Burckhardt v I & L Securities Pty Ltd

[1998] QCA 264

[1998] QCA 264

COURT OF APPEAL

DAVIES JA
THOMAS J

DERRINGTON J

Appeal No 4369 of 1998

BARRY RAYMOND BURCKHARDT	Applicant (Second Defendant)
and
I AND L SECURITIES PTY LTD	Respondent (Plaintiff)

BRISBANE
..DATE 13/07/98
DAVIES JA: This is apparently an application for an
extension of time within which to appeal, and if such an
application were granted, an appeal against a judgment in
the Trial Division of this Court on 4 August of last year.
I say "apparently" because the notice seems to seek leave to
appeal rather than an extension of time within which to
appeal, but
Mr Radcliff, who appears for the applicant, assures us that
the latter is the case.

Indeed, an application would be necessary to extend time within which to appeal, there being an inordinate delay between the decision made below and this hearing - I should add an inordinate and unexplained delay.

The judgment below was one for a money sum. The loan was
secured by a mortgage given by the first defendant in the
action, a company, over property in the Airlie Beach
district. The second defendant in the action, who is the
applicant before this Court, guaranteed payment by the first
defendant of the money secured by the mortgage and the
judgment, the subject of these proceedings, was, as I said,

a money judgment against the second defendant applicant.

The points which were raised below were, it seems, many, but
only one is sought to be raised by way of appeal and that
is, as it is put in the notice of appeal, on the ground that
his Honour erred in determining that the second defendant
had failed to establish a triable issue and then, by way of
particulars of that, that his Honour erred in determining
the issue as to the true value of the property in changing
circumstances where there was conflicting evidence by way of
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affidavit only as to such value, and then it goes on to say
that his Honour's decision was wrong and contrary to law.

The submission made in support of that arises from the fact that there were apparently two valuations before his Honour.

One was for some $330,000 with a forced sale value of

$300,000 and the other a valuation submitted on behalf of
the applicant of something over $500,000. It was submitted
on behalf of the applicant that this was sufficient to cause
the learned trial Judge to find a triable issue on whether
there had been a breach of duty by the mortgagee in selling
under s.85(1) of the Property Law Act 1974, the duty stated
in that section being one to take reasonable care to ensure
that the property is sold at market value.

In addition to the evidence of valuation which, as Mr Radcliff emphasised was a valuation obtained after sale, there was evidence before the learned primary Judge of the marketing efforts which were done on behalf of the selling agent at the time and prior to the sale, those being included in and exhibited to an affidavit of Mr Delahunty which was read before the learned primary Judge.

In my view, the mere fact that there were two valuations
diverging substantially in value was not sufficient to alone
establish a triable issue of a breach of s.85(1) of the
Property Law Act particularly when as his Honour had before
him the marketing efforts done on behalf of the selling
agent and, in consequence, in my view, his Honour was
entitled to conclude, as he did, that there was no triable
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issue that the sale took place in breach of the duty under
s.85 of the Property Law Act. For those reasons I would
refuse the application for extension of time within which to
appeal.

THOMAS J: I agree.

DERRINGTON J: I agree.

DAVIES JA: The application is refused.

MR SWEENEY: I ask for costs, Your Honour.

DAVIES JA: You cannot resist that.

MR RADCLIFF: I have nothing to say.

DAVIES JA: With costs.

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