Equititrust Limited v Gamp Developments Pty Ltd & Ors (No 2)

[2009] QSC 168

SUPREME COURT OF QUEENSLAND

CITATION:

Equititrust Limited v Gamp Developments Pty Ltd & Ors
(No 2) [2009] QSC 168

PARTIES:

EQUITITRUST LIMITED ACN 061 383 944
(plaintiff)
v

GAMP DEVELOPMENTS PTY LTD ACN 106 875 147
(first defendant)
and
ALAN LESLIE IKIN
(second defendant)
and
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:

19 June 2009

DELIVERED AT:

Brisbane

HEARING DATE:

16 June 2009
Supplementary written submissions on 16 and 18 June 2009

JUDGE:

Applegarth J

ORDERS:

1. Pursuant to rule 294(2) of the Uniform Civil Procedure Rules the plaintiff be granted leave to make the application filed on 28 May 2009.

2.    The application for summary judgment made in paragraph 2 of that application be 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 UCPR r 292 in respect of a claim that is not pleaded – where a cause of action against a guarantor arose when a demand was made after the commencement of the proceeding – whether the claim which the plaintiff now seeks to make against the third defendant is within the claim made or the relief sought in its unamended claim

Uniform Civil Procedure Rules 1999, r 5, r 22, r 139, r 292

Carey v Carey [2005] QDC 120, cited
Equititrust Ltd v Gamp Developments Pty Ltd & Ors [2009] QSC 115, applied
Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245, cited

COUNSEL:

G J Handran for the plaintiff
G Coveney for the third defendant

SOLICITORS:

Tucker & Cowen for the plaintiff
Bell Legal Group for the third defendant

1. The plaintiff reapplies for summary judgment against the third defendant.  On
   

   15 May 2009 McMurdo J granted summary judgment against the first defendant, but declined to grant summary judgment against the third defendant.[1]  Summary judgment was granted against the first defendant in the amount of $5,428,226.61, being the amount of the outstanding principal owed by the first defendant to the plaintiff arising from a loan or loans of money.  The argument raised by the third defendant upon which he succeeded in resisting summary judgment against him was that a demand upon him as guarantor was required before a cause of action accrued.  The third defendant’s liability to pay under the Deed of Guarantee and Indemnity dated 19 September 2008 arose upon demand, and there was no evidence of such a demand.  McMurdo J concluded:

   [1]Equititrust Ltd v Gamp Developments Pty Ltd & Ors [2009] QSC 115.

“The point precludes the grant of summary judgment against the third defendant at least until there is such a demand.  I was not asked to adjourn the application to enable that demand to be made.  Therefore this application for summary judgment against the third defendant must be dismissed.  This…