Choice Homes (Qld) Pty Ltd v Marshall

DISTRICT COURT OF QUEENSLAND

CITATION:

Choice Homes (Qld) Pty Ltd v Marshall [2012] QDC 363

PARTIES:

CHOICE HOMES (QLD) PTY LTD
(plaintiff)

v

JOHN EDWARD MARSHALL
(defendant)

FILE NO/S:

D 88/2011

DIVISION:

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

19 December 2012

DELIVERED AT:

Brisbane

HEARING DATE:

25 October 2012

JUDGE:

McGill DCJ

ORDER:

Judgment that the defendant pay the plaintiff $258,333 including $58,333 by way of interest.

Order the defendant to pay the plaintiff’s costs of and incidental to the proceeding to be assessed.

CATCHWORDS:

CONTRACT – effect of contract in writing – whether contract sham – whether contract took effect according to its terms.

Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471 – applied.

COUNSEL:

P W Hackett for the plaintiff

The defendant appeared in person

SOLICITORS:

Cronin Litigation Lawyers for the plaintiff

The defendant was not represented.

1. By this action the plaintiff claims payment of $200,000 as money lent by the plaintiff to

   a company associated with the defendant which the defendant as guarantor has not repaid.  The loan was made pursuant to a written agreement which was put in evidence at the trial.[1]  The defendant does not dispute payment of the money, though there is on the pleadings some issue as to whether it was paid to or on behalf of the borrower, but submits that the money is not repayable because it was really not money lent, but an advance payment of money which his company was entitled to receive in connection with a transaction by which some land was to be sold by another company with which he was associated to the plaintiff or a company with which the plaintiff was associated.         

   
   
   Background

   [1]Most of the relevant documents (and a lot of others) are in a folder, part B of which was made Exhibit 1.  This is document 5 in that exhibit.

1. The defendant was until February 2010 the chief executive officer of a number of companies in a group described as the No Limit Group of companies.[2]  In February 2010 receivers and managers for most of the companies in the group were appointed by mortgagees, and most of the companies have been liquidated.  From June 2004 one of the companies to the group, No Limit 12 Pty Ltd, of which the defendant was sole director, acquired a parcel of land at Raceview which was suitable for subdivision.  It was subdivided in four stages, with a number of parcels of land in the first three stages being sold to the plaintiff; most of the parcels of land in stage 3 were sold to the plaintiff.  These transactions were all ultimately completed satisfactorily, although there were some delays in finalising the transactions in relation to some of the lots in stage 3, which were completed in a somewhat unconventional fashion; the details of this are not relevant to the present proceeding.

   [2]For the defendant’s background, see his affidavit Exhibit 5.

1. In about the middle of 2009 the chief…