Suncorp Finance Limited v Klego Pty Limited & Ors [2000] NSWSC 686

New South Wales Supreme Court

CITATION : Suncorp Finance Limited v Klego Pty Limited & Ors [2000] NSWSC 686 FILE NUMBER(S) : SC 012930/98 HEARING DATE(S) : 3 July, 2000 JUDGMENT DATE : 17 July 2000

PARTIES : Suncorp Finance Limited - Plaintiff Klego Pty Limited (as trustee for Lamont Family Trust) - Defendant JUDGMENT OF : Bell J at 1

COUNSEL : Mr M Meek - Plaintiff Mr B Collins QC/ Mr Newhouse - Defendant SOLICITORS : Corrs Chambers Westgarth - Plaintiff Wayne Levick & Associates - Defendant DECISION : Appeal dismissed

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

BELL J Monday, 17 July , 2000 12930/98 - KLEGO PTY LIMITED (as trustee for Lamont Family Trustee) & Ors v SUNCORP FINANCE LTD (ACN 09 705 417)

JUDGMENT

1 HER HONOUR: This is an appeal against a decision of Master Malpass given on 4 April 2000. An Amended Notice of Appeal was filed in court at the commencement of the hearing. The appellants appeal from the whole of the decision of the Master. It is contended that the Master erred by failing to grant an adjournment of the proceedings on 4 April 2000 in circumstances where the appellants were neither represented by counsel nor solicitor. Secondly, it is contended that the Master erred in law in giving judgment for the respondent for reasons which are set out in the grounds of the Amended Notice of Appeal. 2 The respondent by Statement of Claim filed on 1 December 1998 sought orders; (i) for possession of property, known as 7/67 Jacaranda Avenue, Bradbury, New South Wales; (ii) granting leave to the respondent to issue a writ of possession in respect of the property; and (iii) judgment in the sum of $119,672.08 together with interest (calculated pursuant to the subject loan agreement) from 3 November 1998. 3 On the hearing of the appeal, the appellants relied on the affidavit of Wayne Levick sworn on 3 July 2000 together with the affidavits of Dr John Lamont sworn 2 May 2000 and 3 July 2000. Mr Levick's affidavit discloses that he is the solicitor for appellants having been retained by them in connection with the principal proceedings in or about April 1999. The affidavit recites a somewhat unhappy history. He deposes to making telephone contact with Mr Stevens QC at some time before the proceedings were due to be heard by the Master. He says that as a result of that conversation he understood that Mr Stevens would be available to appear on behalf of his clients on 4 April 2000. He goes on to note that he did not deliver a brief either to Mr Stevens or to a junior. He says "I now recognise that I should have done so, however it was my belief that Mr Stevens and/or his junior would be available to attend court on 4 April 2000." Mr Levick does not in his affidavit go on to give any account of the proceedings before the Master. He makes no reference in his affidavit to having made any other arrangements for counsel to attend upon the hearing before the Master. 4 Mr Meek, who appeared for the respondent, with the consent of Mr Collins QC who appeared for the appellants, outlined the course the proceedings had taken before the Master. Mr Menadue of counsel, had appeared before the Master on behalf of the appellants and applied for an adjournment of the proceedings. Mr Menadue informed the Master that his instructions were limited to the making of the adjournment application. The Master refused to grant an adjournment. Mr Meek foreshadowed that the appellant was seeking an order for costs against Mr Levick personally having regard to the way the defence and cross claim had been pleaded. The Master encouraged Mr Menadue to get some instructions concerning this latter aspect. It was this which led to Mr Menadue returning to the Master's Court a little later in the course of the proceedings. It was common ground that the Master had proceeded to give judgment for the respondent in the absence of Mr Menadue. 5 The matter had been specially fixed before the Master on a date some time in February. Mr Levick signed the 'special fixture' pro forma document which forms part of the Court file (acknowledging that all affidavits to be read had been filed and served and noting that it was to be assumed that no adjournment of the matter would be granted). 6 The Master gave judgment for the respondent against the first appellant for possession of the subject land and granted leave to the respondent to issue a Writ of Possession in relation to the property forthwith. The Master ordered judgment for the respondent against all the appellants in the sum of $157,460.88. 7 The grounds of appeal specified in the notice filed in court on 3 July 2000 are as follows: 1. The Master erred in his failure to grant an adjournment where the appellant was not represented by counsel or solicitor. 2. The Master erred in law in giving judgment for the plaintiff because the act of default relied upon in the Statement of Claim was the alleged refusal or neglect to repay the amount borrowed on or before 29 July 1997, whereas the defendant was not under any obligation to repay the amount borrowed until 29 July 2000. 3. The amount claimed in the Statement of Claim wrongly included the amount of the principal sum. 4. The plaintiff had not complied with the provisions of Part 40 rule 11 of the Supreme Court Rules (SCR) which obliged the plaintiff to file an affidavit before the Master setting out particulars of the default alleged.