3 Metals Pty Ltd v Belding - [2021] QDC 261

DISTRICT COURT OF QUEENSLAND

CITATION:
3 Metals Pty Ltd v Belding [2021] QDC 261

PARTIES:

3 METALS PTY LTD

(plaintiff)

v

PETER BELDING

(defendant)

FILE NO:
1124/2021

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane Registry

DELIVERED ON:

4 November 2021

DELIVERED AT:

Brisbane

HEARING DATE:

14 October 2021

JUDGE:

Kent QC, DCJ

ORDER:

1. There will be judgment entered in favour of the plaintiff in the sum of $89,936.30.

2. The respondent is to pay the applicant’s costs of the proceeding on the standard basis.

CATCHWORDS:

COURT PRACTICE AND PROCEDURE – QUEENSLAND CIVIL PROCEDURE – SUMMARY JUDGMENT – where the plaintiff carried on a metal fabrication business – where the plaintiff seeks summary judgment on its claim on a guarantee given in respect of the respondent’s company’s debt – where the respondent’s company operated a spray booth manufacturing business – where there is a debt outstanding – where the respondent submits that the debt has been repaid – where there is no evidence of full repayment of the debt – whether there is a triable issue – where the respondent submits that the guarantee was signed under duress – where the respondent submits that there was undue influence – where the respondent submits that there was unconscionable conduct – where the respondent submits that there was misrepresentation – whether the grounds of defence submitted have merit

LEGISLATION:

Competition and Consumer Act 2010 (Cth)

Uniform Civil Procedures Rules 1999 (Qld), rr 292, 293

CASES:

Agar v Hyde (2000) 201 CLR 552

Australia and New Zealand Banking Group Ltd v Karam (2005) 64 NSWLR 149
Commercial Bank of Australia v Amadio [1983] 151 CLR 447

Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40

Deputy Commissioner for Taxation v Salcedo [2005] 2 Qd R 232

Gould v Vaggelas (1984) 157 CLR 215

Mitchell v Pacific Dawn Pty Ltd [2011] QCA 98

Queensland Wire Industries Pty Ltd v BHP Co Ltd (1989) 167 CLR 177

COUNSEL:
Mr W Macintosh for the applicant/plaintiff

Mr P Belding (self-represented) for the respondent/defendant

SOLICITORS:

Macpherson Kelly for the applicant/plaintiff

Introduction

The applicant plaintiff seeks summary judgment pursuant to r 292 of the Uniform Civil Procedure Rules1999 (Qld) (UCPR), in the sum of $89,936.30, together with judgment to be entered in its favour on the defendant’s counterclaim pursuant to r 293.
Broadly, the background is that the applicant’s claim relates to debts incurred by the company of which the respondent was the director.
The plaintiff carries on a metal fabrication business and its sole director is Bryan Fletcher. The defendant was the director of Junair Spraybooths Pty Ltd (Junair), which manufactured and supplied spraybooths. The plaintiff provided materials and services to Junair in that context until April 2020 at which time Junair went into external administration. Shortly thereafter the defendant commenced using Boston BPS Pty Ltd (Boston) to continue the business of manufacturing Junair Spraybooths and the defendant engaged the plaintiff to provide materials and services to Boston on a cash basis.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 3 Metals Pty Ltd v Belding

Details

AGLC: 3 Metals Pty Ltd v Belding [2021] QDC 261
Case: [2021] QDC 261
Decision Date: 4 November 2021

CaseChat Overview and Summary

In the case of 3 Metals Pty Ltd v Belding, the plaintiff, a metal fabrication business, sought summary judgment against the defendant on a guarantee provided in relation to a debt owed by the defendant's company, which operated a spray booth manufacturing business. The plaintiff reduced its original claim from $192,033 to $89,936.30 due to recoveries from third parties. The defendant raised several defences, including the allegation that the debt had been repaid, and further claims of duress, undue influence, unconscionable conduct, and misrepresentation in the execution of the guarantee.

The court examined whether there were any triable issues concerning the outstanding debt and the validity of the guarantee. The plaintiff provided uncontradicted evidence establishing the original debt, credit notes, and the balance owing. The defendant's defences lacked particulars or supporting evidence, and no anomalies were found in the plaintiff's accounting records. The court concluded that there was no real doubt regarding the amount owed.

The court applied the principles of summary judgment, emphasising that only the clearest of cases would be determined summarily. The defendant's defences did not present a realistic prospect of success. Consequently, the court found that the plaintiff had established a clear case for judgment.

The final orders of the court were that judgment be entered in favour of the plaintiff in the sum of $89,936.30, and that the defendant pay the plaintiff's costs of the proceeding on the standard basis.

Orders

Orders of the court

1. There will be judgment entered in favour of the plaintiff in the sum of $89,936.30.

2. The respondent is to pay the applicant’s costs of the proceeding on the standard basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The present action was commenced on 11 May 2021. The defence and counterclaim were filed on 9 July. There followed requests for particulars, and on 10 August 2021 the defendant was served with the present application and affidavit material, applying for summary judgment. The matter came before the court on 6 September when it was adjourned to 14 October. Each side relied on written outlines of argument and the matter was heard on 14 October.Principles as to summary judgment The applicant acknowledges the well-known principles as to the test for summary judgment, including from Deputy Commissioner for Taxation v Salcedo[3] where Williams JA said at page 235:“The words ‘no real prospect of succeeding’ do not need any amplification, they speak for themselves. The word ‘real’ distinguishes fanciful prospects of success or … they direct the court to the need to see whether there is a ‘realistic’ as opposed to a ‘fanciful’ prospect of success.”[3][2005] 2 Qd R 232. Reference is also made to Agar v Hyde[4] to the effect that:“Nothing in the UCPR … distracts from the well-established general principle that issues raised in proceedings will be determined summarily only in the clearest of cases.”[5][4](2000) 201 CLR 552 at [575]-[576].[5]Salcedo at [233]. Thus the applicant’s argument this is a clear case with the defendant having no realistic as opposed to fanciful prospects of success.Is the debt outstanding? As the applicant acknowledges, the sum originally claimed of $192,033 has been reduced to $89,936.30 as a result of the applicant being able to recover money from third parties which stands to the credit of the respondent. The applicant contends that it has proved its pleaded claim. The money is clearly owing, as established by the uncontradicted evidence of Mr Fletcher[6] which proves the original debt, the two credit notes and the presently outstanding balance as outlined above. The defence makes a bare allegation of the applicant having breached the agreement between the parties, without any particulars or reference to evidence; and that there is no money owing for an unspecified, unproven reason. No such matters were raised in response to the statutory demand. When the demand for payment pursuant to the guarantee was made on 28 April 2021, this produced an acknowledgement the debt was owing.[7] The winding up proceeding seems not to have been contested. Contrary to recent assertions in the respondent’s affidavit (not previously ventilated), no anomalies are evident in the applicant’s accounting records. An allegation has been raised as to possible misappropriation of some of Boston’s property, on a hearsay basis.[8] In my view, there is no substance in this, and if there were, the remedy would lie in the hands of the liquidator of Boston. In my conclusion, no real doubt exists as to the amount of the debt being outstanding.[6]Affidavits of Mr Fletcher, Court File Document No. 10, paragraph [39] and exhibits pages 39 – 58 including statutory demand and supporting statements of account; and No. 15 paragraph [29] and exhibiting updated accounts and credit notes.[7]Affidavit of Mr Dreyer, Court File Document No. 3, [3] and [4] and exhibits thereto.[8]Affidavit of Mr Belding, Court File Document No. 14, [54] – [56].

Ratio Decidendi

Legal Principle Established

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CITATION:	3 Metals Pty Ltd v Belding [2021] QDC 261
PARTIES:	3 METALS PTY LTD (plaintiff) v PETER BELDING (defendant)
FILE NO:	1124/2021
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	Brisbane Registry
DELIVERED ON:	4 November 2021
DELIVERED AT:	Brisbane
HEARING DATE:	14 October 2021
JUDGE:	Kent QC, DCJ
ORDER:	1. There will be judgment entered in favour of the plaintiff in the sum of $89,936.30. 2. The respondent is to pay the applicant’s costs of the proceeding on the standard basis.
CATCHWORDS:	COURT PRACTICE AND PROCEDURE – QUEENSLAND CIVIL PROCEDURE – SUMMARY JUDGMENT – where the plaintiff carried on a metal fabrication business – where the plaintiff seeks summary judgment on its claim on a guarantee given in respect of the respondent’s company’s debt – where the respondent’s company operated a spray booth manufacturing business – where there is a debt outstanding – where the respondent submits that the debt has been repaid – where there is no evidence of full repayment of the debt – whether there is a triable issue – where the respondent submits that the guarantee was signed under duress – where the respondent submits that there was undue influence – where the respondent submits that there was unconscionable conduct – where the respondent submits that there was misrepresentation – whether the grounds of defence submitted have merit
LEGISLATION:	Competition and Consumer Act 2010 (Cth) Uniform Civil Procedures Rules 1999 (Qld), rr 292, 293
CASES:	Agar v Hyde (2000) 201 CLR 552 Australia and New Zealand Banking Group Ltd v Karam (2005) 64 NSWLR 149 Commercial Bank of Australia v Amadio [1983] 151 CLR 447 Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40 Deputy Commissioner for Taxation v Salcedo [2005] 2 Qd R 232 Gould v Vaggelas (1984) 157 CLR 215 Mitchell v Pacific Dawn Pty Ltd [2011] QCA 98 Queensland Wire Industries Pty Ltd v BHP Co Ltd (1989) 167 CLR 177
COUNSEL:	Mr W Macintosh for the applicant/plaintiff Mr P Belding (self-represented) for the respondent/defendant
SOLICITORS:	Macpherson Kelly for the applicant/plaintiff