Gel Custodians Pty Ltd v R.Q. Consultants Pty Ltd & Others

PROCEDURE - JUDGMENTS AND ORDERS - ENFORCEMENT OF JUDGMENTS AND ORDERS - EXECUTION AGAINST PROPERTY - WARRANTS OF SEIZURE AND SALE OR WRIT OF FIERI FACIAS - where summary judgment obtained by the plaintiff - where urgent relief is sought by the defendants - whether the disadvantage suffered by the defendants where a stay is not granted outweighs the competing disadvantage suffered by the plaintiff if the stay is granted

PROCEDURE - SUPREME COURT PROCEDURE - QUEENSLAND - PROCEDURE UNDER RULES OF COURT - SUMMARY JUDGMENT- where the defendants failed to appear - where the defendants are self-represented - - where matter remains a proceeding in the Brisbane registry - where actions of the defendants caused extraordinary delay - whether the defendants have an arguable case that the orders of the judgment ought to be set aside

Trade Practices Act 1974 (Cth), s 52

Uniform Civil Procedure Rules 1999 (Qld), r 5, r 12, r, 17, r 47, r 139, r 140, r 292, r 302

Agar v Hyde [2001] HCA 41; (2000) 201 CLR 552

Asia Pacific International Pty Ltd v Peel Valley Mushrooms Ltd [1998] QCA 414; [1999] 2 Qd R 458 at 463

AVS Property Pty Ltd v QLD-1 Pty Ltd [2007] QSC 365

Forsyth v Gibbs [2008] QCA 103; (2009) 1 Qd R 403

Jiona Investments Pty Ltd & Ors v Medihelp General Practice Pty Limited [2010] QCA 99

National Australia Bank Limited v Singh [1995] 1 Qd R 377

National Mutual Life Assn of A/asia Ltd v Oasis Developments Pty Ltd [1983] 2 Qd R 441

Troiani & Anor v Alfrost Properties Pty Ltd [2002] QCA 281

Q. Lawrence (self-represented) for the applicant/defendants

South & Geldard Solicitors as Town Agents for Gadens Lawyers for the respondent/plaintiff

[1] McMeekin J: The defendants bring these applications. The fourth defendant, Quentin Derrick Lawrence, appeared representing all defendants. The third defendant is his wife Roseanne Feery-Lawrence and the first and second defendants a company RQ Consultants Pty Ltd, sued in its own right (as first defendant) and as trustee (as second defendant). The third and fourth defendants are the directors and shareholders of RQ Consultants Pty Ltd.

[2] The applications are identical, save that they refer to different warrants of execution, and each consists of some 26 paragraphs. The applications consist of a combination of assertions of fact, arguments and submissions and, occasionally, matters that are appropriate for an application.

[3] Their application demonstrates that the defendants misconceive the function of the court and of the administrative staff employed in the registries. The only significant matters raised by the applications are an intimation of a change of venue application and the matters set out in paragraph 1 of each of the applications which reads:

"The Defendants seek an URGENT and IMMEDIATE ORDER that set aside and stay an Order issued on 28th January 2010 in the matter known as BS5064/09 and previously managed in the Supreme Court's Registry of Brisbane."

[4] The order referred to is one made by her Honour Justice M Wilson in which the plaintiff obtained summary judgment against the defendants pursuant to r 292 of the Uniform Civil Procedure Rules 1999 (Qld) ("UCPR"). By that order the plaintiff obtained judgment against the defendants in the sum of $1,006,722.32, recovered against the second defendant possession of certain land situated at 38 Kent Street, Rockhampton, and recovered against the third defendant possession of certain land located at 4 Scully Street, Frenchville. As well the defendants were required to pay the plaintiff's costs on the indemnity basis. Warrants of execution have now issued out of the Rockhampton registry.

[5] Before dealing with the detail of the matter I observe that the defendants' assertion that this matter was "previously managed in the Supreme Courts Registry of Brisbane" is wrong and misconceived. The matter remains a proceeding in the Brisbane registry. There has been no application pursuant to s 289 of the Supreme Court Act 1995 (Qld) to have the matter transferred to a different registry. By s 288 of that Act, once a civil cause or matter has commenced in a registry of the Supreme Court then "all applications and other proceedings therein shall be made and carried on in such registry accordingly". I have considerable doubt as to whether these applications, that do not purport to be originating applications, should have been received by the Rockhampton registry and whether I should entertain them at all. Rule 47(1) of the UCPR makes plain that once a proceeding has started in a registry then "each application or other step required or permitted to be made in a registry must be made in the registry" and "the proceeding must be tried or heard in the district served by the registry".

[6] The defendants were therefore required by the rules to bring this application in Brisbane.

[7] Nonetheless I determined that I would hear the application to the extent that it required a consideration of the issue of whether urgent relief ought to be granted to the defendants. I have determined to treat the application as an originating oral application for urgent relief seeking a stay of the warrants of execution: r 12 UCPR. I am mindful of the philosophy expressed in r 5 of the UCPR of avoiding undue delay and technicality - although the requirement of keeping applications within the one registry has obvious and sound benefits and is hardly an undue technicality. The defendants contend that financial constraints prevent them from bringing the application in Brisbane. Further, by reason of their claimed impecuniosity the defendants were not legally represented.

[8] Thus I propose to consider only the question of what relief might be appropriate on an urgent basis and otherwise direct that the papers that have been filed be sent to the Registrar of the Brisbane registry and filed in proceedings BS5064/09.

[9] This has the effect that if the defendants wish to agitate the various matters raised in their "application" then they will need to obtain a hearing date from the Brisbane registry for the matter to be heard before an applications Judge. They may find that arrangements can be made to hear them by telephone if their financial position is indeed so desperate that they cannot afford to travel to Brisbane as their material contends.

[10] The only urgent aspect of the application brought before me is a determination of the question of whether there should be a stay of a warrant of execution issued to enforce the orders of the court and specifically to obtain possession of the land that I have mentioned. Mr Lawrence informed me that his family home was located on one of the blocks of land.

[11] Rule 300 UCPR provides that the "court may order a stay of the enforcement of a judgment given under this part for the time and on the terms the court considers appropriate". Rule 300 appears in the same part as the rule under which judgment was obtained - Part 2 of Chapter 9 of the rules. The rule is commonly used where the defendant suffering judgment asserts that a valid counter-claim exists, although there is nothing in the rule to restrict it to only such a case.

[12] The matters that seem to me to be relevant in determining whether a stay should be ordered include the following:

(a) The defendants wish to set aside orders made on a summary judgement application. There is power in the Court to vary or set aside such orders: see r 302 UCPR;

(b) The judgment was duly entered. The Court will only set aside the judgment that the plaintiff has obtained if the defendants can demonstrate some reasonable explanation for their non-appearance at the hearing or point to some injustice that will be caused if the judgment is not set aside;

(c) Given that in my view I am not permitted to entertain the application to set aside the existing judgment, I consider that I must assess where the balance of convenience lies. Relevant considerations include the defendants' prospects of showing that there is a good arguable case that the judgment ought to be set aside, whether the defendants will be disadvantaged if a stay is not ordered, and whether there is any competing disadvantage to the plaintiff should the stay be granted which outweighs the disadvantage to be suffered by the defendants if the stay is not granted: see Asia Pacific International Pty Ltd v Peel Valley Mushrooms Ltd [1998] QCA 414; [1999] 2 Qd R 458 at 463 at [10] per Chesterman J (as he then was) in addressing the issues relevant to a court hearing a stay application pending an appeal, which is somewhat akin to my position.

(d) Where the plaintiff has acted on the judgment duly entered then that is a factor against the exercise of any discretion.

[13] By its Statement of Claim the plaintiff asserts that on the 25th of October 2006 the plaintiff lent to the defendants a total sum of $832,000. The defendants agreed to repay that principal sum together with interest calculated in accordance with a written loan agreement by way of monthly instalments of interest and principal repayments over a term of 30 years. The second and third defendants executed mortgages over the real property that I have mentioned. It was a term of each of the mortgages that if payments were not made in accordance with the loan agreement that would constitute an event of default under the mortgages and the plaintiff would thereby become entitled to demand and require immediate payment of the debt, to enter into possession of the properties the subject of the mortgages and to sell the properties. On the 19th of March 2007, the principal sum owing under the loan agreement was increased by agreement by $88,412.

[14] Subsequently there was a failure to pay the instalments due under the loan agreement and notices of default were issued to each of the defendants. Such notices were issued on the 10th of September 2008 and the 5th of March 2009. The Claim and Statement of Claim were filed on the 14th of May 2009.

[15] On the 17th of July 2009 the defendants filed a Notice of Intention to Defend. The Notice did not have the defendants' defence attached to it as the rules required (see r 139 UCPR), nor did it have an address for service within 30 kilometres of the Brisbane registry (rules 17 and 140 UCPR), nor, as it turned out, was it served on the plaintiff's solicitors. By the 14th paragraph of that notice the defendants "inform the court that matters we would seek to include", presumably in their defence, and there follows 12 sub-paragraphs. That is the closest that the material came to disclosing a defence.

[16] The matters that the defendants nominated in the 14th paragraph of their Notice of Intention to Defend centre on complaints made about the conduct of an entity described as "Wizard Home Loans" in inducing the defendants "to become Wizard Home Loans Rockhampton"; complaints about the way in which "Wizard Home Loans" thereafter conducted the business in Rockhampton; complaints that an entity described as "GE Parent Company" made promises and gave assurances about the future of the Rockhampton business; and complaints as to the actions of "GE Parent Company" and another entity "GE Master Company" had on the profitability of the Wizard Home Loans Rockhampton business. The paragraph ends with an assertion that the defendants propose making a counter claim for $5,720,000 for damages "that the GE Master Company and its associated businesses have caused to us, being our estimation of the loss of business and income promised to us...".

[17] On the 7th of January 2010 the plaintiff applied to the court for judgment pursuant to r 292 UCPR. The plaintiff was entitled to make that application "at any time after a defendant files a notice of intention to defend": r 292(1). Subsection 2 of the rule provides that the court may give judgement for a plaintiff against a defendant if it is satisfied that:

(a) "the defendant has no real prospect of successfully defending all or a part of the plaintiff's claim; and

(b) there is no need for a trial of the claim or the part of the claim".

[18] The material shows that the application and supporting affidavit material were duly served on the defendants. Mr Lawrence informed me that the defendants have taken the view that they will not accept any documents from the plaintiff or the plaintiff's solicitors nor accept any communication whether it is by telephone or email. The plaintiff attempted all three methods of informing the defendant of the steps that it was taking - by post to the nominated notice of address for service, by email and by telephone. The defendants took the view that they do not accept the authority of the court to adjudicate on the matter and that the rules of court have no application to them. Because of their attitude the defendants presumably remained ignorant of the fact that the application was to be heard on the 28th of January 2010 and hence they did not appear.

[19] On the hearing of the application the only response that the defendants had made to the plaintiff's Claim and Statement of Claim, that is the Notice of Intention to Defend, was placed before Wilson J. That Notice, of course, was unsupported by any affidavit material. Further, the plaintiff responded to it by the filing of an affidavit by Hamish Blank. Mr Blank points out in his affidavit that the entity Wizard Home Loans Pty Ltd is separate and distinct from the plaintiff company, Gel Custodians Pty Ltd. He annexed the relevant searches. Mr Blank annexed to his affidavit a document entitled "Wizard Branch Office Agreement" which he deposes was entered into by the first defendant with Wizard Home Loans Pty Ltd on or about 18 October 2004. The agreement was said to continue for a period of 36 months after the date of the agreement unless extended in writing by the parties. There is no evidence that the agreement was extended in writing. Mr Blank deposed that on 25 June 2008 Wizard Home Loans Pty Ltd wrote to the defendants advising that the agreement had expired on 18 October 2007 and that they proposed closing the Rockhampton branch on 1 July 2008. Given the state of the evidence there was no reason to deny the plaintiff summary judgment.

[20] The defendants have now filed affidavits before me. In their first affidavit they contend that the plaintiff is a "servant and loan facilitator" for an entity described as "GE Money Australia" and that that latter entity, described by the defendants as "the Master Entity", held a 75% interest in an entity "Wizard Home Loans" and that Wizard Home Loans was subservient to GE Money Australia. There are then extensive complaints about claimed false and misleading representations, lies, withdrawal of inducements and undertakings, threats and other conduct by these two entities and others all in connection with the business "Wizard Home Loans, Rockhampton". To the extent that there is any particularisation of any statement or deed it is not apparent what relevance that has to the loan and mortgages the subject of the orders.

[21] In their more recent affidavit the defendants contend that there was a forced closure of the home loans business, that that made it impossible for them to service the loan, that the loan was entered into "to support the objectives we had previously discussed and agreed with the Master Entity, and facilitated by the plaintiff, so our efforts to grow our Branch in accordance with the business plan we had with them, was achievable".[1] It is further contended that the loan was only made available by the plaintiff to the defendants because of the defendants' business association with the "Master Entity".

[22] The potential issues raised by these assertions include:

(a) Whether the plaintiff was the agent of the entities associated with the Wizard Home Loans business;

(b) Whether those entities owed a duty of care to the defendants in their dealings with them? If so, whether they breached that duty?;

(c) Whether those entities acted unconscionably, in breach of the provisions of the Trade Practices Act 1974 (Cth) ("TPA") and of the Australian Securities and Investments Commission Act 2001 (Cth) or the general law, in their dealings with the defendants?;

(d) Whether the conduct of those entities was misleading and/or deceptive, in breach of s 52 of the TPA?

[23] The question then is what impact resolution of any of these issues in the defendants' favour would have on the plaintiff's loan agreement and securities?

[24] Assuming the facts be as the defendants contend, and to some extent patching together the various attempts by the defendants to set out their case, the issue is whether misrepresentations, or conduct of a type as characterised in the preceding paragraph, concerning a business by entity A which induces a borrower to enter into a loan with entity B and grant mortgage securities to that latter entity to secure the loan, and further induces that borrower to invest the funds so obtained in that business to facilitate the growth of that business which would be to the benefit of entity A, which business fails because the representations or conduct prove to be misleading or untrue causing the borrower substantial losses and thereby significantly and adversely affecting the borrower's ability to repay the loan, provides any ground on which to resist a demand for repayment of the monies or enforcement of the securities by entity B in circumstances where the two entities are related.

[25] Ms Ahern, who appeared for the plaintiff, characterised, accurately in my view, the defendants' contentions as amounting to a claim for an equitable set-off between cross-claims. The cross-claim that the defendants have foreshadowed is one for damages flowing from the demise of the business into which the funds were invested and in respect of which the claimed misrepresentations were made.

[26] The Court of Appeal has recently considered the relevant test to apply in these circumstances in Forsyth v Gibbs [2008] QCA 103; (2009) 1 Qd R 403. Keane JA (as he then was) explained that the party in the position of the defendants here needed to demonstrate "such a connection between the claim and cross-claim that the cross-claim can be said to impeach the claim so as to make it unfair for the claim to be allowed without taking account of the cross-claim".[2]

[27] Keane JA gave as examples of fact scenarios that might attract the intervention of equity as including evidence "that the [borrower in my example above] was induced to accept the loans provided by [entity B in my example above] by reason of the misconduct alleged against [entity A]. There is no evidence that the [borrower's] loan indebtedness to [entity B] arose, or was increased, by reason of any misconduct on the part of the [entity A] or even by reason of the liabilities or losses incurred by the [borrower] consequential upon that misconduct".[3] Those scenarios are potentially applicable here.

[28] Here, if the defendants' facts are made out, then there is the prospect that because of the misrepresentations and misconduct alleged the defendants were induced to enter into the loan initially, and their liabilities have increased substantially as a result of the losses consequent on the misconduct complained of. I do not, of course, mean to assert that these facts are made out or that such inducements necessarily occurred.

[29] Here matters are complicated because the defendants are self represented and ignorant of the matters that they can usefully argue. As matters stand there is little in the way of evidence to assist in determining the justice of their complaints.

[30] For example, there is a lack of particularity as to when the claimed representations were made or the conduct about which they complain occurred. No particulars are provided of the dates of occurrence of the matters detailed in paragraph 14 of the Notice of Intention to Defend or paragraph 26 of the affidavit filed 20 April 2010. So it is not immediately apparent, for instance, how it is that representations said to have been made before they commenced the agency business in 2004 can have some effect on their decision to enter into the loan agreement two years later in October 2006. Nor is it clear how misrepresentations or conduct at an unknown time in respect of the conduct of the home loan business impacted on any decision to take out the loan. Further the "Wizard Branch Office Agreement" referred to by Mr Blank and which presumably is the agreement in relation to which the defendants make complaint in paragraph 14 of the Notice of Intention to Defend and paragraph 26 of their affidavit filed 20 April 2010 was for a limited time and was terminated, so far as the evidence shows as Wizard Home Loans Pty Ltd was entitled to do, on 1 July 2008. The default under the loan agreement occurred at a subsequent time. It is not demonstrated why breaches of the branch office agreement, or any unconscionable conduct, assuming that is what the complaints amount to, can provide a basis for denying the plaintiff's rights under the loan agreement.

[31] However there has been no curial examination of the facts. I am mindful that ordinarily issues are not to be determined in a summary way except in the clearest of cases: Agar v Hyde [2001] HCA 41; (2000) 201 CLR 552 at 575, 576 per Gaudron, McHugh, Gummow and Hayne JJ and that a similar approach has been taken in relation to applications to set aside regularly obtained judgments: National Mutual Life Assn of A/asia Ltd v Oasis Developments Pty Ltd [1983] 2 Qd R 441 at 449, 450; National Australia Bank Limited v Singh [1995] 1 Qd R 377 at 380; AVS Property Pty Ltd v QLD-1 Pty Ltd [2007] QSC 365 at paras [11], [12]; and Jiona Investments Pty Ltd & Ors v Medihelp General Practice Pty Limited [2010] QCA 99 at [34]- [35] per Muir JA.

[32] It is for this reason that I adjourned the matter at the time that the application first came before me and ordered that a stay operate until 5pm on the 7th of May 2010. I wished to give the defendants every opportunity to demonstrate that they had some prospects of defending the action. Their latest affidavit, whilst not descending to sufficient particularity to enable any strong view as to the likely outcome, does provide some basis to suggest that there may be merit in the defendants' contentions.

[33] In my view the defendants have demonstrated enough for a finding that there is a prospect of them successfully setting aside the summary judgment or of having execution on the judgment stayed until the issues raised by their proposed counter-claim are resolved. They will need to provide detailed facts to support their claims if they are to have that success.

[34] The defendants have no reasonable explanation for their failure to appear. They essentially contended that the rules of court do not apply to them and that they are entitled to ignore them. Hence they refused to accept service of any document or receive any other communication from the plaintiff's solicitors, therefore remained ignorant of the proceedings, and proffered no material in response to the plaintiff's case. I gathered from Mr Lawrence at his last appearance that he acknowledges that he accepts now that he has behaved foolishly to date and hopefully that attitude will not continue.

[35] Further the defendants did not consult the rules and file a defence as they were required to do and now, nearly 12 months after the proceedings were commenced, are yet to proffer a defence or indicate what facts are in issue and what facts conceded.

[36] However delay alone should not of itself cause the Court to deny the defendants the chance to attempt to demonstrate whether the judgments obtained against them should be set aside. In Troiani & Anor v Alfrost Properties Pty Ltd,[4] McPherson JA observed that the refusal of leave to defend on the grounds of unjustified delay where "a plausible defence on the merits" had been shown, was "an unusually heavy sanction for delay". While the defendants have not yet reached the level of "a plausible defence on the merits" that may be due to ignorance and some latitude needs to be shown.

[37] The defendants will be disadvantaged if a stay is not ordered. The plaintiff will proceed to execute on the warrants and seek possession of the properties the subject of the mortgages and of the orders made. The defendants live on one of the properties and so they will be required to find alternative accommodation, perhaps urgently.

[38] That consideration needs to be considered, however, in the context of the delays that have occurred. The defendants have been aware of the existence of the claim made against them at least since service of the Claim and Statement of Claim which occurred at the latest, in early July 2009, and probably earlier. The Notice of Intention to Defend was filed with the court, but initially not served on the plaintiff's solicitors. It was discovered by the plaintiff's solicitors following a search of the court file. They complained to the defendants about their failure to serve the Notice and their failure to comply with the rules. Subsequently Ms Forest, the solicitor handling the matter on behalf of the plaintiff at Gadens, received a registered post letter containing a copy of that Notice. On several occasions the plaintiff's solicitors wrote letters pointing out that the defendants were in breach of the rules and that the plaintiff could not plead to the Notice of Intention to Defend. These letters were ignored by the defendants.

[39] Following the hearing on the 28th of January 2010, the plaintiffs acted upon the judgment obtained by seeking the issuing of the warrants, providing the requisite security deposits to the court's bailiff, and instructing the bailiff to execute on the warrants. It was only as a result of the bailiff acting on his instructions which has finally goaded the defendants into action and prompted them to make the application that has now come before me.

[40] Thus whilst I have some sympathy for the fact that the third and fourth defendants may be forced from their home, and perhaps forced to leave with little further notice, they have very much brought that circumstance upon their own heads.

[41] Further there is some significant disadvantage to the plaintiff if matters are delayed. A very substantial sum is owed. It now exceeds $1,000,000 including interest. The material shows that by at least September 2008 the defendants were in default under the loan agreement. No payments have been made since commencement of the proceedings on 14 May 2009 and the defendants do not propose to make any repayments. Thus the amount outstanding under the loan agreement is increasing day by day. On a number of occasions the defendants have referred to their parlous financial position. Thus it would seem that the plaintiff's only prospect of recovering monies owing under the loan agreement is by exercising its power of sale in respect of the properties the subject of the mortgages and orders. There is no evidence one way or the other as to the sufficiency of the securities.

[42] When the matter first came before me on 28th of April 2010, I determined to allow the defendants further time to advance their case as it seemed apparent that they did not understand what it was they needed to show in order to secure a stay of the existing judgment. Because of their attitude to service of documents upon them they had not read any of the plaintiff's material. I adjourned the matter to the 7th of May in order to give them the opportunity of reading the material, responding to it and thereby addressing the issues that were relevant. There was no significant prejudice to the plaintiff caused by that short delay. On the hearing of the matter on 7 May, I extended the stay until I was able to give these reasons.

[43] The further material filed suggests at least a prospect of sufficient material being available to require a trial of the issues. In summary:

(a) If the defendants file affidavits identifying the material facts to support their allegations then they may be able to establish an equitable cross-claim sufficient to impeach the validity of the loan agreement;

(b) Whilst I do not decide their application to set aside Wilson J's judgment, the application has a possibility of success. The defendants' ignorance of their legal position and their inability to articulate their case accurately complicates assessment of the situation;

(c) The defendants are guilty of extraordinary delay brought about by their own intransigent attitude to the rules of court;

(d) The plaintiff has acted on the judgment obtained as it was entitled to do, however the prejudice of the expense and delay thereby incurred does not seem significant in the overall context of the case;

(e) The loss of the third and fourth defendants' home is a significant matter and if they are successful in establishing their cross-claim that loss cannot be redressed;

(f) There is no evidence that that the plaintiff's prospects of recovering the full amount of the monies owed to it under the loan agreement will be significantly and adversely affected if a stay is granted.

[44] In my view, balancing these considerations the defendants should be given the opportunity of attempting to set aside the judgement of Wilson J or of establishing a right to a stay pending the resolution of any counter-claim and that in the interim the stay previously granted by me should be maintained. As I followed the defendants' oral submissions they are contemplating taking legal advice with the financial assistance of friends and will seek to set aside the judgment promptly if they consider they have reasonable prospects. They should be able to obtain advice and have their application heard by Friday, 21 May 2010.

(a) The warrants of execution, issued on 3 March 2010, referred to in Rockhampton files 161 of 2010 and 162 of 2010 are stayed until 5pm on 21 May 2010 or until earlier order;

(b) Direct that the material relevant to the defendants' application be forwarded to the Registrar of the Brisbane registry for filing in proceedings BS5064/09;

(c) Adjourn the application for further hearing in Brisbane on a date to be fixed by the Registrar of the Brisbane registry;

[1] Paragraph 7 of the affidavit filed 6 May 2010.

[4] [2002] QCA 281 at p 8.