McVicker International Pty Ltd v James

[2022] QSC 269

SUPREME COURT OF QUEENSLAND

CITATION:

McVicker International Pty Ltd & Anor v James [2022] QSC 269

PARTIES:

McVICKER INTERNATIONAL PTY LTD
ACN 629 557 286

(first plaintiff)

v
ROBERT BRUCE McVICKER

(second plaintiff)

RACHEL CATHERINE JAMES
(defendant)

FILE NO/S:

BS 12379/19

DIVISION:

Trial Division

PROCEEDING:

Interlocutory Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

2 December 2022

DELIVERED AT:

Brisbane (ex tempore)

HEARING DATE:

2 December 2022

JUDGE:

Kelly J

ORDER:

1.   The application for summary judgment is dismissed.

2.   I will hear the parties as to costs.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS – where the second plaintiff claims that the defendant breached a warranty deed by making representations which amounted to misleading and deceptive conduct – where the second plaintiff claims that he suffered loss and damage being a potential liability to the first plaintiff under s 588M of the Corporations Act 2001 (Cth) – where the first plaintiff has been deregistered – where the defendant applied for summary judgment against the second plaintiff’s claim – whether summary judgment should be granted

Corporations Act 2001 (Cth), s 588M
Uniform Civil Procedure Rules 1999 (Qld), r 155, r 293

Bradshaw v Secure Funding Pty Ltd [2011] QSC 184, cited
Chen v ANZ Banking Group Ltd [2001] QSC 43, cited
Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232, cited
James Point Pty Ltd v Minister for Transport [2015] WASC 323, cited
Lewis v Australian Capital Territory (2020) 271 CLR 192; [2020] HCA 26, cited

COUNSEL:

MD Martin KC for the second plaintiff
SC Russell for the defendant

SOLICITORS:

Mills Oakley for the second plaintiff
Rose Litigation Lawyers for the defendant

1. This is an application by the defendant (“Ms James”) for summary judgment against the second plaintiff (“Mr McVicker”).  The proceeding was commenced on 8 November 2019.  The first plaintiff (“McVicker International”) is a company of which Mr McVicker is the sole director. 

2. By way of broad overview of the allegations made by the Amended Statement of Claim, the following can be said:

   (a)the defendant (“Ms James”) owned 150,120 shares in Best Jet Travel Pty Ltd (“the Company”);

   (b)by a written Share Sale Agreement dated 2 November 2018 (“the Sale Agreement”), Ms James agreed to sell to McVicker International 75,060 shares in the company for $1,500,000.00;

   (c)completion was to and did occur on 9 November 2018 and the purchase price was payable on 31 October 2020;

   (d)on completion, Mr McVicker became a director of the company.  On that date, Mr McVicker and Ms James entered into a written Deed of Warranty (“the Warranty Deed”).  The Warranty Deed contained a warranty, relevantly that any information provided to Mr McVicker by Ms James had been prepared in good faith after reasonable inquiries for the purpose of informing Mr McVicker about the company, its business, assets and liabilities;

   (e)it is…