Gold Ribbon (Accountants) Pty Ltd v Herft

[2003] QCA 54

[2003] QCA 54

COURT OF APPEAL

McPHERSON JA
JERRARD JA

MACKENZIE J

No 7788 of 2002

GOLD RIBBON (ACCOUNTANTS) PTY LTD

(IN LIQUIDATION)	Plaintiff/Respondent
and
GEORGIA HERFT AND
MARK RICHARD BRUCE	First Defendants
and
FOCUS PARTNERSHIP AUSTRALIA
PTY LTD	Second Defendant/Appellant
BRISBANE
..DATE 19/02/03

JUDGMENT
Ms K Downes instructed by (Blake Dawson Waldron) for the
Plaintiff/Respondent
No appearance by the Second Defendant/Appellant

McPHERSON JA: On 26 July 2002 her Honour the Chief Judge gave	10
summary judgment in the District Court against the second
defendant, Focus Partnership Australia Pty Ltd, for
$159,349.20 with interest of $13,077.75 in an action by the
plaintiff on a guarantee of a loan made by the plaintiff to
another company, Focus Systems and Support Pty Ltd. At the	20
hearing the second defendant sought to raise two issues as a
reason or reasons for sending the action to trial. One was an
allegation of unconscionable conduct on the part of the
plaintiff in connexion with the loan, the other that there was
some defect in the affixation to the guarantee of the second	30
defendant company's seal.
On 23 August 2002 a notice of appeal against that judgment was
filed in the Court of Appeal. It raised two grounds: that in
giving judgment the learned Judge had wrongly applied her mind	40
to the evidence before her instead of to the question of the
issues that "should be fully argued and determined at the
trial"; and that a judgment was given before disclosure of
documents by the plaintiff which might have supported the
second defendant's case at trial.	50
Under UCP Rule 292 a Judge may give summary judgment for the whole or part of a claim if satisfied that the defendant has no real prospect of successfully defending all or part of the

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claim, and there is no need for a trial of the claim or part of it. It is evident that the purpose of this provision was and is to facilitate the giving of summary judgment without

trial in matters falling within the ambit of the Rule.

Judging by the contents of the notice of appeal, the second	10
defendant is no longer relying on the second of the two defences raised before Judge Wolfe, but only on the first relating to unconscionability.
Whether or not that assumption is correct it remains the law	20
that in meeting an application for summary judgment the
defendant is bound to adduce or present sufficient evidence or
admissible material to demonstrate that a trial is needed to
resolve issues that are properly in dispute. It has long been
the law that for this purpose it's not enough to say that the	30
defendant has, at the time of the application, no material on
which a defence is capable of being based, but hopes that if
pre-trial procedure has gone through it may succeed in fishing out support for a defence from the plaintiff's documents. See Brisbane Unit Development Corporation Pty Ltd v. Deming No.56	40
Pty Ltd [1983] 2 QdR 92, at 108 to 111 and authorities cited there. That was a case involving a projected defence of fraud but what is said there is equally true in a case like the present.
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I have mentioned this because the prospects of success on appeal are a factor in deciding whether or not to allow the application now before this Court, which is to strike out the appeal for want of prosecution. The second defendant has

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failed to comply with the rules or practice directions of this

Court regulating the provision of written outlines and the

like and has been in breach of those requirements for some

four months or more. The firm of solicitors who acted for

them in first instance has withdrawn and no longer acts for it	10
now. It has declined or failed to provide security for the
appeal when called upon by the plaintiff to do so. The delay
is obstructing the winding up of the plaintiff, which is a
company in liquidation. In these circumstances I consider
that the second defendant's appeal should be struck out with	20
costs including the costs of this application.
The only thought that occurred to me in addition to all this
is at the hearing there was a judgment given with interest.
Some of the interest, I think, having accrued after the writ	30
was issued.
...
JERRARD JA: I agree with the reasons for judgment of his	40
Honour, Justice McPherson. I add only that in this matter the delay appears to be both intended, namely to give a benefit to the appellant/defendant, that being an agreement entered into
between it and the plaintiff/respondent, that the respondent
would withdraw a statutory demand based on its summary	50
judgment and the delay also appears to be inexcusable.

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This is because the appellant has simply failed to respond at all to a number of requests and directions by the Registrar of this Court asking for compliance with the rules.

MACKENZIE J: I agree with the reasons and the order proposed	10
by the presiding Judge.
McPHERSON JA: The second defendant's appeal is struck out with costs including costs of this application.
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