Bradshaw v Secure Funding Pty Ltd - [2012] QCA 52

SUPREME COURT OF QUEENSLAND

CITATION:

Bradshaw & Anor v Secure Funding Pty Ltd [2012] QCA 52

PARTIES:

JAMES TODD BRADSHAW
IRENE BRADSHAW
(appellants)
v
SECURE FUNDING PTY LTD
(FORMERLY KNOWN AS LIBERTY FUNDING PTY LTD)
ACN 081 982 872
(respondent)

FILE NO/S:

Appeal No 6356 of 2011
SC No 225 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

16 March 2012

DELIVERED AT:

Brisbane

HEARING DATE:

10 November 2011

JUDGES:

Margaret McMurdo P, Chesterman JA and Margaret Wilson AJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES – SUMMARY JUDGMENT – where the appellant appealed an order granting summary judgment – where the appellant claimed damages for malicious prosecution, trespass, unconscionable conduct and breach of contract – where the appellant claimed punitive damages for maliciously instituting civil process – where the appellant’s payments were incorrectly recorded and the respondent attempted to enforce the loan and the security – where the appellant successfully defended two Supreme Court proceedings brought by the respondent to recover possession of the appellants’ home and the loan – where the respondent rectified errors in the loan account – where the appellant failed to demonstrate any relevant error in the primary judge’s analysis – whether the appellants have any real prospect of success – whether a trial of the appellants’ claims is necessary

Australian Securities and Investments Commission Act 2001 (Cth), s 12DA
Trade Practices Act 1974 (Cth)
Uniform Civil Procedure Rules 1999 (Qld), r 293

Bradshaw & Anor v Secure Funding Pty Ltd (formerly Liberty Funding Pty Ltd) [2011] QSC 184, cited
Halliday v Nevill (1984) 155 CLR 1; [1984] HCA 80, cited
Hanrahan v Ainsworth (1985) 1 NSWLR 370, cited
Metall & Rohstoff v Donaldson Inc [1989] WLR 563; [1990] 1 QB 391; [1989] 3 All ER 14, cited
QIW Retailers Ltd v Felview Pty Ltd [1989] 2 Qd R 245, cited
Plenty v Dillon (1991) 171 CLR 635; [1991] HCA 5, cited
Varawa v Howard Smith Co Ltd (1911) 13 CLR 35; [1911] HCA 46, cited
Williams v Spautz (1992) 174 CLR 509; (1992) 107 ALR 635; [1992] HCA 34, cited

COUNSEL:

The appellants appeared on his their own behalf
T Pincus for the respondent

SOLICITORS:

The appellants appeared on their own behalf
Norton Rose Australia for the respondent

MARGARET McMURDO P: I agree with Margaret Wilson AJA's reasons for refusing this appeal from the primary judge's order of 23 June 2011 giving summary judgment for the respondent against the appellants.

The judge adjourned the question of costs to a date to be fixed, having noted in her reasons:[1]
[1]Bradshaw & Anor v Secure Funding Pty Ltd (formerly Liberty Funding Pty Ltd) [2011] QSC 184.

“[36] I am mindful, however,…

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: [2012] QCA 52
Decision Date: 16 March 2012

CaseChat Overview and Summary

The case of Bradshaw v Secure Funding Pty Ltd was brought before the court as an appeal against an order granting summary judgment to the respondent. The appellant, Bradshaw, sought damages for malicious prosecution, trespass, unconscionable conduct, and breach of contract, as well as punitive damages for the malicious institution of civil process. The dispute arose from the incorrect recording of the appellant’s payments and the respondent’s subsequent attempts to enforce the loan and security. Despite successfully defending two Supreme Court proceedings brought by the respondent to recover possession of the appellant's home and the loan, Bradshaw argued that a trial of the claims was necessary.

The court was required to decide whether the appellant had any real prospect of success in proving the claims, and if a trial was necessary. The court examined the evidence and the arguments presented by both parties and considered whether the appellant had demonstrated any relevant error in the primary judge’s analysis. The court found that the appellant had not demonstrated any relevant error and that the primary judge's decision was correct.

The court concluded that the appellant had not shown any real prospect of success on the claims made, and therefore, the order granting summary judgment was affirmed. The appeal was dismissed with costs awarded to the respondent. The court held that the primary judge had correctly found that the appellant's claims were not plausible and that there was no need for a trial. The court's decision was based on a thorough analysis of the evidence and the legal principles applicable to the case.

Orders

Orders of the court

Appeal dismissed with costs

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:	Bradshaw & Anor v Secure Funding Pty Ltd [2012] QCA 52
PARTIES:	JAMES TODD BRADSHAW IRENE BRADSHAW (appellants) v SECURE FUNDING PTY LTD (FORMERLY KNOWN AS LIBERTY FUNDING PTY LTD) ACN 081 982 872 (respondent)
FILE NO/S:	Appeal No 6356 of 2011 SC No 225 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	16 March 2012
DELIVERED AT:	Brisbane
HEARING DATE:	10 November 2011
JUDGES:	Margaret McMurdo P, Chesterman JA and Margaret Wilson AJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed with costs
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES – SUMMARY JUDGMENT – where the appellant appealed an order granting summary judgment – where the appellant claimed damages for malicious prosecution, trespass, unconscionable conduct and breach of contract – where the appellant claimed punitive damages for maliciously instituting civil process – where the appellant’s payments were incorrectly recorded and the respondent attempted to enforce the loan and the security – where the appellant successfully defended two Supreme Court proceedings brought by the respondent to recover possession of the appellants’ home and the loan – where the respondent rectified errors in the loan account – where the appellant failed to demonstrate any relevant error in the primary judge’s analysis – whether the appellants have any real prospect of success – whether a trial of the appellants’ claims is necessary Australian Securities and Investments Commission Act 2001 (Cth), s 12DA Trade Practices Act 1974 (Cth) Uniform Civil Procedure Rules 1999 (Qld), r 293 Bradshaw & Anor v Secure Funding Pty Ltd (formerly Liberty Funding Pty Ltd) [2011] QSC 184, cited Halliday v Nevill (1984) 155 CLR 1; [1984] HCA 80, cited Hanrahan v Ainsworth (1985) 1 NSWLR 370, cited Metall & Rohstoff v Donaldson Inc [1989] WLR 563; [1990] 1 QB 391; [1989] 3 All ER 14, cited QIW Retailers Ltd v Felview Pty Ltd [1989] 2 Qd R 245, cited Plenty v Dillon (1991) 171 CLR 635; [1991] HCA 5, cited Varawa v Howard Smith Co Ltd (1911) 13 CLR 35; [1911] HCA 46, cited Williams v Spautz (1992) 174 CLR 509; (1992) 107 ALR 635; [1992] HCA 34, cited
COUNSEL:	The appellants appeared on his their own behalf T Pincus for the respondent
SOLICITORS:	The appellants appeared on their own behalf Norton Rose Australia for the respondent