Forsyth v Gibbs

Case [2008] QCA 103

SUPREME COURT OF QUEENSLAND

CITATION:

Forsyth & Anor (as trustees for the C&S Forsyth Superannuation Fund) v Gibbs [2008] QCA 103

PARTIES:

GRAHAM COLIN FORSYTH AND MICHELLE FORSYTH (as trustees for the C&S FORSYTH SUPERANNUATION FUND)
(plaintiffs/appellants)
v
RALPH ROBERT TERRANCE GIBBS
(defendant/respondent)

FILE NO/S:

Appeal No 10873 of 2007
SC No 8436 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

2 May 2008

DELIVERED AT:

Brisbane

HEARING DATE:

17 April 2008

JUDGES:

McMurdo P, Keane and Fraser JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Appeal allowed1.   

Orders of the Supreme Court set aside.2.   

Judgment for the appellants in the sum of $340,591.33 together with interest at the rate of 16 per cent from 20 September 20073.   

Respondent to pay the appellants' costs of the appeal and of the action to be assessed on the standard basis4.   

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – SUMMARY JUDGMENT – where the appellants brought an action against the respondent for the recovery of a debt – where the respondent does not dispute the evidence of the debt adduced by the appellants – where the respondent sought to resist the appellants' application for summary judgment on the grounds of his entitlement to an equitable set-off against the debt – whether the claimed equitable set-off is a sufficient basis upon which an application for summary judgment can be refused

PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – CROSS CLAIMS: SET-OFF AND COUNTERCLAIM – SET-OFF – WHAT MAY BE SET-OFF – EQUITABLE SET-OFF – where the respondent seeks to rely upon an equitable set-off against the appellants' claim – where the foundation of the set-off relied upon is said to be a claim in negligence by the respondent against a third corporate entity and the male appellant personally – whether there is a sufficient factual nexus between the respondent's claim in negligence and the appellants' claim to justify the imposition of the former as an equitable set-off against the latter

Uniform Civil Procedure Rules 1999 (Qld), r 173(1), r 292

Hill Corcoran Constructions Pty Ltd v Navarro& Anor[1992] QCA 017; Appeal No 44 of 1991, 6 March 1992, applied
Hill v Ziymack (1908) 7 CLR 352; [1908] HCA 13, cited
Indrisie v General Credits Ltd [1985] VR 251, applied
Murphy v Zamonex Pty Ltd (1993) 31 NSWLR 439, distinguished
Piggott v Williams (1821) 56 ER 1027, applied
Preston v Strutton (1792) 145 ER 797, cited
United Dominions Corporation Limited v Jaybe Homes Pty Ltd [1978] Qd R 111; SC No 262 of 1975, 1 May 1975, applied

COUNSEL:

K C Fleming QC for the appellants
F H Dawson for the respondent

SOLICITORS:

Kelly & Down for the appellants
Thompson McNichol for the respondent

  1. McMURDO P:  I agree with Keane JA.

  1. KEANE JA:  The appellants are the…

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AGLC
Forsyth v Gibbs [2008] QCA 103
Case
[2008] QCA 103
Decision Date

CaseChat Overview and Summary

In the matter of Forsyth v Gibbs, the appellants sought to recover a debt from the respondent. The respondent did not dispute the evidence of the debt presented by the appellants but sought to resist the application for summary judgment on the basis of an equitable set-off. The respondent claimed that he was entitled to an equitable set-off against the debt based on a claim in negligence against the male appellant and a third corporate entity. The trial judge dismissed the appeal, and the appellants sought leave to appeal to the Court of Appeal.

The Court of Appeal was required to determine whether the respondent's claim for equitable set-off was a sufficient basis to refuse an application for summary judgment. The Court also needed to determine whether there was a sufficient factual nexus between the respondent's claim in negligence and the appellants' claim to justify the imposition of the former as an equitable set-off against the latter.

The Court of Appeal found that the respondent's claim for equitable set-off was not a sufficient basis to refuse an application for summary judgment. The Court held that the respondent's claim for equitable set-off was not a substantive defence to the appellants' claim for the recovery of the debt. The Court also found that there was no sufficient factual nexus between the respondent's claim in negligence and the appellants' claim to justify the imposition of the former as an equitable set-off against the latter. The Court held that the respondent's claim in negligence was unrelated to the debt claimed by the appellants, and therefore, the respondent's claim did not constitute a valid equitable set-off.

The Court of Appeal allowed the appeal, set aside the orders of the Supreme Court, and entered judgment for the appellants in the sum of $340,591.33 together with interest at the rate of 16 per cent from 20 September 2007. The Court also ordered that the respondent pay the appellants' costs of the appeal and of the action to be assessed on the standard basis.

Orders

Orders of the court

Appeal allowed1.

Orders of the Supreme Court set aside.2.

Judgment for the appellants in the sum of $340,591.33 together with interest at the rate of 16 per cent from 20 September 20073.

Respondent to pay the appellants' costs of the appeal and of the action to be assessed on the standard basis4.

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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