Clout v Klein

[2003] QSC 152

SUPREME COURT OF QUEENSLAND

CITATION: 

Clout & Ors v. Klein & Ors [2003] QSC 152

PARTIES: 

DAVID LEWIS CLOUT
AND
LACHLAN STUART McINTOSH
(first plaintiffs)
AND
FIBRE TEK (GOLD COAST) PTY LTD (RECEIVERS
& MANAGERS APPOINTED) (IN LIQUIDATION)
ACN 010 811 980
(second plaintiff)
v
GARY MONTAGUE KLEIN
(first defendant)
AND
PETER JAMES HILBERT
(second defendant)
AND
BERNARD JOHN HILBERT
(third defendant)
AND
VON INVESTMENTS PTY LTD
ACN 000 899 570
(fifth defendant)

FILE NO: 

10717 of 2000

DIVISION: 

Trial Division

PROCEEDING: 

Application

ORIGINATING

COURT: 

Supreme Court Brisbane

DELIVERED ON: 

12 May 2003

DELIVERED AT: 

Brisbane

HEARING DATE: 

21 March 2003

JUDGE: 

Holmes J

ORDER: 

That upon the first plaintiff Lachlan Stuart McIntosh, the second plaintiff and Stephen Charles Russell offering the usual undertaking as to damages:

1.	the first defendant by himself, his servants, his agents or otherwise be restrained from dealing with registered mortgage No 701647811 over lot 287 on registered plan No 210984 until the trial of the proceeding or further earlier order.
2.	the first defendant deliver any release of registered mortgage No 701647811 which is in or comes into his possession to the custody of the registrar of this honourable court to be held pending the trial of the proceeding or until further order.

CATCHWORDS: 

GUARANTEE AND INDEMNITY – DISCHARGE OF
SURETY – ALTERATION OF OBLIGATION
GENERALLY – where receivers made payment to bank –
where dispute as to the nature of the payment – where part
payment of debt – whether entitlement to subrogate arises
from part payment

EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – AND GENERALLY – whether serious question to be tried as to the nature of payment – whether balance of convenience favours granting of injunction

Mercantile Act 1867 (Qld)

Scholefield Goodman & Sons Ltd v Zyngier [1984] VR 445.
Re Davison’s Estate (1893) 31 Lr Ir 249.
Yonge v Reynell (1852) 68 ER 744 at 748, per Turner VC.
Craythorne v Swinburne (1807) 33 ER 482 at 485.
Banque Financiere de la Cite v Parc (Battersea) Ltd [1999]
1 AC 221.
Equity Trustees Executors & Agency Co Ltd v New Zealand
Loan & Mercantile Agency Co. Ltd [1940] VLR 201.
A E Goodwin Ltd v A G Healing Ltd (1979) 7 ACLR 481.
McColl’s Wholesale Pty Ltd v State Bank of New South
Wales [1984] 3 NSWLR 365.
Russet Pty Ltd (in liq) v Bach (unrep) of Supreme Court of
New South Wales in No 2 Act 56 of 1985 23 June 1988.
Bayley & Anor v Gibsons Ltd & Ors (1993) 1 Tas R 385.
Omlaw Pty Ltd v Delahunty [1995] 2 Qd R 389.

COUNSEL: 

Mr Cowen for the plaintiffs
Mr Cooper for the first defendant

SOLICITORS: 

Tucker & Cowen for the plaintiffs
Lyon Smith Commercial Lawyers for the defendant

1. The plaintiffs’ application as framed seeks an interlocutory injunction restraining the first defendant from dealing with mortgages or securities held by the National Australia Bank Ltd (“the Bank”) in respect of loans or other forms of…