Australian Photographic Engineering P/L v Dick

DISTRICT COURT OF QUEENSLAND

CITATION:

Australian Photographic Engineering P/L v Dick & Anor [2015] QDC 344

PARTIES:

AUSTRALIAN PHOTOGRAPHIC ENGINEERING PTY LTD
ACN 010 943 021

(plaintiff)

v

COLIN GEORGE DICK

(first defendant)

and

TERRENCE PAUL MURPHY

(second defendant)

FILE NO/S:

1562/11

DIVISION:

PROCEEDING:

Civil Trial

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

11 December 2015

DELIVERED AT:

Brisbane

HEARING DATE:

4, 5, 6, 14, 15 and 20 August, 18 November and 12 December 2014

JUDGE:

Andrews SC DCJ

ORDER:

JUDGMENT FOR THE PLAINTIFF AGAINST THE DEFENDANTS IN THE SUM OF $5,431.01 INCLUSIVE OF INTEREST

CATCHWORDS:

GUARANTEE – whether unenforceable for want of consideration from the creditor – whether guarantee applicable to past debts – whether guarantee ambiguous – whether to admit extrinsic evidence – whether debts proved

LIMITATION OF ACTIONS – where action on contract commenced out of time – where defendants acknowledged that another entity made payments to the plaintiff – whether right of action  against defendants accrued afresh – whether plaintiff should have leave to add right of action out of time

Limitation of Actions Act 1974 (Qld) s 35 (3)

UCPR r 376 (1) and (4)

Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (1987) 162 CLR 549

Coghlan & Anor v SH Lock (Australia) Ltd (1987) 8 NSWLR 88

Westpac v Hughes [2011] QCA 042

COUNSEL:

Stephens for the plaintiff

Gunn for the first defendant

Erskine for the second defendant

SOLICITORS:

PPCS Lawyers for the plaintiff

Allan R de Brenni & Co for the first defendant

Carl Blumen for the second defendant

1. A creditor plaintiff claims money from two defendants who were directors and guarantors of the debts of a company which is now insolvent. The defendants’ liability to pay money is alleged to arise firstly pursuant to a ‘Guarantee Agreement’ and secondly pursuant to arguably more onerous terms of an ‘Application for Credit Account’, signed contemporaneously with the ‘Guarantee Agreement’.

Liability issues

1. About the ‘Guarantee Agreement’: The ‘Guarantee Agreement’ was signed in 2006. Was it signed in July or on 20 September? (20 September 2009) Where the agreed consideration from the creditor for the guarantee was supply on credit but the creditor generally required payment for supply, did the creditor provide consideration? (Yes) Is the guarantee unenforceable for want of consideration provided by the creditor? (No) Is the intent of the guarantee that the guarantors are liable for unpaid debts incurred at any time, or only after the guarantee was operative? (After) Is there ambiguity in the guarantee? (Yes) Do the circumstances known to the parties when they signed the guarantee affect its interpretation? (Yes, they assist to confirm its interpretation) Is the Guarantee Agreement intended to operate from 4 July or 20 September 2006? (20 September) Has the creditor identified to the guarantors the unpaid liabilities of the debtor for which the creditor seeks the guarantors’ payment? (Yes) Did the creditor waive its rights to pursue one guarantor, Mr Murphy? (No)

1. About the right of action for money payable under…