Hung v Hung

Case [2017] QSC 200

SUPREME COURT OF QUEENSLAND

CITATION:

Hung & Anor v Hung & Anor [2017] QSC 200

PARTIES:

TIEN-CHUAN HUNG

(first plaintiff)
FENG HUA WU
(second plaintiff)

v
TIEN TSAI HUNG

(first defendant)
SU YEN WANG
(second defendant)

FILE NO/S:

BS No 63 of 2017

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

15 September 2017

DELIVERED AT:

Brisbane

HEARING DATE:

20 July 2017

JUDGE:

Martin J

ORDER:

1.     The plaintiffs are required to bring in minutes of order within 10 days.

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – where the first plaintiff and the first defendant were brothers – where the first plaintiff and the first defendant acquired a number properties – where the plaintiffs lent two sums of money to the defendants in the acquisition of two properties pursuant to two loan agreements – where the parties varied the loan agreements to require the plaintiffs to provide six months’ notice before calling up the loans – where the plaintiffs demanded repayment of the loans – where the defendants assert that no “proper” demand has been issued  – whether the demands were issued properly

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – CUSTOM AND USAGE – where the loan agreements provided for interest to be paid on the principle sums – where interest was to be calculated “on each anniversary” – where the plaintiffs claim compound interest – where the defendants assert that simple interest only is payable– where the defendants assert that there is a presumption in favour of simple interest – whether the loan agreements provide for simple or compound interest

INTEREST – RATE OF INTEREST AND COMPOUND INTEREST – COMPOUND INTEREST

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR PLAINTIFF OR APPLICANT – GENERALLY – where the plaintiffs seek summary judgment – where the defendants assert that a trial is necessary to determine the basis for the calculation of interest – whether summary judgment ought to be granted

Uniform Civil Procedure Rules 1999 r 292

A J Lucas Drilling Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd [2009] VSCA 310, cited

Agricultural and Rural Finance Pty Ltd v Atkinson [2010] NSWSC 1396, cited

Australia and New Zealand Banking Group Ltd v Sammon (1984) Q ConvR 54-148, cited

Bakker v Chambri Pty Ltd (1986) 4 BPR 97,261, cited

Bernstrom v National Australia Bank Limited [2003] 1 Qd R 469, cited

Bunbury Foods Pty Ltd v National Bank of Australasia Ltd (1984) 153 CLR 491, applied

Daniell v Sinclair (1881) 6 App Cas 181, cited

Donnelly v National Australia Bank Unreported, Supreme Court of Western Australia, Full Court, 19 May 1992, distinguished

Gray v Morris [2004] 2 Qd R 118, cited

In Re Brookers (Aust) Ltd (in liq); Brooker v Pridham (1986) 41 SASR 380, cited

Morton v Elgin-Stuczynski (2008) 19 VR 294

Continue reading Hung v Hung

Sign in free to access the full text

Details
AGLC
Hung v Hung [2017] QSC 200
Case
[2017] QSC 200
Decision Date

CaseChat Overview and Summary

In the case of Hung v Hung, the first plaintiff and the first defendant, who were brothers, acquired a number of properties, with the plaintiffs lending two sums of money to the defendants for the acquisition of two properties, pursuant to two loan agreements. The plaintiffs subsequently demanded repayment of the loans, asserting that the defendants had breached the terms of the loan agreements. The defendants counterclaimed, alleging that the plaintiffs had not served a proper demand for repayment and that there was a presumption in favour of simple interest. The legal issues before the court were whether the plaintiffs had properly served a demand for repayment and whether the loan agreements provided for simple or compound interest.

The court found that there was little dispute as to the facts of the case and that a trial would cast no further light on the issues. The defendants admitted that they borrowed the funds on the terms alleged by the plaintiffs, that the entire amounts under the loans remained outstanding and that they were obliged to repay the loans. The only defences to an order for summary judgment raised were whether the defendants had been served with a valid demand and the construction of the interest provision. The court found that valid demands had been served and that there was no need to delay the relief the plaintiffs were clearly entitled to. The court also found that the loan agreements provided for compound interest, not simple interest.

The court concluded that the plaintiffs were entitled to summary judgment, including costs. The court ordered the plaintiffs to bring in minutes of order within 10 days. The court found that there was no real prospect of the defendants successfully defending the claim and that the interests of justice required the relief sought by the plaintiffs to be granted without further delay.

Orders

Orders of the court

1. The plaintiffs are required to bring in minutes of order within 10 days.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The contract should be construed as providing for compound interest. Whether judgment ought to be given summarily Rule 292 provides that the defendants must have no real prospect of successfully defending this part of the claim against them. Summary judgment should not be ordered where there is a realistic, as opposed to a fanciful, prospect of success.[12][12] Bernstrom v National Australia Bank Limited [2003] 1 Qd R 469. In Gray v Morris,[13] McMurdo J (McPherson JA agreeing) explained:“[I]n the application of the plain words of rr. 292 and 293, and in particular the consideration of whether there is a need for a trial, a court must keep in mind why the interests of justice usually require the issues to be investigated at a trial. In my view it surely remains the case, as Mason, Murphy, Wilson, Deane and Dawson JJ said in Fancourt at 99, that ‘The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried’. That remains a forceful and authoritative guidance and is in no way in tension with the application of these rules according to their own terms.”[13] [2004] 2 Qd R 118 at 133. There was little dispute as to the facts of these matters. As explained above, the defendants admit that they borrowed the funds on the terms alleged by the plaintiffs, that the entire amounts under the Loans remain outstanding and that they are obliged to repay the Loans. A trial would cast no further light on the issues the subject of this application. The only defences to an order for summary judgment raised were whether the defendants have been served with a valid demand and the construction of the interest provision. The evidence establishes that valid demands were served and there was no submission made by the defendants that further evidence would assist the court in determining this issue. As to the matter of interest, that is merely an exercise in construction of the loan agreements. There is no need to delay the relief the plaintiffs are clearly entitled to. Summary judgment ought to be granted.Orders I will give judgment, including costs, for the plaintiffs. They are required to bring in minutes of order within 10 days.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.