Fry v DIY Tiles Pty Ltd

[1996] QCA 28

[1996] QCA 028

COURT OF APPEAL

DAVIES JA
McPHERSON JA
MACKENZIE J

Appeal No 263 of 1995

RODNEY JAMES FRY                 Appellant (Defendant)

and

DIY TILES PTY LTD  Respondent (Plaintiff)

BRISBANE

..DATE 19/02/96

JUDGMENT

DAVIES JA:  The applicant was sued in the District Court in the capacity of a guarantor of debts of two companies, McGregor Tile Centre Pty Ltd and McGregor Tile Centre (Sumner Park) Pty Ltd.  An application was made by the plaintiff in that Court who was DIY Tiles Pty Ltd for leave to enter final judgment against the applicant as guarantor of the debt of McGregor Tile Centre Sumner Park Pty Ltd and the learned District Court Judge gave leave to enter final judgment against the applicant.  The applicant seeks leave to appeal against that order on the ground that there is an important question of law or justice involved, the emphasis before this Court being on a matter of justice. 

It was in material by the applicant before the learned District Court Judge in a very general way that he did not recall the name of the principal debtor being on the guarantee at the time when he signed it and it does appear as Ms Dalton pointed out to us, who appeared for the respondent, that material was placed before the Court by the respondent which indicated that in fact the second defendant, McGregor Tile Centre Sumner Park Pty Ltd, may not have been in existence at the time that the guarantee was executed. 

Certainly the material before this Court seems to indicate that that company came into existence at a substantially later point in time.  That being the case in my view the guarantor would plainly have had a defence or a very good arguable defence to the claim against him and it seems to me that that is sufficient to raise an important question of justice upon which leave should be granted.  Accordingly I would grant leave to appeal against the order granting leave to enter final judgment.

McPHERSON JA:  I agree.

MACKENZIE J:  I agree.

McPHERSON JA:  The order will be as Mr Justice Davies has stated it.  Should we be dealing with the costs of this application. 

...

McPHERSON JA:  The costs of this application will be costs in the cause in the District Court.

-----