MCG Quarries Pty Ltd v Offermans - [2015] QCA 103

SUPREME COURT OF QUEENSLAND

CITATION:

MCG Quarries Pty Ltd v Offermans & Ors [2015] QCA 103

PARTIES:

MCG QUARRIES PTY LTD
ACN 119 739 758

(applicant/appellant)v
DENNIS JOHN OFFERMANS & MICHAEL JOSEPH BRENNAN IN THEIR CAPACITY AS LIQUIDATORS OF LINDLEY MINING MAINTENANCE PTY LTD (IN LIQUIDATION)
ACN 117 976 020

LINDLEY MINING MAINTENANCE PTY LTD (IN(first respondent)LIQUIDATION)

ACN 117 976 020(second respondent)

FILE NO/S:

Appeal No 9729 of 2014
DC No 189 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Townsville – Unreported, 16 September 2014

DELIVERED ON:

16 June 2015

DELIVERED AT:

Brisbane

HEARING DATE:

21 April 2015

JUDGES:

Margaret McMurdo P and Holmes and Gotterson JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    Grant leave to appeal.

2.    Allow the appeal.

3.    Set aside the declaration and Order 2 made on 16 September 2014 and the orders made on 28 October 2014.

4.    Order in lieu thereof, that the claim against the appellant be dismissed.

5.    Direct that the parties file and serve written submissions as to costs of the proceedings under appeal, the application for leave to appeal and the appeal in accordance with Practice Direction No 3 of 2013 para 52(4) within seven days of the publication of these reasons.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE'S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – WHERE FINDINGS BASED ON DOCUMENTARY EVIDENCE – where Messrs Offermans and Brennan were appointed voluntary administrators of the second respondent on 24 March 2010 – where on the subsequent winding up of the second respondent Messrs Offermans and Brennan were appointed its joint and several liquidators by creditors – where proceedings were commenced in the Supreme Court of Townsville on 11 February 2013 against some four parties – where the liquidators were the first plaintiff and the second respondent was the second plaintiff – where the proceedings were to recover payments that the second respondent had made to each of the parties separately within the six month period prior to the relation-back day, 24 March 2010 – where the proceedings against three of the parties were settled – where the fourth defendant in the proceeding was MCG Quarries Pty Ltd, the applicant in this appeal – where the applicant defended the claim against it for $106,186.70 – where the claim against the applicant was tried over two days in September 2014 in the District Court at Townsville – where on 16 September 2014 judgment was given in favour of the respondents – where the court declared that the second respondent was insolvent for the whole of the period between 30 September 2009 and 24 March 2010 – where the court ordered the applicant pay the first respondents or alternatively the second respondent $106,186.70 – where on 28 October 2010 the learned primary judge ordered that the applicant…

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: [2015] QCA 103
Decision Date: 16 June 2015

CaseChat Overview and Summary

MCG Quarries Pty Ltd brought an appeal against a decision of the District Court of Queensland, where the applicant sought to overturn a judgment against it for insolvent trading. The applicant was a supplier of quarry materials to a company that subsequently went into liquidation. The liquidators brought proceedings against the applicant to recover payments made by the company within six months before it went into liquidation. The liquidators argued that the payments were insolvent trading under the Corporations Act 2001 (Cth). The applicant contended that the company was solvent at the time the payments were made and that it had no reason to suspect that the company was insolvent. The court had to determine whether the company was insolvent at the relevant time and whether the trial judge erred in finding that the applicant's defence was unsuccessful.

The court examined the evidence and found that the primary judge had erred in his findings of fact. The primary judge had made findings based on documentary evidence, but the court found that those findings were not supported by the evidence. The court found that the company was not insolvent at the time the payments were made and that the applicant had no reason to suspect that the company was insolvent. The court held that the primary judge had failed to properly consider the applicant's defence and that the applicant had established that it had no reason to suspect that the company was insolvent. The court also found that the applicant had established that the company was solvent at the time the payments were made.

The court granted leave to appeal and allowed the appeal. The court set aside the declaration and order made by the primary judge and ordered that the claim against the applicant be dismissed. The court directed the parties to file and serve written submissions as to the costs of the proceedings within seven days of the publication of the reasons. The court held that the primary judge had erred in his findings of fact and that the applicant had established its defence. The court found that the applicant had no reason to suspect that the company was insolvent and that the company was solvent at the time the payments were made. The court held that the applicant was entitled to succeed on its appeal.

Orders

Orders of the court

1. Grant leave to appeal.

2. Allow the appeal.

3. Set aside the declaration and Order 2 made on 16 September 2014 and the orders made on 28 October 2014.

4. Order in lieu thereof, that the claim against the appellant be dismissed.

5. Direct that the parties file and serve written submissions as to costs of the proceedings under appeal, the application for leave to appeal and the appeal in accordance with Practice Direction No 3 of 2013 para 52(4) within seven days of the publication of these reasons.

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:	MCG Quarries Pty Ltd v Offermans & Ors [2015] QCA 103
PARTIES:	MCG QUARRIES PTY LTD ACN 119 739 758 (applicant/appellant)v DENNIS JOHN OFFERMANS & MICHAEL JOSEPH BRENNAN IN THEIR CAPACITY AS LIQUIDATORS OF LINDLEY MINING MAINTENANCE PTY LTD (IN LIQUIDATION) ACN 117 976 020 LINDLEY MINING MAINTENANCE PTY LTD (IN(first respondent)LIQUIDATION) ACN 117 976 020(second respondent)
FILE NO/S:	Appeal No 9729 of 2014 DC No 189 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Townsville – Unreported, 16 September 2014
DELIVERED ON:	16 June 2015
DELIVERED AT:	Brisbane
HEARING DATE:	21 April 2015
JUDGES:	Margaret McMurdo P and Holmes and Gotterson JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Grant leave to appeal. 2. Allow the appeal. 3. Set aside the declaration and Order 2 made on 16 September 2014 and the orders made on 28 October 2014. 4. Order in lieu thereof, that the claim against the appellant be dismissed. 5. Direct that the parties file and serve written submissions as to costs of the proceedings under appeal, the application for leave to appeal and the appeal in accordance with Practice Direction No 3 of 2013 para 52(4) within seven days of the publication of these reasons.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE'S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – WHERE FINDINGS BASED ON DOCUMENTARY EVIDENCE – where Messrs Offermans and Brennan were appointed voluntary administrators of the second respondent on 24 March 2010 – where on the subsequent winding up of the second respondent Messrs Offermans and Brennan were appointed its joint and several liquidators by creditors – where proceedings were commenced in the Supreme Court of Townsville on 11 February 2013 against some four parties – where the liquidators were the first plaintiff and the second respondent was the second plaintiff – where the proceedings were to recover payments that the second respondent had made to each of the parties separately within the six month period prior to the relation-back day, 24 March 2010 – where the proceedings against three of the parties were settled – where the fourth defendant in the proceeding was MCG Quarries Pty Ltd, the applicant in this appeal – where the applicant defended the claim against it for $106,186.70 – where the claim against the applicant was tried over two days in September 2014 in the District Court at Townsville – where on 16 September 2014 judgment was given in favour of the respondents – where the court declared that the second respondent was insolvent for the whole of the period between 30 September 2009 and 24 March 2010 – where the court ordered the applicant pay the first respondents or alternatively the second respondent $106,186.70 – where on 28 October 2010 the learned primary judge ordered that the applicant…