Dubois v Ong - [2004] QCA 185

SUPREME COURT OF QUEENSLAND

CITATION:

Dubois v Ong & Anor [2004] QCA 185

PARTIES:

PHILIP JAMES DUBOIS
(plaintiff/respondent)
v
CHEE-TEONG ONG
(first defendant/appellant)
BEE LEE CHEW
(second defendant)

PHILIP JAMES DUBOIS
(plaintiff/appellant)
v
CHEE-TEONG ONG
(first defendant)
BEE LEE CHEW
(second defendant/respondent)

FILE NOS:

Appeal No 8429 of 2003
Appeal No 11260 of 2003
SC No 5191 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Appeal from interlocutory decision
General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

28 May 2004

DELIVERED AT:

Brisbane

HEARING DATE:

29 April 2004

JUDGES:

Williams JA and Muir and Mullins JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

In Appeal No 8429 of 2003: Appeal dismissed with costs
In Appeal No 11260 of 2003: Appeal dismissed with costs

CATCHWORDS:

TRADE AND COMMERCE – TRADE PRACTICES AND RELATED MATTERS – CONSUMER PROTECTION – MISLEADING, DECEPTIVE OR UNCONSCIONABLE CONDUCT – CHARACTER AND ATTRIBUTES OF CONDUCT – REPRESENTATIONS – where the respondent represented to the appellant that they would pursue another before pursuing the appellant in respect of defaults under the lease- whether the representation amounted to misleading and deceptive conduct pursuant to s 87 of the Trade Practices Act 1974 (Cth)

PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – SUMMARY JUDGMENT – whether the primary judge erred in refusing unconditional leave to defend

EQUITY – GENRAL PRINCIPLES – UNDUE INFLUENCE AND DURESS – PRESUMPTION FROM RELATIONSHIP OF PARTIES – HUSBAND AND WIFE – where the respondent sought to enforce a guarantee against the appellant -whether the appellant was a volunteer- whether it would be unconscionable to enforce the guarantee against the respondent- whether the primary judge erred in giving leave to defend

Corporations Act 2001 (Cth)
Trade Practices Act 1974 (Cth)

Campomar Sociedad, Limitada v Nike International Limited (1999) 202 CLR 45, approved
Commonwealth Bank of Australia v Muirhead [1997] 1 Qd R 567, distinguished
Demogogue Pty Ltd v Ramensky (1992) 39 FCR 31, approved
Garcia v National Australia Bank Ltd (1998) 194 CLR 395, applied
Hunt v Knabe (No 2) (1992) 8 WAR 96, cited
Lam v Austintel Investments Australia Pty Ltd (1989) 97 FLR 458, approved
Moscow-Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109, cited
Port of Authority v Anshun Pty Ltd (1981) 147 CLR 589, approved
Wallingford v Mutual Society (1880) 5 App Cas 685, cited
Yerkey v Jones (1939) 63 CLR 649, applied

COUNSEL:

D A Savage SC, with L A Jurth for the appellant in Appeal No 8429 of 2003 and for the respondent in Appeal No 11260 of 2003
D J S Jackson QC for the respondent in Appeal No 8429 of 2003 and for the appellant in Appeal No 11260 of 2003

SOLICITORS:

Hunt & Hunt Lawyers for the appellant in Appeal No 8429 of 2003 and for the respondent in Appeal No 11260 of 2003
McCullough Robertson for the respondent in Appeal…

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: [2004] QCA 185
Decision Date: 28 May 2004

CaseChat Overview and Summary

In Dubois v Ong, the appeal was against a decision of the trial judge in the District Court of Queensland, who had granted summary judgment in favour of the respondent, Ong. The appellant, Dubois, contested the enforceability of a guarantee provided by her to the respondent in relation to a commercial lease. The trial judge ruled that the guarantee was enforceable, leading Dubois to appeal on several grounds, including the enforceability of the guarantee and the refusal of leave to defend against a claim of misleading and deceptive conduct.

The legal issues central to this appeal encompassed the enforceability of a guarantee provided by Dubois to Ong and the respondent's alleged misleading and deceptive conduct under section 87 of the Trade Practices Act 1974 (Cth). Dubois argued that the guarantee was unconscionable and unenforceable due to the relationship between the parties, as well as the respondent's alleged misleading representation regarding the pursuit of another party before pursuing Dubois for lease defaults. Conversely, Ong contended that the guarantee was valid and enforceable and that there was no misleading and deceptive conduct.

The court found that the primary judge was correct in granting summary judgment for Ong. Regarding the guarantee, the court held that Dubois was not a volunteer and that the primary judge did not err in giving leave to defend. The court found that the primary judge's assessment of the guarantee's enforceability was sound, dismissing Dubois's claims of unconscionability and undue influence. Additionally, the court found that the primary judge correctly refused unconditional leave to defend the claim of misleading and deceptive conduct, as there was no arguable case based on the evidence presented. The appeal was thus dismissed with costs in both instances.

In summary, the appeals were dismissed, and the decisions of the primary judge were upheld. The court found that the guarantee was enforceable and that there was no misleading or deceptive conduct as alleged by Dubois. The court also determined that the primary judge did not err in the leave to defend decisions made.

Orders

Orders of the court

In Appeal No 8429 of 2003: Appeal dismissed with costs

In Appeal No 11260 of 2003: Appeal dismissed with 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:	Dubois v Ong & Anor [2004] QCA 185
PARTIES:	PHILIP JAMES DUBOIS (plaintiff/respondent) v CHEE-TEONG ONG (first defendant/appellant) BEE LEE CHEW (second defendant) PHILIP JAMES DUBOIS (plaintiff/appellant) v CHEE-TEONG ONG (first defendant) BEE LEE CHEW (second defendant/respondent)
FILE NOS:	Appeal No 8429 of 2003 Appeal No 11260 of 2003 SC No 5191 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Appeal from interlocutory decision General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	28 May 2004
DELIVERED AT:	Brisbane
HEARING DATE:	29 April 2004
JUDGES:	Williams JA and Muir and Mullins JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	In Appeal No 8429 of 2003: Appeal dismissed with costs In Appeal No 11260 of 2003: Appeal dismissed with costs
CATCHWORDS:	TRADE AND COMMERCE – TRADE PRACTICES AND RELATED MATTERS – CONSUMER PROTECTION – MISLEADING, DECEPTIVE OR UNCONSCIONABLE CONDUCT – CHARACTER AND ATTRIBUTES OF CONDUCT – REPRESENTATIONS – where the respondent represented to the appellant that they would pursue another before pursuing the appellant in respect of defaults under the lease- whether the representation amounted to misleading and deceptive conduct pursuant to s 87 of the Trade Practices Act 1974 (Cth) PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – SUMMARY JUDGMENT – whether the primary judge erred in refusing unconditional leave to defend EQUITY – GENRAL PRINCIPLES – UNDUE INFLUENCE AND DURESS – PRESUMPTION FROM RELATIONSHIP OF PARTIES – HUSBAND AND WIFE – where the respondent sought to enforce a guarantee against the appellant -whether the appellant was a volunteer- whether it would be unconscionable to enforce the guarantee against the respondent- whether the primary judge erred in giving leave to defend Corporations Act 2001 (Cth) Trade Practices Act 1974 (Cth) Campomar Sociedad, Limitada v Nike International Limited (1999) 202 CLR 45, approved Commonwealth Bank of Australia v Muirhead [1997] 1 Qd R 567, distinguished Demogogue Pty Ltd v Ramensky (1992) 39 FCR 31, approved Garcia v National Australia Bank Ltd (1998) 194 CLR 395, applied Hunt v Knabe (No 2) (1992) 8 WAR 96, cited Lam v Austintel Investments Australia Pty Ltd (1989) 97 FLR 458, approved Moscow-Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109, cited Port of Authority v Anshun Pty Ltd (1981) 147 CLR 589, approved Wallingford v Mutual Society (1880) 5 App Cas 685, cited Yerkey v Jones (1939) 63 CLR 649, applied
COUNSEL:	D A Savage SC, with L A Jurth for the appellant in Appeal No 8429 of 2003 and for the respondent in Appeal No 11260 of 2003 D J S Jackson QC for the respondent in Appeal No 8429 of 2003 and for the appellant in Appeal No 11260 of 2003
SOLICITORS:	Hunt & Hunt Lawyers for the appellant in Appeal No 8429 of 2003 and for the respondent in Appeal No 11260 of 2003 McCullough Robertson for the respondent in Appeal…