respect to the vehicle. The respondent had a registered interest in the vehicle and a default notice had been issued. The loan was for $62,952.01. There was a mortgage on the vehicle in favour of the respondent. The default notice, dated 19 May 2015, alleged that a total amount overdue as at 18 May 2015 was $3,490.50. The statement of account shows that the direct debits from the appellant’s account ceased on 2 March 2015. The application was heard ex parte and the order was made.
[5]Sworn 11 September 2015.
The appellant’s material
The appellant alleges in his notice of appeal that the respondent had no right to seize the vehicle. He has filed five affidavits, the first filed 25 September 2015 (exhibit 2), the second 13 November 2015 (exhibit 3), the third 11 December 2015 (exhibit 4), the fourth 7 March 2016 (exhibit 14) and the fifth 15 April 2016 (exhibit 5).
In the affidavit filed 25 September 2015 there are many argumentative and irrelevant matters raised. He swears that he sent material to the Child Support Agency, Child Support Smart Centres, and the Social Security Tribunal. He also alleges he sent a bill of exchange on 27 April 2015 to the respondent which he alleges was not accepted by the respondent. He alleges at p 8 therefore that the debt did not exist and has been paid. The alleged bill of exchange is annexed to the affidavit. It was obviously prepared by the appellant. It purports to be a “deposit to the secretary of the treasury” for an unlimited amount.
An affidavit of 13 November 2015 purports to support the appellant’s application for summary judgment against the respondent in the sum of $160,000. Further, the affidavit filed on 11 December 2015 purports to support such an application.
There is a further affidavit filed 7 March 2016 which raises similar issues, particularly concerning the Child Support Agency, as does the final one.
Respondent’s material and submissions
The respondent relies on the affidavits of Samantha Taylor (exhibit 10) and Siobhan Ingall (exhibit 11). It also relies on the list of documents (exhibit 7). Ms Ingall deposes as to the repossession of the vehicle and as to its sale. She affirms $30,277.13 is outstanding. Ms Taylor deposes as to the hearing of the application before the Magistrates Court.
The respondent submits that after the order was made by the Cleveland Magistrates Court, the vehicle was repossessed on 16 September 2015. The respondent submits that the appellant applied for a loan contract with the respondent on 28 February 2015. On 28 February 2014 the appellant entered into a consumer fixed rate loan contract with the respondent. It was a term of the contract that the appellant would pay 47 monthly repayments at $1,390.99 followed by a final payment of $22,532.36. The respondent was granted a mortgage over the vehicle as security for the loan contract. The loan contract (clause 4) provided that if the appellant in default of the contract and it was not rectified then the balance would become due and payable and the respondent could bring enforcement proceedings against the appellant in relation to the loan contract and, unless restricted by law from doing so, take possession of the vehicle. Clause 12.2 permitted the respondent, if it had obtained any necessary consent or court order, to enter any premises where it believes the vehicle was. Clause 13 of the loan contract permitted the respondent to sell the vehicle.
The appellant made regular payments between 3 March 2014 and 16 March 2015 pursuant to the loan contract. No payments had been received since 16 March 2015. The balance of the account as at 18 October 2015 was $62,210.86. Three default notices were sent to the appellant. On 7 July 2015, after no remedy of default, the respondent was sent a notice of intention to disclose payment default to the appellant. The vehicle was repossessed on 16 September 2015.
It is submitted:
(a) The respondent has clear title to the vehicle by way of registered mortgage;
(b) There was a valid loan contract;
(c) The appellant has defaulted on the loan contract;
(d) The appellant has breached the loan contract by not maintaining adequate insurance and registration on the vehicle;
(e) The default notices comply with s 88(3) of the National Credit Code and was served by him as required by s 198 of the National Credit Code;
(f) The balance payable under the loan contract was $62,210.86;
(g) The appellant has failed to date to remedy the default;
(h) The respondent was entitled to take possession of the vehicle pursuant to the loan contract, the court order and ss 88, 89, 99, 100 and 101 of the National Credit Code; and
(i) The grounds of appeal are without merit.
Oral submissions
It became clear in oral submissions that three other issues were in dispute:
(a) Whether the Magistrates Court had jurisdiction to make the order;
(b) Whether the Court should have made the order ex parte; and
(c) Whether the Magistrates Court should have refused to deal with the appellant’s application made for the return of the vehicle.
Jurisdiction
Section 4 of the Magistrates Courts Act 1921 (Q) provides:
“4 Jurisdiction of Magistrates Courts
Subject to this Act—
(a) every personal action in which the amount claimed is not more than the prescribed limit, whether on a balance of account or after an admitted set off or otherwise; and
(b) every action brought to recover a sum of not more than the prescribed limit, which is the whole or part of the unliquidated balance of a partnership account, or the amount or part of the amount of the distributive share under an intestacy or of a legacy under a will; and
(c) every action in which a person has an equitable claim or demand against another person in respect of which the only relief sought is the recovery of a sum of money or of damages, whether liquidated or unliquidated, and the amount claimed is not more than the prescribed limit;
may be commenced in a Magistrates Court, and all Magistrates Courts shall within their respective districts have power and authority to hear and determine in a summary way all such actions.
Section 187 of the National Consumer Credit Protection Act 2009 (Cth) provides:
“Civil jurisdiction of courts
(1) Jurisdiction is conferred on a court referred to in an item in the following table in relation to civil matters arising under this Act, subject to the limits on the court's jurisdiction (if any) specified in the item:
Civil jurisdiction of courts Item Court on which civil jurisdiction is conferred Limits of jurisdiction 1 The Federal Court No specified limits. 2 The Federal Circuit Court The court does not have jurisdiction to award an amount for loss or damage that exceeds:
(a) $750,000; or
(b) if another amount is prescribed by the regulations--that other amount.
3 A superior court, or lower court, of a State or Territory
The court's general jurisdictional limits, including limits as to locality and subject matter. (2) This section has effect subject to section 188.”
This Act was adopted by the Credit (Commonwealth Powers) Act 2010 (Q) (section 4).
Section 88(2) of the National Credit Code provides that the credit provider must not begin enforcement proceedings against a mortgagor to take possession or sell any property the subject of the mortgage unless the mortgagor is in default under the mortgage and a default notice has been sent allowing the mortgagor a period of at least 30 days to remedy the default and the default has not been remedied.
Section 100 permits the court to make an order permitting the credit provider to enter residential premises to take possession of mortgaged goods. Section 101 allowed the court to make an order for possession.
The Magistrates Court is a creature of statute. The powers of such a court are limited by statute.[6]
[6]Startune Pty Ltd v Ultra-Tune Systems (Aust) Pty Ltd [1991] 1 Qd R 192.
In Frigger v Nigam[7] Commissioner Schoombee noted at [12]-[18]:
[7][2005] WADC 127.
“[12] Pursuant to s 50(1)(a) of the District Court of Western Australia Act 1969 this Court has jurisdiction to hear and determine all personal actions where the amount, value or damages sought to be recovered is not more than the jurisdictional limit. ‘Personal actions’ are not defined. Seaman, ‘Civil Procedure Western Australia’, Vol 2 states in his commentary on this section at [13,525] the following:
‘Personal actions are such whereby a person claims a debt, or personal duty, or damages in lieu thereof; and likewise where a person claims a satisfaction in damages for some injury to his or her person or property. The former are said to be founded on contracts, the latter upon torts or wrongs: R v Cheshire County Court Judge and United Society of Boilermakers; Ex parte Malone [1921] 2 KB 694 at 709.’
…
[14] In the State of Western Australia v Crimmins & Anor[2004] WADC 162, Wisbey DCJ dealt with interpleader proceedings in respect of bangles which one claimant asserted had been given to her as a present and the other claimant asserted she had purchased. Wisbey DCJ concluded that this Court had jurisdiction as the dispute between the claimants could be categorised as actions in detinue and that these were ‘personal actions’ falling under s 51(1)(a) of the District Court of Western Australia Act 1969. Wisbey DCJ referred to Halsbury's Laws of England, 3rd ed, Vol 1, at par 41 where it is said that ‘personal actions may for present purposes be divided into actions arising out of contract (ex contractu) and actions arising out of torts (ex delicto)’.
[15] In par 31 in Halsbury's Laws of England, op cit, personal actions are further described as follows:
‘In personal actions the plaintiff claimed a debt, or sought to recover a chattel or damages in lieu thereof, or claim satisfaction in damages for some injury done to his person or property.’
[16] The statements made in par 31 and par 41 do not appear to have been repeated in the 4th ed of Halsbury's Laws of England or in Halsbury's Laws of Australia. However, these paragraphs appear in Halsbury's, op cit, under the heading "Old forms of action" and with the following footnote:
‘The description of old forms of action contained in this section may possibly be regarded as superfluous in a work intended to state the law of England as it now stands. It was, however, thought better to depart in this instance from the principle of excluding purely historical matter, since some acquaintance with the outlines of ancient procedure is necessary for an intelligent perusal of old reports.’
[17] In my view the historical background provided in Halsbury's Laws of England, 3rd. ed, indicates that a ‘personal action’ includes an action to recover a chattel and an action arising out of tort. In Kambur Pty Ltd v Adams (supra) McGregor J held that ‘in the terminology of real and personal actions, the actions of detinue and conversion or trover would be described as personal actions.’ Accordingly, the plaintiff's claim in detinue is within the jurisdiction of this Court.
[18] In light of the above I do not accept the submission by the defendant's counsel that this Court does not have jurisdiction to deal with the plaintiff's application to have the documents delivered up, or with the defendant's claim to a lien in respect of these documents.”
A similar view was taken by Judge Baumann in Queensland Building Services Authority v Kiri.[8]
[8][2005] FMCA 921.
In my view there was jurisdiction here for the Magistrates Court to make the orders it did as the recovery of possession of the property was within its general jurisdictional limit.
Whether the hearing should have been ex parte
The usual rule is that an application must be served on the opposing party at least three days before the date of hearing. Rule 27(2) of the Uniform Civil Procedure Rules though provides that the time limit does not apply if the rules or another act permit the application to be heard and decided without being served.
Under r 27(3) of the Uniform Civil Procedure Rules if the application is not served the Court must not hear and decide the application unless the Court considers it just to hear and decide the application on the day of the hearing if one of the following applies:
“…
(a) the court is satisfied delay caused by giving notice of the application would cause irreparable or serious mischief to the applicant or another person;
(b) the court is satisfied the respondents to the application will suffer no significant prejudice if it hears and decides the application on the day set for hearing;
(c) the respondents to the application consent to the court hearing and deciding the application on the day set for hearing.
Example of subrule (3)—
The court may decide subrule (3) has been satisfied if the application is a cross application by a respondent to another application and it is convenient for the applications to be heard together.(4) For an application not served as required by subrule (1)—
(a) the court may make an order on an undertaking given by the applicant and acceptable to the court; and
(b) a person affected by the order may apply to the court for it to be set aside.”
In this matter the respondent argues that the matter was able to be heard ex parte. However, I am of the view that an error occurred here.
The material relied on to support the application was the affidavit of Robert Foster.[9] It was a very short affidavit and provided no evidence upon which one could rely to engage any of the sub paragraphs of r 27(3). There is no transcript of the hearing below so the Court is left in a position of not being able to examine the reasons given.
[9]See Exhibit 10 – SNDT2.
The respondent relied on the decision of Ndjamba v Toyota Finance Australia.[10] In that decision Blokland J held that the application could be heard ex parte. However, in that case there was evidence giving rise to a strong inference that the appellant would take steps to prevent repossession if served. Her Honour noted at [8]:
“The primary considerations on whether or not to proceed ex parte concern whether there is urgency; whether irreparable damage would flow from making an ex parte order; whether hardship would flow to a party against whom an order is made and whether such an order can be set aside.”
[10][2010] NTSC 23 applied in Smirski v Macander [2010] NSWSC 929 at [34]. .
In the present case there was no such evidence. Indeed, there was a real chance of prejudice to the appellant if the order was made. As it now turns out the vehicle has been sold.
The making of an ex parte order is a significant step and it should only be undertaken with due care.[11]
[11]Commissioner of Police v Tanos (1958) 98 CLR 383 at 395 per Dixon CJ; Cameron v Cole (1944) 68 CLR 571 at 589 per Rich J.
In the circumstances the magistrate should not have made the order ex parte and was in error in doing so. The Magistrate should have been adjourned to enable service on the appellant.
In any event, as it turns out, the appellant was “shut out” from making an application to set aside the order.
Whether there was error in dealing with the appellant’s application dated 21 September 2015
The evidence reveals that on 21 September 2015 the appellant filed an application for recovery of the vehicle from the respondent in the Magistrates Court. The application was returned to him. In evidence given from the bar table he said he was told by the court that he could not file the application, and that the appropriate vehicle was by way of appeal.
If this advice was given to him, it was clearly wrong. Although not couched in appropriate language, the application was to seek to set aside the ex parte order.
There is no doubt on the material the application was filed and appears to have been returned to him.
Rule 667 of the Uniform Civil Procedure Rules provides:
“Setting aside
(1) The court may vary or set aside an order before the earlier of the following—
(a) the filing of the order;
(b) the end of 7 days after the making of the order.
(2) The court may set aside an order at any time if—
(a) the order was made in the absence of a party; or
(b) the order was obtained by fraud; or
(c) the order is for an injunction or the appointment of a receiver; or
(d) the order does not reflect the court's intention at the time the order was made; or
(e) the party who has the benefit of the order consents; or
(f) for a judgment for specific performance, the court considers it appropriate for reasons that have arisen since the order was made.
(3) This rule does not apply to a default judgment.
Note—
For a default judgment, see rule 290.”
Indeed, it seems to me that this rule is present to enable mitigation from the harsh effects of an ex parte order.
It was an error that the Court did not deal with this matter.
Bill of exchange point
It is my view that the purported argument as to the bill of exchange by the appellant fails. There have been a series of cases in the Federal Court and Federal Circuit Court where debtors have attempted to argue that satisfaction of a debt has been achieved by the delivery of a bill of exchange.
Section 8 of the Bills of Exchange Act 1909 (Cth) provides:
“Bill of exchange defined
(1) A bill of exchange is an unconditional order in writing, addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand, or at a fixed or determinable future time, a sum certain in money to or to the order of a specified person, or to bearer.
(2) An instrument which does not comply with these conditions, or which orders any act to be done in addition to the payment of money, is not a bill of exchange.
(3) An order to pay out of a particular fund is not unconditional within the meaning of this section; but an unqualified order to pay, coupled with:
(a) an indication of a particular fund out of which the drawee is to reimburse himself or herself, or a particular account to be debited with the amount; or
(b) a statement of the transaction which gives rise to the bill;
is unconditional.
(4) A bill is not invalid by reason:
(a) that it is not dated;(b) that it does not specify the value given, or that any value has been given therefor; or
(c) that it does not specify the place where it is drawn, or the place where it is payable.”
Further, s 22 of the Bills of Exchange Act 1909 provides:
“Definition and requisites of acceptance
(1) The acceptance of a bill is the signification by the drawee of his or her assent to the order of the drawer.
(2) An acceptance is invalid unless it complies with the following conditions, namely:
(a) It must be written on the bill and be signed by the drawee. The mere signature of the drawee, without additional words, is sufficient.
(b) It must not express that the drawee will perform his or her promise by any other means than the payment of money.”
Further, s 25 of the Bills of Exchange Act 1909 provides:
“Inchoate instruments
(1) Where a simple signature on a blank stamped paper stamped with an impress duty stamp is delivered by the signer in order that it may be converted into a bill, it operates as a prima facie authority to fill it up as a complete bill for any amount the stamp will cover, using the signature for that of the drawer or the acceptor or an indorser.
(2) And in like manner when a bill is wanting in any material particular, the person in possession of it has a prima facie authority to fill up the omission in any way he or she thinks fit.
(3) In order that any such instrument when completed may be enforceable against any person who became a party thereto prior to its completion, it must be filled up within a reasonable time, and strictly in accordance with the authority given. Reasonable time for this purpose is a question of fact:
Provided that, if any such instrument after completion is negotiated to a holder in due course, it shall be valid and effectual for all purposes in his or her hands, and he or she may enforce it as if it had been filled up within a reasonable time and strictly in accordance with the authority given.
(4) For the purposes of subsection (1) of this section, duty stamp includes a duty stamp, required, by the law of the State in which the instrument is issued, to be impressed on a bill.”
In Deputy Commissioner of Taxation v Sproule[12] the Federal Magistrates Court of Australia held against the argument that satisfaction had been achieved by the tender of a bill of exchange. At paragraph 19 it was noted a bill of exchange is:
“an unconditional order in writing addressed by one person (drawer) to another (the drawee) signed by the drawer, will claim the drawee to pay on demand, or a fixed future time, a sum of money to a specified person or to the bearer…In a business transaction, a person takes a bill being akin to legal tender; the order to pay must be free from any preconditions or contingencies. A bill of exchange is a negotiable instrument. After a bill has been written by a drawer it is presented to the drawee for acceptance. By signing the face of the bill, the drawee (now the acceptor) affirms that the bill will be paid on maturity. The specified person or payee endorses the bill by signing the back of it.”
[12][2012] FMCA 1188.
It was further said at paragraph 22:
“Without embarking on a detailed historical and legislative review of the Bills of Exchange Act 1909 (Cth), a bill of exchange, most simply put, is a financial document that requires an individual or business that is addressed in the document to pay a specific amount of money on the date that it cites within the text of the document. Considered to be a negotiable instrument, the date for the demand to pay generally ranged from the current date to some date in the future. A bill of exchange will also require the authorising signature of the drawee, if accepted then the acceptor (debtor) in order to be considered legal and binding. There is no evidence that the DCT has accepted the bill of exchange.”
Sproule was followed in Wilmink as Trustee for the Bangarra Trust v Westpac Banking Corporation.[13] An appeal against this decision was dismissed by the Full Court of the Federal Court.[14]
[13][2014] FCA 872.
[14](2015) 318 ALR 572; [2015] FCA FC 17.
It was held, in effect, that the use of the bill of exchange was either a complete misunderstanding of the use of the instrument or a cynical ploy to avoid paying the debt.
In a similar vein in Atkinson v Commissioner of Taxation[15] the appeal was dismissed.[16] Jagot J held at [47] that the statement of account in that case was not a bill of exchange.
[15][2014] FCA 1217.
[16](2015) 318 ALR 585; [2015] FCA FC 18.
In this case I find there was no valid bill of exchange as:
(a) It is not addressed to anybody;
(b) It does not direct who is to be paid;
(c) It does not have a certain sum; and
(d) It is not accepted by the drawee.
I therefore find there is no merit in this ground of appeal.
Orders to be made
As noted earlier, I have found in favour of the appellant on two grounds of appeal. I will allow the appeal and set aside the order made by the Magistrate on 11 September 2015.
As the car has been sold, as there is an allegation that the appellant is liable for the difference between the sale price and as he counter-claims, it seems appropriate to me to direct that the respondent file and serve a statement of claim and the appellant file and serve a defence and counter-claim.
I might say that in my view it would be wrong to claim as against the appellant any costs associated with the failed ex parte order or the appeal therefrom.
By reason of the provisions of section 29 of the Civil Proceedings Act 2011 (Q), it does not matter that the counter claim is for $160,000. I will therefore remit the matter to the Magistrates Court at Brisbane.
In the circumstances my orders will be as follows:
The appeal is allowed.1.
The order made by the Magistrates Court on 11 September 2015 is set aside.2.
The matter is remitted to the Magistrates Court at Brisbane.3.
I order that Magistrates Court of Queensland proceeding number 236 of 2015 proceed as though it was started by claim. 4.
The Respondent is to file and serve an amended statement of claim within 28 days.5.
The Appellant is to file his defence and counter-claim within 28 days after the service of the statement of claim. 6.
I will hear the parties on the question of costs7.
9
7
2