Edlin and Edlin v Williams - [1998] QCA 439

IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND

Appeal No. 171 of 1998

Brisbane
[Edlin & Anor v. Williams]
BETWEEN:
RICHARD JOHN EDLIN and JULIA KAY EDLIN

(Plaintiffs) Appellants

AND:
NOEL RICHARD WILLIAMS

(Second Second Defendant) Respondent

DAINTREE PALMS DEVELOPMENTS PTY LTD
ACN 069 716 347 formerly BATUM PTY LTD
ACN 069 716 347
(First Defendant)

GEOFFREY BENTON RAYMOND

(First Second Defendant)
McMurdo P Thomas JA Shepherdson J

Judgment delivered 22 December 1998
Joint reasons for judgment of McMurdo P and Thomas JA, separate reasons of Shepherdson
J concurring as to the orders made.
APPEAL ALLOWED.
JUDGMENT BELOW OF 17 DECEMBER 1997 SET ASIDE AND IN LIEU
THEREOF ORDER APPELLANTS RECOVER AGAINST RESPONDENT THE
SUM OF $154,397.46 PLUS INTEREST AT 10% PER ANNUM FROM 15 MARCH
1996 UNTIL 22 DECEMBER 1998.
ORDER RESPONDENT PAY APPELLANTS’ COSTS OF AND INCIDENTAL TO
THE APPEAL AND ACTION, INCLUDING RESERVED COSTS, TO BE TAXED.
CATCHWORDS: CONTRACT - construction and interpretation of loan agreement
and guarantee - whether terms of repayment of loan agreed by
parties - whether terms of guarantee agreed by parties
CONTRACT - consideration - whether forebearance to sue without explicit request can amount to consideration - no other meaningful consideration
Crears v Hunter (1887) 19 QBD 341
McKay v National Australia Bank Ltd [1998] 1 VR 173
Murphy v Timms [1987] 2 QdR 550

Counsel: Mr D.J. Jackson Q.C. with him Mr R. Jackson for the appellants
Mr D. Cooper for the respondent
Solicitors: McCullough Robertson for the appellants
Purcell Chadwick & Skelly for the respondent
Hearing Date: 15 September 1998
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND

Appeal No 171 of 1998

Brisbane

Before

McMurdo P Thomas JA Shepherdson J
[Edlin & anor v Williams]
BETWEEN:
RICHARD JOHN EDLIN and JULIA KAY EDLIN

(Plaintiffs) Appellants

AND:
NOEL RICHARD WILLIAMS

(Second Second Defendant) Respondent

DAINTREE PALMS DEVELOPMENTS PTY LTD
ACN 069 716 347 formerly BATUM PTY LTD
ACN 069 716 347
(First Defendant)

GEOFFREY BENTON RAYMOND

(First Second Defendant)

JOINT REASONS FOR JUDGMENT - McMURDO P AND THOMAS JA

Judgment delivered 22 December 1998

Daintree Palms Development Pty Ltd (“Daintree Palms”), the first defendant below,
wished to purchased an existing hotel and land, with a view to constructing units at Wonga
Beach, near Cairns. The respondent, the second-named second defendant below, and
Geoffrey Benton Raymond, the first-named second defendant below, were the directors of Daintree Palms. The appellants, the plaintiffs below, claim they lent money to Daintree
Palms to finance the development in a written agreement dated 26 July 1995. The appellants
claim the respondent, together with Raymond, guaranteed Daintree Palms’ indebtedness to
the appellants under a guarantee dated 29 January 1996. They sued the respondent on his
guarantee, the action proceeding only against the respondent.
The respondent denied that any money was loaned to Daintree Palms pursuant to the
agreement of 26 July 1995. He admitted that he executed a document styled ‘Guarantee and
Indemnity’ but claimed there was no agreement between the…

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 Edlin and Edlin v Williams

Details

AGLC: Edlin and Edlin v Williams [1998] QCA 439
Case: [1998] QCA 439
Decision Date: 22/12/1998

CaseChat Overview and Summary

The appeal involved a dispute over a loan agreement and a guarantee related to a property development project. The appellants, Richard John Edlin and Julia Kay Edlin, claimed that they had loaned money to Daintree Palms Developments Pty Ltd, a company directed by the respondent, Noel Richard Williams, and Geoffrey Benton Raymond. The appellants sought to enforce a guarantee executed by the respondent and Raymond, which they claimed was in consideration of their forbearance to sue Daintree Palms. The primary judge had ruled in favour of the respondent, finding that the terms of the loan repayment and guarantee were not agreed, that the guarantee lacked valuable consideration, and that it was not a deed due to lack of attestation. The Court of Appeal allowed the appeal, finding that the terms of the loan repayment were indeed agreed, that the forbearance to sue constituted valuable consideration for the guarantee, and that the guarantee was enforceable despite the lack of attestation. The Court ordered that the respondent pay the appellants the sum of $154,397.46 plus interest, and that the respondent pay the appellants’ costs of the appeal and the action.

Orders