Bjerring v Kline

[2013] QDC 233

DISTRICT COURT OF QUEENSLAND

CITATION:

Bjerring v Kline [2013] QDC 233

PARTIES:

GERT CHRISTIAN BJERRING

(first plaintiff)

and

BIRTHE HORUP BJERRING

(second plaintiff)

v

GRAYDON RUSSEL KLINE

(first defendant)

and

JOSEPHINE DENISE KLINE

(second defendant)

and

NATIONAL AUSTRALIA BANK LTD
ABN 12 004 044 937

(third party)

FILE NO/S:

1021/2013

DIVISION:

Civil

PROCEEDING:

Claim, application to set aside third party notice

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

August 2013

DELIVERED AT:

Brisbane

HEARING DATE:

22 July 2013

JUDGE:

Robin QC DCJ

ORDER:

Declaration that third party proceeding had not, for want of jurisdiction, been properly started; Third party proceeding set aside

CATCHWORDS:

District Court of Queensland Act 1967 s 68, s 69, s 86 – Civil Proceedings Act 2011 s 29 – Uniform Civil Procedure Rules r 8, r 16, r 144, r 192, r 196 – Claim by plaintiff guarantors for contribution from defendants as co-guarantors after payment by plaintiffs of the creditor bank’s demand – third party proceedings by defendants claim against the bank on the basis of alleged misleading and deceptive conduct that the guarantees were void or should in some way be avoided, that nothing was properly due to the bank – further claim for unquantified damages – whether the third party proceedings were within the court’s jurisdiction.

COUNSEL:

M Jones for the first and second defendants

R M De Luchi (Solicitor) for the first and second plaintiff

V G Brennan for the third party/applicant

SOLICITORS:

Robinson Locke Litigation lawyers for the first and second plaintiff/respondent

Cronin Litigation Lawyers for the first and second defendant/respondent

Dibbs Barker for the third party/applicant

1. The applicant National Australia Bank Limited seeks to be quit of third party proceedings begun against it by the defendants.  The plaintiffs’ claim against them is one for contribution as between co-guarantors of monies which they paid to the bank in satisfaction of guarantees by the plaintiffs and the defendants as co-guarantors of liability of a company called Emerald Island Point Pty Ltd to the bank.  The defendants’ half share is $228,396.85. 

1. The defendants admit signing the guarantees on or about 27 June 2008 in the amount of $900,000 for the liability of the company to the third party pursuant to a “loan agreement” and that pursuant to the guarantees the plaintiffs and the defendants agreed jointly and severally to guarantee all sums that might become due under the loan agreement to the third party.  However, they say that on grounds set out each of the guarantees, and the loan agreement too, “is void ab initio” – by reason of which they came under no liability to the third party bank or to the plaintiffs.  There is no clear denial of the allegation that prior to December 2012 the bank demanded payment from each of the plaintiffs and the defendants pursuant to the guarantees.  There is no suggestion in pleadings (or otherwise) that the defendants took any steps to prevent the plaintiffs satisfying the bank’s demands or gave any indication that they considered…