Warwick Credit Union Ltd v McCarthy

[2005] QDC 92

DISTRICT COURT OF QUEENSLAND

CITATION:

Warwick Credit Union Ltd  v McCarthy [2005] QDC 092

PARTIES:

WARWICK CREDIT UNION LTD
Plaintiff
v
PATRICK JAMES McCARTHY
Defendant

FILE NO/S:

BD400/05

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court of Queensland, Brisbane

DELIVERED ON:

28 April 2005

DELIVERED AT:

Brisbane

HEARING DATE:

14 April 2005

JUDGE:

Alan Wilson, SC, DCJ

ORDER:

1. Judgment for the plaintiff on the plaintiff’s claim pursuant to Rule 292 of the Uniform Civil Procedure Rules

2.     Direct that the defendant file and serve any amended counterclaim within 21 days

3.     The applicant have liberty to apply on 7 days notice

4.     Order that the defendant pay the plaintiff’s costs of and incidental to this application, and the claim, to be assessed

CATCHWORDS:

PRACTICE AND PROCEDURE – SUMMARY JUDGMENT – Uniform Civil Procedure Rules, r 292

UCPR rr 171, 292

Gargan v Commonwealth Bank of Australia [2004] FCA 641

Lohe v Gargan (2000) QSC 140

COUNSEL:

Mr A Gudkovs, Solicitor for the Applicant
Respondent in person; represented by his agent Peter Alexander Gargan

SOLICITORS:

Gudkovs Power Osborne for the Applicant
Respondent self-represented

1. This is an application for summary judgment under UCPR r292 in an action in which the plaintiff claims a right to possession of property secured by a mortgage granted by the respondent in exchange, under familiar arrangements, for advances from the applicant. The respondent sought to be represented by an agent, Peter Alexander Gargan, and that was not opposed by the applicant’s solicitor Mr Gudkovs.

1. In his defence and counterclaim the respondent admits he granted a mortgage over his property, “Meadowdell”, in 1999 which also secured funds advanced to him by the plaintiff under a later Loan Contract of 17 October 2002.

1. The pleading also contains admissions that moneys were advanced to him, that the mortgage secured the advances, and that he has failed to pay instalments required under the mortgage.  Unchallenged affidavit evidence from the applicant also establishes it had properly served all notices required by the Loan Contract and the mortgage, and by law, to enforce its right to recovery of possession.

1. The defence and counterclaim denies the valuation of the property under the Valuation of Land Act places this claim within the jurisdiction of this Court but, again, the evidence to that effect is sworn, clear and unchallenged.

1. In his counterclaim the respondent asserts he is a farmer whose property has been drought-affected and, as I understand the pleading, that the applicant has wrongfully refused to grant him “further accommodation” for “assistance”.  He claims an injunction restraining the plaintiff from obtaining possession until the counterclaim is tried by jury; damages for his lost opportunities, arising from the plaintiff’s failure to support him during the drought; damages for unconscionable conduct; and, a liquidated penalty calculated in accordance with various pieces of legislation[1].

   [1] Commonwealth Crimes Act 1914, s.4B; Criminal Code (Queensland) s.128; Acts Interpretation Act 1954, ss.42,43

1. Mr Gargan made oral submissions.  He also referred to a document delivered to Mr…