Cada Formwork Pty Ltd (in liq) v De Almeida - [2016] QDC 250

[2016] QDC 250
DISTRICT COURT OF QUEENSLAND
CIVIL JURISDICTION
JUDGE DORNEY QC
No 4932 of 2015
CADA FORMWORK PTY LTD   Plaintiff
(IN LIQUIDATION) and OTHERS
and
CARLOS MANUEL PEREIRA DE ALMEIDA          Defendant
BRISBANE
11.00 AM, THURSDAY, 29 SEPTEMBER 2016
JUDGMENT

HIS HONOUR: In this proceeding the defendant has not appeared at trial. I caused the defendant’s name to be called three times outside the Court and no appearance ensued. The Court was satisfied the defendant was notified and served with evidence, as I have already ordered. The trial of this proceeding will then proceed according to the UniformCivil Procedure Rules 1999, and in particular, r 476.

Applying r 476(1), I directed that the affidavits, which were the subject of an order that I made several months ago before this trial, be taken to be the evidence. The orders I made were on the 26^th of August 2016 and referred to, in particular, both the plaintiffs’ and the defendant’s evidence-in-chief be given by way of an affidavit. It is primarily to those affidavits filed that reference has been made by counsel for the plaintiffs in this particular case.

The action is brought by the plaintiffs pursuant to the Corporations Act 2001 (Commonwealth). That Act permits the plaintiffs to rely upon provisions of that Act to seek to recover loans that the company made, and in particular, made to its director, the defendant (Carlos Manuel Pereira de Almeida). Section 477(2)(a) of the Corporations Act 2001, which as noted is a Commonwealth Act, specifically empowers liquidators to bring or defend any legal proceeding into the name of and on behalf of the company. It will be observed, of course, that not only has the company in liquidation been made a party to the proceeding but also the liquidators themselves. Whatever concerns that might be had about both parties being parties to this proceeding, it seems to be a common way of proceeding. An example of that is shown in the case referred to in the submissions of the plaintiffs of Lindholm(as joint and several liquidators of ACN 103 220 776 Proprietary Limited (inliquidation) v Swindells [2016] VSC 275.

The plaintiffs, in seeking to prove their case, have relied upon two separate provisions – two separate sets of provisions. One is pursuant to the Commonwealth Corporations Act (that I’ve just mentioned), and the other is pursuant to Queensland legislation, being the Evidence Act 1977. I’ll come to the latter in a moment.

The concern I had with the effect, in particular, of ss 1305 and 1306 of the Corporations Act was whether, given the absence of original documents, it was appropriate to proceed on the basis of those provisions. A supplementary concern was that, as a result of the Full Court of the Federal Court decision of Whitton (as trusteeof the estate of John Emmanuel Rose) v Regis Towers Real EstateProprietary Limited (in administration) [2007] FCAFC 125, that appellate authority in the Federal sphere had…

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: [2016] QDC 250
Decision Date: 29 SEPTEMBER 2016

CaseChat Overview and Summary

Cada Formwork Pty Ltd, a liquidated company, and its liquidators brought an action against Carlos Manuel Pereira de Almeida, seeking the recovery of loans made to him. The trial proceeded without the defendant's appearance. The plaintiffs argued their case under the Corporations Act 2001 (Commonwealth) and the Evidence Act 1977 (Queensland), focusing on the admissibility of book of account entries as evidence. The court found that the plaintiffs had satisfied the requirements of the Evidence Act to admit the entries as evidence of transactions recorded. The court determined that the loan monies were indeed loans and not remuneration, as the defendant had not provided evidence to counter the plaintiffs' claims.

The court detailed the evidence presented, including financial reports and tax returns, which supported the plaintiffs' claims. The defendant's signature on the financial statements served as an admission of the company's financial position. The handwritten notations on bank statements were also accepted as part of the record for determining the nature of the transactions. The court concluded that the loan monies remained due and owing, and awarded interest as permitted by the Civil Proceedings Act 2011. The final orders were made in accordance with the court's reasons.

Orders