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ABL Custodian Services Pty Ltd v Freer

ABL Custodian Services Pty Ltd v Freer

Case [2018] VSC 355 3 July 2018

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST

S CI 2016 02235

ABL CUSTODIAN SERVICES PTY LTD (ACN 097 889 720) IN ITS CAPACITY AS TRUSTEE OF THE ABL PORTFOLIO FUNDING TRUST 2007-1	Plaintiff
v
PETER JAMES FREER	Defendant

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JUDGE:	CROFT J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 June 2018
DATE OF JUDGMENT:	3 July 2018
CASE MAY BE CITED AS:	ABL Custodian Services Pty Ltd v Freer
MEDIUM NEUTRAL CITATION:	[2018] VSC 355

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PRACTICE AND PROCEDURE – Deeds and other instruments – Enforcement of deed of settlement – whether summary procedure appropriate – Barratt v Rees [2014] VSCA 327 – Roberts v Gippsland Agricultural & Earthmoving Contracting Co Pty Ltd [1956] VLR 555 – Seachange Management Pty Ltd v Pital Business Pty Ltd (2009) 23 VR 396.

COURTS AND JUDICIAL SYSTEM – Group proceedings – Consequences of being a group member – Clarke (as Trustee of the Clarke Family Trust) v Great Southern Finance Pty Ltd (Receivers and Managers Appointed) (in liquidation) [2014] VSC 516 – Byrne v Javelin Asset Management Pty Ltd [2016] VSCA 214 – Bendigo and Adelaide Bank Ltd v Pekell Delaire Holdings Pty Ltd (2017) 118 ACSR 592; [2017] VSCA 51 – Timbercorp Finance Pty Ltd (in liq) v Collins (2016) 259 CLR 212.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D.C. Gration	K & L Gates
For the Defendant	Mr P. Horobin	Cordato Partners Sydney via FCG Legal Pty Ltd

HIS HONOUR:

Introduction

This is a claim by ABL Custodian Services Pty Ltd (ACN 097 889 720) in its capacity as trustee of the ABL Portfolio Funding Trust 2007-1 (“the Plaintiff”) against Peter James Freer (“the Defendant”) for principal and interest under a loan by Great Southern Finance Pty Ltd (Receivers & Managers Appointed) (in Liquidation) (ACN 009 235 143) (“GSF”) whereby the Defendant was provided with funds to fund his investment in the Great Southern Plantations 2006 Project (“2006 Plantations MIS”).

The loan was made pursuant to a loan deed dated 5 October 2006 between GSF and the Defendant (“the Loan Deed”).[1]
[1]Exhibit SFS-13 to the Affidavit of Stephen Flamer-Smith (1 June 2018).

It is common ground that there were terms of the Loan Deed that:[2]

(a) GSF would lend the sum of $150,000 to the Defendant;
(b)the Defendant would make 36 monthly interest only repayments of $1,437.50 each commencing on 31 July 2006, followed by 84 monthly principal and interest repayments of $2,607.97 each;
(c)the Defendant would pay interest on the Money Payable (as defined in the Loan Deed) that was/were due and payable, but unpaid, at the rate of 14.5% per annum, calculated daily and charged monthly; and
(d)the Defendant would pay all costs and expenses incurred in relation to enforcement of the Loan Deed on a full indemnity basis.

[2]Writ and Statement of Claim (8 June 2016), [3]; Defence (8 May 2018), [3].

The Plaintiff claims,[3] but the Defendant does not admit on the basis of lack…

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 ABL Custodian Services Pty Ltd v Freer

Details

AGLC: ABL Custodian Services Pty Ltd v Freer [2018] VSC 355
Case: [2018] VSC 355
Decision Date: 3 July 2018

CaseChat Overview and Summary

ABL Custodian Services Pty Ltd brought an action against Freer for the enforcement of a deed of settlement. The matter was heard in the Supreme Court of Victoria. The crux of the dispute was whether the court should employ summary procedure for the enforcement of the deed, given the specific circumstances surrounding the case. This decision hinged on various legal precedents, including Barratt v Rees and Roberts v Gippsland Agricultural & Earthmoving Contracting Co Pty Ltd.

The legal issues before the court encompassed the appropriate procedural approach for enforcing the deed of settlement and the implications of being a member of a group in a legal proceeding. The court needed to determine if the summary procedure was suitable, considering the nuances of the case and the established legal frameworks. Relevant cases such as Seachange Management Pty Ltd v Pital Business Pty Ltd provided context for the court’s consideration. The court also had to examine how the consequences of group membership influenced the enforcement of the deed, drawing from precedents such as Clarke v Great Southern Finance and Bendigo and Adelaide Bank Ltd v Pekell Delaire Holdings Pty Ltd.

The court concluded that the summary procedure was appropriate for enforcing the deed of settlement, taking into account the specific circumstances of the case. The court’s reasoning was grounded in the precedents cited, particularly the application of Barratt v Rees and Roberts v Gippsland Agricultural & Earthmoving Contracting Co Pty Ltd. The implications of being a member of a group, as elucidated in cases like Byrne v Javelin Asset Management Pty Ltd and Timbercorp Finance Pty Ltd v Collins, were also considered in the decision. Ultimately, the court found in favour of ABL Custodian Services Pty Ltd, enforcing the deed of settlement against Freer.

The final orders of the court mandated Freer to comply with the terms of the deed of settlement as enforced by ABL Custodian Services Pty Ltd. The court’s decision emphasised the importance of adhering to the procedural guidelines set forth in the relevant case law, ensuring that the enforcement of the deed was conducted in a manner that was both fair and legally sound.

Orders