Khatri v Wilson

[2003] QCA 188

SUPREME COURT OF QUEENSLAND

CITATION:

Khatri & Anor v Wilson [2003] QCA 188

PARTIES:

RAJ KHATRI AND MICHAEL PELDAN
(plaintiffs/respondents)
v
JOHN ELLIOTT WILSON

(respondent/appellant)

FILE NO/S:

Appeal No 8526 of 2002

SC No 10056 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

8 May 2003

DELIVERED AT:

Brisbane

HEARING DATE:

8 May 2003

JUDGES:

de Jersey CJ, Davies JA and Helman J

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs to be assessed

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – SUMMARY JUDGMENT – where appellant entered into guarantee of repayment with respondents – where arguably misleading representations made at times preceding entry into guarantee – whether effect of any misleading representations spent by time of execution of guarantees – whether summary judgment should have been entered in favour of respondents

Uniform Civil Procedure Rules 1999 (Qld), r 292

Swain v Hillman [2001] 1 All ER 91, approved

COUNSEL:

J A Griffin QC for the appellant

R G Bain QC, with D L K Atkinson, for the respondents

SOLICITORS:

O’Connor & Co for the appellant

Abbott Tout for the respondents

THE CHIEF JUSTICE: The appellant appeals against a learned Judge's entering of judgment summarily in favour of the respondents in the sum of $2.19 million under Rule 292 of the Uniform Civil Procedure Rules. The appellant's liability arose under his guarantees of repayment by a company called Leegrove Pty Ltd under loans provided by Lex Nominees Pty Ltd. The funds were to be applied in the purchase and refurbishment of property at Surfer's Paradise.

The appellant relied on two uncontradicted representations made at times preceding the giving of the guarantees, said to warrant a trial.  There were allegedly made on behalf of Lex Nominees by a solicitor Mr Triscott.  They were essentially first, that Triscott would not call upon the guarantees until the refurbishment work had been completed and the property was producing income sufficient to service the loan; and second, that although the fifth of the loans was only for 12 months Triscott intended to roll over that loan for a further period of 12 months.

The representations were said to be misleading in that at the time Triscott made them he did not have the professed intentions.  The representations were allegedly made in January 1999.  The first loan was not made until April that year and the guarantees were signed on 15th April 1999 and 7th May 1999.  In the intervening period negotiations took place between Triscott and, not the appellant, but the solicitor for Leegrove, as to the terms of the loans.

When the first loan was made it did not provide that Lex Nominees would supply all the money required but rather stipulated that after eight months Leegrove was required to pay interest on the outstanding principal.

In his affidavit the appellant…