Nyst v Cameron

[2017] QDC 264

DISTRICT COURT OF QUEENSLAND

CITATION: 

Nyst v Cameron [2017] QDC 264

PARTIES: 

NYST (plaintiff)

v

CAMERON (defendant)

FILE NO/S:

DC No 1518 of 2017

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT: 

District Court at Brisbane

DELIVERED ON:

21 September 2017 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE: 

21 September 2017

JUDGE:

Porter QC DCJ

ORDER:

1.   Pursuant to rule 292 of the Uniform Civil Procedure

Rules 1999 judgment be given for the plaintiff against the defendant.

2.   The defendant pay the plaintiff $126, 082.73.

3.   The defendant pay the plaintiff’s costs of the

proceeding to be assessed on the indemnity basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR PLAINTIFF OR APPLICANT – SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT – where the plaintiff, the lessor under a lease, seeks summary judgment against the defendant, a guarantor, of the obligations of a company under that lease – where the defendant seeks summary judgment on his defence against the plaintiff - where the plaintiff alleges there was a binding agreement between the parties in terms of the lease – where the plaintiff alleges the lease is registered and that registration attracts indefeasibility– where the plaintiff alleges Mr Cameron is liable on the guarantee contained in that lease - whether the defendant has no real prospect of successfully defending all or a part of the plaintiff’s claim – whether there is no need for a trial of the claim or the part of the claim.

Legislation

UCPR, rr 292, 293
Land Title Act 1994 (Qld) ss 71, 184, 185, Schedule 2

Cases

Ashton v Hunt [1998] QCA 308
Chan v Cresdon (1989) 168 CLR 242
Gattellaro v WestpacBanking Corporation [2004] HCA 6
Harvey v Dunbar Assets plc [2013] EWCA Civ 952
Streat v Fantastic Holdings Pty Ltd [2011] NSWSC 1097
Taubmans Pty Ltd v Loakes [1991] 2 Qd R 109

Other

Sharon Christensen, Bill Dixon, Anne Wallace, Thomson Reuters, Land Titles Law and Practice Queensland, (at 21 September 2017), section 10.3400

COUNSEL:

C Jennings for the plaintiff

M Bryne (solicitor) for the defendant

SOLICITORS:

Nyst Legal for the plaintiff
Coast to Coast Legal for the defendant

Introduction

1. I have before me dueling summary judgment applications.  The plaintiff, the lessor under a lease, seeks summary judgment against the defendant, a guarantor, the plaintiff says, of the obligations of a company under that lease.  The defendant, for his part, contends that he is entitled to summary judgment on his defence against the plaintiff’s claim under the guarantee.

2. The plaintiff’s primary argument is that there was a binding agreement between the parties in terms of a written lease signed by both parties (the lease), whether that required registration to attract indefeasibility or not; and that Mr Cameron is liable on the guarantee contained in that lease for unpaid rent and other amounts. 

3. Mr Cameron, for his part, defends on three grounds, primarily.  First, he contends that no binding agreement in…