MID Australia Pty Ltd v Aleckson - [2004] QDC 514

DISTRICT COURT OF QUEENSLAND

CITATION: MID Australia Pty Ltd v Aleckson & Anor [2004] QDC 514

PARTIES:
MID AUSTRALIA PTY LTD

Plaintiff/Respondent

and

TYRONE ALECKSON

First Defendant/Applicant

and

WARREN LESLIE MANDER

Second Defendant/Applicant

FILE NO: 398/2004

PROCEEDING: Application for summary judgment

ORIGINATING COURT:
District Court Southport

DELIVERED ON: 2 December 2004

DELIVERED AT: Brisbane

HEARING DATE: 15 November 2004

JUDGE: Newton DCJ

ORDER: Application dismissed

CATCHWORDS:
PRACTICE – SUMMARY JUDGMENT FOR THE DEFENDANT – r 293 – whether plaintiff’s claim is hopeless or bound to fail.

Corporations Act section 558M – whether company has incurred a debt where there is a total failure of consideration

Uniform Civil Procedure Rules
Corporations Act

Cases cited:
Gray v Morris [2004] QCA 5
Shephard & Ors v ANZ Banking Corporation Ltd & Anor (1997) 41 NSWLR 431
Woodgate v Davis (2002) 55 NSWLR 222

COUNSEL: Mr R G Walters (Solicitor) – applicants
Mr P Dunning - respondent

SOLICITORS: Walters & Co, Solicitors – applicants
Minter Ellison – respondent

The applicants have applied to the court for the following orders:
Summary judgment for the defendants on the whole of the claim pursuant to Rule 293(2) of the Uniform Civil Procedure Rules; and
In the alternative, an order that the claim pursuant to s 588M of the Corporations Act and paragraphs 21-28 of the statement of claim be struck out pursuant to Rule 293(2).

At the hearing of the application I was informed by Mr Walters that the applicants concede that a triable issue exists in respect of the claims brought in relation to deceit, negligent mis-statement and s 52 of the Trade Practices Act. The application is maintained solely in respect of the claim under s 588M of the Corporations Act.

The claim, as relevant, alleges that:
“7. On or about 2 December 2003 Aleckson represented to Walters [the Asset Manager of the plaintiff] that the Company then had in its possession the required air-conditioning units and could immediately provide them to MID.
Particulars
The conversation was by telephone [Confirm]. Walters said words to the effect I understand from George Muscat’s comments to me that you have the correct number of air-conditioning units required for the works in the Spacewalker tenancy that are detailed in the Tender Specification. Aleckson replied with words to the effect yes we have the units but you will have to give me an order for them now to ensure you get them, otherwise they will go to somebody else. At this time of year there are certain stocks of units left over and an order could come in at any time and they will go.
8. On or about 5 December 2003 Aleckson represented to Walters that to secure the required air-conditioning units that the Company had in its possession it would be necessary that MID actually pay for them at that time. (Together with the representations pleaded in the previous paragraph, hereinafter referred to as ‘the Representations’).
Particulars
The conversation was by telephone [

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.

Continue reading MID Australia Pty Ltd v Aleckson

Details

AGLC: Mid Australia Pty Ltd v Aleckson [2004] QDC 514
Case: [2004] QDC 514
Decision Date: 2 December 2004

CaseChat Overview and Summary

In the matter of MID Australia Pty Ltd v Aleckson, the plaintiff sought summary judgment against the defendant for recovery of amounts due under a loan agreement. The defendant applied for summary judgment under Rule 293 of the Uniform Civil Procedure Rules, arguing that the plaintiff's claim was hopeless or bound to fail. The primary legal issue for the court to determine was whether the plaintiff had any real prospects of success in their claim against the defendant.

The court considered whether the plaintiff's claim was so devoid of merit that it could be summarily dismissed. The court applied the principles established in relevant case law, including Gray v Morris, to assess the likelihood of the plaintiff succeeding in their claim. The court also examined the concept of incurring a debt under Corporations Act section 558M, considering whether the company had truly incurred a debt in light of the total failure of consideration.

The court found that the plaintiff's claim was not hopeless or bound to fail, and thus dismissed the defendant's application for summary judgment. The court concluded that there were genuine issues of fact and law that required resolution through a trial. As a result, the court determined that the plaintiff's case had real prospects of success, and the defendant's application for summary judgment was not justified. Consequently, the application was dismissed.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Rule 293 of the Uniform Civil Procedure Rules provides as follows:“[r 293] Summary judgment for defendant 293 (1) A defendant may, at any time after filing a notice of intention to defend, apply to the court under this part for judgment against a plaintiff.(2) If the court is satisfied-(a) the plaintiff has no real prospect of succeeding on all or a part of the plaintiff’s claim; and(b) there is no need for a trial of the claim or the part of the claim;the court may give judgment for the defendant against the plaintiff for all or the part of the plaintiff’s claim and may make any other order the court considers appropriate.” An application of this nature seeking summary judgment cannot be upheld unless the plaintiff (respondent) has no real prospects of success. This approach has recently been restated in Gray v Morris [2004] QCA 5 where Chesterman J at [23] stated:“In my opinion summary judgment is not to be given, either to defendant or plaintiff, except where it is just to do so and it will not be just to deprive a party of a trial unless it can be seen that their case is hopeless, or bound to fail. Unless that can be said of it, the conclusion cannot be reached that a claim or defence has no ‘real’ prospects of success.” I turn to consider the concept of incurring a debt. In Woodgate v Davis (2002) 55 NSWLR 222 at 226 Barrett J stated:“That concept, as relevant to this context, has been considered in a number of cases. In Hawkins v Bank of China (1992) 26 NSWLR 562 at 572, Gleeson CJ regarded the word ‘incurs’ in a predecessor provision of the companies legislation as ‘apt to describe, in an appropriate case, the undertaking of an engagement to pay a sum of money at a future time’. Kirby P (at 576) said: ‘The act of ‘incurring’ happens when the corporation so acts as to expose itself contractually to an obligation to make a future payment of a sum of money as a debt’. The concept was further elucidated by Hodgson CJ in Eq in Standard Chartered Bank of Australia Ltd v Antico (1995) 38 NSWLR 290, particularly in the following passage (at 314):‘In my opinion, a company incurs a debt when, by its choice, it does or omits something which, as a matter of substance and commercial reality, renders it liable for a debt for which it otherwise would not have been liable. This formulation has three aspects which could cause difficulty in particular cases: first, as to whether the company has a choice whether to do (or omit) the act or not; secondly, as to whether it is the act or omission, or something else, which renders the company liable for the debt; and thirdly, as to whether the company would otherwise (in any event) have been liable for the debt.’

Ratio Decidendi

Legal Principle Established

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CITATION:	*MID Australia Pty Ltd v Aleckson & Anor* [2004] QDC 514
PARTIES:	MID AUSTRALIA PTY LTD Plaintiff/Respondent and TYRONE ALECKSON First Defendant/Applicant and WARREN LESLIE MANDER Second Defendant/Applicant
FILE NO:	398/2004
PROCEEDING:	Application for summary judgment
ORIGINATING COURT:	District Court Southport
DELIVERED ON:	2 December 2004
DELIVERED AT:	Brisbane
HEARING DATE:	15 November 2004
JUDGE:	Newton DCJ
ORDER:	Application dismissed
CATCHWORDS:	PRACTICE – SUMMARY JUDGMENT FOR THE DEFENDANT – r 293 – whether plaintiff’s claim is hopeless or bound to fail. Corporations Act section 558M – whether company has incurred a debt where there is a total failure of consideration Uniform Civil Procedure Rules Corporations Act Cases cited: Gray v Morris [2004] QCA 5 Shephard & Ors v ANZ Banking Corporation Ltd & Anor (1997) 41 NSWLR 431 Woodgate v Davis (2002) 55 NSWLR 222
COUNSEL:	Mr R G Walters (Solicitor) – applicants Mr P Dunning - respondent
SOLICITORS:	Walters & Co, Solicitors – applicants Minter Ellison – respondent