Powell v Camm

[2003] QCA 353

SUPREME COURT OF QUEENSLAND

CITATION:

Powell v Camm [2003] QCA 353

PARTIES:

ERNEST HARRY POWELL
(plaintiff/respondent)
v
GARY STIRLING CAMM
(defendant/appellant)

FILE NO/S:

Appeal No 9037 of 2002
SC No 8945 of 2000

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

15 August 2003

DELIVERED AT:

Brisbane

HEARING DATE:

4 August 2003

JUDGES:

McMurdo P, Muir and Holmes JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs to be assessed

CATCHWORDS:

PROCEDURE – QUEENSLAND – SUMMARY JUDGMENT - where respondent granted summary judgment “insofar as it arises in the proceedings” - where appellant sought adjournment to produce affidavit evidence as defence material  - whether the learned primary judged erred in refusing adjournment – whether the refusal caused the appellant any injustice

Maxwell v Keun [1928] 1 KB 645, followed

Sali v SPC Ltd (1993) 67 ALJR 841, followed

COUNSEL:

P J Favell for the appellant
M T Brady for the respondent

SOLICITORS:

Bain Gasteen Lawyers for the appellant
Rogers Matheson Clark for the respondent

1. McMURDO P:  This is an appeal from an order of 30 August 2002 giving summary judgment to the respondent "insofar as it arises in the proceedings" in the amount of $556,200.49 with costs to be assessed, and that the proceedings be otherwise adjourned.  The judgment is based on a signed agreement between the parties dated 27 March 2000.  The sole ground of appeal now sought to be argued is that the learned primary judge erred in failing to adjourn the hearing of the summary judgment application to enable the appellant to produce affidavit evidence to the court as to five matters raised in his defence, first, that the appellant appointed the Stirling-Camm Trust, not the appellant, as the respondent's agent to invest funds; second, duress; third, the agreement was amended; fourth, the agreement was amended so that another person would pay the amount directly to the respondent; and fifth, repayments beyond those conceded by the respondent have been made.  The appellant offers, if successful, to pay the respondent's costs of the appeal and the summary judgment application.

1. The respondent, a 67 year old US citizen, filed a Supreme Court claim on 13 October 2000 against the appellant for damages for breach of contract.  His statement of claim relevantly pleaded an original oral agreement between the parties to invest $US310,000 in Cellnet shares and that the appellant was in breach of a second agreement entered into at the appellant's home at 123 Lake Weyba Drive, Noosaville on or about 27 March 2000 in which the appellant agreed to repay to the respondent $US310,000; only $A6,004.80 had been repaid.

1. The appellant filed a defence on 23 November 2000 claiming in relation to the second agreement that it was made on behalf of the Stirling-Camm Trust; that it was varied; that it was executed under duress in that the respondent and his nephew refused…