Boral Bricks v Davey - [2010] QSC 131

SUPREME COURT OF QUEENSLAND

CITATION:

Boral Bricks v Davey & Ors [2010] QSC 131

PARTIES:

BORAL BRICKS PTY LTD ACN 082 448 342
(applicant)
v
NORMAL LISTER DAVEY (D.O.B. 3 MARCH 1948)
(first respondent)
and
CHRISTINE MAY DAVEY
(second respondent)
and
NORMAN LISTER DAVEY (D.O.B. 8 JULY 1972)
(third respondent)
and
LISA ANNESSE DAVEY
(fourth respondent)
and
DIANNE IRENE KIBBLER
(fifth respondent)
and
ALAN DOUGLAS KIBBLER
(sixth respondent)

FILE NO/S:

BS12017/09

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

30 April 2010

DELIVERED AT:

Brisbane

HEARING DATE:

15 March 2010

JUDGE:

Douglas J

ORDER:

Judgment for the applicant

CATCHWORDS:

CORPORATIONS – VOLUNTARY ADMINISTRATION – DEEDS OF COMPANY ARRANGEMENT – where provisions of deeds of company arrangement purported to deem paid debts and other claims against the company’s directors to the same extent that claims against the company were released by the deed – whether the deemed payment of debts included in the deed of company arrangement is binding on a creditor who claimed against the company’s directors who had provided guarantees and indemnities

EQUITY – GENERAL PRINCIPLES – EQUITABLE ESTATES AND INTERESTS – CREATION – where the provisions of a guarantee purported to create an equitable charge attaching to guarantors’ “equitable interest in freehold or leasehold property” – where property is freehold property – whether the equitable charge is effective – whether the document should be construed by omitting the word “equitable”

Corporations Act 2001(Cth), s 444D(1)

Re Andersens Home Furnishing Co Pty Ltd (1996) 14 ACLC 1710, cited
Boral Resources (Qld) Pty Ltd v Andrews, unreported, Philippides J, SC No 13789 of 2009, 3 March 2010, applied

City of Swan v Lehman Bros Australia Ltd [2009] FCAFC 130, referred

DKLR Holding Co (No. 2) Pty Ltd v Commissioner of Stamp Duties (NSW) (1982) 149 CLR 431, distinguished
Fitzgerald v Masters (1956) 95 CLR 420, applied

Hanson Construction Materials Pty Ltd v Norlis & Ors [2010] QSC 34, cited

Lehman Bros Holdings Inc v City of Swan [2010] HCA 11, followed
Suncorp Insurance and Finance v Commissioner of Stamp Duties [1998] 2 Qd R 285, distinguished

COUNSEL:

A E Lyons for the applicant
P Travis for the respondent
M K Callanan (solicitor) for Hanson Construction Materials Pty Ltd

SOLICITORS:

James Conomos Lawyers for the applicant
Piper Alderman Lawyers for the respondents
Patane Lawyers for Hanson Construction Materials Pty Ltd

[1] Douglas J: This is an application for summary judgment for the payment of a debt of $14,145.24 and for a declaration that the applicant is an equitable chargee of land. The applicant seeks orders for sale of the land also. The claim for the debt is based on the first, second, third and fourth respondents’ status as guarantors and indemnifiers of the debts of a company called Norlis Pty Ltd. The charge claimed is said to extend over one parcel of land owned by the first and second respondents and another owned by the third, fourth, fifth and sixth respondents.

[2] The principal defences argued…

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.

Continue reading Boral Bricks v Davey

Details

AGLC: Boral Bricks v Davey [2010] QSC 131
Case: [2010] QSC 131
Decision Date: 30 April 2010

CaseChat Overview and Summary

In the case of Boral Bricks v Davey, the dispute revolved around the interpretation of provisions within a deed of company arrangement and the effect of these provisions on debts owed by the company's directors. The matter was heard in the Federal Court of Australia, where Boral Bricks sought to enforce payment from the company's directors who had provided guarantees and indemnities, arguing that the deed of company arrangement did not release their liability.

The legal issues that the court had to decide included whether the provisions of the deed of company arrangement that purported to deem paid debts and other claims against the company's directors were binding on creditors, and if the equitable charge created by the guarantee was effective. Additionally, the court needed to determine whether the document should be construed by omitting the word "equitable" from the description of the property.

The court held that the provisions of the deed of company arrangement did not release the company's directors from their personal liability. It found that the deemed payment of debts did not extend to the directors' guarantees and indemnities. The court further determined that the equitable charge created by the guarantee was ineffective as it was not properly defined in relation to freehold property. It ruled that the document should not be construed by omitting the word "equitable" as this would alter the original intent of the parties.

The final orders made by the court were that judgment was given in favour of the applicant, Boral Bricks, confirming that the company's directors remained liable for the debts guaranteed and indemnified.

Orders

Orders of the court

Judgment for the applicant

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:	Boral Bricks v Davey & Ors [2010] QSC 131
PARTIES:	BORAL BRICKS PTY LTD ACN 082 448 342 (applicant) v NORMAL LISTER DAVEY (D.O.B. 3 MARCH 1948) (first respondent) and CHRISTINE MAY DAVEY (second respondent) and NORMAN LISTER DAVEY (D.O.B. 8 JULY 1972) (third respondent) and LISA ANNESSE DAVEY (fourth respondent) and DIANNE IRENE KIBBLER (fifth respondent) and ALAN DOUGLAS KIBBLER (sixth respondent)
FILE NO/S:	BS12017/09
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	30 April 2010
DELIVERED AT:	Brisbane
HEARING DATE:	15 March 2010
JUDGE:	Douglas J
ORDER:	Judgment for the applicant
CATCHWORDS:	CORPORATIONS – VOLUNTARY ADMINISTRATION – DEEDS OF COMPANY ARRANGEMENT – where provisions of deeds of company arrangement purported to deem paid debts and other claims against the company’s directors to the same extent that claims against the company were released by the deed – whether the deemed payment of debts included in the deed of company arrangement is binding on a creditor who claimed against the company’s directors who had provided guarantees and indemnities EQUITY – GENERAL PRINCIPLES – EQUITABLE ESTATES AND INTERESTS – CREATION – where the provisions of a guarantee purported to create an equitable charge attaching to guarantors’ “equitable interest in freehold or leasehold property” – where property is freehold property – whether the equitable charge is effective – whether the document should be construed by omitting the word “equitable” Corporations Act 2001(Cth), s 444D(1) Re Andersens Home Furnishing Co Pty Ltd (1996) 14 ACLC 1710, cited Boral Resources (Qld) Pty Ltd v Andrews, unreported, Philippides J, SC No 13789 of 2009, 3 March 2010, applied City of Swan v Lehman Bros Australia Ltd [2009] FCAFC 130, referred DKLR Holding Co (No. 2) Pty Ltd v Commissioner of Stamp Duties (NSW) (1982) 149 CLR 431, distinguished Fitzgerald v Masters (1956) 95 CLR 420, applied Hanson Construction Materials Pty Ltd v Norlis & Ors [2010] QSC 34, cited Lehman Bros Holdings Inc v City of Swan [2010] HCA 11, followed Suncorp Insurance and Finance v Commissioner of Stamp Duties [1998] 2 Qd R 285, distinguished
COUNSEL:	A E Lyons for the applicant P Travis for the respondent M K Callanan (solicitor) for Hanson Construction Materials Pty Ltd
SOLICITORS:	James Conomos Lawyers for the applicant Piper Alderman Lawyers for the respondents Patane Lawyers for Hanson Construction Materials Pty Ltd