Contempree v BS Investments Pty Ltd - [2021] QCA 243

SUPREME COURT OF QUEENSLAND

CITATION:

Contempree v BS Investments Pty Ltd & Anor [2021] QCA 243

PARTIES:

MARK CONTEMPREE
(appellant)
v
BS INVESTMENTS PTY LTD
ACN 135 819 939 ATF B&G SMITH INVESTMENT TRUST
(first respondent)
TIRLEY HOLDINGS PTY LTD
ACN 135 942 862 ATF GODDARD FAMILY TRUST
(second respondent)

FILE NO/S:

Appeal No 3799 of 2021
DC No 33 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Southport – Unreported, 5 March 2021 (Dann DCJ)

DELIVERED ON:

12 November 2021

DELIVERED AT:

Brisbane

HEARING DATE:

15 July 2021

JUDGES:

Morrison and Mullins JJA and Brown J

ORDER:

Appeal dismissed with costs.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – ENFORCEMENT OF JUDGMENTS AND ORDERS – GENERALLY – where the respondents obtained judgment against the appellant in one proceeding – where a company associated with the appellant sued the respondents in another proceeding which was not ready for trial – where the appellant applied to stay enforcement of the judgment pursuant to r 800(1) of the Uniform Civil Procedure Rules 1999 (Qld) – where the primary judge treated the associated company’s claim in the other proceeding as an unresolved counterclaim in the proceeding in which judgment was given for the respondents – whether the primary judge erred in considering the merits of the counterclaim – whether the primary judge erred in considering the delay in prosecuting the other proceeding and bringing the stay application – whether the primary judge erred in dismissing the stay application

Uniform Civil Procedure Rules 1999 (Qld), r 761, r 800

Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685, considered
Burnet v Francis Industries PLC [1987] 1 WLR 802, cited
Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453; [2008] QCA 332, followed
Croney v Nand [1999] 2 Qd R 342; [1998] QCA 337, followed
Lee v Abedian & Ors [2017] QSC 22, cited
O’Connor & Ors v CWC Investors Pty Ltd & Ors (No 2) [2019] QSC 138, cited
Slater & Slater v Iama (Qld) Pty Ltd [1998] QCA 436, cited
State Bank of Victoria v Parry [1989] WAR 240, cited
Virgtel Ltd v Zabusky (No 2) [2009] QCA 349, considered

COUNSEL:

J M Manner for the appellant
L D Bowden for the respondents

SOLICITORS:

O’Sullivans Law Firm for the appellant
Provest Law for the respondents

MORRISON JA: I have read the reasons of Mullins JA and agree with those reasons and the order her Honour proposes.
MULLINS JA: The respondents obtained judgment in the District Court on 12 March 2020 against the appellant and the other defendants as guarantors in the amount of $528,555.40: BS Investments Pty Ltd & Anor v Contempree & Ors [2019] QDC 29 (the guarantee proceeding). The appellant’s appeal against the judgment was dismissed by this court on 17 November 2020: Contempree v BS Investments Pty…

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: [2021] QCA 243
Decision Date: 12 November 2021

CaseChat Overview and Summary

In the case of Contempree v BS Investments Pty Ltd, the appellant, Bemon, sought to stay the enforcement of a judgment obtained by the respondents, Brainskills and M J Securities, in another proceeding until the determination of a separate proceeding related to the sale of a catamaran and a backpackers' hostel. The respondents had previously obtained judgment against Bemon in a guarantee proceeding concerning a guarantee provided for the sale of the hostel. Bemon, through its associated company Foxworth Pty Ltd, had assigned the lease of the hostel to another party, with the obligations guaranteed by the directors of Foxworth and the appellant. The primary judge dismissed the stay application and ordered Bemon to pay the respondents' costs. The appeal focused on the refusal to grant the stay of enforcement of the judgment and the associated costs order.

The legal issues before the court were whether the primary judge erred in considering the merits of a counterclaim that had not been fully prosecuted, whether the primary judge erred in considering the delay in prosecuting the other proceeding and bringing the stay application, and whether the primary judge was correct in dismissing the stay application. The court had to determine the appropriate scope of consideration in the enforcement of judgments and the implications of unresolved claims in related proceedings.

The court held that the primary judge did not err in considering the merits of the counterclaim as it was relevant to the overall context of the proceedings and the relationship between the parties. The court also found that the primary judge was correct in considering the delay in prosecuting the other proceeding and bringing the stay application, as these factors were pertinent to the application for a stay. The court concluded that the primary judge did not err in dismissing the stay application, as the circumstances did not warrant a stay of enforcement of the judgment. The appeal was dismissed with costs.

The final orders of the court were that the appeal was dismissed and Bemon was ordered to pay the respondents' costs of the appeal. This decision clarified the scope of judicial discretion in considering factors related to unresolved claims and delays in related proceedings when deciding on applications for stays of enforcement of judgments.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

On 5 March 2021 the learned primary judge heard an application by Bemon in the catamaran proceeding at the same time as the appellant’s application filed on 19 February 2021 in the guarantee proceeding seeking a stay pursuant to r 800 of the Uniform Civil Procedure Rules 1999 (Qld) of the enforcement of the judgment dated 12 March 2020 obtained by the respondents against the appellant until such time as the catamaran proceeding has been finally decided by way of hearing or discontinued by either party. The primary judge dismissed the stay application and ordered the appellant to pay the respondents’ costs of the application. Although Bemon was also unsuccessful in its application in the catamaran proceeding, this appeal is concerned only with the refusal of the primary judge to grant the stay of the enforcement of the judgment in the guarantee proceeding sought by the appellant and the associated costs order. The appellant applied for leave to adduce further evidence in connection with this appeal, but that application was refused at the hearing of the appeal.Background Bemon purchased the catamaran from the respondents, Brainskills and M J Securities in 2013 and at the same time the backpackers’ hostel in Innisfail owned by Bemon was transferred to the respondents with a lease back to Bemon for a term of 10 years expiring on 28 November 2023 (the lease). Each of the contract for the sale of the catamaran and the contract for the sale of the hostel was conditional on the simultaneous completion of the other contract. Both contracts settled on 29 November 2013. On 16 December 2016 Bemon assigned the lease to Foxworth Pty Ltd with the consent of the respondents and the obligations of Foxworth under lease were guaranteed by the directors of Foxworth and the appellant in a deed of covenant on the assignment of the lease. The judgment debt in the guarantee proceeding arose out of the enforcement by the respondents of the guarantee in that deed of covenant given in support of Foxworth’s obligations against the appellant. While the catamaran was travelling from Coffs Harbour to the Gold Coast on 2 September 2014, it was damaged including structure failures and extensive delamination of the bridge structure. Bemon made a claim on its insurance policy, but the insurer denied liability in December 2014. The appellant then lodged a complaint with the Financial Ombudsman Service Australia (FOS) disputing the denial of the claim. FOS made a determination on 5 April 2017 in favour of the insurer on the basis there were significant faults and errors in the construction of the catamaran. In the catamaran proceeding, Bemon claims damages in the sum of $721,880 pursuant to the Australian Consumer Law for breach of the guarantee as to quality and breach of the guarantee as to fitness for disclosed purpose and for damages for misleading and deceptive conduct. It was not until 24 May 2020 that Bemon obtained an expert report from BlackPond Marine Consultants in support of its allegations made in the catamaran proceeding.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Contempree v BS Investments Pty Ltd & Anor [2021] QCA 243
PARTIES:	MARK CONTEMPREE (appellant) v BS INVESTMENTS PTY LTD ACN 135 819 939 ATF B&G SMITH INVESTMENT TRUST (first respondent) TIRLEY HOLDINGS PTY LTD ACN 135 942 862 ATF GODDARD FAMILY TRUST (second respondent)
FILE NO/S:	Appeal No 3799 of 2021 DC No 33 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Southport – Unreported, 5 March 2021 (Dann DCJ)
DELIVERED ON:	12 November 2021
DELIVERED AT:	Brisbane
HEARING DATE:	15 July 2021
JUDGES:	Morrison and Mullins JJA and Brown J
ORDER:	Appeal dismissed with costs.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – ENFORCEMENT OF JUDGMENTS AND ORDERS – GENERALLY – where the respondents obtained judgment against the appellant in one proceeding – where a company associated with the appellant sued the respondents in another proceeding which was not ready for trial – where the appellant applied to stay enforcement of the judgment pursuant to r 800(1) of the Uniform Civil Procedure Rules 1999 (Qld) – where the primary judge treated the associated company’s claim in the other proceeding as an unresolved counterclaim in the proceeding in which judgment was given for the respondents – whether the primary judge erred in considering the merits of the counterclaim – whether the primary judge erred in considering the delay in prosecuting the other proceeding and bringing the stay application – whether the primary judge erred in dismissing the stay application Uniform Civil Procedure Rules 1999 (Qld), r 761, r 800 Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685, considered Burnet v Francis Industries PLC [1987] 1 WLR 802, cited Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453; [2008] QCA 332, followed Croney v Nand [1999] 2 Qd R 342; [1998] QCA 337, followed Lee v Abedian & Ors [2017] QSC 22, cited O’Connor & Ors v CWC Investors Pty Ltd & Ors (No 2) [2019] QSC 138, cited Slater & Slater v Iama (Qld) Pty Ltd [1998] QCA 436, cited State Bank of Victoria v Parry [1989] WAR 240, cited Virgtel Ltd v Zabusky (No 2) [2009] QCA 349, considered
COUNSEL:	J M Manner for the appellant L D Bowden for the respondents
SOLICITORS:	O’Sullivans Law Firm for the appellant Provest Law for the respondents