Julong Pty Ltd v Fenn - [2002] QCA 529

SUPREME COURT OF QUEENSLAND

CITATION:

Julong P/L v Fenn & Anor [2002] QCA 529

PARTIES:

JULONG PTY LTD ACN 061 146 352
(plaintiff/respondent)
v
DAVID JAMES FENN
(defendant/appellant)
ISABELLA FRASER CAMPBELL FENN
(defendant/appellant)

FILE NO/S:

Appeal No 2657 of 2002
SC No 1058 of 1998

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

6 December 2002

DELIVERED AT:

Brisbane

HEARING DATE:

10 September 2002

JUDGES:

McMurdo P, Williams JA and Atkinson J

Separate reasons for judgment of each member of the court, each concurring as to the orders made

ORDERS:

1. Appeal dismissed

2. The appellants pay the respondent’s costs of the appeal to be assessed

CATCHWORDS:

MORTGAGES – MORTGAGES AND CHARGES GENERALLY – THE MORTGAGE – LIABILITIES SECURED – where debts secured by two mortgages over residential property of the appellants – where third party company paid debts and took mortgage over residential property as security for the loan – where third party company transferred mortgage to respondent to secure a loan used to pay out the original debts – whether certificate of indebtedness was conclusive evidence of the debt – whether debtor bears onus of demonstrating the debt has been repaid

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – IMPLIED TERMS – GENERALLY – where appellants and third party company entered into a debt factoring agreement – whether an obligation to account was an implied term in the agreement – whether failure to account would render the contract void ab initio

Land Title Act 1994 (Qld), s 62(1)
Property Law Act 1974 (Qld), s 57

Ashenhurst v James 3 Atk 271; (1745) 26 ER 958, followed
BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266, followed
Clarke v Tipping (1846) 9 Beav 284; 50 ER 352, followed
Consolidated Trust Co Ltd v Naylor (1936) 55 CLR 423, applied
Commonwealth Bank of Australia v Muirhead [1997] 1 Qd R, followed
McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457, applied
Noble v State of Victoria [2000] 2 Qd R 154, followed
Re Tahiti Cotton Co; Ex parte Sargent (1874) LR 17 Eq 273, followed
Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596, followed
Young v Queensland Trustees Limited (1956) 99 CLR 560, followed

COUNSEL:

N J Thompson for the appellants

S L Doyle SC, with G D Sheahan, for the respondent

SOLICITORS:

Gustafson Lawyers for the appellants
Frangos Lawyers for the respondent

McMURDO P: I have had the benefit of reading the reasons for judgment of Atkinson J in which the facts and issues are set out.

I agree with Atkinson J's reasons for concluding that the appellants failed to establish repayment of the mortgage debt and that, in the absence of such proof, the certificate of debt issued under cl 16 of the mortgage is sufficient evidence of the appellants' indebtedness.[1]
[1]See Atkinson J's reasons at [50]-[52].

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: [2002] QCA 529
Decision Date: 6 December 2002

CaseChat Overview and Summary

Julong Pty Ltd, the appellant, was involved in a dispute with Fenn, the respondent, concerning two mortgages over residential property. The case was heard in the Court of Appeal. The appellant had entered into a debt factoring agreement with a third party company, which took over the mortgages as security for a loan used to pay off the original debts. The third party company then transferred the mortgage to the respondent to secure a loan. The appellants argued that the certificate of indebtedness was not conclusive evidence of the debt and that the respondent bore the onus of demonstrating the debt had been repaid. They also contended that an obligation to account was an implied term in the debt factoring agreement and that the failure to account rendered the contract void ab initio.

The court was required to determine whether the certificate of indebtedness was conclusive evidence of the debt and whether the debtor bore the onus of demonstrating the debt had been repaid. The court also had to consider whether an obligation to account was an implied term in the debt factoring agreement and whether the failure to account rendered the contract void ab initio. The court found that the certificate of indebtedness was conclusive evidence of the debt and that the debtor bore the onus of demonstrating the debt had been repaid. Furthermore, the court held that there was no obligation to account implied in the debt factoring agreement, and the failure to account did not render the contract void ab initio.

The appeal was dismissed, and the appellants were ordered to pay the respondent's costs of the appeal to be assessed. The court held that the certificate of indebtedness was conclusive evidence of the debt and that the debtor bore the onus of demonstrating the debt had been repaid. The court also found that there was no obligation to account implied in the debt factoring agreement, and the failure to account did not render the contract void ab initio. As a result, the respondent was entitled to the payment of the mortgage and the costs of the appeal.

Orders

Orders of the court

1. Appeal dismissed

2. The appellants pay the respondent’s costs of the appeal to be assessed

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Julong P/L v Fenn & Anor [2002] QCA 529
PARTIES:	JULONG PTY LTD ACN 061 146 352 (plaintiff/respondent) v DAVID JAMES FENN (defendant/appellant) ISABELLA FRASER CAMPBELL FENN (defendant/appellant)
FILE NO/S:	Appeal No 2657 of 2002 SC No 1058 of 1998
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	6 December 2002
DELIVERED AT:	Brisbane
HEARING DATE:	10 September 2002
JUDGES:	McMurdo P, Williams JA and Atkinson J Separate reasons for judgment of each member of the court, each concurring as to the orders made
ORDERS:	1. Appeal dismissed 2. The appellants pay the respondent’s costs of the appeal to be assessed
CATCHWORDS:	MORTGAGES – MORTGAGES AND CHARGES GENERALLY – THE MORTGAGE – LIABILITIES SECURED – where debts secured by two mortgages over residential property of the appellants – where third party company paid debts and took mortgage over residential property as security for the loan – where third party company transferred mortgage to respondent to secure a loan used to pay out the original debts – whether certificate of indebtedness was conclusive evidence of the debt – whether debtor bears onus of demonstrating the debt has been repaid CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – IMPLIED TERMS – GENERALLY – where appellants and third party company entered into a debt factoring agreement – whether an obligation to account was an implied term in the agreement – whether failure to account would render the contract void ab initio Land Title Act 1994 (Qld), s 62(1) Property Law Act 1974 (Qld), s 57 Ashenhurst v James 3 Atk 271; (1745) 26 ER 958, followed BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266, followed Clarke v Tipping (1846) 9 Beav 284; 50 ER 352, followed Consolidated Trust Co Ltd v Naylor (1936) 55 CLR 423, applied Commonwealth Bank of Australia v Muirhead [1997] 1 Qd R, followed McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457, applied Noble v State of Victoria [2000] 2 Qd R 154, followed Re Tahiti Cotton Co; Ex parte Sargent (1874) LR 17 Eq 273, followed Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596, followed Young v Queensland Trustees Limited (1956) 99 CLR 560, followed
COUNSEL:	N J Thompson for the appellants S L Doyle SC, with G D Sheahan, for the respondent
SOLICITORS:	Gustafson Lawyers for the appellants Frangos Lawyers for the respondent