SUPREME COURT OF QUEENSLAND
CITATION:
Filmana Pty Ltd & Ors v Tynan & Anor [2013] QCA 256
PARTIES:
FILMANA PTY LTD
ACN 080 055 429
(first appellant)
ANNA-MARIA SCIACCA
(second appellant)
PHILIPPO SCIACCA
(third appellant)
v
DAVID PATRICK TYNAN & JUDITH GARCIA TYNAN
(respondents)FILE NO/S:
Appeal No 2857 of 2013
SC No 5923 of 2012DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
10 September 2013
DELIVERED AT:
Brisbane
HEARING DATE:
24 July 2013
JUDGES:
Margaret McMurdo P and Holmes and Muir JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order madeORDER:
Appeal be dismissed with costs.
CATCHWORDS:
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – SUMMARY JUDGMENT – where the respondents, as vendors, entered into a contract with the first appellant for the purchase of a dwelling house – where the respondents’ solicitors, alleging that the first appellant had repudiated the contract, purported to terminate the contract and forfeit the deposit – where the respondents were granted summary judgment “in respect of liability” pursuant to r 292 of the Uniform Civil Procedure Rules 1999 (Qld) with damages to be assessed – where the appellants submit that there was a triable issue as to whether the contract had been abandoned or replaced – where the appellants allege that the negotiations between the parties fell within the fourth category of Masters v Cameron – where the appellants submit that the primary judge was overly robust in applying the “no real prospect of success” test and that the complexity of the questions to be determined rendered summary judgment inappropriate – whether the primary judge erred in concluding that the appellants had no real prospect of successfully defending the issues of liability raised for determination – whether summary judgment was appropriate
GUARANTEE AND INDEMNITY – THE CONTRACT OF GUARANTEE – CONSTRUCTION AND EFFECT – GENERALLY – where the second and third appellants guaranteed the obligations of the first appellant under a contract for the purchase of a dwelling house – where the guarantee provided that the guarantor would be liable if the first appellant “breaches the Contract” – where the first appellant repudiated the contract by indicating that it would not perform an essential term – where the respondents accepted the repudiation and rescinded the contract for anticipatory breach – where the appellants submit that the guarantee was confined to “actual breaches of contractual terms” and did not extend to an anticipatory breach – whether the primary judge erred in construing the guarantee as extending to an anticipatory breach of contract amounting to a repudiation
GUARANTEE AND INDEMNITY – ACTIONS AGAINST SURETY – GENERALLY – NOTICE OF DEFAULT, DEMANDS, ETC – where the appellants submit that liability under the guarantee did not arise until the respondents made a demand on the guarantors identifying the quantum of the respondents’ loss – where the appellants submit that, where…
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- AGLC
- Filmana Pty Ltd & Ors v Tynan & Anor [2013] QCA 256
- Case
- [2013] QCA 256
- Decision Date
CaseChat Overview and Summary
The legal issues in the case include whether the primary judge erred in concluding that the appellants had no real prospect of successfully defending the issues of liability. The appellants argued that there was a triable issue as to whether the contract had been abandoned or replaced and that the primary judge was overly robust in applying the "no real prospect of success" test. The court also considered whether the guarantee extended to an anticipatory breach of contract amounting to a repudiation and whether the primary judge erred in entering judgment against the second and third appellants when no demand for payment had been made under the guarantee.
The court found that the primary judge did not err in granting summary judgment. The court held that there was no real prospect of success in the appellants' argument that the contract had been abandoned or replaced and that the complexity of the questions to be determined did not render summary judgment inappropriate. The court also held that the guarantee extended to an anticipatory breach of contract amounting to a repudiation and that there was no requirement for a demand for payment under the guarantee before entering judgment against the second and third appellants.
The appeal was dismissed with costs. The court held that the appellants were not entitled to amend their notice of appeal to include a ground that the primary judge erred in entering judgments against the second and third appellants where there was neither a finding nor an admission that the respondents had suffered a loss due to the first appellant’s breach. The court held that there would be significant prejudice to the respondents by allowing the amendment and that this matter did not come within the principle of finality of litigation espoused in Coulton v Holcombe as it did not concern a trial.
Orders
Orders of the court
Appeal be dismissed with costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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