Aravanis v Millar - [2017] QDC 235

DISTRICT COURT OF QUEENSLAND

CITATION:

Aravanis and another v Millar [2017] QDC 235

PARTIES:

ANDREW ARAVANIS AND RONIL PRAKASH ROY, TRUSTEES OF THE PROPERTY OF IAN DESMOND MILLAR, A BANKRUPT (plaintiff)

v

NICHOLAS ALEXANDER MILLAR (defendant)

FILE NO/S:

DC No 261 of 2017

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

20 September 2017

DELIVERED AT:

Brisbane

HEARING DATE:

11 September 2017

JUDGE:

Porter QC DCJ

ORDER:

1. The application be dismissed.

2. There be no order as to costs of the application.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR PLAINTIFF OR APPLICANT – where there is an application for summary judgment – where there is an alleged default of the loan – where a demand is issued – where the trustees allege an entitlement to contribution from the defendant as co-surety – where the defendant alleges payments of interest and repayments of as co-surety of a second loan – where the defendant alleges an entitlement to contribution in respect of certain payments as co-surety of the second loan – where the defendant alleges an entitlement to set off this entitlement against the trustees’ claims – whether the trustees have established that the bankrupt has paid more than his fair share in respect of the first loan – whether the defendant has no real prospect of successfully defending all or a part of the plaintiff’s claim – whether there is no need for a trial of the claim or the part of the claim.

Legislation

Bankruptcy Act 1966 (Qld), s 86
Property Law Act 1974 (Qld), s 84, 199
UCPR, r 292

Cases

Bolton Properties Pty Ltd v JK Investments (Australia) Pty Ltd [2009] 2 Qd R 202
Can-Win Leasing (Toronto) Limited v Moncayo (2014) ONCA 689
Clarke v Japan Machines (Aust) Pty Ltd (No 2) [1984] 1 Qd R 421
Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232

Friend v Booker (2009) 239 CLR 129

Lavin v Toppi (2015) 254 CLR 459
Mahoney v McManus (1981) 180 CLR 370

McLean v Discount & Finance Limited (1939) 64 CLR 312

Moulton v Roberts [1977] Qd R 135
Obvious Deadline Pty Ltd v Clancy; Clancy v Obvious Deadline Pty Ltd [2016] NSWSC 1837
Qld Pork Pty Ltd v Lott [2003] QCA 271

Trotter v Franklin [1991] 2 NZLR 92
Willis v Teparyl Pty Ltd (2010) 30 VR 485

Wilson v Cobble Patch Loganlea Pty Ltd [2016] QDC 235

Other

O’Donovan and Phillips, Thomas Reuters, Modern Contract of Guarantee, (at 13 September 2017)

COUNSEL:

Mr C Yam for the plaintiff

Mr Millar for the defendant (appearing in person)

SOLICITORS:

HSL Lawyers for the plaintiff

Introduction

In this proceeding, the plaintiffs, the Trustees in Bankruptcy of Ian Desmond Millar (the Trustees) seek summary judgment in respect of an alleged entitlement to contribution from the defendant (Mr Millar) in respect of a loan guaranteed by Mr Millar and his father,…

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 Aravanis v Millar

Details

AGLC: Aravanis v Millar [2017] QDC 235
Case: [2017] QDC 235
Decision Date: 20 September 2017

CaseChat Overview and Summary

The case of Aravanis v Millar involved proceedings in the Federal Circuit Court of Australia. The trustees of a bankrupt estate sought summary judgment against the defendant, who had been a co-surety on two separate loans. The trustees claimed that the bankrupt had defaulted on the loans, and they sought contribution from the defendant. In turn, the defendant argued that the bankrupt had made payments towards the loans and sought set-off against the trustees' claims.

The central legal issues before the court were whether the trustees had established that the bankrupt had paid more than his fair share in respect of the first loan, whether the defendant had any real prospect of successfully defending all or a part of the plaintiff’s claim, and whether there was no need for a trial of the claim or part of the claim. The court needed to determine whether the defendant's claims of payments and set-off were sufficient to warrant a full trial or if the trustees had made out a case for summary judgment.

The court found that the trustees had not provided sufficient evidence to establish that the bankrupt had paid more than his fair share. Additionally, the court determined that the defendant had a real prospect of successfully defending part of the trustees' claim, specifically regarding the set-off of payments made by the defendant towards the second loan. Consequently, the application for summary judgment was dismissed.

In conclusion, the court dismissed the application for summary judgment and made no order as to costs of the application. This decision highlights the importance of thorough evidence and the potential for a defendant to successfully defend against claims in such circumstances.

Orders

Orders of the court

1. The application be dismissed.

2. There be no order as to costs of the application.

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:	Aravanis and another v Millar [2017] QDC 235
PARTIES:	ANDREW ARAVANIS AND RONIL PRAKASH ROY, TRUSTEES OF THE PROPERTY OF IAN DESMOND MILLAR, A BANKRUPT (plaintiff) v NICHOLAS ALEXANDER MILLAR (defendant)
FILE NO/S:	DC No 261 of 2017
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	20 September 2017
DELIVERED AT:	Brisbane
HEARING DATE:	11 September 2017
JUDGE:	Porter QC DCJ
ORDER:	1. The application be dismissed. 2. There be no order as to costs of the application.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR PLAINTIFF OR APPLICANT – where there is an application for summary judgment – where there is an alleged default of the loan – where a demand is issued – where the trustees allege an entitlement to contribution from the defendant as co-surety – where the defendant alleges payments of interest and repayments of as co-surety of a second loan – where the defendant alleges an entitlement to contribution in respect of certain payments as co-surety of the second loan – where the defendant alleges an entitlement to set off this entitlement against the trustees’ claims – whether the trustees have established that the bankrupt has paid more than his fair share in respect of the first loan – whether the defendant has no real prospect of successfully defending all or a part of the plaintiff’s claim – whether there is no need for a trial of the claim or the part of the claim. Legislation Bankruptcy Act 1966 (Qld), s 86 Property Law Act 1974 (Qld), s 84, 199 UCPR, r 292 Cases Bolton Properties Pty Ltd v JK Investments (Australia) Pty Ltd [2009] 2 Qd R 202 Can-Win Leasing (Toronto) Limited v Moncayo (2014) ONCA 689 Clarke v Japan Machines (Aust) Pty Ltd (No 2) [1984] 1 Qd R 421 Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 Friend v Booker (2009) 239 CLR 129 Lavin v Toppi (2015) 254 CLR 459 Mahoney v McManus (1981) 180 CLR 370 McLean v Discount & Finance Limited (1939) 64 CLR 312 Moulton v Roberts [1977] Qd R 135 Obvious Deadline Pty Ltd v Clancy; Clancy v Obvious Deadline Pty Ltd [2016] NSWSC 1837 Qld Pork Pty Ltd v Lott [2003] QCA 271 Trotter v Franklin [1991] 2 NZLR 92 Willis v Teparyl Pty Ltd (2010) 30 VR 485 Wilson v Cobble Patch Loganlea Pty Ltd [2016] QDC 235 Other O’Donovan and Phillips, Thomas Reuters, Modern Contract of Guarantee, (at 13 September 2017)
COUNSEL:	Mr C Yam for the plaintiff Mr Millar for the defendant (appearing in person)
SOLICITORS:	HSL Lawyers for the plaintiff