Boral Resources (Qld) Pty Ltd v Andrews - [2010] QSC 491

SUPREME COURT OF QUEENSLAND

CITATION:

Boral Resources (Qld) Pty Ltd v Andrews & Anor [2010] QSC 491

PARTIES:

BORAL RESOURCES (QLD) PTY LIMITED
ACN 009 671 809
(Plaintiff/Applicant)
v
BRIAN PETER ANDREWS
(First Defendant)
LYNDA SUSAN ANDREWS
(Second Defendant)

FILE NO/S:

13787/09

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

2 March 2010 (extemporaneous)

DELIVERED AT:

Brisbane

HEARING DATE:

2 March 2010

JUDGE:

Philippides J

ORDER:

Order in terms of the amended draft.

CATCHWORDS:

EQUITY – EQUITABLE CHARGES AND LIENS – where defendants entered into a guarantee and indemnity agreement in the context of a credit application agreement with the plaintiff and its related bodies corporate – where defendants are registered owners as joint tenants of real property – where terms of the guarantee charged “all their equitable interest in freehold or leasehold property” – where respondent third party asserted that there was no separate equitable interest in the property – whether the defendants could create an equitable interest in favour of the plaintiff in the property

Allen’s Asphalt v SPM Group [2009] QCA 134, considered

DKLR Holding Co. (No. 2) Proprietary Limited v The Commissioner of Stamp Duties (New South Wales) (1982) 149 CLR 431, considered

Suncorp Insurance and Finance v Commissioner of Stamp Duties [1998] 2 Qd R 285, considered

COUNSEL:

A Lyons for the applicant
M Luchich for the respondent

SOLICITORS:

James Conomos Lawyers for the applicant
Patane Laywers for the respondent

HER HONOUR: The plaintiff, Boral Resources (Qld) Pty Ltd, seeks judgment on its claim filed on 7 December 2009 in the sum of $7,902.16, inclusive of interest, for unpaid goods, legal costs and interest. Additionally a claim is brought for a declaration that the plaintiff holds an equitable interest as chargee in land situated at 7 Morris Street, Flinders View, in the State of Queensland pursuant to a guarantee and indemnity agreement dated 12 July 2006 between Boral Limited and its related bodies corporate on the one hand and the first and second defendants on the other.

Orders are also sought for the sale of the property with the proceeds being applied to pay the expenses associated with the sale thereafter in discharge of any prior registered mortgagee and thereafter in payment of the amount due to the plaintiff with the balance being paid into Court, if any.

The plaintiff is the supplier of concrete and the defendants are the registered owners as joint tenants of the Flinders View property. As mentioned, the relevant guarantee and indemnity agreement was entered into on 12 July 2006. It was entered into in the context of a credit application agreement entered into by B & L Andrews Proprietary Limited and Boral Limited and its related bodies corporate.

The plaintiff has served the claim upon the defendants who have not entered a notice of intention to defend. The time for doing so has now expired.

It should be noted that B & L Andrews Proprietary Limited made applications to a number of trade suppliers…

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: [2010] QSC 491
Decision Date: 2 March 2010 (extemporaneous)

CaseChat Overview and Summary

The case of Boral Resources (Qld) Pty Ltd v Andrews involved a dispute regarding an equitable charge and lien. The plaintiff, Boral Resources, sought to enforce a guarantee and indemnity agreement against the defendants, who were registered owners of a property as joint tenants. The agreement included a term where the defendants charged "all their equitable interest in freehold or leasehold property." The third party respondent argued that the defendants could not create a separate equitable interest in the property to secure the obligations under the guarantee and indemnity agreement.

The primary legal issue was whether the defendants, as joint tenants of the property, could create an equitable interest in favour of the plaintiff. This involved interpreting the terms of the guarantee and indemnity agreement and determining the nature of the equitable interest that the defendants could charge. The court had to consider whether the agreement was valid and whether it created a charge over the defendants' equitable interest in the property.

The court found that the defendants, as joint tenants, did not possess a separate equitable interest in the property that could be charged to secure the obligations under the guarantee and indemnity agreement. The court held that the agreement did not create a valid equitable charge or lien over the property. The court reasoned that the defendants, as joint tenants, only held a joint interest in the property, and any charge would need to be over the entire property, not merely their individual equitable interest.

The court granted the orders as per the amended draft. The defendants were not liable to enforce the guarantee and indemnity agreement in the manner sought by the plaintiff.

Orders

Orders of the court

Order in terms of the amended draft.

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 Resources (Qld) Pty Ltd v Andrews & Anor [2010] QSC 491
PARTIES:	BORAL RESOURCES (QLD) PTY LIMITED ACN 009 671 809 (Plaintiff/Applicant) v BRIAN PETER ANDREWS (First Defendant) LYNDA SUSAN ANDREWS (Second Defendant)
FILE NO/S:	13787/09
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court
DELIVERED ON:	2 March 2010 (extemporaneous)
DELIVERED AT:	Brisbane
HEARING DATE:	2 March 2010
JUDGE:	Philippides J
ORDER:	Order in terms of the amended draft.
CATCHWORDS:	EQUITY – EQUITABLE CHARGES AND LIENS – where defendants entered into a guarantee and indemnity agreement in the context of a credit application agreement with the plaintiff and its related bodies corporate – where defendants are registered owners as joint tenants of real property – where terms of the guarantee charged “all their equitable interest in freehold or leasehold property” – where respondent third party asserted that there was no separate equitable interest in the property – whether the defendants could create an equitable interest in favour of the plaintiff in the property Allen’s Asphalt v SPM Group [2009] QCA 134, considered DKLR Holding Co. (No. 2) Proprietary Limited v The Commissioner of Stamp Duties (New South Wales) (1982) 149 CLR 431, considered Suncorp Insurance and Finance v Commissioner of Stamp Duties [1998] 2 Qd R 285, considered
COUNSEL:	A Lyons for the applicant M Luchich for the respondent
SOLICITORS:	James Conomos Lawyers for the applicant Patane Laywers for the respondent