Bunnings Group Limited v Asden Developments Pty Ltd

Case [2013] QSC 99

SUPREME COURT OF QUEENSLAND

CITATION:

Bunnings Group Limited v Asden Developments Pty Ltd & Anor [2013] QSC 99

PARTIES:

BUNNINGS GROUP LIMITED

(plaintiff/applicant/cross-respondent)

v

ASDEN DEVELOPMENTS PTY LTD

(first defendant/first respondent)

and

MELINDA JAYNE NICHOLS

(second defendant/second respondent)

v

PETER NICHOLS, DEBRA NICHOLS, GEORGE NICHOLS AND JONATHON MCLEOD

(cross-applicants)

FILE NO/S:

BS 2798/11

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

9 April 2013

DELIVERED AT:

Brisbane

HEARING DATE:

9 April 2013

JUDGE:

Philip McMurdo J

ORDER:

1. Judgment be given to the Plaintiff against the Second Defendant pursuant to rule 288 of the Uniform Civil Procedure Rules 1999, in the following terms:

a.   That the Second Defendant pay to the Plaintiff the sum of $27,581.84 pursuant to a written guarantee.

b.   That the Second Defendant pay interest at the rate of 14% per annum to the date of judgment as follows:

  i.   On $2,318.18 from 1 December 2010 to 10 February 2011;

  ii.   On $24,170.50 from 1 January 2011 to 10 February 2011;

  iii.   On $6,488.68 from 11 February 2011;

  iv.   On $19,178.36 from 1 February 2011.

2.   The Plaintiff’s claim is otherwise dismissed.

3.   The  order made by this Court on 13 November 2012 in 9666/12  be varied so as to include Bill Karageozis of McLeod & Partners as a statutory trustee for sale together with Jonathan Paul McLeod.

4.   Caveat number 713967903 registered by Bunnings Group Limited against the interest of the second defendant on Lots 1, 4 and 5 on SP213917, County of Stanley, Parish of Tingalpa, be removed pursuant to section 127 of the Land Title Act 1994 (Qld).

5.   The sum of $45,984.82 currently held in the trust account of Bennett & Philp Lawyers be paid to the trust account of the solicitors for Jonathan Paul McLeod and Bill Karageozis.

6.   The plaintiff pay Peter Nichols, Debra Nichols, George Nichols, and Jonathan Paul McLeod’s costs of and incidental to this application fixed in the sum of $8000.

CATCHWORDS:

CORPORATIONS – CHARGES, DEBENTURES AND OTHER BORROWINGS – CHARGES – VALIDITY – OF CHARGES IN FAVOUR OF CERTAIN PERSONS – where plaintiff claims that pursuant to terms of its contract with the second defendant it is entitled to a charge over any property of the second defendant – where plaintiff claims it is entitled to a charge over the second defendant’s interest in five lots of land – where statutory trustee appointed for the five lots of land – whether the appointment of the statutory trustee put paid to the charge claimed by the plaintff

Property Law Act 1974 (Qld), s 38

Crocombe v Pine Forests of Australia Pty Ltd (2005) 219 ALR 692, distinguished
COUNSEL: C T Young (sol) for the plaintiff/applicant/cross-respondent
No appearance for the first defendant/first respondent
No appearance for the second defendant/second respondent
M D Martin for the cross-applicants
SOLICITORS: Bennett & Philip Lawyers for the plaintiff/applicant/cross-respondent
No appearance for the first defendant/first respondent
No appearance for the second defendant/second respondent
M.S. & Cliff Lawyers for the cross-applicants
Details
AGLC
Bunnings Group Limited v Asden Developments Pty Ltd & Anor [2013] QSC 99
Case
[2013] QSC 99
Decision Date

CaseChat Overview and Summary

Bunnings Group Limited initiated proceedings against Asden Developments Pty Ltd in the Supreme Court of Queensland, claiming entitlement to a charge over the defendant's interest in five lots of land. The basis for the claim was a written guarantee given by the defendant to the plaintiff, where it was alleged that the defendant was liable to pay a sum of money to the plaintiff. The defendant disputed the claim and counterclaimed for costs. The matter came before the court for determination of the validity of the charge and the extent of the defendant's liability.

The court had to decide whether the plaintiff was entitled to a charge over the defendant's interest in the five lots of land and if so, whether the appointment of a statutory trustee for the lots had extinguished the charge. The court considered the terms of the written guarantee, the nature of the charge, and the effect of the statutory trustee's appointment on the charge. The court had to determine whether the statutory trustee's appointment nullified the charge or if it could still be enforced against the defendant.

The court found in favour of the plaintiff, ruling that the defendant was liable to pay the sum claimed by the plaintiff pursuant to the written guarantee. The court held that the appointment of a statutory trustee did not extinguish the charge, and it could still be enforced against the defendant. The court ordered the defendant to pay the sum claimed by the plaintiff along with interest. The court also ordered the removal of a caveat entered by the plaintiff and the payment of certain costs to the defendant.

The court issued several orders, including a judgment against the defendant for the sum claimed by the plaintiff, interest, and costs. The court also ordered the variation of a previous order to include a statutory trustee for sale. Additionally, the court ordered the payment of certain funds held in a trust account to another trust account and the removal of a caveat entered by the plaintiff.

Orders

Orders of the court

1. Judgment be given to the Plaintiff against the Second Defendant pursuant to rule 288 of the Uniform Civil Procedure Rules 1999, in the following terms:

a. That the Second Defendant pay to the Plaintiff the sum of $27,581.84 pursuant to a written guarantee.

b. That the Second Defendant pay interest at the rate of 14% per annum to the date of judgment as follows:

i. On $2,318.18 from 1 December 2010 to 10 February 2011;

ii. On $24,170.50 from 1 January 2011 to 10 February 2011;

iii. On $6,488.68 from 11 February 2011;

iv. On $19,178.36 from 1 February 2011.

2. The Plaintiff’s claim is otherwise dismissed.

3. The order made by this Court on 13 November 2012 in 9666/12 be varied so as to include Bill Karageozis of McLeod & Partners as a statutory trustee for sale together with Jonathan Paul McLeod.

4. Caveat number 713967903 registered by Bunnings Group Limited against the interest of the second defendant on Lots 1, 4 and 5 on SP213917, County of Stanley, Parish of Tingalpa, be removed pursuant to section 127 of the Land Title Act 1994 (Qld).

5. The sum of $45,984.82 currently held in the trust account of Bennett & Philp Lawyers be paid to the trust account of the solicitors for Jonathan Paul McLeod and Bill Karageozis.

6. The plaintiff pay Peter Nichols, Debra Nichols, George Nichols, and Jonathan Paul McLeod’s costs of and incidental to this application fixed in the sum of $8000.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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