Metroll Roofing Pty Ltd v Tempest - [2020] QDC 273

DISTRICT COURT OF QUEENSLAND

CITATION:

Metroll Roofing Pty Ltd v Tempest [2020] QDC 273

PARTIES:

METROLL ROOFING PTY LTD

ACN 010 065 102

(plaintiff)

v

MATTHEW CRAIG TEMPEST

(defendant)

FILE NO:

BD No. 1521 of 2020

DIVISION:

PROCEEDING:

Trial

ORIGINATING COURT:

DELIVERED ON:

30 October 2020

DELIVERED AT:

Brisbane

HEARING DATE:

9 October 2020

JUDGE:

Jarro DCJ

ORDER:

1. The plaintiff’s claim is dismissed.

2. I will hear from the parties as to the form of the order, any further orders and costs.

CATCHWORDS:

GUARANTEE AND INDEMNITY – ASSIGNMENT – where the plaintiff was assigned a judgment debt from Metroll Queensland Pty Ltd who obtained default judgment against the defendant’s company MCT Roofing (Qld) Pty Ltd – where the defendant entered into a credit application on behalf of his company with Metroll Queensland Pty Ltd in 2006 - where the defendant entered into a credit application on behalf of his company with the plaintiff in 2013 – where the defendant provided a personal guarantee and indemnity in the 2013 credit application but not in the 2006 credit application - whether the guarantee given by the defendant in 2013 in favour of the plaintiff answers a judgment debt assigned to it by Metroll Queensland Pty Ltd

REAL PROPERTY – TORRENS TITLE – CAVEATS AGAINST DEALINGS – REMOVAL – PARTICULAR CASES – where the plaintiff lodged a caveat over the defendant’s interest in the defendant’s land – where the defendant seeks an order that the caveat be removed – where the plaintiff’s claim has been dismissed – whether there is no basis for the caveat upon dismissal of the plaintiff’s claim

Corporations Act 2001 (Cth), s 500

Land Title Act 1994, s 127

Chacmol Holdings Pty Ltd v Handberg (2005) 215 ALR 748, considered

Estoril Investments Pty Ltd v Westpac Banking Corporation (1996) 6 BPR 13,146, applied

McVeigh (Trustee of the Bankrupt Estate of Piccolo) v National Australia Bank Ltd (2000) ALR 429, applied

Olympic Holdings Pty Ltd v Winslow Corporation Pty Ltd (in liq) (2008) 36 WAR 342, cited

Watson v Scott [2016] 2 Qd R 484, cited

COUNSEL:
C G C Curtis for the plaintiff
G J Barr for the defendant

SOLICITORS:
Kanji & Co Solicitors for the plaintiff
Greenhalgh Pickard Solicitors for the defendant

The plaintiff, Metroll Roofing Pty Ltd, who supplies building materials from Rockhampton, claims against the defendant for liability said to have arisen under a guarantee for an assigned judgment debt.
The plaintiff was assigned the judgment debt on 14 August 2017 by a related body corporate, Metroll Queensland Pty Ltd, who obtained default judgment against the company known as MCT Roofing (Qld) Pty Ltd, after MCT Roofing (Qld) Pty Ltd fell into arrears for payments for building supplies made by Metroll Queensland Pty Ltd. MCT Roofing (Qld) Pty Ltd was a contract roof plumbing service business controlled by the defendant, who was the sole director and shareholder of MCT Roofing (Qld) from May 2004 until the time of its liquidation in…

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: [2020] QDC 273
Decision Date: 30 October 2020

CaseChat Overview and Summary

In the matter of Metroll Roofing Pty Ltd v Tempest, the plaintiff, a roofing company, sought to enforce a personal guarantee and indemnity provided by the defendant in 2013, in relation to a judgment debt assigned to it by another company, Metroll Queensland Pty Ltd. The dispute centred on whether the guarantee in favour of the plaintiff could be used to answer the judgment debt assigned from the earlier credit application with Metroll Queensland Pty Ltd. Additionally, the plaintiff had lodged a caveat over the defendant’s interest in his land, which the defendant sought to have removed following the dismissal of the plaintiff’s claim.

The legal issues before the court included whether the guarantee provided by the defendant in 2013 could be enforced against the assigned judgment debt, and whether the caveat should be maintained or removed after the dismissal of the plaintiff’s claim. The court needed to determine if the personal guarantee and indemnity provided by the defendant in 2013 was applicable to the assigned judgment debt from 2006, and whether the dismissal of the plaintiff’s claim necessitated the removal of the caveat.

The court found that the guarantee provided by the defendant in 2013 was not applicable to the assigned judgment debt from 2006, as the guarantee did not cover the original debt. The court also determined that the dismissal of the plaintiff’s claim did not automatically result in the removal of the caveat, as the caveat could still be relevant to other matters. Consequently, the plaintiff’s claim was dismissed, and the court indicated that further directions would be given regarding the form of the order, any additional orders, and costs.

The final orders of the court were that the plaintiff’s claim be dismissed and that the parties would be heard regarding the form of the order, any further orders, and costs. The court left open the possibility for further direction on the removal of the caveat.

Orders

Orders of the court

1. The plaintiff’s claim is dismissed.

2. I will hear from the parties as to the form of the order, any further orders and costs.

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:	Metroll Roofing Pty Ltd v Tempest [2020] QDC 273
PARTIES:	METROLL ROOFING PTY LTD ACN 010 065 102 (plaintiff) v MATTHEW CRAIG TEMPEST (defendant)
FILE NO:	BD No. 1521 of 2020
DIVISION:
PROCEEDING:	Trial
ORIGINATING COURT:
DELIVERED ON:	30 October 2020
DELIVERED AT:	Brisbane
HEARING DATE:	9 October 2020
JUDGE:	Jarro DCJ
ORDER:	1. The plaintiff’s claim is dismissed. 2. I will hear from the parties as to the form of the order, any further orders and costs.
CATCHWORDS:	GUARANTEE AND INDEMNITY – ASSIGNMENT – where the plaintiff was assigned a judgment debt from Metroll Queensland Pty Ltd who obtained default judgment against the defendant’s company MCT Roofing (Qld) Pty Ltd – where the defendant entered into a credit application on behalf of his company with Metroll Queensland Pty Ltd in 2006 - where the defendant entered into a credit application on behalf of his company with the plaintiff in 2013 – where the defendant provided a personal guarantee and indemnity in the 2013 credit application but not in the 2006 credit application - whether the guarantee given by the defendant in 2013 in favour of the plaintiff answers a judgment debt assigned to it by Metroll Queensland Pty Ltd REAL PROPERTY – TORRENS TITLE – CAVEATS AGAINST DEALINGS – REMOVAL – PARTICULAR CASES – where the plaintiff lodged a caveat over the defendant’s interest in the defendant’s land – where the defendant seeks an order that the caveat be removed – where the plaintiff’s claim has been dismissed – whether there is no basis for the caveat upon dismissal of the plaintiff’s claim Corporations Act 2001 (Cth), s 500 Land Title Act 1994, s 127 Chacmol Holdings Pty Ltd v Handberg (2005) 215 ALR 748, considered Estoril Investments Pty Ltd v Westpac Banking Corporation (1996) 6 BPR 13,146, applied McVeigh (Trustee of the Bankrupt Estate of Piccolo) v National Australia Bank Ltd (2000) ALR 429, applied Olympic Holdings Pty Ltd v Winslow Corporation Pty Ltd (in liq) (2008) 36 WAR 342, cited Watson v Scott [2016] 2 Qd R 484, cited
COUNSEL:	C G C Curtis for the plaintiff G J Barr for the defendant
SOLICITORS:	Kanji & Co Solicitors for the plaintiff Greenhalgh Pickard Solicitors for the defendant