Big River Group Pty Ltd v KDJ Constructions Pty Ltd - [2021] QDC 122

DISTRICT COURT OF QUEENSLAND

CITATION:

Big River Group Pty Ltd v KDJ Constructions Pty Ltd & Anor [2021] QDC 122

PARTIES:

BIG RIVER GROUP PTY LTD

(plaintiff)

v

KDJ CONSTRUCTIONS PTY LTD

(First defendant)

and
SHANE DOUGLAS PARES

(second defendant)

FILE NO:

2655 of 2020

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

25 June 2021

DELIVERED AT:

Brisbane

HEARING DATE:

8 June 2021

JUDGE:

Sheridan DCJ

ORDER:

1.   The first defendant and second defendant pay to the plaintiff the sum of $23,056.80 for claim plus $5,543.05 for interest up to the date of judgment and the plaintiff’s costs of and incidental to this proceeding on an indemnity basis to be assessed, if not agreed.

2.   As against the second defendant, declarations that:

(a)   by a written guarantee and indemnity granted by the second defendant to the plaintiff on or about 7 July 2019 (the Guarantee), the second defendant granted an equitable charge to the plaintiff in respect of his interest in the estate in fee simple in the land described as Lot 174 on Survey Plan 110557, being the whole of the land contained in Title Reference 50242628 (the Land);

(b) the equitable charge charges the second defendant’s interest in the Land with the payment of all moneys due and owing by the second defendant to the plaintiff on any account whatsoever (including claims for interest and costs on a solicitor and own client basis) associated with the credit facility held in the name of the first defendant, all of which sums are due and owing by the second defendant to the plaintiff under the Guarantee; and

(c)   the sum of $28,595.85 for claim and interest and the plaintiff’s costs of and incidental to the proceedings on an indemnity basis is owing by the second defendant to the plaintiff and the Land be charged with payment of that sum.

3.   The application is otherwise adjourned to a date to be fixed.

CATCHWORDS:

REAL PROPERTY – PARTITION OF LAND – STATUTORY TRUST FOR SALE OR PARTITION – TRUSTEES – where plaintiff seeks an order for default judgment – where order sought for the sale of interest in land and appointment of trustees – where an equitable charge is created over the Land for the amounts owing by defendant – where no evidence as to extent of the entitlement of defendant as joint tenant – where joint tenant not personally served – whether power to order a sale under s 99 or s 38 of the Property Law Act 1974 (Qld) extends to a sale of a part interest in a property – whether order for sale can be made

LEGISLATION:

Property Law Act 1974 (Qld), s 38, s 99

Uniform Civil Procedure Rules 1999 (Qld), r 278, r 288

CASES:

Hanson Construction Materials Pty Ltd v Davey & Anor [2010] QCA 246, cited

Palk v Mortgage Services Funding plc [1993] Ch 330, cited

Phillips & Anor t/a D & M Plant Hire v Hogg [2001]…

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: [2021] QDC 122
Decision Date: 25 June 2021

CaseChat Overview and Summary

Big River Group Pty Ltd initiated legal proceedings against KDJ Constructions Pty Ltd and another defendant seeking an order for default judgment. The plaintiff sought the sale of the defendants' interest in a parcel of land and the appointment of trustees. The defendants had created an equitable charge over the land for the amounts owed by the second defendant. However, there was no evidence regarding the extent of the defendant's entitlement as a joint tenant, and the joint tenant had not been personally served. The central legal questions were whether the power to order a sale under sections 99 or 38 of the Property Law Act 1974 (Qld) extended to a sale of a part interest in the property and whether an order for sale could be granted.

The court examined the relevant statutory provisions and determined that while sections 99 and 38 of the Property Law Act 1974 (Qld) provided for the sale of land, these provisions did not explicitly cover the sale of a part interest in the property. The court also noted that the absence of evidence about the defendant's entitlement as a joint tenant and the failure to serve the joint tenant personally complicated the situation. Consequently, the court concluded that it lacked the jurisdiction to order the sale of the defendants' part interest in the property. However, the court did find that an equitable charge had been created over the land by the second defendant's guarantee and indemnity agreement. The court ordered the second defendant to pay the plaintiff a specified sum, including interest and costs, and declared that the land was charged with the payment of that sum.

The court made several orders. First, the first and second defendants were ordered to pay the plaintiff a specified sum for the claim, interest, and costs. Second, the court declared that the second defendant had granted an equitable charge to the plaintiff in respect of his interest in the land and that the land was charged with the payment of a specified sum. Finally, the application was adjourned to a date to be fixed.

Orders

Orders of the court

1. The first defendant and second defendant pay to the plaintiff the sum of $23,056.80 for claim plus $5,543.05 for interest up to the date of judgment and the plaintiff’s costs of and incidental to this proceeding on an indemnity basis to be assessed, if not agreed.

2. As against the second defendant, declarations that:

(a) by a written guarantee and indemnity granted by the second defendant to the plaintiff on or about 7 July 2019 (the Guarantee), the second defendant granted an equitable charge to the plaintiff in respect of his interest in the estate in fee simple in the land described as Lot 174 on Survey Plan 110557, being the whole of the land contained in Title Reference 50242628 (the Land);

(b) the equitable charge charges the second defendant’s interest in the Land with the payment of all moneys due and owing by the second defendant to the plaintiff on any account whatsoever (including claims for interest and costs on a solicitor and own client basis) associated with the credit facility held in the name of the first defendant, all of which sums are due and owing by the second defendant to the plaintiff under the Guarantee; and

(c) the sum of $28,595.85 for claim and interest and the plaintiff’s costs of and incidental to the proceedings on an indemnity basis is owing by the second defendant to the plaintiff and the Land be charged with payment of that sum.

3. The application is otherwise adjourned to a date to be fixed.

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:	Big River Group Pty Ltd v KDJ Constructions Pty Ltd & Anor [2021] QDC 122
PARTIES:	BIG RIVER GROUP PTY LTD (plaintiff) v KDJ CONSTRUCTIONS PTY LTD (First defendant) and SHANE DOUGLAS PARES (second defendant)
FILE NO:	2655 of 2020
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	25 June 2021
DELIVERED AT:	Brisbane
HEARING DATE:	8 June 2021
JUDGE:	Sheridan DCJ
ORDER:	1. The first defendant and second defendant pay to the plaintiff the sum of $23,056.80 for claim plus $5,543.05 for interest up to the date of judgment and the plaintiff’s costs of and incidental to this proceeding on an indemnity basis to be assessed, if not agreed. 2. As against the second defendant, declarations that: (a) by a written guarantee and indemnity granted by the second defendant to the plaintiff on or about 7 July 2019 (the Guarantee), the second defendant granted an equitable charge to the plaintiff in respect of his interest in the estate in fee simple in the land described as Lot 174 on Survey Plan 110557, being the whole of the land contained in Title Reference 50242628 (the Land); (b) the equitable charge charges the second defendant’s interest in the Land with the payment of all moneys due and owing by the second defendant to the plaintiff on any account whatsoever (including claims for interest and costs on a solicitor and own client basis) associated with the credit facility held in the name of the first defendant, all of which sums are due and owing by the second defendant to the plaintiff under the Guarantee; and (c) the sum of $28,595.85 for claim and interest and the plaintiff’s costs of and incidental to the proceedings on an indemnity basis is owing by the second defendant to the plaintiff and the Land be charged with payment of that sum. 3. The application is otherwise adjourned to a date to be fixed.
CATCHWORDS:	REAL PROPERTY – PARTITION OF LAND – STATUTORY TRUST FOR SALE OR PARTITION – TRUSTEES – where plaintiff seeks an order for default judgment – where order sought for the sale of interest in land and appointment of trustees – where an equitable charge is created over the Land for the amounts owing by defendant – where no evidence as to extent of the entitlement of defendant as joint tenant – where joint tenant not personally served – whether power to order a sale under s 99 or s 38 of the Property Law Act 1974 (Qld) extends to a sale of a part interest in a property – whether order for sale can be made
LEGISLATION:	Property Law Act 1974 (Qld), s 38, s 99 Uniform Civil Procedure Rules 1999 (Qld), r 278, r 288
CASES:	Hanson Construction Materials Pty Ltd v Davey & Anor [2010] QCA 246, cited Palk v Mortgage Services Funding plc [1993] Ch 330, cited Phillips & Anor t/a D & M Plant Hire v Hogg [2001]…