Clark v Gallop Reserve Pty Ltd

SUPREME COURT OF QUEENSLAND

CITATION:

Clark v Gallop Reserve Pty Ltd [2016] QCA 146

PARTIES:

STEPHEN ROSS CLARK
(appellant)
v
GALLOP RESERVE PTY LTD
ACN 010 759 421
(respondent)

FILE NO/S:

Appeal No 40 of 2016
SC No 13441 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – [2015] QSC 353

DELIVERED ON:

7 June 2016

DELIVERED AT:

Brisbane

HEARING DATE:

31 May 2016

JUDGES:

Gotterson and Philip McMurdo JJA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Appeal dismissed.

2.   Appellant pay the respondent’s costs of the appeal.

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – INTERPRETATION OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS – where the respondent is the transferee of a loan agreement between a bank and a third party to which the appellant was guarantor – where the bank obtained default judgment against the appellant in 2011 – where the bank and the respondent entered a deed of transfer in April 2013 transferring to the respondent all present and future money owing to the bank “under or in connection with” the loan agreement – where the respondent sought the court’s leave to enforce the default judgment against the appellant pursuant to r 799 of the Uniform Civil Procedure Rules 1999 (Qld) – where the appellant contended that the default judgment was not assigned to the respondent – where the learned primary judge held that the phrase “in connection with” was sufficiently wide to include the judgment and granted leave to enforce the judgment – where the appellant contends the learned trial judge erred in construing the deed – whether, on the correct construction of the deed, the phrase “under or in connection with” includes the default judgment

Fraser v The Irish Restaurant & Bar Company Pty Ltd[2008] QCA 270, cited
Linprint Pty Ltd v Hexham Textiles Pty Ltd (1991) 23 NSWLR 508, cited
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45, cited
Westpac Banking Corporation v Clark & Ors; ex parte Gallop Reserve Pty Ltd [2015] QSC 353, affirmed

COUNSEL:

N H Ferret for the appellant
M T de Waard for the respondent

SOLICITORS:

Broadley Rees Hogan for the appellant
Rostron Carlyle for the respondent

1. GOTTERSON JA:  I agree with the orders proposed by Philip McMurdo JA and with the reasons given by his Honour.

2. PHILIP McMURDO JA:  The original plaintiff in this proceeding, Westpac Banking Corporation, obtained a default judgment against the first defendant, Mr Clark, for an amount in excess of $800,000.  Mr Clark had not defended Westpac’s claim, which was for money owing under a guarantee.

3. The respondent to this appeal, Gallop Reserve Pty Ltd, claims to be the creditor under this judgment, on the basis of an assignment to it from Westpac. To enforce the judgment, it required the court’s leave because there…