Jurrungul Pty Ltd v BOC Holdings Pty Ltd

[2003] QCA 333

SUPREME COURT OF QUEENSLAND

CITATION:	Jurrungul P/L v BOC Holdings P/L [2003] QCA 333
PARTIES:	JURRUNGUL PTY LTD ACN 010 215 522 (plaintiff/respondent) v BOC HOLDINGS PTY LTD ACN 093 598 497 (defendant/appellant)
FILE NO/S:	Appeal No 353 of 2003 DC No 476 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Appeal from interlocutory decision
ORIGINATING  COURT:	District Court at Cairns
DELIVERED EX	31 July 2003
TEMPORE ON:
DELIVERED AT:	Brisbane
HEARING DATE:	31 July 2003
JUDGES:	McMurdo P, Mackenzie and Helman JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Allow the appeal, set aside the order of 21 March 2003 and instead give the appellant leave to defend conditional upon the appellant giving security for the amount in issue between the parties, to be provided in a form satisfactory to the Registrar of the District Court in Cairns within 14 days. The appellant is to pay the respondent’s costs of and incidental to the application of 21 March 2003 to be assessed. The costs of this appeal are costs in the cause.
CATCHWORDS:	PROCEDURE – QUEENSLAND – JURISDICTION GENERALLY – SETTING ASIDE JUDGMENTS - where joint venture entered between the parties - where respondent advanced monies to the appellant – where monies was to be repaid at the “completion of the development” – where respondent obtained default judgment against appellant to recover monies - whether learned primary judge erred by giving the term “completion of the development” a dictionary meaning
COUNSEL:	R Perry for the appellant P Morzone for the respondent
SOLICITORS:	Deacons for the appellant Williams, Graham & Carman for the respondent

THE PRESIDENT: The plaintiff/respondent brought an action to recover $50,000 advanced by it to the appellant/defendant in relation to a joint business venture to be undertaken by the appellant, the respondent and two other parties. The project was the construction of North Cove Apartments, a large block of residential units in Cairns. The respondent was the joint venture vehicle company.

The respondent obtained a default judgment against the appellant for $54,704.21, inclusive of interest, on 20 November 2002. On 21 March 2003, the appellant's application to set aside that judgment was refused with costs. This appeal is from that order.

The learned primary Judge found that the appellant's explanation for its failure to defend the claim in compliance with the UCPR was sufficient to set aside the default judgment if it could show it had a prima facie defence on the merits. The point in issue is a short one. It is common ground between the parties that the $50,000 advanced was to be repaid at the "completion of the development": see the appellant's proposed defence.

The respondent's contention is that the term "completion of the development" means practical completion of the units, or when separate titles to the units were issued. The appellant contends the development is complete when there are funds available to the respondent from the sales of the units to repay shareholders' loans, although the proposed defence before his Honour pleads the meaning, "that point in time when all secured creditors have been paid and their security released". The learned primary Judge found that the term "development" here had one of its Australian dictionary definitions, and meant "the completion of the construction of the building" and determined that the appellant was liable to repay the loan to the respondent and had not shown a prima facie meritorious defence.

The appellant contends his Honour erred in giving it its dictionary definition and by refusing to consider the context of the correspondence constituting the agreement, and emphasises the following matters:

First, the parties to the relevant conversations were familiar with the usual progress of developments such as this and it was common for developers at the time of practical completion or at the time of the issue of individual titles to have fewer liquid assets than when funds were available later from the sales of the units: see Mr Callaghan's affidavit.

Second, the appellant emphasises that had the objective the agreement between them, does not make sufficiently clear the meaning of the term "completion of the development" to deny the appellant its right to defend, once its explanation for non-compliance with the UCPR was accepted. His Honour erred in determining otherwise.

intention of the parties been to intend for the repayment of
money as contended for by the respondent, then the parties
would have used phrases such as "practical completion" and
"issue of separate titles" which were building terms familiar
to the parties.

I would allow the appeal, set aside the order of 21 March 2003 and instead give the appellant leave to defend conditional upon the appellant giving security for the amount in issue between the parties to be provided in a form satisfactory to the Registrar of the District Court in Cairns within 14 days. The appellant should pay the respondent's costs of and incidental to the application of 21 March 2003, to be assessed; the costs of this appeal should be costs in the cause.

MACKENZIE J: I agree.

HELMAN J: I agree.

THE PRESIDENT: The orders are as I have proposed.

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