Linddales Pty Ltd v Macri Constructions Pty Ltd - [2005] QSC 136

SUPREME COURT OF QUEENSLAND

CITATION:

Linddales Pty Ltd v Macri Constructions Pty Ltd & Anor [2005] QSC 136

PARTIES:

LINDDALES PTY LTD
ACN 085 627 845
(plaintiff)
v
MACRI CONSTRUCTIONS PTY LTD
ACN 071 426 830
(first defendant)
and
AGOSTINO MACRI
(second defendant)

FILE NO:

BS 9076 of 2004

DIVISION:

Trial

PROCEEDING:

Civil trial

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

20 May 2005

DELIVERED AT:

Brisbane

HEARING DATE:

12 May 2005

JUDGE:

Chesterman J

ORDER:

1.    The question before this court is answered as follows:

             If the first defendant is liable to the plaintiff in respect of any part of the plaintiff’s claim against it, the second defendant is also liable to the plaintiff for that amount pursuant to his guarantee.

2.    The second defendant should pay the plaintiff’s costs of and incidental to the action to be assessed on the standard basis.

CATCHWORDS:

CONTRACTS – PARTICULAR PARTIES – VENDOR AND PURCHASER – GUARANTEES CONTAINED IN CONTRACTS AND COLLATERAL PROMISES – where the plaintiff claims an amount owing by the second defendant pursuant to a guarantee – where the second defendant disputes his indebtedness as guarantor up to a limited amount – the question for the court to determine was “If the first [defendant] is liable to the [plaintiff] in respect of any part of the [plaintiff’s] claim against it, is the second [defendant] also liable in respect of that amount, or any part of it (and if so, to what extend) pursuant to the guarantee referred to in paragraph 4 of the statement of claim?

COUNSEL:

Mr R Anderson for the plaintiff
Mr P Woods for the defendants

SOLICITORS:

McCullough Robertson for the plaintiff
Budd & Piper for the defendants

In this action the plaintiff claims $468,175.77 against the first defendant as a debt due under a contract between them. It claims the same amount from the second defendant pursuant to a guarantee. The action against the first defendant has not proceeded; the company is thought to be insolvent. The second defendant has disputed his indebtedness as guarantor for any amount greater than $25,000. On 23 March 2005 I ordered, pursuant to UCPR 483 that a question be determined separately from the other issues in the action. The question was:

‘If the first [defendant] is liable to the [plaintiff] in respect of any part of the [plaintiff’s] claim against it, is the second [defendant] also liable in respect of that amount, or any part of it (and if so, to what extent) pursuant to the guarantee referred to in paragraph 4 of the statement of claim?’

The parties are confident that the answer to the question will bring about a speedy resolution to the litigation either by agreement or by proof of the amount which the first defendant owes the plaintiff.

The following facts are admitted on the pleadings:

1.On 28 June 2004 the plaintiff and the first defendant made an agreement by which the plaintiff was to supply labour services to the first defendant for the…

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: [2005] QSC 136
Decision Date: 20 May 2005

CaseChat Overview and Summary

Linddales Pty Ltd, the plaintiff, sought to recover an amount from Macri Constructions Pty Ltd, the second defendant, pursuant to a guarantee. The first defendant, which was a party to the guarantee, also faced liability. The second defendant argued that its liability under the guarantee was limited. The court was tasked with determining whether the second defendant's liability under the guarantee was contingent on the first defendant's liability to the plaintiff.

The central legal issue was whether the second defendant's liability under the guarantee was dependent on the first defendant's liability to the plaintiff. Specifically, if the first defendant was found liable to the plaintiff for any part of the claim, would the second defendant also be liable to the plaintiff for that same amount or any part of it, and if so, to what extent? The court examined the terms of the guarantee to ascertain the extent of the second defendant's obligations.

The court determined that if the first defendant was liable to the plaintiff in respect of any part of the claim, then the second defendant was also liable to the plaintiff for that amount pursuant to the guarantee. The court found that the guarantee did not contain any conditions limiting the second defendant's liability to the extent of the first defendant's liability. Therefore, the second defendant's obligation under the guarantee was absolute and not contingent on the first defendant's liability.

The court ordered that the second defendant pay the plaintiff's costs of and incidental to the action, to be assessed on the standard basis. This ruling clarified the extent of the second defendant's liability under the guarantee, ensuring that it was not limited by the first defendant's liability.

Orders

Orders of the court

1. The question before this court is answered as follows:

If the first defendant is liable to the plaintiff in respect of any part of the plaintiff’s claim against it, the second defendant is also liable to the plaintiff for that amount pursuant to his guarantee.

2. The second defendant should pay the plaintiff’s costs of and incidental to 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:	Linddales Pty Ltd v Macri Constructions Pty Ltd & Anor [2005] QSC 136
PARTIES:	LINDDALES PTY LTD ACN 085 627 845 (plaintiff) v MACRI CONSTRUCTIONS PTY LTD ACN 071 426 830 (first defendant) and AGOSTINO MACRI (second defendant)
FILE NO:	BS 9076 of 2004
DIVISION:	Trial
PROCEEDING:	Civil trial
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	20 May 2005
DELIVERED AT:	Brisbane
HEARING DATE:	12 May 2005
JUDGE:	Chesterman J
ORDER:	1. The question before this court is answered as follows: If the first defendant is liable to the plaintiff in respect of any part of the plaintiff’s claim against it, the second defendant is also liable to the plaintiff for that amount pursuant to his guarantee. 2. The second defendant should pay the plaintiff’s costs of and incidental to the action to be assessed on the standard basis.
CATCHWORDS:	CONTRACTS – PARTICULAR PARTIES – VENDOR AND PURCHASER – GUARANTEES CONTAINED IN CONTRACTS AND COLLATERAL PROMISES – where the plaintiff claims an amount owing by the second defendant pursuant to a guarantee – where the second defendant disputes his indebtedness as guarantor up to a limited amount – the question for the court to determine was “If the first [defendant] is liable to the [plaintiff] in respect of any part of the [plaintiff’s] claim against it, is the second [defendant] also liable in respect of that amount, or any part of it (and if so, to what extend) pursuant to the guarantee referred to in paragraph 4 of the statement of claim?
COUNSEL:	Mr R Anderson for the plaintiff Mr P Woods for the defendants
SOLICITORS:	McCullough Robertson for the plaintiff Budd & Piper for the defendants