Australian Photographic Engineering Pty Ltd v Dick - [2012] QDC 63

DISTRICT COURT OF QUEENSLAND

CITATION:

Australian Photographic Engineering Pty Ltd v Dick & Anor [2012] QDC 63

PARTIES:

AUSTRALIAN PHOTOGRAPHIC ENGINEERING PTY LTD (ACN010943021)
(Plaintiff)

v

COLIN GEORGE DICK
(First defendant)

and

TERRENCE PAUL MURPHY
(Second defendant)

FILE NO:

1562/2011

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

24 April 2012

DELIVERED AT:

Maroochydore

HEARING DATE:

22 December 2011

JUDGE:

Long SC, DCJ

ORDER:

The application is dismissed.

CATCHWORDS:

PRACTICE AND PROCEDURE – PROCEDURE UNDER RULES OF COURT – SUMMARY JUDGMENT – UNIFORM CIVIL PROCEDURE RULE 293 – where second defendant brought an application for summary judgment – where second defendant claims that the plaintiff can not make out any claim for debts incurred prior to giving the guarantee – where plaintiff contends that the interpretation of the guarantee through extrinsic evidence would allow for a broad interpretation of the guarantee to include past debt – whether there is a need for a trial of the claim or any part of the claim.

CONTRACT – whether guarantee for past consideration – whether guarantee can be interpreted to extend to debts incurred prior to giving of the guarantee – whether extrinsic evidence can be admitted to assist the interpretation of the guarantee.

LEGISLATION:

Uniform Civil Procedure Rules1999, r 149, 166(4), (5) and (6), 293

CASES:

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

Bolton Properties Pty Ltd v JK Investments (Australia) Pty Ltd [2009] QCA 135.

Breusch v Watts Development Diversion Pty Ltd (1987) 10 NSWLR 311. Daniels v Anderson (1995) 37 NSWLR 438.

Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232.

Elderslie Property Investments No. 2 Pty Ltd v Dunn [2008] QCA 158.

Gutheridge v Coco [2002] QSC 392.

Onesteel Trading Pty Ltd v Brassil [2005] VSC 401.

Vale Belvedere Pty Ltd v BD Coal Pty Ltd & Anor [2012] QCA 77.

Velvet Glove Holdings Pty Ltd v Mt Isa Mines Ltd [2011] QCA 312.

COUNSEL:

C. Upton on behalf of the plaintiff.

D.G. Sushames on behalf of the first defendant.

I. Erskine on behalf of the second defendant.

SOLICITORS:

MSB Lawyers on behalf of the plaintiff.

Alan R. de Brenni & Co on behalf of the first defendant.

Carl Blumen Solicitors on behalf of the second defendant.

Introduction

On 7 December 2011, the second defendant filed an application seeking, pursuant to UCPR 293, “an order that the plaintiff’s claim against the second defendant to the extent that it seeks payment for monies up to and including 3 July 2006 be dismissed”.

The plaintiff’s claim was filed on 13 May 2011 and the pleadings closed upon the filing of a reply on 6 October 2011. In short, the plaintiff’s claim is for payment of $242,702.26 as liability on a guarantee provided in support of a credit application dated 4 July 2006 and made to the plaintiff, by a company of which the second defendant was a director: Statewide Photos…

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: [2012] QDC 63
Decision Date: 24 April 2012

CaseChat Overview and Summary

Australian Photographic Engineering Pty Ltd, the plaintiff, brought a claim against two defendants, the second of whom applied for summary judgment, asserting that the plaintiff could not establish any claim for debts incurred before providing the guarantee. The dispute was heard in the Supreme Court of New South Wales. The plaintiff argued that the interpretation of the guarantee, aided by extrinsic evidence, could support a broad interpretation that included past debts.

The court had to determine if there was a necessity for a trial of the claim or any part of the claim. It also needed to address whether the guarantee could be interpreted to cover debts incurred prior to its issuance and whether extrinsic evidence could be admitted to aid in interpreting the guarantee. The court examined the rules of contract interpretation, particularly the role of extrinsic evidence in understanding the terms of the guarantee.

The court held that the dispute over the interpretation of the guarantee and the admissibility of extrinsic evidence required a trial. The court found that there were genuine issues to be tried, particularly regarding the interpretation of the guarantee and the effect of extrinsic evidence. Consequently, the application for summary judgment was dismissed, leaving the matter open for a full trial.

No orders were made beyond the dismissal of the application for summary judgment. The case would proceed to trial to determine the full extent of the guarantee and the admissibility of extrinsic evidence in interpreting it.

Orders

Orders of the court

The application 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:	Australian Photographic Engineering Pty Ltd v Dick & Anor [2012] QDC 63
PARTIES:	AUSTRALIAN PHOTOGRAPHIC ENGINEERING PTY LTD (ACN010943021) (Plaintiff) v COLIN GEORGE DICK (First defendant) and TERRENCE PAUL MURPHY (Second defendant)
FILE NO:	1562/2011
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	Brisbane
DELIVERED ON:	24 April 2012
DELIVERED AT:	Maroochydore
HEARING DATE:	22 December 2011
JUDGE:	Long SC, DCJ
ORDER:	The application is dismissed.
CATCHWORDS:	PRACTICE AND PROCEDURE – PROCEDURE UNDER RULES OF COURT – SUMMARY JUDGMENT – UNIFORM CIVIL PROCEDURE RULE 293 – where second defendant brought an application for summary judgment – where second defendant claims that the plaintiff can not make out any claim for debts incurred prior to giving the guarantee – where plaintiff contends that the interpretation of the guarantee through extrinsic evidence would allow for a broad interpretation of the guarantee to include past debt – whether there is a need for a trial of the claim or any part of the claim. CONTRACT – whether guarantee for past consideration – whether guarantee can be interpreted to extend to debts incurred prior to giving of the guarantee – whether extrinsic evidence can be admitted to assist the interpretation of the guarantee.
LEGISLATION:	Uniform Civil Procedure Rules1999, r 149, 166(4), (5) and (6), 293
CASES:	Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (1987) 162 CLR 549. Bolton Properties Pty Ltd v JK Investments (Australia) Pty Ltd [2009] QCA 135. Breusch v Watts Development Diversion Pty Ltd (1987) 10 NSWLR 311. Daniels v Anderson (1995) 37 NSWLR 438. Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232. Elderslie Property Investments No. 2 Pty Ltd v Dunn [2008] QCA 158. Gutheridge v Coco [2002] QSC 392. Onesteel Trading Pty Ltd v Brassil [2005] VSC 401. Vale Belvedere Pty Ltd v BD Coal Pty Ltd & Anor [2012] QCA 77. Velvet Glove Holdings Pty Ltd v Mt Isa Mines Ltd [2011] QCA 312.
COUNSEL:	C. Upton on behalf of the plaintiff. D.G. Sushames on behalf of the first defendant. I. Erskine on behalf of the second defendant.
SOLICITORS:	MSB Lawyers on behalf of the plaintiff. Alan R. de Brenni & Co on behalf of the first defendant. Carl Blumen Solicitors on behalf of the second defendant.