In Roma Pty Ltd v Adams

SUPREME COURT OF QUEENSLAND

CITATION:

In Roma Pty Ltd v Adams & Anor [2012] QCA 347

PARTIES:

IN ROMA PTY LTD
ACN 111 769 861
(appellant)
v
GRANT ANTHONY ADAMS & FREYA ANGELA O’SULLIVAN AS TRUSTEE FOR THE GAA DISCRETIONARY TRUST
(respondents)

FILE NO/S:

Appeal No 8756 of 2012
SC No 9114 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

7 December 2012

DELIVERED AT:

Brisbane

HEARING DATE:

29 November 2012

JUDGES:

Chief Justice and Holmes and Fraser JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    The appeal be dismissed;

2.    The appellant pay the respondents’ costs, to be assessed on the standard basis unless agreed.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – PLEADING – GENERALLY – appellant purported to plead non-admission to a number of allegations in the statement of claim, including that the deed of charge had been delivered – appellant failed to provide any explanation for the non-admission – appellant did not plead an agreement to release the deed of charge – appellant did not raise an agreement to release the deed of charge until closing oral submissions – whether purported non-admissions are to be treated as deemed admissions – whether appellant precluded from arguing the existence of an agreement to release the deed of charge

DEEDS – DELIVERY – appellant agreed to provide a fixed and floating charge over the company – appellant executed the deed of charge and gave it to the appellant’s solicitor for registration – appellant’s solicitor informed respondents’ solicitor the deed of charge had been executed – deed of charge not physically delivered to respondents’ solicitor – settlement occurred before the signed charge physically delivered – whether the deed of charge was “delivered” upon execution

Property Law Act 1974 (Qld), s 47
Uniform Civil Procedure Rules 1999 (Qld), r 166

400 George Street (Qld) Pty Ltd v BG International Ltd [2012] 2 Qd R 302; [2010] QCA 245, distinguished
Baypoint Pty Ltd v Baker (1994) 6 BPR 13,687, followed
Groongal Pastoral Co Ltd (In liq) v Falkiner (1924) 35 CLR 157; [1924] HCA 54, distinguished
Grundy v Ley [1984] 2 NSWLR 467, cited
Lady Naas v Westminster Bank Ltd [1940] AC 366, cited
Mirzikinian v Tom & Bill Waterhouse Pty Ltd [2009] NSWCA 296, cited
Xenos v Wickham (1867) LR 2 HL 296, cited

COUNSEL:

P Dunning SC, with G Radcliffe, for the appellant
G Thompson SC, with AW Duffy, for the respondents

SOLICITORS:

Robinson & Robinson for the appellant
Piper Alderman for the respondents

1. CHIEF JUSTICE: The learned primary judge held that the appellant (“In Roma”) is bound by a deed of fixed and floating charge, and specifically, that it was not released from its obligations under that deed by a registered release of mortgage signed by the respondents, Mr…