Deen v Harburg Nominees Pty Ltd - [2021] QCA 44

SUPREME COURT OF QUEENSLAND

CITATION:

Deen v Harburg Nominees Pty Ltd & Anor [2021] QCA 44

PARTIES:

ABDUL RAHMAN DEEN
(appellant)
v
HARBURG NOMINEES PTY LTD
ACN 103 245 923 IN ITS CAPACITY AS TRUSTEE OF THE TW SUPERANNUATION FUND
(first respondent)
HARBURG INVESTMENTS PTY LTD
ACN 010 279 884 IN ITS CAPACITY AS TRUSTEE OF THE PETER HARBURG FAMILY TRUST
(second respondent)

FILE NO/S:

Appeal No 14173 of 2019
SC No 2972 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – [2019] QSC 291 (Applegarth J)

DELIVERED ON:

16 March 2021

DELIVERED AT:

Brisbane

HEARING DATE:

11 June 2020

JUDGES:

Fraser and Philippides JJA and Bradley J

ORDERS:

Appeal dismissed with costs to be assessed on an indemnity basis.

CATCHWORDS:

GUARANTEE AND INDEMNITY – ACTIONS AGAINST SURETY – GENERALLY – OTHER CASES – where the appellant signed a guarantee in favour of the respondents – where the appellant alleges that the respondents, by their duly appointed agent (‘Mr Harburg’), represented to the appellant that the respondents would not enforce the guarantee or any earlier guarantees and the respondents would fund sufficient monies and provide sufficient support to see the debtor (‘Warapar’) cause the development completed (‘alleged representations’) – whether the trial judge erred in finding that such representations were not made – where the appellant argues further specific errors by the trial judge – whether the trial judge erred in finding it was improbable that the alleged representations were made by Mr Harburg – whether the trial judge erred in preferring the evidence of Mr Harburg to the evidence of the appellant – whether the trial judge erred in finding evidence of the appellant’s former solicitor was unreliable – whether the trial judge gave sufficient weight to an email sent on 2 December 2016 and alleged oral representations made to the appellant on 16 December 2016 by Mr Harburg – whether the trial judge erred in finding that the amount advanced by the respondents to Warapar was the amount represented by the appellant to Mr Harburg – whether the trial judge erred in finding that any representation made by Mr Harburg to the appellant was qualified and not open-ended – whether the trial judge erred in finding that Warapar would not have been able to source alternative funding to both complete the project and pay out the respondents – whether the trial judge erred in finding that certain facts had to be shown to a degree of certainty – whether the judgment at trial should be set aside in these circumstances

ESTOPPEL – ESTOPPEL BY CONDUCT – ACT, OMISSION OR ASSUMPTION – REPRESENTATION GENERALLY – GENERALLY – where the appellant alleges that the respondents’ duly appointed agent (‘Mr Harburg’) and the appellant agreed that further necessary advances would be provided to complete the development and the respondents will not enforce the guarantee against the appellant until completion of the development and sale – whether the alleged commercial nature of the transaction…

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 44
Decision Date: 16 March 2021

CaseChat Overview and Summary

The appeal before the court involved the appellant, who had signed a guarantee in favour of the respondents, contesting the enforceability of the guarantee. The appellant argued that the respondents, through their agent Mr Harburg, had made representations that they would not enforce the guarantee until the completion of a development project, and would provide necessary funding to complete the project. The appellant contended that these representations amounted to an estoppel preventing the enforcement of the guarantee. The respondents sought to enforce the guarantee, claiming the appellant was liable for the debt of a third party, Warapar. The court was also required to decide whether the trial judge erred in various respects, including in assessing the reliability of evidence and the weight to be given to certain communications.

The court found that the trial judge did not err in finding that the alleged representations were not made, and that it was improbable that they were made by Mr Harburg. The court held that the trial judge correctly preferred the evidence of Mr Harburg over the appellant’s evidence, and did not err in finding the evidence of the appellant’s former solicitor unreliable. The court also found that the trial judge did not err in concluding that the amount advanced by the respondents to Warapar was as represented by the appellant to Mr Harburg, and that any representation made by Mr Harburg was qualified and not open-ended. The court held that the trial judge correctly found that Warapar would not have been able to source alternative funding to complete the project and pay out the respondents, and that certain facts had to be shown to a degree of certainty. The court further held that the trial judge did not err in declining to find an agreement existed between the appellant and the respondents, and that the respondents were not estopped from enforcing the guarantee.

The court dismissed the appeal and ordered that the costs of the appeal be assessed on an indemnity basis. The court held that the indemnity costs clause in the guarantee justified the order for costs on an indemnity basis, and that the appellant’s arguments concerning the basis of taxation of costs were not persuasive. The court held that it was appropriate to exercise its discretion to make an order for costs to be assessed on an indemnity basis in the circumstances of the case.

In conclusion, the appeal was dismissed, and the respondents were granted an order for costs to be assessed on an indemnity basis. The court found that the trial judge did not err in various respects, including in assessing the reliability of evidence and the weight to be given to certain communications. The court also held that the indemnity costs clause in the guarantee justified the order for costs on an indemnity basis.

Orders

Orders of the court

Appeal dismissed with costs to be assessed on an indemnity basis.

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:	Deen v Harburg Nominees Pty Ltd & Anor [2021] QCA 44
PARTIES:	ABDUL RAHMAN DEEN (appellant) v HARBURG NOMINEES PTY LTD ACN 103 245 923 IN ITS CAPACITY AS TRUSTEE OF THE TW SUPERANNUATION FUND (first respondent) HARBURG INVESTMENTS PTY LTD ACN 010 279 884 IN ITS CAPACITY AS TRUSTEE OF THE PETER HARBURG FAMILY TRUST (second respondent)
FILE NO/S:	Appeal No 14173 of 2019 SC No 2972 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane – [2019] QSC 291 (Applegarth J)
DELIVERED ON:	16 March 2021
DELIVERED AT:	Brisbane
HEARING DATE:	11 June 2020
JUDGES:	Fraser and Philippides JJA and Bradley J
ORDERS:	Appeal dismissed with costs to be assessed on an indemnity basis.
CATCHWORDS:	GUARANTEE AND INDEMNITY – ACTIONS AGAINST SURETY – GENERALLY – OTHER CASES – where the appellant signed a guarantee in favour of the respondents – where the appellant alleges that the respondents, by their duly appointed agent (‘Mr Harburg’), represented to the appellant that the respondents would not enforce the guarantee or any earlier guarantees and the respondents would fund sufficient monies and provide sufficient support to see the debtor (‘Warapar’) cause the development completed (‘alleged representations’) – whether the trial judge erred in finding that such representations were not made – where the appellant argues further specific errors by the trial judge – whether the trial judge erred in finding it was improbable that the alleged representations were made by Mr Harburg – whether the trial judge erred in preferring the evidence of Mr Harburg to the evidence of the appellant – whether the trial judge erred in finding evidence of the appellant’s former solicitor was unreliable – whether the trial judge gave sufficient weight to an email sent on 2 December 2016 and alleged oral representations made to the appellant on 16 December 2016 by Mr Harburg – whether the trial judge erred in finding that the amount advanced by the respondents to Warapar was the amount represented by the appellant to Mr Harburg – whether the trial judge erred in finding that any representation made by Mr Harburg to the appellant was qualified and not open-ended – whether the trial judge erred in finding that Warapar would not have been able to source alternative funding to both complete the project and pay out the respondents – whether the trial judge erred in finding that certain facts had to be shown to a degree of certainty – whether the judgment at trial should be set aside in these circumstances ESTOPPEL – ESTOPPEL BY CONDUCT – ACT, OMISSION OR ASSUMPTION – REPRESENTATION GENERALLY – GENERALLY – where the appellant alleges that the respondents’ duly appointed agent (‘Mr Harburg’) and the appellant agreed that further necessary advances would be provided to complete the development and the respondents will not enforce the guarantee against the appellant until completion of the development and sale – whether the alleged commercial nature of the transaction…