Davidson v Suncorp Metway Ltd - [2017] QCA 317

[2017] QCA 317

COURT OF APPEAL

MORRISON JA

Appeal No 13395 of 2017
SC No 12841 of 2017

WILLIAM ALEXANDER JAMES DAVIDSON First Applicant

FAR NORTH QUEENSLAND CATTLE
COMPANY PTY LIMITED Second Applicant
ACN 131 125 838

SUNCORP-METWAY INSURANCE LIMITED First Respondent
ABN 66 010 831 722

HELEN NEWMAN & ANDREW PETER FIELDING
AS CONTROLLERS OF FAR NORTH QUEENSLAND
CATTLE COMPANY LIMITED Second Respondents
ACN 131 125 838

BRISBANE

WEDNESDAY, 20 DECEMBER 2017

JUDGMENT

MORRISON JA: This is an application for relief pending an appeal brought against an order by Justice Jackson made on 14 December 2017. His Honour had before him an application by Mr Davidson and Far North Queensland Cattle Company Proprietary Limited for interlocutory relief pending a trial of issues raised in respect of the debt owed by each of them under primary securities and guarantees to Suncorp-Metway.

His Honour was faced with the proposition that interlocutory relief should be granted, notwithstanding that the case as articulated had been brought on an originating application and there were no pleadings. His Honour did not see that as a reason not to entertain the application, though it seems tolerably clear, as will become evident from what I will say shortly, that it did not assist the case for the applicant. His Honour refused the relief, and the appeal that is sought to be brought challenges the exercise of that discretion on at least three bases. One is that his Honour gave undue weight to the delay which had occurred prior to bringing the application for relief. The second is that his Honour gave undue weight to the fact that nothing had been paid to the lender, Suncorp-Metway, for some considerable period of time.

The third identified in the circumstances of the hearing before me and as a consequence of the applicant having, for the first time today, a copy of his Honour's reasons, is that his Honour arguably formulated an incorrect test in relation to whether there was a serious question to be tried, and the fourth area is that, arguably, his Honour did not deal with, or dealt inadequately with, one aspect at least of the case advanced below in terms of the ultimate relief sought below. To paraphrase that, his Honour seems, according to the submission made to me, to have focused on the relief in paragraph 1 of the originating application, and it is contended he did so to the extent of either ignoring or paying insufficient weight to subsequent paragraphs of the originating application where relief was sought going back in time to the securities taken for the loans made to Far North Queensland Cattle Company and touching on the debt that might be properly owed by that company and Mr Davidson, as opposed to the debt asserted by Suncorp-Metway.

His Honour's reasons review something of the history of the case. It is convenient to refer to that in short terms, not only because his Honour has done it fairly comprehensively, but also because…

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.

Continue reading Davidson v Suncorp Metway Ltd

Details

AGLC: Davidson v Suncorp Metway Ltd [2017] QCA 317
Case: [2017] QCA 317
Decision Date: 20 DECEMBER 2017

CaseChat Overview and Summary

The case of Davidson v Suncorp Metway Ltd is an appeal against an order made by Justice Jackson in the Supreme Court of Queensland. The applicants, William Alexander James Davidson and Far North Queensland Cattle Company Proprietary Limited, sought interlocutory relief pending a trial of issues raised concerning the debt owed under primary securities and guarantees to Suncorp-Metway. The applicants' primary contention was that the misconduct of a bank employee, Mr Houlihan, undermined the enforceability of the securities and the debt owed. The respondents, Suncorp-Metway Insurance Limited and Helen Newman & Andrew Peter Fielding as controllers of Far North Queensland Cattle Company Limited, opposed the relief. The appeal challenges the refusal of interlocutory relief on the grounds that the trial judge gave undue weight to delay, did not pay adequate attention to the ultimate relief sought, and misapplied the test for serious question to be tried.

The key legal issues were whether the trial judge erred in his application of the test for interlocutory relief, specifically whether there was a serious question to be tried and the balance of convenience. The Court of Appeal considered that the trial judge had applied the correct legal test and found that the applicants' case was not particularly strong. The applicants had delayed in bringing the application and had made no payments to the lender since 2015. Furthermore, the applicants could not provide any evidence of value exceeding the debt, and thus could not offer an adequate undertaking for damages. The Court of Appeal concluded that the balance of convenience did not favour the grant of relief and that the appeal's prospects were not particularly attractive.

The Court of Appeal dismissed the application for interlocutory relief pending appeal and ordered that the applicants pay the respondents' costs on the indemnity basis. The Court found that the trial judge's exercise of discretion was not misapplied and that the compelling circumstances on the balance of convenience, including the delay and inability to provide any repayment to the lender, dictated the refusal of relief.

Orders