Khatri v Wilson - [2002] QSC 239

SUPREME COURT OF QUEENSLAND

CITATION:

Khatri & Anor v Wilson [2002] QSC 239

PARTIES:

RAJ KHATRI
(first plaintiff/first applicant)
MICHAEL PELDAN
(second plaintiff/second applicant)
v
JOHN ELLIOT WILSON

(defendant/respondent)

FILE NO/S:

No. S 100056 of 2001

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court Brisbane

DELIVERED ON:

21 August 2002

DELIVERED AT:

Brisbane

HEARING DATE:

13 August 2002

JUDGE:

White J

ORDER:

1. Judgment for the plaintiff against the defendant in the sum of $2,190,000.

2. The defendant pay the plaintiffs’ costs of and incidental to the application and the action to be assessed on the standard basis.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – SUMMARY JUDGMENT – whether judgment ought be granted under r 292 Uniform Civil Procedure Rules 1999 – whether defence has no real prospect of succeeding

MORTGAGES – MORTGAGES AND CHARGES GENERALLY – REMEDIES OF THE MORTGAGEE – SALE UNDER POWER – PRICE – where defendant resists judgment on basis of sale of property at undervalue – whether, in the circumstances, it amounted to a defence

Swain v Hillman [2001] 1 All ER 91, considered
Three Rivers District Council v Bank of England (No 3) [2001] 2 All ER 513, considered
McPhee v Zarb [2002] QSC 4, unreported, 8 January 2002, followed
CSR Limited v Casaron Pty Ltd [2002] QSC 21, unreported, 15 February 2002, followed
Barnes v Addy (1874) LR 9 Ch App 244, mentioned

Uniform Civil Procedure Rules 1999, r 5, r 292

COUNSEL:

Mr R Bain QC and Mr D Atkinson for the applicants / plaintiffs

Mr C Wilson for the respondent / defendant

SOLICITORS:

Abbott Tout for the applicants / plaintiffs

John M O’Connor & Company for the respondent / defendant

The applicants are the trustees and the liquidators of the run-out mortgage business conducted by Lex Nominees Pty Ltd (“Lex Nominees”) and Paul Triscott trading as Paul Triscott & Associates (“Mr Triscott”) under the rules of the Queensland Law Society Inc appointed by Chesterman J on 20 March 2001.

Leegrove Pty Ltd, a company owned and controlled by the defendant entered into five loans with Lex Nominees in 1999 to acquire and partially develop commercial property at Surfers Paradise. The applicant seeks to recover summarily $2.190 million in respect of two of those loans from the defendant who guaranteed them.

The application is brought pursuant to r 292 of the Uniform Civil Procedure Rules 1999. It provides that a plaintiff may at any time after a defendant files a notice of intention to defend apply to the court for judgment against the defendant and the court may give judgment for the plaintiff against the defendant:

“(2) If the court is satisfied that –

(a) the defendant has no real prospect of successfully defending all or a part of the plaintiff’s claim; and

(b) there is no need for a trial of the claim or the part of the claim ….”

The defence was filed on 9 May 2002 but…

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.

Continue reading Khatri v Wilson

Details

AGLC: Khatri v Wilson [2002] QSC 239
Case: [2002] QSC 239
Decision Date: 21 August 2002

CaseChat Overview and Summary

The case of Khatri v Wilson involved a dispute between the plaintiff, Mr Khatri, and the defendant, Mr Wilson, concerning a mortgage over a property. The plaintiff sought a declaration of sale of the property and summary judgment against the defendant in the sum of $2,190,000. Mr Wilson resisted the application for summary judgment, arguing that the sale of the property would occur at an undervalue. The case was heard in the Supreme Court of Queensland, where the primary legal issue was whether the defendant had a real prospect of successfully defending the claim that the property should be sold at the price determined by the plaintiff.

The court was required to determine whether the defendant's argument that the sale would occur at an undervalue constituted a viable defence under the Uniform Civil Procedure Rules 1999. Specifically, the court had to consider whether the defence had any real prospect of succeeding and if the defendant's arguments were sufficient to warrant a trial. The court examined the terms of the mortgage, the value of the property, and the circumstances surrounding the proposed sale to ascertain whether the sale price was fair and reasonable.

The court found that the defendant's arguments did not present a real prospect of successfully defending the claim. It was determined that the sale of the property at the price proposed by the plaintiff was fair and reasonable under the circumstances. The court held that the sale did not amount to a defence that could prevent the grant of summary judgment. Consequently, the plaintiff was awarded judgment against the defendant in the sum of $2,190,000, along with costs.

In its final orders, the court granted judgment in favour of the plaintiff for the sum of $2,190,000 and ordered the defendant to pay the plaintiff's costs of and incidental to the application and the action, to be assessed on the standard basis. The defendant was also ordered to pay the plaintiff's costs on the standard basis.

Orders

Orders of the court

1. Judgment for the plaintiff against the defendant in the sum of $2,190,000.

2. The defendant pay the plaintiffs’ costs of and incidental to the application and the action to be assessed on the standard basis.

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:	Khatri & Anor v Wilson [2002] QSC 239
PARTIES:	RAJ KHATRI (first plaintiff/first applicant) MICHAEL PELDAN (second plaintiff/second applicant) v JOHN ELLIOT WILSON (defendant/respondent)
FILE NO/S:	No. S 100056 of 2001
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court Brisbane
DELIVERED ON:	21 August 2002
DELIVERED AT:	Brisbane
HEARING DATE:	13 August 2002
JUDGE:	White J
ORDER:	1. Judgment for the plaintiff against the defendant in the sum of $2,190,000. 2. The defendant pay the plaintiffs’ costs of and incidental to the application and the action to be assessed on the standard basis.
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – SUMMARY JUDGMENT – whether judgment ought be granted under r 292 Uniform Civil Procedure Rules 1999 – whether defence has no real prospect of succeeding MORTGAGES – MORTGAGES AND CHARGES GENERALLY – REMEDIES OF THE MORTGAGEE – SALE UNDER POWER – PRICE – where defendant resists judgment on basis of sale of property at undervalue – whether, in the circumstances, it amounted to a defence Swain v Hillman [2001] 1 All ER 91, considered Three Rivers District Council v Bank of England (No 3) [2001] 2 All ER 513, considered McPhee v Zarb [2002] QSC 4, unreported, 8 January 2002, followed CSR Limited v Casaron Pty Ltd [2002] QSC 21, unreported, 15 February 2002, followed Barnes v Addy (1874) LR 9 Ch App 244, mentioned Uniform Civil Procedure Rules 1999, r 5, r 292
COUNSEL:	Mr R Bain QC and Mr D Atkinson for the applicants / plaintiffs Mr C Wilson for the respondent / defendant
SOLICITORS:	Abbott Tout for the applicants / plaintiffs John M O’Connor & Company for the respondent / defendant