Adams v In Roma Pty Ltd - [2012] QSC 240

SUPREME COURT OF QUEENSLAND

CITATION:

Adams & Ors v In Roma Pty Ltd & Anor [2012] QSC 240

PARTIES:

GRANT ANTHONY ADAMS & FREYA ANGELA O’SULLIVAN AS TRUSTEES FOR THE GAA DISCRETIONARY TRUST
(plaintiffs)
v
IN ROMA PTY LTD ACN 111 769 861
(first defendant)
and
BERNARD GOEYTES
(second defendant)

FILE NO:

9114 of 2010

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

31 August 2012

DELIVERED AT:

Brisbane

HEARING DATE:
WRITTEN SUBMISSIONS:

19, 20, 21 October 2011

1, 15, 20, 21 December 2011

JUDGE:

Daubney J

ORDER:

1.    It is declared that the first defendant was and is bound by the provisions of the Deed of Fixed and Floating Charge (in the form of the charge forming part of Exhibit GJW-17 to the affidavit of Gregory John Whyte sworn 24 March 2011, save for the definition of “Deed of Guarantee” which is amended by deleting the reference to the “the Chargor” and adding the words “excluding the Chargor” after the word “parties” in the second line of the definition).

2.    It is declared that the release of mortgage signed by the plaintiffs on 14 March 2007 and registered in the Titles Office on 16 May 2007 did not have the effect of releasing or discharging the first defendant from its obligations under the Deed of Fixed and Floating charge.

3.    I will hear the parties with respect to any further or consequential orders as may be appropriate and as to costs.

CATCHWORDS:

DEEDS – DELIVERY – where plaintiffs agreed to lend money to borrowing entities – where loaned money was to assist borrowing entities to purchase property – where first defendant gave third party securities to plaintiffs in respect of the loan – where second defendant was director of first defendant – where securities took the form of a mortgage and a fixed and floating charge – where settlement occurred before the signed deed was delivered – whether the charge as signed by second defendant took effect as a Deed of Fixed and Floating Charge

DEEDS – DISCHARGE OF DEED – where mortgage associated with the third party securities was subsequently released by plaintiffs – where plaintiffs submit that the intention was to release the mortgage security only – where defendants submit that the effect was to release the securities generally - whether the release of mortgage had the affect of releasing or discharging the first defendant from its obligations under the Deed of Fixed and Floating Charge

Uniform Civil Procedure Rules 1999 (Qld), r 166(3), (4) & (5)
Property Law Act 1974 (Qld), s 47
Land Title Act 1994 (Qld), s 11, 74, 81, 176

400 George Street (Qld) Pty Ltd v BG International Ltd [2010] QCA 245, distinguished
Cape York Airlines Pty Ltd v QBE Insurance (Australia) Ltd [2009] 1 Qd r 116, cited
Groongal Pastoral Company Limited (in liquidation) v Falkiner (1924) 34 CLR 157; [1924] HCA 54, followed
Grundy v Ley [1984] 2 NSWLR 467, cited

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.

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Details

Case: [2012] QSC 240
Decision Date: 31 August 2012

CaseChat Overview and Summary

In the matter of Adams v In Roma Pty Ltd, the plaintiffs, Adams, sought to enforce a financial arrangement against the first defendant, In Roma Pty Ltd, and its director, the second defendant. The Adams had agreed to provide loans to the borrowing entities, with the securities for the loans being a mortgage and a fixed and floating charge. The dispute arose when the Adams claimed that the first defendant had failed to meet its obligations under the charge, and the defendants argued that the charge had not been properly executed. The case was heard in the Supreme Court of Queensland.

The primary legal issues before the court were whether the charge, as signed by the second defendant, took effect as a Deed of Fixed and Floating Charge, and whether the release of the mortgage by the plaintiffs had the effect of discharging the first defendant from its obligations under the Deed of Fixed and Floating Charge. The court had to determine the nature and effect of the charge, and the consequences of the release of the mortgage.

The court found that the charge, as signed by the second defendant, was indeed a Deed of Fixed and Floating Charge, notwithstanding that the deed was not delivered to the first defendant until after settlement had occurred. The court also found that the release of the mortgage did not have the effect of discharging the first defendant from its obligations under the Deed of Fixed and Floating Charge. The court held that the intention of the Adams was to release the mortgage security only, and not the other securities. Accordingly, the court held that the first defendant remained bound by the provisions of the Deed of Fixed and Floating Charge.

The court made several orders in relation to the dispute. The court declared that the first defendant was and is bound by the provisions of the Deed of Fixed and Floating Charge. The court also declared that the release of the mortgage signed by the plaintiffs on 14 March 2007 and registered in the Titles Office on 16 May 2007 did not have the effect of releasing or discharging the first defendant from its obligations under the Deed of Fixed and Floating charge. The court also directed that further hearings be held to determine any further or consequential orders, and to determine the costs of the proceedings.

Orders

Orders of the court

1. It is declared that the first defendant was and is bound by the provisions of the Deed of Fixed and Floating Charge (in the form of the charge forming part of Exhibit GJW-17 to the affidavit of Gregory John Whyte sworn 24 March 2011, save for the definition of “Deed of Guarantee” which is amended by deleting the reference to the “the Chargor” and adding the words “excluding the Chargor” after the word “parties” in the second line of the definition).

2. It is declared that the release of mortgage signed by the plaintiffs on 14 March 2007 and registered in the Titles Office on 16 May 2007 did not have the effect of releasing or discharging the first defendant from its obligations under the Deed of Fixed and Floating charge.

3. I will hear the parties with respect to any further or consequential orders as may be appropriate and as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Adams & Ors v In Roma Pty Ltd & Anor [2012] QSC 240
PARTIES:	GRANT ANTHONY ADAMS & FREYA ANGELA O’SULLIVAN AS TRUSTEES FOR THE GAA DISCRETIONARY TRUST (plaintiffs) v IN ROMA PTY LTD ACN 111 769 861 (first defendant) and BERNARD GOEYTES (second defendant)
FILE NO:	9114 of 2010
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	31 August 2012
DELIVERED AT:	Brisbane
HEARING DATE: WRITTEN SUBMISSIONS:	19, 20, 21 October 2011 1, 15, 20, 21 December 2011
JUDGE:	Daubney J
ORDER:	1. It is declared that the first defendant was and is bound by the provisions of the Deed of Fixed and Floating Charge (in the form of the charge forming part of Exhibit GJW-17 to the affidavit of Gregory John Whyte sworn 24 March 2011, save for the definition of “Deed of Guarantee” which is amended by deleting the reference to the “the Chargor” and adding the words “excluding the Chargor” after the word “parties” in the second line of the definition). 2. It is declared that the release of mortgage signed by the plaintiffs on 14 March 2007 and registered in the Titles Office on 16 May 2007 did not have the effect of releasing or discharging the first defendant from its obligations under the Deed of Fixed and Floating charge. 3. I will hear the parties with respect to any further or consequential orders as may be appropriate and as to costs.
CATCHWORDS:	DEEDS – DELIVERY – where plaintiffs agreed to lend money to borrowing entities – where loaned money was to assist borrowing entities to purchase property – where first defendant gave third party securities to plaintiffs in respect of the loan – where second defendant was director of first defendant – where securities took the form of a mortgage and a fixed and floating charge – where settlement occurred before the signed deed was delivered – whether the charge as signed by second defendant took effect as a Deed of Fixed and Floating Charge DEEDS – DISCHARGE OF DEED – where mortgage associated with the third party securities was subsequently released by plaintiffs – where plaintiffs submit that the intention was to release the mortgage security only – where defendants submit that the effect was to release the securities generally - whether the release of mortgage had the affect of releasing or discharging the first defendant from its obligations under the Deed of Fixed and Floating Charge Uniform Civil Procedure Rules 1999 (Qld), r 166(3), (4) & (5) Property Law Act 1974 (Qld), s 47 Land Title Act 1994 (Qld), s 11, 74, 81, 176 400 George Street (Qld) Pty Ltd v BG International Ltd [2010] QCA 245, distinguished Cape York Airlines Pty Ltd v QBE Insurance (Australia) Ltd [2009] 1 Qd r 116, cited Groongal Pastoral Company Limited (in liquidation) v Falkiner (1924) 34 CLR 157; [1924] HCA 54, followed Grundy v Ley [1984] 2 NSWLR 467, cited