CFI Rentals Pty Ltd v Roussos

DISTRICT COURT OF QUEENSLAND

CITATION:

CFI Rentals Pty Ltd v Roussos & Anor [2018] QDC 127

PARTIES:

CFI Rentals Pty Ltd ACN 166603578

(Applicant)

v

Michael Ivon Roussos

(First Respondent)

Julia Catherine Gardiner

(Second Respondent)

FILE NO/S:

BD4837/16

DIVISION:

PROCEEDING:

Originating application

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

29 June 2018

DELIVERED AT:

Brisbane

HEARING DATE:

5 April 2018

JUDGE:

Andrews SC DCJ

ORDER:

Orders as per paragraphs 1 to 10 of the draft.

Liberty to apply in respect of costs.

CATCHWORDS:

Uniform Civil Procedure Rules 1999 r 11;

CFI Rentals Pty Ltd v Roussos & Anor [2017] QCA 308;

Ex Parte Eimbart Pty Ltd (1982) Qd R 398;

Filmana Pty Ltd & Ors v Tynan & Anor [2013] QCA 256;

COUNSEL:

Keane for the applicant

P O’Brien for the first and second respondents

SOLICITORS:

SLF Lawyers for the applicant

Shand Taylor Lawyers for the first and second respondents

Background

1. The applicant (CFI) seeks:

1.   A declaration that it holds an equitable charge over the interest of the first respondent (Mr Roussos) in land and improvements at Westlake and at Surfers Paradise pursuant to a Secured Guarantee (the guarantee) between the applicant and Mr Roussos dated 13 May 2016; and

2.   Orders for the appointment of statutory trustees under the Property Law Act 1974 (Qld) and ancillary orders.

1. Mr Roussos and the second respondent (Ms Gardiner) are the registered owners as joint tenants of the land and improvements at Westlake and as tenants in common of the land and improvements at Surfers Paradise. Mr Roussos’s guarantee was given concerning the obligations of Zetland Fitness Management Pty Ltd (Zetland) under a loan agreement with CFI and an associated agreement for the lease of gym equipment from CFI.

The history of the proceeding at first instance

1. The proceeding commenced on 9 December 2016 by originating application.

1. CFI was at liberty to commence by originating application if “the only or main issue in the proceeding is an issue of law and a substantial dispute of fact is unlikely”.[1] The originating application contained an estimate that 30 minutes be allocated to the hearing. There is no claim. There are no pleadings. There has been no occasion for Mr Roussos or Ms Gardiner to file a notice of intention to defend and no occasion for the plaintiff to apply pursuant to UCPR rule 292 for summary judgment.

   [1]UCPR rule 11(a).

1. CFI followed up the filing of the originating application with three supporting affidavits over the following five months until the proceeding came before a judge hearing applications on 8 May 2017. The originating application was amended in an immaterial way that day and the amended originating application was heard in applications on 8 May 2017.

1. The primary judge found that:

1.   Upon the proper construction of the guarantee, no amount could be due and owing by the first respondent to CFI until it had been demanded from the first respondent;

2.…