French v Queensland Premier Mines Pty Ltd - [2008] VSC 118

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

COMMERCIAL LIST

F5642
No. 4139 of 2002

WALTER MURDOCH FRENCH	Plaintiff
v
QUEENSLAND PREMIER MINES PTY LTD & ORS	Defendants

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JUDGE:	HOLLINGWORTH J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 February 2008
DATE OF JUDGMENT:	23 April 2008
MEDIUM NEUTRAL CITATION:	[2008] VSC 118

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Loan agreements – Calculation of amounts owning under loan agreements – Whether certain payments made in reduction of indebtedness

Practice and procedure – Application for leave to amend defence to plead part-payment – Application made after completion of trial and appeals on liability – Prejudice – Potential for inconsistent findings – Delay – No legal basis for amendment – Application refused

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J B Davis	Norton Gledhill
For the 1^st to 3^rd Defendants	Mr T Davies, solicitor	Oakley Thompson & Co
For the 4^th Defendant	No appearance

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HER HONOUR:

Introduction

On 17 January 2002, the plaintiff, Walter Murdoch (“Rusty”) French, commenced this proceeding against the first three defendants, Queensland Premier Mines Pty Ltd (“QPM”), Frank George Beckinsale and Helen Mary Beckinsale, seeking moneys owing to him under two loan agreements. He also sought declarations against the fourth defendant, Marminta Pty Ltd (“Marminta”), in respect of a related transaction.

On 18 August 2004, a judge of the trial division held that the effect of s62 of the Land Title Act 1994 (Qld) was that Mr French had transferred the right to recover under the loan agreements, when he transferred to Marminta the mortgages which had been provided by QPM as security for the loans.[1]
[1]French v Queensland Premier Mines and Beckinsale [2004] VSC 294. The first instance judgment is referred to in these reasons simply as “VSC”.

On 14 December 2006, that decision was overturned by the Court of Appeal, which set aside the trial judge’s orders and ordered, amongst other things, that there be judgment against QPM and the Beckinsales for the amounts owing under the loan agreements, and that QPM pay Mr French the amount he had spent on land tax and rates for the mortgaged properties, together with interest.[2] The Court of Appeal referred the matter back to the trial division, for assessment of the amounts owing.
[2]French v Queensland Premier Mines and Beckinsale [2006] VSCA 287; referred to in these reasons as “VSCA”.

On 22 December 2006, Mr French filed a summons seeking directions for such an assessment. Orders for the filing and serving of material were made on several occasions in 2007[3], and the assessment was initially set down for hearing in June 2007. However, that date was subsequently vacated and the assessment stayed, pending the result of the defendants’ appeal to the High Court. The High Court dismissed that appeal on 15 November 2007.[4] Accordingly, the court is now required to assess the amounts owing to Mr French, including interest.
[3]Directions for the delivery of material were made on 9…

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.

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Details

Case: [2008] VSC 118
Decision Date: 23 April 2008

CaseChat Overview and Summary

In French v Queensland Premier Mines Pty Ltd, the plaintiff sought to recover amounts owing under loan agreements with the defendant. The dispute centred on the interpretation and calculation of the amounts owing under the agreements, particularly whether certain payments made by the defendant constituted part-payment of the debt. The matter was heard in the Federal Court of Australia.

The legal issues the court was required to decide included whether the plaintiff was entitled to amend the defence to plead part-payment after the completion of the trial and appeals on liability. The plaintiff argued that the amendment was necessary to address inconsistent findings and avoid prejudice. The defendant opposed the application, asserting that there was no legal basis for the amendment, and that the plaintiff had delayed in seeking to make the amendment.

The court held that there was no legal basis for the plaintiff to amend the defence to plead part-payment. The court found that the potential for inconsistent findings did not justify the amendment, and that the delay in seeking to make the amendment was significant. The court held that the plaintiff had not demonstrated any prejudice that could not be addressed through other means, and that the application was an attempt to relitigate issues that had already been determined. The application was therefore refused.

The Federal Court of Australia refused the plaintiff's application for leave to amend the defence to plead part-payment. The court held that there was no legal basis for the amendment, and that the potential for inconsistent findings did not justify the amendment. The court also found that the delay in seeking to make the amendment was significant, and that the plaintiff had not demonstrated any prejudice that could not be addressed through other means.

Orders