Midland Consolidated P/L v Longworth

SUPREME COURT OF QUEENSLAND

CITATION:

Midland Consolidated P/L v Longworth [2004] QSC 263

PARTIES:

MIDLAND CONSOLIDATED PTY LTD
ACN 084 460 284
(plaintiff)
v
ROSS LONGWORTH AS TRUSTEE OF THE ESTATE OF GWENYTH FRANCES LONGWORTH
(defendant)

FILE NO:

BS9066/03

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

16 August 2004

DELIVERED AT:

Brisbane

HEARING DATE:

30 July 2004

JUDGE:

Douglas J

ORDER:

Application dismissed.  Further submissions as to costs and consequential orders invited.

CATCHWORDS:

PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – SUMMARY JUDGMENT – Application for summary judgment under r 293 Uniform Civil Procedure Rules – Whether plaintiff has no real prospect of succeeding

Unform Civil Procedure Rules 1999 (Qld), r. 293

Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387, referred
Gray v Morris [2004] QCA 5, referred
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87, cited
Lewis v Wilson (1997) 42 NSWLR 228, referred

COUNSEL:

F G Forde for the plaintiff
T J Hancock with him R J Anderson for the defendant

SOLICITORS:

Nicholsons for the plaintiff
McCullough Robertson as town agents for Holman Webb for the defendant

1. DOUGLAS J:  This is a defendant’s application for summary judgment of its counterclaim by which he, Mr Longworth, as trustee of an estate, claims repayment of money lent.  There is an admission by the plaintiff that $404,935.00 has been lent to it but a denial that it is presently repayable.  The defendant claims that the total amount lent is $963,653.00 consisting of $643,653.00 advanced to the plaintiff together with $320,000.00 advanced to a third party at the plaintiff’s request.  In the alternative the latter sum of $320,000.00 is said to be recoverable as monies had and received. 

1. The first issue is whether any part of the loan is now payable.  The first advances were made pursuant to a loan agreement made 8 March 2001 by which the loan was to be repayable in 6 months.  The statement of claim by the plaintiff, to whom the money was lent, asserts that the loan agreement was varied orally in late 2001 and in writing in May 2003 converting the loan into one repayable in 60 months rather than 6 months and changing the rate of interest payable. 

1. The defendant contends that the pleadings and the evidence relevant to them are ineffective to establish any variations of the original agreement.  As to the alleged oral variation, he submits that an express term of the original agreement provides that “a variation to this document is not effective unless it is in writing and signed by the parties” and prevents reliance on an oral variation.  He also contends that the evidence of the oral variation is defective in that paragraphs 40, 41 and 42 of the affidavit of Mr Adam Huxley filed 21 July 2004 swear to the ultimate issue as to the making of an agreement in late 2001 and its terms rather than providing evidence in the proper form of any…