Barklya Pty Ltd v Richtech Pty Ltd - [2014] QSC 233

SUPREME COURT OF QUEENSLAND

CITATION:

Barklya Pty Ltd v Richtech Pty Ltd [2014] QSC 233

PARTIES:

BARKLYA PTY LTD (ACN 010 551 274)
(applicant/plaintiff)

v

RICHTECH PTY LTD (ACN 010 977 536)
(respondent/defendant)

FILE NO/S:

BS3975/14

DIVISION:

Trial

PROCEEDING:

Application

DELIVERED ON:

22 September 2014

DELIVERED AT:

Brisbane

HEARING DATE:

31 July 2014

JUDGE:

Alan Wilson J

ORDER:

Application dismissed.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – SUMMARY JUDGMENT – - where the applicant and respondent companies were engaged in joint real estate development enterprises – where the applicant advanced the respondent money under a funding deed – where the applicant alleges that that funding deed was repayable upon demand – where the applicant demanded repayment of the sum advanced and the respondent failed to do so – where the applicant seeks summary judgment against the respondent for that sum plus interest – where the respondent claims that the payments were made in the course of a long-standing business agreement and were payable out of profits if and when they arise – where the respondent alternatively submits that even if the payments are properly characterised as loans, they are only repayable out of profit rather than on demand – whether the respondent has a real prospect of success at trial for the purposes of determining whether summary judgment should be given against the respondent

Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379, cited
BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266, cited
Re Brookers (Aust) Ltd (in liq); Brooker v Pridham (1986) 41 SASR 380, cited
Chianti Pty Ltd v Leume Pty Ltd (2007) 35 WAR 488, cited
Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232, cited
Hawkins v Clayton (1988) 164 CLR 539, cited
Westpac Banking Corporation v Hughes [2012] 1 Qd R 581, cited

COUNSEL:

RA Perry QC for the applicant/plaintiff
PA Hastie QC for the respondent/defendant

SOLICITORS:

Lynch Andrews for applicant/plaintiff
Thynne & Macartney for respondent/defendant

Alan Wilson J: Barklya Pty Ltd alleges that between 1 July 2012 and 8 October 2012 it loaned, by various advances in that period, the sum of $7,142,076.68 to Richtech Pty Ltd which, despite demand in June 2013, Richtech has wrongfully failed to repay. Barklya seeks summary judgment for that sum, and interest of over $5,000,000.

Richtech resists summary judgment. It says, firstly, that the monies advanced by Barklya were payments made in the course of a long standing arrangement within the Barclay family in the nature of investments in real estate development enterprises, ultimately to be reimbursed only when those enterprises were complete and profit had been taken from them; and, that has not occurred in the transaction to which these monies relate. Secondly, Richtech says that even if the payments are to be characterised as loans they were only repayable when Richtech had sufficient funds or profits from the real estate projects…

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: [2014] QSC 233
Decision Date: 22 September 2014

CaseChat Overview and Summary

Barklya Pty Ltd commenced proceedings in the Supreme Court of Queensland against Richtech Pty Ltd, seeking summary judgment for repayment of funds advanced under a funding deed, along with interest. The applicant alleged that the funds were repayable upon demand, and that the respondent had failed to repay the demanded sum. In response, the respondent claimed that the payments were made in the course of a long-standing business agreement and were payable out of profits if and when they arose. Alternatively, the respondent argued that even if the payments were properly characterised as loans, they were repayable only out of profit rather than on demand.

The court was required to determine whether the respondent had a real prospect of success in defending the proceedings such that the applicant's application for summary judgment should be dismissed. The central issue was whether the repayment terms of the funding deed were conditional on the generation of profits or if they were repayable on demand. The court considered the terms of the funding deed, the nature of the business relationship between the parties, and the arguments advanced by both parties. The court held that the respondent had raised a triable issue regarding the terms of repayment, indicating that the respondent had a real prospect of success in defending the claim. Consequently, the court dismissed the application for summary judgment.

The court found that the respondent had presented a valid argument that the funds were to be repaid out of profits, and not upon demand. This finding was sufficient to establish a triable issue, which precluded the grant of summary judgment in favour of the applicant. The application was dismissed, leaving the matter to be determined at trial.

Orders

Orders of the court

Application 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:	Barklya Pty Ltd v Richtech Pty Ltd [2014] QSC 233
PARTIES:	BARKLYA PTY LTD (ACN 010 551 274) (applicant/plaintiff) v RICHTECH PTY LTD (ACN 010 977 536) (respondent/defendant)
FILE NO/S:	BS3975/14
DIVISION:	Trial
PROCEEDING:	Application
DELIVERED ON:	22 September 2014
DELIVERED AT:	Brisbane
HEARING DATE:	31 July 2014
JUDGE:	Alan Wilson J
ORDER:	Application dismissed.
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – SUMMARY JUDGMENT – - where the applicant and respondent companies were engaged in joint real estate development enterprises – where the applicant advanced the respondent money under a funding deed – where the applicant alleges that that funding deed was repayable upon demand – where the applicant demanded repayment of the sum advanced and the respondent failed to do so – where the applicant seeks summary judgment against the respondent for that sum plus interest – where the respondent claims that the payments were made in the course of a long-standing business agreement and were payable out of profits if and when they arise – where the respondent alternatively submits that even if the payments are properly characterised as loans, they are only repayable out of profit rather than on demand – whether the respondent has a real prospect of success at trial for the purposes of determining whether summary judgment should be given against the respondent Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379, cited BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266, cited Re Brookers (Aust) Ltd (in liq); Brooker v Pridham (1986) 41 SASR 380, cited Chianti Pty Ltd v Leume Pty Ltd (2007) 35 WAR 488, cited Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232, cited Hawkins v Clayton (1988) 164 CLR 539, cited Westpac Banking Corporation v Hughes [2012] 1 Qd R 581, cited
COUNSEL:	RA Perry QC for the applicant/plaintiff PA Hastie QC for the respondent/defendant
SOLICITORS:	Lynch Andrews for applicant/plaintiff Thynne & Macartney for respondent/defendant