Boral Resources (Qld) Pty Ltd v Thomas and Anor as trustees for the Avandel Property Trust and Ors

In the Supreme Court of Queensland, Boral Resources (Qld) Pty Ltd sought summary judgment against Thomas, who was the director of a small construction company, and his wife, who had provided a personal guarantee and indemnity for the company's debt. The company had failed to repay the debt, and the applicant had lodged a caveat over land subject to the guarantee and indemnity. The court was required to determine whether summary judgment should be granted to the plaintiff and to consider the implications of section 126(4)(a)(ii) of the Land Title Act 1994 (Qld), which mandates that a caveator must commence proceedings in the Supreme Court within three months to avoid the lapse of a caveat if the caveatee has not consented to its filing.

The court noted that the respondents had failed to file an appearance or defense, and that the applicant had satisfied the requirements for summary judgment. The court also found that the respondents had not demonstrated any special circumstances that would justify setting aside the default judgment. The court rejected the respondents' argument that the applicant had not complied with section 126(4)(a)(ii) of the Land Title Act 1994 (Qld), as the applicant had taken reasonable steps to commence proceedings within the required time frame. The court also noted that the respondents had not provided any evidence to support their claim that the applicant had not taken reasonable steps to enforce the guarantee and indemnity.

The court granted judgment for the plaintiff against the second and third defendants in the amount of $35,814.07 plus interest of $600.64, and ordered the second and third defendants to pay interest from 3 August 2010 on the daily balance of so much of the above $35,814.07 that is outstanding from time to time at the rate of 12.48% per annum. The court also ordered the second and third defendants to pay the costs of the plaintiff of and incidental to this application on the Magistrates’ Court Scale of Costs to be assessed. The court adjourned the application filed 23 July 2010 to the Registry.