Cloverdell Lumber Company Pty Ltd v Abbott [1924] HCA 4

Cloverdell Lumber Company Pty Ltd v Abbott [1924] HCA 4

(By majority, Knox CJ and Gavan Duffy J) The affidavit filed by the appellants did not disclose sufficient facts or a substantive defense to entitle leave to defend under Order XIV. There was no statement or inference that the interest rate was excessive, and thus the requirements for relief under the Money Lenders Act 1915 were not met. Therefore, final judgment and leave to sign it were properly granted, subject to the appellants giving security for part of the sum claimed, granting them conditional leave to defend. (Per Isaacs J, dissenting) The appellants' materials raised sufficient doubt and triable issues, including whether the interest was excessive and whether the respondent was...

Parties
Appellant Defendant: The Cloverdell Lumber Company Proprietary Limited; Appellant Defendant: John Martyn; Appellant Defendant: Albert John Franklin James; Appellant Defendant: Isabella Sophia Johns; Respondent Plaintiff: Mima Evelyn Abbott
Jurisdiction
Australia
Judgment Date
17 March 1924
Procedural Posture
Appeal / Appeal From the Supreme Court of Victoria, Application for Leave to Sign Final Judgment Under Order XIV
Outcome
Conditional leave to defend granted to appellants on security; otherwise, appeal dismissed; costs to appellants regardless of outcome.
Legal Topics
Summary Judgment, Leave to Defend, Money Lending, Excessive Interest, Mortgage Enforcement
Civil Procedure Contracts Banking and Finance Summary Judgment Leave to Defend Money Lending Excessive Interest Mortgage Enforcement

Case Brief

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Parties

The Cloverdell Lumber Company Proprietary Limited

Appellant Defendant

John Martyn

Appellant Defendant

Albert John Franklin James

Appellant Defendant

Isabella Sophia Johns

Appellant Defendant

Mima Evelyn Abbott

Respondent Plaintiff

Procedural Posture

Appeal / Appeal From the Supreme Court of Victoria, Application for Leave to Sign Final Judgment Under Order XIV

Legal Issues

  1. 1 Whether the appellants should have been granted leave to defend the action under Order XIV of the Rules of the Supreme Court 1916 (Vict.)
  2. 2 Whether the respondent is a 'money lender' under the Money Lenders Act 1915 (Vict.) for the purposes of this case
  3. 3 Whether the alleged interest rate was excessive within the meaning of the Money Lenders Act 1915 (Vict.), warranting relief for the borrower

Ratio Decidendi

(By majority, Knox CJ and Gavan Duffy J) The affidavit filed by the appellants did not disclose sufficient facts or a substantive defense to entitle leave to defend under Order XIV. There was no statement or inference that the interest rate was excessive, and thus the requirements for relief under the Money Lenders Act 1915 were not met. Therefore, final judgment and leave to sign it were properly granted, subject to the appellants giving security for part of the sum claimed, granting them conditional leave to defend. (Per Isaacs J, dissenting) The appellants' materials raised sufficient doubt and triable issues, including whether the interest was excessive and whether the respondent was...

Court Disposition

Conditional leave to defend granted to appellants on security; otherwise, appeal dismissed; costs to appellants regardless of outcome.

Orders

  • If appellants within seven days give security to the satisfaction of the Prothonotary for £2,400, part of the sum claimed, they shall have leave to defend.
  • If not, the appeal is to be dismissed.