ANZ Banking Group Ltd v Lomas

[2012] QSC 124

SUPREME COURT OF QUEENSLAND

CITATION:

ANZ Banking Group Ltd  v Lomas & Ors [2012] QSC 124

PARTIES:

AUSTRALIAN AND NEW ZEALAND BANKING GROUP LIMITED (ABN 11 005 357 522)

(plaintiff)

v

DOUGLAS JOHN LOMAS IN HIS OWN CAPACITY AND AS TRUSTEE OF THE CENTRE MANAGEMENT TRUST

(first defendant)

and

GAIL VERONA LOMAS

(second defendant)

and

DOUGLAS JOHN LOMAS

(first plaintiff by counterclaim)

and

GAIL VERONA LOMAS

(second plaintiff by counterclaim)

and

FOURMILE HOLDINGS PTY LTD ABN 33 133 365 161

(third plaintiff by counterclaim)

and

AUSTRALIAN AND NEW ZEALAND BANKING GROUP LIMITED (ABN 11 005 357 522)

(defendant by counterclaim)

FILE NO/S:

BS3188/11

DIVISION:

Trial

PROCEEDING:

Application for summary judgment

DELIVERED ON:

9 May 2012

DELIVERED AT:

Brisbane

HEARING DATE:

28 March 2012

JUDGE:

Margaret Wilson J

ORDER:

Application for summary judgment dismissed

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – SUMMARY JUDGMENT – where plaintiff made an application for summary judgment pursuant to an undated guarantee and indemnity – where principal debtor was in default under the terms of its facility with the plaintiff – whether the instrument of guarantee attached to the particular debt for which the defendants were sued – whether the defendants had any real prospects of defending the plaintiff’s claim – whether there was need for a trial

Uniform Civil Procedure Rules 1999 (Qld) r 292,

Agar v Hyde (2000) 201 CLR 552.
Coldham-Fussell v Commissioner of Taxation [2011] QCA 45.

COUNSEL:

D de Jersey for the applicant plaintiff

A J H Morris QC and L Jurth for the respondent defendants

SOLICITORS:

Minter Ellison Lawyers for the applicant plaintiff

Worcester and Co for the respondent defendants

1. MARGARET WILSON J: In this application the plaintiff seeks summary judgment against the defendants in the sum of $2,180,958.09, together with interest and costs. The claim is made pursuant to an undated guarantee and indemnity.

1. It was conceded that the principal debtor Worthgold Pty Ltd is in default under the terms of its facility with the plaintiff. The only issue on the application was whether the instrument of guarantee attaches to the particular debt for which the defendants are sued.

The law

1. Rule 292 of the Uniform Civil Procedure Rules 1999 (Qld) provides:

"292 Summary judgment for plaintiff

(1) A plaintiff may, at any time after a defendant files a notice of intention to defend, apply to the court under this part for judgment against the defendant.

(2) If the court is satisfied that:

(a)   the defendant has no real prospect of successfully defending all or a part of the plaintiff's claim; and

(b)   there is no need for a trial of the claim or the part of the claim;

the court may give judgment for the plaintiff against the defendant for all or the part of the plaintiff's claim and may make any other order the court considers appropriate."

The power to enter summary judgment is exercised cautiously, and recent authorities have emphasised the need…