Hill Corcoran Constructions Pty Ltd v Navarro & Anor - [1992] QCA 17

IN THE COURT OF APPEAL	[1992] QCA 017
SUPREME COURT OF QUEENSLAND	Appeal No. 44 of 1991
BETWEEN:

HILL CORCORAN CONSTRUCTIONS PTY. LTD.

(Plaintiff) Respondent

AND:

FRANK NAVARRO and JACQUELINE NAVARRO

(Defendants) Appellants

JUDGMENT OF THE COURT

Delivered the 6th day of March 1992

The respondent to the appeal has sued the appellants in two actions under two separate instruments. The first was a building contract dated 6 September 1989 pursuant to which the respondent, a builder, agreed to construct a home unit building for the appellants. The appellants in their defence in that action have denied the respondent's claim and have counterclaimed. We shall return in more detail to that claim and counterclaim later.

The other action was in relation to the second instrument, namely a deed of loan dated 16 January 1990 pursuant to which the respondent agreed to lend to the appellants the sum of $50,000.00 "for the sole purpose of assisting [the appellants] in the construction of" the home unit building.

The respondent sought and obtained from a District Court Judge liberty to sign judgment in the second action for the amount lent and interest and it is from His Honour's order in that action that the appellants appeal.

In the Court below and, in the event, in this Court, the appellants argued that they were entitled in the action on the deed of loan to an equitable set off of the amount to which they would be entitled in the action on the building agreement and that therefore the respondent should not have leave to enter judgment against them. In the alternative, they argued that they were entitled to a stay of execution on the judgment pending the determination of the other action.

In this Court, before those questions were argued, the respondent submitted that the appeal on either ground was incompetent. We reserved our judgment on this question and allowed the parties to argue the substantive appeal.

The argument that the appeal is incompetent to the extent that it appeals against the order below giving liberty to enter final judgment depends on the view that such an order is not a final order notwithstanding that, as Mr Couper for the appellants pointed out, entry of judgment follows automatically upon liberty being granted: rr. 153, 158, 159 and 166 of the District Court Rules. We do not find it necessary to decide this question. The appellants' difficulty in this respect, if any, may be overcome by granting them leave to amend the notice of appeal so as to include an appeal against the judgment entered. The respondent could not suggest any prejudice which it suffered, other than being denied the advantage of holding the judgment below, if such leave were granted.

Accordingly, we would grant leave to amend the notice of appeal by adding, in the fifth line thereof, after the word "the" the words "judgment entered consequent upon the".

The application for a stay and that relief, if granted, was interlocutory. Leave to appeal…

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: [1992] QCA 17
Decision Date: 6/03/1992

CaseChat Overview and Summary

In the case of Hill Corcoran Constructions Pty Ltd v Navarro & Anor, the Court of Appeal for the Supreme Court of Queensland reviewed an appeal against a District Court Judge's order granting liberty to sign judgment in a loan action. The appeal was brought by the Navarros, who had entered into a building contract and a loan deed with Hill Corcoran Constructions Pty Ltd. The Navarros argued they were entitled to an equitable set-off against the loan, based on a counterclaim they planned to file in the building contract action. The Court was tasked with determining whether the Navarros were entitled to an equitable set-off and whether the appeal against the refusal of the stay was competent.

The Court considered the arguments regarding the closeness of the connection between the two claims and the conduct of the parties. The Court found that there was a reasonably arguable case for an equitable set-off because the loan was intended to assist in the construction of the home unit building, and the building contract was for the same project. Additionally, the Navarros had a counterclaim for defective work that, if successful, would exceed the total amount claimed by Hill Corcoran Constructions Pty Ltd in both actions. The Court concluded that the relationship between the two claims was close enough to warrant allowing the set-off.

The Court also found that the appeal against the refusal of the stay was incompetent as no leave to appeal was sought before the appeal was instituted. The Court granted the Navarros leave to amend their notice of appeal to include the judgment entered and allowed the appeal, granting the Navarros leave to defend and ordering Hill Corcoran Constructions Pty Ltd to pay the Navarros' costs of the appeal and the application before the District Court Judge.

Orders