DISTRICT COURT OF QUEENSLAND
CITATION:
Neilsens Concrete Pty Ltd v Heath & Ors [2013] QDC 164
PARTIES:
NEILSENS CONCRETE PTY LTD
(Plaintiff)and
GEOFFREY HEATH
(First Defendant)
and
TIMOTHY JOHN HARDERS
(Second Defendant)
and
CHRISTOPHER SIMON HARDERS
(Third defendant)
FILE NO/S:
4645/12
DIVISION:
Civil
PROCEEDING:
Application
ORIGINATING COURT:
Brisbane
DELIVERED ON:
19 July 2013
DELIVERED AT:
Rockhampton
HEARING DATE:
11 July 2013
JUDGE:
Smith DCJ
ORDER:
- Judgment against the First and Second Defendants in favour of the Plaintiff in the sum of $445,127.30 plus interest in the sum of $25, 731.45 plus costs on an indemnity basis as agreed or assessed.
- I dismiss the application by the Plaintiff against the Third Defendant and dismiss the Third Defendant’s application against the Plaintiff.
- I will hear the Plaintiff and the Third Defendant on the issue of costs.
CATCHWORDS:
PRACTICE AND PROCEDURE- Summary Judgment- whether issues to be tried
CONTRACT- GUARANTEE- whether a guarantor- whether acceptance of the contract
Competition and Consumer Act 2010 (Cth)
Evidence Act 1977 (Q) s 59
Property Law Act 1974 (Q) s 56
Uniform Civil Procedure Rules 1999 (Q) R. 292, 293
ACCC v C.G. Berbatis Holdings Pty Ltd (2003) 214 CLR 51
Ankar Pty Ltd v National Westminster Finance (Aust) Ltd (1987) 162 CLR 549
Bacchus Marsh Concentrated Milk Co Ltd v Joseph Nathan and Co Ltd (1919) 26 CLR 410
Clark Equipment Credit of Australia v Kiyose Holdings Pty Ltd (1989) 21 NSWLR 160
Crane Distribution Ltd v Brown [2011] QSC 90
Crescendo Management Pty Ltd v Westpac (1988) 19 NSWLR 40
CSR Ltd v Casaron Pty Ltd and Ors. [2002] QSC 21
D and D Property Holdings Pty Ltd v Davidovic [2012] NSWDC 162
Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523
Kakavas v Crown Melbourne Ltd [2013] HCA 25
Linddales Pty Ltd v Macri Constructions Pty Ltd and Anor [2005] QSC 136
Paradise Constructors Pty Ltd v Lofts Quarries Pty Ltd [2003] VSC 370.
Spencer v The Commonwealth [2010] HCA 28
Western Export Services Inc v Jireh International Pty Ltd (2011) 282 ALR 604
Carter et al “Contract Law in Australia” 5th ed. 2007
O’Donovan and Phillips “The Modern Contract of guarantee” 3rd ed.1996
Rowlatt on Principal and Surety 4th ed. Marks and Moss 1982
COUNSEL:
Mr. B. Porter for the Plaintiff
Mr. P. Hackett for the Defendant
SOLICITORS:
Johnson Winter and Slattery for the Plaintiff
No appearance for the First and Second Defendants
Rose Litigation lawyers for the Third Defendant
Introduction
[1] This is an application by the Plaintiff for summary judgment in the sum of $445,127.30 plus interest and costs against the Defendants pursuant to UCPR r 292 based on guarantee purportedly entered into by them.
[2] There is a cross-application by the Third Defendant for judgment in his favour under UCPR 293 alleging that he did not enter into the guarantee.
Principles
[3] French CJ and Gummow J in Spencer v The Commonwealth [2010] HCA 28 said at [24]:
“The exercise…
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- Case
- [2013] QDC 164
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the Third Defendant was liable as a guarantor of the debt, and whether the Plaintiff’s application for summary judgment should be granted. The court had to determine if there were any triable issues between the parties, and if the Third Defendant’s defence was valid. The court also needed to consider the effect of the Competition and Consumer Act 2010 (Cth) and the Property Law Act 1974 (Q) on the matter.
The court found that there were no triable issues between the Plaintiff and the First and Second Defendants, and that the Third Defendant’s defence was not valid. The court held that the Third Defendant was liable as a guarantor of the debt, and that the Plaintiff’s application for summary judgment should be granted against the First and Second Defendants. The court dismissed the Plaintiff’s application against the Third Defendant and the Third Defendant’s application against the Plaintiff. The court ordered judgment against the First and Second Defendants in favour of the Plaintiff, and set a date to hear the issue of costs between the Plaintiff and the Third Defendant.
Orders
Orders of the court
1. Judgment against the First and Second Defendants in favour of the Plaintiff in the sum of $445,127.30 plus interest in the sum of $25, 731.45 plus costs on an indemnity basis as agreed or assessed.
2. I dismiss the application by the Plaintiff against the Third Defendant and dismiss the Third Defendant’s application against the Plaintiff.
3. I will hear the Plaintiff and the Third Defendant on the issue of costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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