Hanson Construction Materials P/L v Davey & Anor [2010] QCA 246
PARTIES:
HANSON CONSTRUCTION MATERIALS PTY LTD ACN 009 679 734 (plaintiff/respondent) v NORLIS PTY LTD ACN 097 876 303 trading as SEQUENCE BUILDING SOLUTIONS BN 196 907 82 (first defendant/not a party to the appeal) NORMAN LISTER DAVEY also known as NORMAN LISTER DAVEY SNR (second defendant/first appellant) NORMAN LISTER DAVEY also known as NORMAN LISTER DAVEY JNR (third defendant/second appellant)
FILE NO/S:
Appeal No 2299 of 2010 SC No 8511 of 2009
DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
10 September 2010
DELIVERED AT:
Brisbane
HEARING DATE:
4 August 2010
JUDGES:
Muir and Chesterman JJA and Applegarth J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:
Appeal dismissed with costs
CATCHWORDS:
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – SUMMARY JUDGMENT – where respondent commenced proceedings against appellants claiming moneys owing under a contract – where appellants filed a defence that did not comply with UCPR r 166 and were deemed to have admitted the facts alleged in the statement of claim – where respondent sought summary judgment and appellants applied for leave to withdraw the deemed admissions – where primary judge refused leave and gave summary judgment against the appellants – whether there was a real dispute about the subject matter of the admissions – whether primary judge erred in dismissing appellants’ application
CORPORATIONS – VOLUNTARY ADMINISTRATION – DEEDS OF COMPANY ARRANGEMENT – CREDITORS ON WHOM BINDING – where appellants were the directors of the first defendant company and gave written guarantees to indemnify respondent for all money owing or payable by the company – where appellants charged in favour of the respondent certain freehold and leasehold land – where the company subsequently executed a Deed of Company Arrangement – where appellants relied upon a clause in the Deed that purported to deem all liabilities to have been paid in full so that personal guarantees were not triggered – where primary judge held the contract of guarantee granted equitable charges in favour of the respondent over the land – whether the Deed operated to extinguish the appellants’ personal guarantees
MORTGAGES – PARTICULAR SECURITIES – OTHER CASES – where the claim sought declarations that the appellants had granted equitable mortgages by virtue of the contract of guarantee – where primary judge granted equitable charges in favour of the respondent – whether primary judge gave judgment for relief which had not been claimed
BBC Hardware Limited v GT Holmes Pty Ltd [1997] 2 Qd R 123; [1996] QSC…
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 Pty Ltd v Davey
Sign in free to access the full text
Details
AGLC
Hanson Construction Materials Pty Ltd v Davey [2010] QCA 246
Case
[2010] QCA 246
Decision Date
CaseChat Overview and Summary
Hanson Construction Materials Pty Ltd and Davey, the respondent, were involved in a legal dispute in the Queensland Supreme Court. The respondent initiated proceedings against the appellants, Hanson Construction Materials Pty Ltd, seeking to recover moneys owed under a contract. The appellants filed a defence that did not comply with the relevant rule, resulting in a deemed admission of the facts alleged in the statement of claim. The respondent subsequently sought summary judgment, and the appellants applied for leave to withdraw the deemed admissions. The primary judge denied the application and granted summary judgment in favour of the respondent. The appellants appealed the decision, arguing that there was a genuine dispute about the subject matter of the admissions and that the primary judge had erred in dismissing their application. They also challenged the primary judge's finding that the contract of guarantee granted equitable charges in favour of the respondent over certain land, and whether the Deed of Company Arrangement operated to extinguish the appellants' personal guarantees.
The court considered whether there was a real dispute about the subject matter of the admissions and if the primary judge erred in dismissing the appellants' application. The court also examined whether the primary judge correctly found that the contract of guarantee granted equitable charges in favour of the respondent over the land, and if the Deed of Company Arrangement operated to extinguish the appellants' personal guarantees. The court found that the primary judge did not err in refusing the appellants' application to withdraw the deemed admissions, as there was no real dispute about the subject matter of the admissions. The court also found that the primary judge correctly granted equitable charges in favour of the respondent over the land, as the contract of guarantee granted such charges. The court held that the Deed of Company Arrangement did not operate to extinguish the appellants' personal guarantees.
The appeal was dismissed with costs. The primary judge's decision was affirmed, and the appellants were ordered to pay the respondent's costs of the appeal. The court found no merit in the appellants' arguments and upheld the primary judge's findings and conclusions.