Bells Securities P/L v Wickham Developments Ltd

SUPREME COURT OF QUEENSLAND

CITATION:

Bells Securities P/L v Wickham Developments Ltd & Anor [2001] QCA 204

PARTIES:

BELLS SECURITIES PROPRIETARY LIMITED ACN 077 236 170
(plaintiff/respondent)
v
WICKHAM DEVELOPMENTS LIMITED ARBN 010 915 027
(first defendant/appellant)
ROBERT BRIAN LATHAM WICKHAM
(second defendant/appellant)

FILE NO/S:

Appeal No 7446 of 2000
SC No 4962 of 2000

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

1 June 2001

DELIVERED AT:

Brisbane

HEARING DATE:

16 May 2001

JUDGES:

McMurdo P, Thomas and Williams JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Appeal dismissed with costs

CATCHWORDS:

TRADE PRACTICES AND RELATED MATTERS – CONSUMER PROTECTION – MISLEADING, DECEPTIVE OR UNCONSCIONABLE CONDUCT – CHARACTER AND ATTRIBUTES OF CONTRACT – REPRESENTATIONS - AS TO FUTURE MATTERS – where respondent loaned appellant company money on the security of a registered mortgage – where appellant sought extension – statement by a then director of respondent that he would recommend rollovers provided certain conditions existed, and that the company would accept his recommendations – director ceasing to hold office - whether predictions of future conduct of the respondent – conditions not satisfied – no breach of any predictions

PROCEDURE – PRACTICE UNDER RULES OF COURT – SUMMARY JUDGMENT – GENERALLY – whether the alleged representations were triable issues under the Trade Practices Act ss51 A, 52 and 87 (1A)

Trade Practices Act 1974 (Cth), ss 51A, 52 and 87 (1A)
Uniform Civil Procedure Rules 1999 (Qld), r 291

Byers v Dorotea Pty Ltd (1986) 69 ALR 715, considered
Cloverdell Lumber Co Pty Ltd v Abbott [1924] 34 CLR 122, considered
General Credits (Finance) Pty Ltd v Grimm [1978] Qd R 449, considered
Queensland Truss and Frame Pty Ltd v Grenadier Constructions No 2 Pty Ltd [1992] 2 Qd R 428
Wallingford v Mutual Society [1880] 5 AC 685

COUNSEL:

L D Bowden for the appellants
M D Martin for the respondent

SOLICITORS:

Broadbent Radich Sampson for the appellants
Bells Solicitors for the respondent

1. PRESIDENT:  I agree with the reasons for judgment of Thomas JA and with the proposed order.

1. THOMAS JA:   This is an appeal by the defendants against summary judgment for $4.25 million granted by Helman J on 3 August 2000.  The judgment was in respect of money owed by the defendant Wickham Developments Ltd under a registered mortgage and in respect of the liability of its director, Mr Wickham, pursuant to a guarantee.

1. I do not propose to rehearse the principles upon which summary judgment applications should be determined. The relevant rules of court are now in Part 2 of Chapter 9 of the Uniform Civil Procedure Rules.[1] Subject to the particular requirements of those rules, the principles developed in leading cases concerned with such applications remain relevant.[2]  However, I leave open the question whether there remains any onus upon a defendant to establish that there is a question in dispute that ought to be…