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Hanson Construction Materials P/L v Norlis

Hanson Construction Materials P/L v Norlis

Case [2010] QSC 34 11 February 2010

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SUPREME COURT OF QUEENSLAND

CITATION:

Hanson Construction Materials P/L v Norlis & Ors [2010] QSC 34

PARTIES:

HANSON CONSTRUCTION MATERIALS PTY LTD ACN 009 679 734
(plaintiff)
v
NORLIS PTY LTD ACN 097 876 303 trading as SEQUENCE BUILDING SOLUTIONS BN 1960782
(first defendant)
and
NORMAN LISTER DAVEY also known as NORMAN LISTER DAVEY SNR
(second defendant)
and
NORMAN LISTER DAVEY also known as NORMAN LISTER DAVEY JNR

(third defendant)

FILE NO/S:

SC No 8511 of 2009

DIVISION:

Trial Division

PROCEEDING:

Application for summary judgment
Application for leave to withdraw admissions

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

11 February 2010

DELIVERED AT:

Supreme Court, Brisbane

HEARING DATE:

22 January 2010

JUDGE:

Margaret Wilson J

ORDER:

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – OTHER MATTERS BEFORE TRIAL – LEAVE TO WITHDRAW DEEMED ADMISSIONS – where plaintiff and first defendant entered into an agreement for plaintiff to supply goods to first defendant on credit – where second and third defendants guaranteed first defendant’s obligations – where an administrator subsequently appointed to first defendant and creditors resolved that first defendant should execute a deed of company arrangement – where such deed executed – where plaintiff claims against second and third defendants declarations that by the written guarantee they granted plaintiff equitable mortgages over their respective interests in the fee simple in certain parcels of land and that the equitable mortgages charge their interests in lands with payments of all monies due and owing by first, second and third defendants to plaintiff, as well as an order that equitable mortgages be enforced by sale, and an order that second and third defendants pay the sum of $53,897.47 to plaintiff for goods sold and delivered by plaintiff to first defendant – where defence does not satisfy requirements of r 166 of the Uniform Civil Procedure Rules 1999 – where second and third defendants bring application for leave to withdraw admissions – whether there is a genuine dispute about matters deemed to have been admitted – whether leave to withdraw admissions should be granted in all the circumstances

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – SUMMARY JUDGMENT – where plaintiff brings application for summary judgment – where plaintiff relies upon deemed admissions – whether there is a triable issue regarding the value of any goods delivered to first defendant – whether second and third defendants were released from their obligations pursuant to the deed of company arrangement – where deed of company arrangement cannot prevent a creditor enforcing guarantees given by directors – whether second and third defendants have any real prospect of defending claim – whether there is need for trial – whether relief sought by summary judgment is within the claim

MOTRGAGES – PARTICULAR SECURITIES – EQUITABLE MORTGAGE – WHAT CONSTITUTES GENERALLY – where plaintiff seeks declarations as to existence of equitable mortgages – whether under guarantee plaintiff obtained equitable mortgages or equitable charges

Corporations Act 2001 (Cth),…

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.

Continue reading Hanson Construction Materials P/L v Norlis

Details

AGLC: Hanson Construction Materials P/L v Norlis [2010] QSC 34
Case: [2010] QSC 34
Decision Date: 11 February 2010

CaseChat Overview and Summary

The case of Hanson Construction Materials P/L v Norlis was heard in the Queensland Supreme Court, involving a dispute between Hanson Construction Materials P/L, a supplier of goods on credit, and Norlis, a company that had entered into an agreement with the plaintiff. Additionally, the second and third defendants, who had guaranteed the obligations of Norlis, were also involved in the proceedings. The plaintiff sought declarations that the guarantees provided by the second and third defendants constituted equitable mortgages over their respective interests in certain parcels of land, along with an order for the enforcement of these mortgages and payment of the outstanding debt. The second and third defendants sought leave to withdraw their admissions under the rules of court, arguing that there was a genuine dispute about the matters deemed to have been admitted.

The legal issues before the court included whether the second and third defendants were entitled to withdraw their admissions and whether there was a genuine dispute about the matters deemed admitted. Furthermore, the court had to determine if there was a triable issue regarding the value of the goods delivered to Norlis and whether the deed of company arrangement could release the second and third defendants from their obligations under the guarantees. Additionally, the court needed to assess if the second and third defendants had any real prospect of defending the claim and if a trial was necessary or if summary judgment was appropriate.

In its decision, the court found that the second and third defendants were not entitled to withdraw their admissions as there was no genuine dispute about the matters deemed admitted. The court held that the guarantees provided by the second and third defendants constituted equitable mortgages over their interests in the specified land parcels. The court further determined that there was no triable issue regarding the value of the goods delivered to Norlis, and that the deed of company arrangement did not release the second and third defendants from their obligations under the guarantees. Consequently, the court concluded that the second and third defendants had no real prospect of defending the claim and granted the plaintiff's application for summary judgment. The court ordered that the equitable mortgages be enforced by sale and that the second and third defendants pay the sum of $53,897.47 to the plaintiff.

In summary, the court held that the equitable mortgages existed and were enforceable, and the second and third defendants were liable for the outstanding debt. The application for leave to withdraw admissions was dismissed, and the plaintiff's application for summary judgment was granted.

Orders