Currie v Meredith - [2020] QDC 19

DISTRICT COURT OF QUEENSLAND

CITATION:

Currie v Meredith [2020] QDC 19

PARTIES:

IAN CURRIE AS LIQUIDATOR OF MT PRITCHARD PIZZA PTY LTD (IN LIQUIDATION)

(First Plaintiff)

AND

MT PRITCHARD PIZZA PTY LTD (IN LIQUIDATION)

ACN 122 700 672

(Applicant/Second Plaintiff)

v

PETER EUGENE MEREDITH

(First Respondent/First Defendant)

AND

PIZZA PIZZAZZ PTY LTD

ACN 606 575 366

(Second Respondent/Second Defendant)

AND

HEADS UP AUS PTY LTD

ACN 635 354 666

(Third Respondent/Third Defendant)

FILE NO/S:

2308/19

DIVISION:

Civil

PROCEEDING:

Application

DELIVERED ON:

31 January 2020, ex tempore

DELIVERED AT:

Brisbane

HEARING DATE:

29 January 2020

JUDGE:

Barlow QC DCJ

ORDER:

THE JUDGMENT OF THE COURT IS THAT:

The third defendant pay the second plaintiff the sum of $206,110.92, including interest of $1,855.78.1.

The third defendant pay the plaintiffs’ costs of and incidental to paragraph 1 of the application filed on 13 January 2020.2.

THE COURT ALSO ORDERS THAT:

The plaintiffs pay the defendants’ costs of and incidental to paragraph 2 of the application filed on 13 January 2020.3.

The application filed on 13 January 2020 otherwise be dismissed.4.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR PLAINTIFF OR APPLICANT – WHEN GRANTED OR REFUSED AND CONDITIONS – whether the third defendant has no real prospect of successfully defending all or part of the plaintiff’s claim – whether there is no need for a trial of the claim – whether granting summary judgment would be premature – whether there is a risk of inconsistent findings

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR PLAINTIFF OR APPLICANT – FOR DEBT OR LIQUIDATED DEMAND OR FOR POSSESSION OF LAND – where the second plaintiff is in liquidation and the first plaintiff is its liquidator – where the third defendant is the trustee of a trust of which the second plaintiff was the previous trustee – where the second plaintiff alleges that, as trustee, it incurred a debt and seeks indemnity out of the assets of the trust – where the trust deed provides expressly that the trustee is entitled to be indemnified out of the assets of the fund against liabilities incurred by it in the exercise of the trusts – whether there is evidence of the second plaintiff’s liability for the sum claimed – whether a running balance account statement is evidence of the second plaintiff’s liability to the Australian Taxation Office

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR PLAINTIFF OR APPLICANT – EVIDENCE IN SUPPORT OF APPLICATION – where the Australian Taxation Office lodged a proof of debt claiming $204,255.15 for GST and general interest charges that were said to be owing under the second plaintiff’s running balance account – where the running balance account statement was annexed to an affidavit of the second plaintiff – where the defendants submit…

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: [2020] QDC 19
Decision Date: 31 January 2020, ex tempore

CaseChat Overview and Summary

Currie v Meredith involved the third defendant being sought to be ordered to pay the second plaintiff, who was the liquidator of a company in liquidation, the sum of $204,255.15. The sum was claimed to be a debt owed by the second plaintiff under a running balance account statement, which was annexed to an affidavit of the second plaintiff. The third defendant was the trustee of a trust of which the second plaintiff had previously been the trustee. The second plaintiff alleged that, as trustee, it had incurred the debt and sought indemnity out of the assets of the trust. The trust deed provided expressly that the trustee was entitled to be indemnified out of the assets of the fund against liabilities incurred by it in the exercise of the trusts. The third defendant applied for summary judgment on the basis that there was no real prospect of successfully defending the claim and that there was no need for a trial of the claim. The third defendant argued that the running balance account statement was not evidence of the second plaintiff’s liability to the Australian Taxation Office.

The court was required to determine whether the third defendant had no real prospect of successfully defending all or part of the second plaintiff’s claim and whether there was no need for a trial of the claim. The court also had to consider whether granting summary judgment would be premature and whether there was a risk of inconsistent findings. In addition, the court needed to determine whether the running balance account statement was evidence of the second plaintiff’s liability to the Australian Taxation Office. The court needed to consider the evidence in support of the application, including the affidavit of the second plaintiff and the proof of debt lodged by the Australian Taxation Office.

The court found that the third defendant had no real prospect of successfully defending the claim and that there was no need for a trial of the claim. The court found that the running balance account statement was evidence of the second plaintiff’s liability to the Australian Taxation Office. The court held that there was no evidence of the second plaintiff’s liability for the sum claimed other than the running balance account statement. The court held that the running balance account statement was evidence of the second plaintiff’s liability to the Australian Taxation Office. The court found that the plaintiffs had substantially amended their claim and statement of claim, and that by rule 692(2) of the Uniform Civil Procedure Rules 1999, the plaintiffs must pay the costs thrown away by amendments it made unless the court otherwise orders. The court ordered that the third defendant pay the second plaintiff the sum of $206,110.92, including interest of $1,855.78. The court also ordered that the plaintiffs pay the defendants’ costs of and incidental to paragraph 2 of the application filed on 13 January 2020. The application filed on 13 January 2020 otherwise be dismissed.

Orders

Orders of the court

THE JUDGMENT OF THE COURT IS THAT:

The third defendant pay the second plaintiff the sum of $206,110.92, including interest of $1,855.78.1.

The third defendant pay the plaintiffs’ costs of and incidental to paragraph 1 of the application filed on 13 January 2020.2.

THE COURT ALSO ORDERS THAT:

The plaintiffs pay the defendants’ costs of and incidental to paragraph 2 of the application filed on 13 January 2020.3.

The application filed on 13 January 2020 otherwise be dismissed.4.

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:	Currie v Meredith [2020] QDC 19
PARTIES:	IAN CURRIE AS LIQUIDATOR OF MT PRITCHARD PIZZA PTY LTD (IN LIQUIDATION) (First Plaintiff) AND MT PRITCHARD PIZZA PTY LTD (IN LIQUIDATION) ACN 122 700 672 (Applicant/Second Plaintiff) v PETER EUGENE MEREDITH (First Respondent/First Defendant) AND PIZZA PIZZAZZ PTY LTD ACN 606 575 366 (Second Respondent/Second Defendant) AND HEADS UP AUS PTY LTD ACN 635 354 666 (Third Respondent/Third Defendant)
FILE NO/S:	2308/19
DIVISION:	Civil
PROCEEDING:	Application
DELIVERED ON:	31 January 2020, ex tempore
DELIVERED AT:	Brisbane
HEARING DATE:	29 January 2020
JUDGE:	Barlow QC DCJ
ORDER:	THE JUDGMENT OF THE COURT IS THAT: The third defendant pay the second plaintiff the sum of $206,110.92, including interest of $1,855.78.1. The third defendant pay the plaintiffs’ costs of and incidental to paragraph 1 of the application filed on 13 January 2020.2. THE COURT ALSO ORDERS THAT: The plaintiffs pay the defendants’ costs of and incidental to paragraph 2 of the application filed on 13 January 2020.3. The application filed on 13 January 2020 otherwise be dismissed.4.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR PLAINTIFF OR APPLICANT – WHEN GRANTED OR REFUSED AND CONDITIONS – whether the third defendant has no real prospect of successfully defending all or part of the plaintiff’s claim – whether there is no need for a trial of the claim – whether granting summary judgment would be premature – whether there is a risk of inconsistent findings PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR PLAINTIFF OR APPLICANT – FOR DEBT OR LIQUIDATED DEMAND OR FOR POSSESSION OF LAND – where the second plaintiff is in liquidation and the first plaintiff is its liquidator – where the third defendant is the trustee of a trust of which the second plaintiff was the previous trustee – where the second plaintiff alleges that, as trustee, it incurred a debt and seeks indemnity out of the assets of the trust – where the trust deed provides expressly that the trustee is entitled to be indemnified out of the assets of the fund against liabilities incurred by it in the exercise of the trusts – whether there is evidence of the second plaintiff’s liability for the sum claimed – whether a running balance account statement is evidence of the second plaintiff’s liability to the Australian Taxation Office PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR PLAINTIFF OR APPLICANT – EVIDENCE IN SUPPORT OF APPLICATION – where the Australian Taxation Office lodged a proof of debt claiming $204,255.15 for GST and general interest charges that were said to be owing under the second plaintiff’s running balance account – where the running balance account statement was annexed to an affidavit of the second plaintiff – where the defendants submit…