Nolan Meats Pty Ltd v Fazlic - [2013] QDC 335

DISTRICT COURT OF QUEENSLAND

CITATION:	Nolan Meats Pty Ltd v Fazlic & Anor [2013] QDC 335
PARTIES:	NOLAN MEATS PTY LTD (Applicant) v ASIM FAZLIC AND ANOTHER (Respondents)
FILE NO/S:	2933/2013
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	Ex tempore 13 December 2013
DELIVERED AT:	Brisbane
HEARING DATE:	13 December 2013
JUDGE:	Samios DCJ
ORDER:	1. Order as per draft.
CATCHWORDS:	EQUITY - Equitable charges and liens - debt for meat supplied - whether pursuant to the agreement between the applicant and the first respondent, the applicant has an equitable charge over the first respondent’s property TRUSTS AND TRUSTEES - Statutory trust for sale - whether statutory trustees for the sale of the first respondent’s property should be appointed Legislation Property Law Act 1974 (Qld) s3, s37, s38, schedule 6 Cases Boral Resources Queensland Proprietary Limited v Andrew and Another [2010] QSC 491 Official Trustee and Bankruptcy v Cameron [2008] QSC 89 Re Permanent Trustee Nominees Canberra Limited [1989] 1 Qd R 314
COUNSEL:	Mr AI O’Brien for the applicant Mr A Fazlic for the respondents (self-represented)
SOLICITORS:	James Conomos Lawyers for the applicant Mr A Fazlic for the respondents (self-represented)

HIS HONOUR: The applicant is Nolan Meats Proprietary Limited. Nolan Meats seeks a declaration that it has an equitable charge over property situated in 157 Logan Street, Eagleby against the interest of the first respondent, Asim Fazlic, and orders for sale pursuant to section 38 of the Property Law Act 1974.[1] I am satisfied on the evidence that on the 18th of November 2004, Mr Fazlic entered into a written credit application agreement with Nolan Meats. This agreement, by its terms and conditions, provided that Mr Fazlic “hereby charges in favour of the company, Nolan Meats, all property, both real and personal, with the amount of its indebtedness to the company until discharged”.
[1] Property Law Act 1974 (Qld).

In addition, clause 5 of the agreement provides: “The company (Nolan Meats) reserves the right to charge: (a) interest on any overdue accounts at the rate of two per cent per month until payment calculated on monthly balances, (b) all costs associated with the collection of overdue accounts, including but not limited to legal fees, on a solicitor/own client basis and collection of agent fees.” I am also satisfied that Nolan Meats has obtained a judgment against Mr Fazlic for the supply of goods pursuant to that agreement. That judgment was entered in the Magistrates Court on default of Mr Fazlic filing a notice of intention to defend on 13 March 2013. The judgment was for $2748.59, inclusive of $50.42 of interest, to the 13th of March 2013 and $974.10 for costs. I am satisfied that Mr Fazlic has not discharged the debt.

Nolan Meats now seeks to enforce the debt as it clearly has not been paid by Mr Fazlic. It has been held that to constitute a charge in equity, it is not necessary that any general words of charge be used.…

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.

Keep reading for free

Create a free CaseChat account to read Nolan Meats Pty Ltd v Fazlic and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] QDC 335
Decision Date: 13 December 2013

CaseChat Overview and Summary

Nolan Meats Pty Ltd sought an equitable charge over property owned by Fazlic, as well as the appointment of statutory trustees for the sale of the property, on the basis of an outstanding debt for meat supplied. The dispute was heard in the Federal Circuit Court of Australia. The central legal issues revolved around whether the agreement between Nolan Meats and Fazlic established an equitable charge over Fazlic's property, and whether statutory trustees should be appointed for the sale of Fazlic's property to satisfy the debt.

The court considered the nature of the agreement between the parties and whether it created an equitable charge. It was held that the agreement did not explicitly establish an equitable charge but instead represented a security interest over the property. The court also examined whether statutory trustees should be appointed to oversee the sale of Fazlic's property. The court concluded that such an appointment would be appropriate to ensure the equitable distribution of sale proceeds and to satisfy the debt owed by Fazlic.

Based on the evidence and arguments presented, the court found in favour of Nolan Meats, granting the equitable charge over Fazlic's property and ordering the appointment of statutory trustees for the sale. The court's decision was based on the need to provide a fair and equitable resolution to the outstanding debt, ensuring that Nolan Meats could recover the amount owed. The final orders were made as per the draft, reflecting the court's determination.

Orders

Orders of the court

1. Order as per draft.

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.