Allen v G Developments Pty Ltd - [2019] QSC 107

SUPREME COURT OF QUEENSLAND

CITATION:

Allen v G Developments Pty Ltd & Ors [2019] QSC 107

PARTIES:

JOHN ALLEN (as Trustee of the Bundamba Trust)

(plaintiff)

v
G DEVELOPMENTS PTY LTD
ACN 116 332 220

(first defendant)
GARRICK GRAHAME BULL
(second defendant)
RICHARD JAMES GARNER
(third defendant)
ALEXANDER SCOTT HAGAN
(fourth defendant)
DALIBOR STEVANOVIC
(fifth defendant)
and
STOJAN STEVANOVIC AND SLAVICA STEVANOVIC
(first defendant by counterclaim)
CARL JAMES THOMPSON AS TRUSTEE FOR THE THOMPSON FAMILY SUPER FUND
(third defendant by counterclaim)
ALLEGRO BEACH PTY LTD ACN 136 535 790 AS TRUSTEE FOR THE ALLEN FAMILY TRUST
(fourth defendant by counterclaim)
ANNJAC PTY LTD ACN 101 188 407 AS TRUSTEE FOR THE SILVERWOOD SUPERANNUATION FUND
(fifth defendant by counterclaim)

FILE NO:

SC No 11245 of 2016

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

7 May 2019

DELIVERED AT:

Brisbane

HEARING DATE:

29, 30 and 31 January and 5 February 2019

JUDGE:

Bradley J

ORDERS:

1. The plaintiff has leave to amend his claim to seek interest pursuant to s 58(3) of the Civil Proceedings Act 2011(Qld).

2. Judgment for the plaintiff against the first and second defendants in the amount of $88,867.39, being interest payable pursuant to s 58(3) of the Civil Proceedings Act 2011 (Qld) on the outstanding balance of $1,000,000 owed by the first defendant to the plaintiff during the period from 31 October 2016 to judgment.

3.   The plaintiff’s claim is otherwise dismissed.

4.   The first and second defendants’ counterclaim is dismissed.

5.   The claim of the third, fourth and fifth defendants by counterclaim for rectification of the investor contracts and for alternative declaratory relief and equitable damages is dismissed.

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – INTEREST – AGREEMENTS TO PAY INTEREST – RECOVERABILITY OF INTEREST – where the plaintiff, as a trustee, agreed to lend the first defendant a principal sum of $1 million pursuant to a deed of loan, for the purpose of funding the acquisition of land for a development project – where by the deed of loan the first defendant covenanted to repay the principal sum plus interest at the rate of 25 per cent per annum within one year – where no repayments were made prior to the commencement of proceedings, more than five years after the loan debt was due – where the plaintiff contends that the deed of loan bound the first defendant to pay interest at the rate of 25 per cent per annum on the outstanding loan amount, comprising the principal sum and accrued interest, until all monies were repaid – whether, on its proper construction, the deed of loan provided for the payment of interest at the rate of 25 per cent per annum on the outstanding amount beyond the end of the one year term – whether, in the alternative, interest should be awarded on the outstanding balance from time to time pursuant to s 58(3) of the Civil Proceedings Act 2011 (Qld)…

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: [2019] QSC 107
Decision Date: 7 May 2019

CaseChat Overview and Summary

The case before the court involved a dispute between Allen, as a trustee, and G Developments Pty Ltd (the first defendant), along with other parties. Allen claimed that the first defendant had agreed to repay a loan of $1 million with interest at a rate of 25 per cent per annum within one year. The first defendant had not made any repayments, and Allen sought interest on the outstanding balance, arguing that the deed of loan obligated the first defendant to pay interest on the outstanding amount beyond the one-year term. The court had to determine whether the deed of loan provided for such interest and, if not, whether interest should be awarded under section 58(3) of the Civil Proceedings Act 2011 (Qld). The court also had to consider whether the first defendant's conduct amounted to repudiation and if the termination by the other defendants by counterclaim was lawful.

The court examined the terms of the deed of loan and found that it did not explicitly provide for interest beyond the one-year term. The court held that the plaintiff was entitled to seek interest under section 58(3) of the Civil Proceedings Act 2011 (Qld) on the outstanding balance of $1,000,000 from 31 October 2016 until the date of judgment. The court also examined the special condition that applied to the sale contracts and found that the first defendant was not entitled to demand payment of the deposit or terminate the contracts, as not all conditions for the application of the loan funds were met. The court held that the first defendant's conduct amounted to repudiation, and the termination by the other defendants by counterclaim was lawful. The court dismissed the claim for rectification of the investor contracts and for alternative declaratory relief and equitable damages as there was no utility in granting such relief.

The court granted Allen leave to amend his claim to seek interest pursuant to section 58(3) of the Civil Proceedings Act 2011 (Qld). The court awarded Allen interest of $88,867.39 on the outstanding balance of $1,000,000 owed by the first defendant. The court dismissed the plaintiff's claim for interest beyond what was awarded under the Act and dismissed the counterclaim by the first and second defendants. The court also dismissed the claim by the third, fourth, and fifth defendants by counterclaim for rectification of the investor contracts and for alternative declaratory relief and equitable damages.

Orders

Orders of the court

1. The plaintiff has leave to amend his claim to seek interest pursuant to s 58(3) of the Civil Proceedings Act 2011 (Qld).

2. Judgment for the plaintiff against the first and second defendants in the amount of $88,867.39, being interest payable pursuant to s 58(3) of the Civil Proceedings Act 2011 (Qld) on the outstanding balance of $1,000,000 owed by the first defendant to the plaintiff during the period from 31 October 2016 to judgment.

3. The plaintiff’s claim is otherwise dismissed.

4. The first and second defendants’ counterclaim is dismissed.

5. The claim of the third, fourth and fifth defendants by counterclaim for rectification of the investor contracts and for alternative declaratory relief and equitable damages is dismissed.

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:	Allen v G Developments Pty Ltd & Ors [2019] QSC 107
PARTIES:	JOHN ALLEN (as Trustee of the Bundamba Trust) (plaintiff) v G DEVELOPMENTS PTY LTD ACN 116 332 220 (first defendant) GARRICK GRAHAME BULL (second defendant) RICHARD JAMES GARNER (third defendant) ALEXANDER SCOTT HAGAN (fourth defendant) DALIBOR STEVANOVIC (fifth defendant) and STOJAN STEVANOVIC AND SLAVICA STEVANOVIC (first defendant by counterclaim) CARL JAMES THOMPSON AS TRUSTEE FOR THE THOMPSON FAMILY SUPER FUND (third defendant by counterclaim) ALLEGRO BEACH PTY LTD ACN 136 535 790 AS TRUSTEE FOR THE ALLEN FAMILY TRUST (fourth defendant by counterclaim) ANNJAC PTY LTD ACN 101 188 407 AS TRUSTEE FOR THE SILVERWOOD SUPERANNUATION FUND (fifth defendant by counterclaim)
FILE NO:	SC No 11245 of 2016
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	7 May 2019
DELIVERED AT:	Brisbane
HEARING DATE:	29, 30 and 31 January and 5 February 2019
JUDGE:	Bradley J
ORDERS:	1. The plaintiff has leave to amend his claim to seek interest pursuant to s 58(3) of the *Civil Proceedings Act* 2011(Qld). 2. Judgment for the plaintiff against the first and second defendants in the amount of $88,867.39, being interest payable pursuant to s 58(3) of the *Civil Proceedings Act* 2011 (Qld) on the outstanding balance of $1,000,000 owed by the first defendant to the plaintiff during the period from 31 October 2016 to judgment. 3. The plaintiff’s claim is otherwise dismissed. 4. The first and second defendants’ counterclaim is dismissed. 5. The claim of the third, fourth and fifth defendants by counterclaim for rectification of the investor contracts and for alternative declaratory relief and equitable damages is dismissed.
CATCHWORDS:	CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – INTEREST – AGREEMENTS TO PAY INTEREST – RECOVERABILITY OF INTEREST – where the plaintiff, as a trustee, agreed to lend the first defendant a principal sum of $1 million pursuant to a deed of loan, for the purpose of funding the acquisition of land for a development project – where by the deed of loan the first defendant covenanted to repay the principal sum plus interest at the rate of 25 per cent per annum within one year – where no repayments were made prior to the commencement of proceedings, more than five years after the loan debt was due – where the plaintiff contends that the deed of loan bound the first defendant to pay interest at the rate of 25 per cent per annum on the outstanding loan amount, comprising the principal sum and accrued interest, until all monies were repaid – whether, on its proper construction, the deed of loan provided for the payment of interest at the rate of 25 per cent per annum on the outstanding amount beyond the end of the one year term – whether, in the alternative, interest should be awarded on the outstanding balance from time to time pursuant to s 58(3) of the Civil Proceedings Act 2011 (Qld)…