Octobay P/L v Thomas

SUPREME COURT OF QUEENSLAND

CITATION:

Octobay P/L v Thomas [2012] QSC 362

PARTIES:

OCTOBAY PTY LTD ACN 010 838 516

(applicant/plaintiff)

v

MATHEW EDWARD THOMAS

(respondent/defendant)

FILE NO/S:

BS11357/11

DIVISION:

Trial

PROCEEDING:

Application

DELIVERED ON:

19 November 2012

DELIVERED AT:

Brisbane

HEARING DATE:

12 and 19 November 2012

JUDGE:

Jackson J

ORDER:

1.The application for summary judgment on the claim is dismissed.       

2.The application for summary judgment on the Counter-claim is allowed, to the extent that the plaintiff has judgment on that part of the counter-claim which is for damages for breach of contract.       

3.The application for summary judgment on the counter-claim is otherwise dismissed.       

4.The defendant pay into Court the sum of $270,000, or, alternatively, give security in that sum in a form acceptable to the Registrar within 28 days of this order, failing which the plaintiff be at liberty to enter judgment against the defendant for the amount of the claim together with interest and costs.       

5.That the costs of the application, including reserved costs, be costs in the proceeding.        

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – SUMMARY JUDGMENT – where the plaintiff claims that it has demanded payment from the defendant of an amount outstanding under a loan facility agreement as amended by the variation agreement – where the defendant alleges that the variation agreement was not the written agreement relied upon by the plaintiff but was an oral agreement – where the defendant also counterclaims that the plaintiff represented to the defendant that it sought to enter into the oral variation agreement and that the making of that representation was conduct which was misleading and deceptive – whether the defendant has no real prospect of successfully defending the claim or, as plaintiff in the counterclaim, of successfully pleading its claim 

Supreme Court Act 1995 (Qld)
Uniform Civil Procedure Rules 1999 (Qld)

Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304, cited
Duhs v Pettett (2009) QSC 100, cited
Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471, considered
Hoyts Pty Ltd v  Spencer (1919) 27 CLR 133, cited
Pettett v Duhs (2009) QCA 347, cited

Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387, cited

COUNSEL:

M Black for the applicant/plaintiff

The defendant in person

SOLICITORS:

Mullins Lawyers for the applicant/plaintiff

1. Jackson J: The plaintiff applies for summary judgment both on the claim and the counterclaim.  The claim is, on its face, for $1,094,277.29 as moneys due and owing pursuant to a guarantee together with interest.  The total amount which is proved is $1,384,817.46 in respect of the money lent and interest, and there is another sum claimed under the relevant facility agreement by way of costs or expenses in the sum of $11,441.92, totalling $1,396,259 and odd cents. 

1. It is admitted that on or about 27 March 2009 the plaintiff entered into a written loan facility agreement with Wardell Street Investments Pty Ltd ACN…