RB Lease Pty Ltd v Heron - [2013] QCA 181

SUPREME COURT OF QUEENSLAND

CITATION:

RB Lease Pty Ltd v Heron [2013] QCA 181

PARTIES:

RB LEASE PTY LTD
ACN 144 560 056
(appellant)
v
JOHN SIMON HERON
(respondent)

FILE NO/S:

Appeal No 9535 of 2012
SC No 3891 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

12 July 2013

DELIVERED AT:

Brisbane

HEARING DATE:

19 April 2013

JUDGES:

Holmes JA and Daubney and Peter Lyons JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

The appeal is allowed.1.

The judgment and costs order below are set aside.2.

The respondent is to pay the appellant’s costs of the application and of this appeal.3.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – SUMMARY JUDGMENT – where the appellant company as assignee of the lender's rights under a loan agreement sued the respondent for the amount owed under his guarantee of the agreement – where the agreement provided for an advance to be made by direction – where the respondent, having filed an affidavit deposing that the borrower had not received the moneys to be advanced under the agreement, applied for summary judgment under r 293 of the Uniform Civil Procedure Rules – where a director of the appellant exhibited to an affidavit a statement of account under its name showing the loan advance and payments made in respect of it, without explanation of the source of the information contained it – where the appellant's director deposed that he anticipated obtaining through disclosure by the respondent and the liquidators of the borrower company documents proving the making of the advance – where the primary judge found that the appellant had not proved that the advance was made and gave judgment for the respondent – whether the statement of account provided some evidence, albeit of slender weight, of an advance – whether on the evidence before him, the primary judge could be satisfied that the appellant had no real prospect of success, and that there was no need for a trial

Corporations Act 2001 (Cth), s 286, s 1305
Uniform Civil Procedure Rules 1999 (Qld), r 293, r 295

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39, cited
Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41, cited
Bolton Properties Pty Ltd v J K Investments (Australia) Pty Ltd [2009] 2 Qd R 202; [2009] QCA 135, cited
Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232; [2005] QCA 227, cited
Queensland University of Technology v Project Constructions (Aust) Pty Ltd (in liq)& Anor [2003] 1 Qd R 259; [2002] QCA 224, cited

COUNSEL:

R Derrington QC, with M Cooke, for the appellant
P Davis QC, with D de Jersey, for the respondent

SOLICITORS:

Thynne and Macartney for the…

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] QCA 181
Decision Date: 12 July 2013

CaseChat Overview and Summary

In the case of RB Lease Pty Ltd v Heron, the appellant, RB Lease, sought to recover an amount owed under a guarantee provided by the respondent, Heron, for a loan agreement. The dispute arose when RB Lease, as the assignee of the lender's rights, sued Heron for the outstanding debt. Heron, in turn, applied for summary judgment under rule 293 of the Uniform Civil Procedure Rules, asserting that no advance had been made by the lender to the borrower as required by the loan agreement. The primary judge found in favour of Heron, concluding that RB Lease had not provided sufficient evidence to prove that the advance was made.

The central legal issues in the case revolved around the admissibility and weight of the evidence presented by RB Lease to substantiate the loan advance, and whether the primary judge was correct in finding that RB Lease had no real prospect of success. Specifically, the court had to determine whether the statement of account exhibited by RB Lease, which showed the loan advance and payments made, provided any evidence, albeit slight, of an advance. Additionally, the court needed to assess whether the primary judge was justified in his conclusion that there was no need for a trial based on the evidence available.

The court found that the statement of account, while not definitive proof of the advance, did provide some evidence of the loan. The court also held that the primary judge's decision was incorrect because he did not consider all the evidence properly, particularly the statement of account and the affidavit from RB Lease's director, which indicated an expectation that further evidence would be obtained through disclosure. The court concluded that the primary judge should have been more cautious in finding that RB Lease had no real prospect of success. Consequently, the appeal was allowed, the judgment and costs order in favour of Heron were set aside, and Heron was ordered to pay RB Lease's costs of the application and the appeal.

Orders

Orders of the court

The appeal is allowed.1.

The judgment and costs order below are set aside.2.

The respondent is to pay the appellant’s costs of the application and of this appeal.3.

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:	RB Lease Pty Ltd v Heron [2013] QCA 181
PARTIES:	RB LEASE PTY LTD ACN 144 560 056 (appellant) v JOHN SIMON HERON (respondent)
FILE NO/S:	Appeal No 9535 of 2012 SC No 3891 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	12 July 2013
DELIVERED AT:	Brisbane
HEARING DATE:	19 April 2013
JUDGES:	Holmes JA and Daubney and Peter Lyons JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	The appeal is allowed.1. The judgment and costs order below are set aside.2. The respondent is to pay the appellant’s costs of the application and of this appeal.3.
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – SUMMARY JUDGMENT – where the appellant company as assignee of the lender's rights under a loan agreement sued the respondent for the amount owed under his guarantee of the agreement – where the agreement provided for an advance to be made by direction – where the respondent, having filed an affidavit deposing that the borrower had not received the moneys to be advanced under the agreement, applied for summary judgment under r 293 of the Uniform Civil Procedure Rules – where a director of the appellant exhibited to an affidavit a statement of account under its name showing the loan advance and payments made in respect of it, without explanation of the source of the information contained it – where the appellant's director deposed that he anticipated obtaining through disclosure by the respondent and the liquidators of the borrower company documents proving the making of the advance – where the primary judge found that the appellant had not proved that the advance was made and gave judgment for the respondent – whether the statement of account provided some evidence, albeit of slender weight, of an advance – whether on the evidence before him, the primary judge could be satisfied that the appellant had no real prospect of success, and that there was no need for a trial Corporations Act 2001 (Cth), s 286, s 1305 Uniform Civil Procedure Rules 1999 (Qld), r 293, r 295 Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39, cited Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41, cited Bolton Properties Pty Ltd v J K Investments (Australia) Pty Ltd [2009] 2 Qd R 202; [2009] QCA 135, cited Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232; [2005] QCA 227, cited Queensland University of Technology v Project Constructions (Aust) Pty Ltd (in liq)& Anor [2003] 1 Qd R 259; [2002] QCA 224, cited
COUNSEL:	R Derrington QC, with M Cooke, for the appellant P Davis QC, with D de Jersey, for the respondent
SOLICITORS:	Thynne and Macartney for the…