Equititrust Limited v. Gamp Developments P/L & Ors

[2009] QSC 115

SUPREME COURT OF QUEENSLAND

CITATION:

Equititrust Limited v Gamp Developments P/L & Ors [2009] QSC 115

PARTIES:

EQUITITRUST LIMITED ACN 061 383 944

(Plaintiff)

v

GAMP DEVELOPMENTS PTY LTD ACN 106 875 147

(First Defendant)

ALAN LESLIE IKIN

(Second Defendant)

GRAHAM LINTON CLEMENT SPOTTISWOOD

(Third Defendant)

FILE NO/S:

BS 6057 of 2008

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

15 May 2009

DELIVERED AT:

Brisbane

HEARING DATE:

20 April 2009

JUDGE:

McMurdo J

ORDER:

1.        Judgment for the plaintiff on part of the claim against           the first defendant in the amount of $5,428,226.61. 

2.        The applications against the second and third           defendants are dismissed. 

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – SUMMARY JUDGMENT – where basis of plaintiff’s claim is not pleaded – whether summary judgment may be given under in respect of a claim not pleaded – whether cause of action is established by creditor against guarantor when a demand is not made

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – SERVICE – where party allegedly served did not make notation under r 115(2) – whether service is validly effected

UCPR r 115, r 292

Golding v Russell [1983] 1 Qd R 53

Young v Queensland Trustees Ltd (1956) 99 CLR 560

COUNSEL:

G J Handran for the plaintiff

G Coveney for the first and third defendants

No appearance for the second defendant

SOLICITORS:

Tucker & Cowen for the plaintiff

Bell Legal Group for the first and third defendants

No appearance for the second defendant

1. The plaintiff applies for summary judgment against the first and third defendants and for a judgment in default of a Notice of Intention to Defend against the second defendant.

1. The plaintiff’s claim is for the recovery of monies lent to the first defendant together with interest and other charges.  It claims the same amounts from the second and third defendants as guarantors.  It commenced these proceedings last June.  The first and third defendants promptly filed a Defence.  The second defendant is yet to file a defence but there is a question as to whether he has been duly served, to which I will return.

1. The first and third defendants put much in issue by their pleading.  And they pleaded that the provision for interest relied upon by the plaintiff was a penalty and that another charge, described as an “exit fee”, was not payable because of some dealing between the parties by which the date for repayment of the loan was extended.  The plaintiff pleaded that the outstanding principal was $15,485,000 to which these defendants pleaded a non-admission, on the basis that they were:

“embarrassed by lack of particularity as to … the basis upon which the alleged principal sum is calculated, or otherwise determined [and as to] when and how the alleged principal amount was allegedly advanced to the first defendant”.

1. But any doubt as to whether the first defendant had borrowed an…