Crab and Fish One Pty Ltd v Lindeque - [2024] QDC 112

DISTRICT COURT OF QUEENSLAND

CITATION:

Crab and Fish One Pty Ltd v Lindeque [2024] QDC 112

PARTIES:

CRAB AND FISH ONE PTY LTD
(Plaintiff)

v

SUSANNA WILHELMINA LINDEQUE
(Defendant)

FILE NO:

2078/21

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court

DELIVERED ON:

22 May 2024 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

20-22 May 2024

JUDGE:

Andreatidis KC DCJ

ORDER:

1.   The plaintiff has judgment against the defendant in the sum of $489,753.84, which includes interest to 20 May 2024.

2.   The defendant pay the plaintiff’s costs on the standard basis.

3.   To the extent that there are reserved costs, I order that the defendant pay the plaintiff those costs.

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – GUARANTEES – REMEDIES – where the parties entered into a contract for the provision of a short-term loan – where there was default – where the defendant was a guarantor under the loan – where the plaintiff made a demand – where the defendant failed to repay the loan – where a defence was filed that raised certain matters – where those matters had to be addressed despite the defendant’s failure to appear at the trial

PROCEDURE – NON-APPEARANCE BY PARTY – where there were multiple pre-trial reviews and a pre-trial application – where the defendant is located in the United States – where the parties had previously appeared via audio-visual link – where it was directed that the defendant would appear at the trial in person – where, early on the morning of the trial, the defendant emailed the parties and the Court advising she would not be appearing – where the defendant did not request an adjournment or provide any reason for the non-appearance

LEGISLATION

Australian Securities and Investments Commission Act 2001 (Cth)

Competition and Consumer Act 2010 (Cth), sch 2 (Australian Consumer Law)

Corporations Act 2001 (Cth) ss 763A, 766A, 911A

Evidence Act 1977 (Qld) s 92

National Consumer Credit Protection Act 2009 (Cth) sch 1 (National Credit Code) s 5

Trade Practices Act 1974 (Cth)

Uniform Civil Procedure Rules 1999 (Qld) r 476

CASES

Capital Financial Management Pty Ltd v Linfield Developments Pty Ltd [2017] NSWCA 99

Commercial Bank v Amadio (1983) 151 CLR 447

Commonwealth Bank of Australia v Aspenview Productions Pty Ltd [2001] VSC 444

Garcia v National Australia Bank (1998) 194 CLR 395

Kellas-Sharpe v PSAL Limited [2013] 2 Qd R 233

National Australia Bank v Rose [2016] VSCA 169

Orchid Avenue Pty Ltd v Parensky [2015] QSC 207

Perpetual Nominees v McGoldrick (No. 3) [2017] 317 FLR 227

PSAL Ltd v Kellas-Sharpe & Ors [2012] QSC 31

PT Thiess v PT Arutmin Indonesia [2015] QSC 123

Ringrow Pty Ltd v BP Australia Pty Ltd (2005) 224 CLR 656

Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245

Taycon Pty Ltd v Williams [2023] QSC 297

Tricontinental Corp Limited v HDFI Limited (1990) 21 NSWLR 689

COUNSEL:

M Stirling for the plaintiff

No appearance for the defendant

SOLICITORS:

Cosgriff Lawyers for…

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: [2024] QDC 112
Decision Date: 22 May 2024 (ex tempore)

CaseChat Overview and Summary

The dispute in Crab and Fish One Pty Ltd v Lindeque arose out of a contract for the provision of a short-term loan, which subsequently resulted in default. The plaintiff, Crab and Fish One Pty Ltd, sought payment from the defendant, Lindeque, who was a guarantor under the loan agreement. Following the plaintiff's demand, the defendant failed to repay the loan. Despite multiple pre-trial reviews and a pre-trial application, the defendant, who is located in the United States, did not appear at the trial after previously appearing via audio-visual link. The defendant did not request an adjournment or provide any reason for her non-appearance.

The legal issues before the court included whether the defendant, as guarantor, was liable for the default under the loan agreement, and if so, whether any defences raised in the filed defence were valid. Additionally, the court had to address the procedural matter of the defendant's non-appearance at the trial. The court determined that the defendant's non-appearance did not prevent the court from proceeding with the trial, and thus, the substantive issues could be addressed.

In its reasoning, the court found that the defendant was indeed liable for the default under the loan agreement. The defences raised were considered, but found to be without merit. The court concluded that the plaintiff was entitled to the full amount of the loan plus interest, totaling $489,753.84, as well as costs on the standard basis. The court also ordered that any reserved costs be paid by the defendant.

The court's final orders were that the plaintiff, Crab and Fish One Pty Ltd, has judgment against the defendant, Lindeque, in the sum of $489,753.84, inclusive of interest until 20 May 2024. Additionally, the defendant was ordered to pay the plaintiff's costs on the standard basis, as well as any reserved costs.

Orders

Orders of the court

1. The plaintiff has judgment against the defendant in the sum of $489,753.84, which includes interest to 20 May 2024.

2. The defendant pay the plaintiff’s costs on the standard basis.

3. To the extent that there are reserved costs, I order that the defendant pay the plaintiff those costs.

Background

Background to the litigation

Full text does not contain this section.

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:	Crab and Fish One Pty Ltd v Lindeque [2024] QDC 112
PARTIES:	CRAB AND FISH ONE PTY LTD (Plaintiff) v SUSANNA WILHELMINA LINDEQUE (Defendant)
FILE NO:	2078/21
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	District Court
DELIVERED ON:	22 May 2024 (ex tempore)
DELIVERED AT:	Brisbane
HEARING DATE:	20-22 May 2024
JUDGE:	Andreatidis KC DCJ
ORDER:	1. The plaintiff has judgment against the defendant in the sum of $489,753.84, which includes interest to 20 May 2024. 2. The defendant pay the plaintiff’s costs on the standard basis. 3. To the extent that there are reserved costs, I order that the defendant pay the plaintiff those costs.
CATCHWORDS:	CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – GUARANTEES – REMEDIES – where the parties entered into a contract for the provision of a short-term loan – where there was default – where the defendant was a guarantor under the loan – where the plaintiff made a demand – where the defendant failed to repay the loan – where a defence was filed that raised certain matters – where those matters had to be addressed despite the defendant’s failure to appear at the trial PROCEDURE – NON-APPEARANCE BY PARTY – where there were multiple pre-trial reviews and a pre-trial application – where the defendant is located in the United States – where the parties had previously appeared via audio-visual link – where it was directed that the defendant would appear at the trial in person – where, early on the morning of the trial, the defendant emailed the parties and the Court advising she would not be appearing – where the defendant did not request an adjournment or provide any reason for the non-appearance
LEGISLATION	Australian Securities and Investments Commission Act 2001 (Cth) Competition and Consumer Act 2010 (Cth), sch 2 (Australian Consumer Law) Corporations Act 2001 (Cth) ss 763A, 766A, 911A Evidence Act 1977 (Qld) s 92 National Consumer Credit Protection Act 2009 (Cth) sch 1 (National Credit Code) s 5 Trade Practices Act 1974 (Cth) Uniform Civil Procedure Rules 1999 (Qld) r 476
CASES	Capital Financial Management Pty Ltd v Linfield Developments Pty Ltd [2017] NSWCA 99 Commercial Bank v Amadio (1983) 151 CLR 447 Commonwealth Bank of Australia v Aspenview Productions Pty Ltd [2001] VSC 444 Garcia v National Australia Bank (1998) 194 CLR 395 Kellas-Sharpe v PSAL Limited [2013] 2 Qd R 233 National Australia Bank v Rose [2016] VSCA 169 Orchid Avenue Pty Ltd v Parensky [2015] QSC 207 Perpetual Nominees v McGoldrick (No. 3) [2017] 317 FLR 227 PSAL Ltd v Kellas-Sharpe & Ors [2012] QSC 31 PT Thiess v PT Arutmin Indonesia [2015] QSC 123 Ringrow Pty Ltd v BP Australia Pty Ltd (2005) 224 CLR 656 Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245 Taycon Pty Ltd v Williams [2023] QSC 297 Tricontinental Corp Limited v HDFI Limited (1990) 21 NSWLR 689
COUNSEL:	M Stirling for the plaintiff No appearance for the defendant
SOLICITORS:	Cosgriff Lawyers for…