Neilsens Concrete Pty Ltd v Heath - [2013] QDC 164

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” 5^th ed. 2007

O’Donovan and Phillips “The Modern Contract of guarantee” 3^rd ed.1996

Rowlatt on Principal and Surety 4^th 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…

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: [2013] QDC 164
Decision Date: 19 July 2013

CaseChat Overview and Summary

Neilsens Concrete Pty Ltd filed a claim against Heath, who was the Director of two companies, seeking the recovery of money owed from a contract. The case was heard by the Queensland Supreme Court. The Plaintiff, Neilsens Concrete, sought summary judgment against the First and Second Defendants, who were the companies that owed the debt, and against the Third Defendant, Heath, as a guarantor of the debt. The Plaintiff also sought to strike out the Third Defendant’s defence on the basis that it had no reasonable prospect of success.

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

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:	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” 5^th ed. 2007 O’Donovan and Phillips “The Modern Contract of guarantee” 3^rd ed.1996 Rowlatt on Principal and Surety 4^th 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