Armstrong v Alexandra Group Holdings Ltd - [2015] QDC 96

DISTRICT COURT OF QUEENSLAND

CITATION:

Armstrong & another v Alexandra Group Holdings Ltd & others [2015] QDC 96

PARTIES:

ROBERT JOHN ARMSTRONG AND NORMA MAY ARMSTRONG
(plaintiffs)

v

ALEXANDRA GROUP HOLDINGS LTD
(ACN 146156167)
(first defendant)

and

KAREN MARIE KIRBY AND MICHAEL JOHN KIRBY
(second defendants)

FILE NO:

BD901/2013

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

6 May 2015

DELIVERED AT:

Brisbane

HEARING DATE:

20 April 2015 with final submissions received on 22 April 2015

JUDGE:

Kingham DCJ

ORDER:

Alexandra Group Holdings Ltd must pay the plaintiffs the sum of $384,358.78 (including all interest to this day) and must pay the plaintiff’s costs of and incidental to these proceedings on an indemnity basis which costs are fixed in the amount of $53,762.98.

CATCHWORDS:

CIVIL – PROCEDURE –TRIAL – where first defendant did not appear – where plaintiffs wished to proceed in its absence – where no satisfactory explanation given for failing to appear – where trial proceeded in absence of first defendant

CIVIL – CONTRACT- ENFORCABILITY OF AGREEMENT – where the first defendant entered into a loan agreement with the plaintiffs – where the first defendants defaulted on the loan - where there was disagreement between the parties regarding the methodology with which interest would be calculated because of conflict or ambiguity in the terms of the loan – where concluded this had been resolved by agreement when the plaintiffs agreed to a variation to the loan document - where an award was made on the basis of the agreed variation – where costs awarded to the plaintiffs on an indemnity basis as stipulated in the loan

COUNSEL:

J D Andrews for the plaintiff

No appearance by any of the defendants

SOLICITORS:

Lynch Andrews for the plaintiff

Mr and Mrs Armstrong have claimed monies owed to them by Alexandra Group Holdings Ltd under a loan agreement for which Mr and Mrs Kirby were guarantors. The trial was listed for four days commencing on 20 April 2015 and proceeded against Alexandra Group Holdings in the absence of any representative. Because of this unusual proceeding before turning to the merits of the action it is necessary to spend some time on procedural matters.

At the time appointed for the trial to commence there was no appearance for any of the defendants. Mr Andrews, the solicitor for the plaintiffs, brought to my attention that a trustee in bankruptcy had been appointed for Mr Kirby, one of the second defendants and that, on the weekend immediately past, Mrs Kirby had filed an application with respect to her status. Given this, Mr and Mrs Armstrong did not wish to proceed in the claim against Mr and Mrs Kirby at that time, having not sought leave to do so.

Mr and Mrs Armstrong did wish, however, to proceed against the company. Mr Andrews provided a notice that the company was acting in person signed by Mrs Kirby on 17 March 2015. It seems the company provided this to Mr and Mrs…

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: [2015] QDC 96
Decision Date: 6 May 2015

CaseChat Overview and Summary

The dispute in Armstrong v Alexandra Group Holdings Ltd involved the plaintiffs, Armstrong, and the first defendant, Alexandra Group Holdings Ltd, with a second defendant also being part of the proceedings but not appearing in court. The primary issue was the enforceability of a loan agreement and the calculation of interest due to the first defendant's default on the loan. The disagreement arose from the methodology for calculating interest, which was unclear due to conflicting terms in the loan agreement. The case was heard in the Supreme Court of New South Wales.

The court had to determine whether the loan agreement was enforceable and if the interest calculation methodology was valid. Furthermore, the court needed to assess whether the trial could proceed in the absence of the first defendant, Alexandra Group Holdings Ltd, who failed to appear despite the plaintiffs' desire to proceed. The court also had to address the issue of costs, particularly whether they could be awarded on an indemnity basis as stipulated in the loan agreement.

The court ruled that the loan agreement was enforceable and that the interest calculation had been properly resolved by the agreed variation. Since the first defendant did not appear and failed to provide a satisfactory explanation for its absence, the court proceeded with the trial. The court also determined that costs could be awarded on an indemnity basis, as stipulated in the loan agreement. Consequently, Alexandra Group Holdings Ltd was ordered to pay the plaintiffs the sum of $384,358.78, including all interest to date, and the plaintiffs' costs of $53,762.98 on an indemnity basis.

The final orders of the court required Alexandra Group Holdings Ltd to pay the plaintiffs the sum of $384,358.78, including all interest to date, and the plaintiffs' costs of $53,762.98 on an indemnity basis.

Orders

Orders of the court

Alexandra Group Holdings Ltd must pay the plaintiffs the sum of $384,358.78 (including all interest to this day) and must pay the plaintiff’s costs of and incidental to these proceedings on an indemnity basis which costs are fixed in the amount of $53,762.98.

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:	Armstrong & another v Alexandra Group Holdings Ltd & others [2015] QDC 96
PARTIES:	ROBERT JOHN ARMSTRONG AND NORMA MAY ARMSTRONG (plaintiffs) v ALEXANDRA GROUP HOLDINGS LTD (ACN 146156167) (first defendant) and KAREN MARIE KIRBY AND MICHAEL JOHN KIRBY (second defendants)
FILE NO:	BD901/2013
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	6 May 2015
DELIVERED AT:	Brisbane
HEARING DATE:	20 April 2015 with final submissions received on 22 April 2015
JUDGE:	Kingham DCJ
ORDER:	Alexandra Group Holdings Ltd must pay the plaintiffs the sum of $384,358.78 (including all interest to this day) and must pay the plaintiff’s costs of and incidental to these proceedings on an indemnity basis which costs are fixed in the amount of $53,762.98.
CATCHWORDS:	CIVIL – PROCEDURE –TRIAL – where first defendant did not appear – where plaintiffs wished to proceed in its absence – where no satisfactory explanation given for failing to appear – where trial proceeded in absence of first defendant CIVIL – CONTRACT- ENFORCABILITY OF AGREEMENT – where the first defendant entered into a loan agreement with the plaintiffs – where the first defendants defaulted on the loan - where there was disagreement between the parties regarding the methodology with which interest would be calculated because of conflict or ambiguity in the terms of the loan – where concluded this had been resolved by agreement when the plaintiffs agreed to a variation to the loan document - where an award was made on the basis of the agreed variation – where costs awarded to the plaintiffs on an indemnity basis as stipulated in the loan
COUNSEL:	J D Andrews for the plaintiff No appearance by any of the defendants
SOLICITORS:	Lynch Andrews for the plaintiff