Re: Queensland Premier Mines Pty Ltd - [2002] QSC 114

SUPREME COURT OF QUEENSLAND

CITATION: RE: Queensland Premier Mines PTY LTD [2002] QSC 114

PARTIES:QUEENSLAND PREMIER MINES PTY LTD (A.C.N. 010 614 552)
(Applicant)
v
RUSTY FRENCH
(Respondent)

FILE NO: S72/2002

DIVISION: Trial Division

DELIVERED ON: 30 April 2002

DELIVERED AT: Rockhampton

HEARING DATE: 19 April 2002

JUDGE: Dutney J

ORDERS:That the statutory demand served by the respondent on the applicant on 22 January 2002 be set aside. Costs to abide the result in action S187/2002 between Queensland Premier Mines PTY LTD and Rusty French.

CATCHWORDS: CORPORATIONS LAW – STATUTORY DEMAND – sufficiency of supporting affidavit – whether supporting affidavit identifies the nature of the dispute as being as to the existence of a contract between Marminta and the respondent – whether applicant’s affidavit is a supplementary affidavit according to S459G Corporations Law.
CONTRACT – FORMATION – offer and acceptance – whether necessary elements of a contract exist - intention to be bound.

STAMP DUTIES – INSTRUMENTS LIABLE –whether letter proposes terms of conditional contract dutiable.

Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Fund (1996) 70 FCR 452 – FAA.
Haque v Haque (1965) 114 CLR 98 – CON. Howard v Miller [1915] AC 318 – CON.
Re Morris Catering (Aust) Pty Ltd (1993) 11 ACSR 601 – FAA.
Corporations Law (Cth), s459G.
Stamp Act 1894, ss4A, 25.

COUNSEL:J.F. Curran for the Applicant
P.E. Hack SC for the Respondent

SOLICITORS: Robert Harris and Co Solicitors for the Applicant
HopgoodGanim Lawyers for the Respondent

[1] Dutney J This is an application to set aside a statutory demand. The applicant is the mortgagor of land on the Capricorn Coast. The respondent is the registered mortgagee.

The respondent acquired the mortgage by assignment from the original mortgagee, Seventeenth Febtor Pty Ltd.

The alleged dispute in relation to the debt claimed by the respondent arises because of an alleged contract between the respondent and a company, Marminta Pty Ltd. By which the respondent agreed to assign the mortgage to Marminta Pty Ltd for a consideration of $950,000. Marminta is a company related to the applicant in having common directors. Both describe themselves as being in the “Beckinsale Company Group”.

The agreement on which the applicant relies is partly written and partly oral or by conduct. Insofar as the agreement is written it comprises a letter from Marminta Pty Ltd to the respondent dated 4 January, 2000 and a facsimile from the respondent to Marminta Pty Ltd dated 5 January, 2000

The earlier letter contains an offer to buy the mortgage for $950,000 by means of a non refundable deposit of $50,000 within 14 days, a payment of $450,000 on 30 April, and a final payment of $450,000 on or before 30 June, 2000.

In the responding facsimile, the respondent, after referring to the letter of the previous day wrote:
“I hereby accept your offer as set out in the above mentioned fax, on the provision that your non-refundable deposit of $50,000.00 is received in my office within 14 days…

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 Re: Queensland Premier Mines Pty Ltd 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: [2002] QSC 114
Decision Date: 30 April 2002

CaseChat Overview and Summary

This case involved an application to set aside a statutory demand. The applicant, Queensland Premier Mines Pty Ltd, sought to have a statutory demand served by the respondent, Rusty French, set aside. The statutory demand was in relation to a debt claimed by the respondent, which arose from an alleged contract between the respondent and Marminta Pty Ltd. The applicant argued that there was a genuine dispute as to the existence of this contract.
The central legal issue was whether the applicant had raised a genuine dispute concerning the existence of a contract between the respondent and Marminta. The court had to consider the sufficiency of the supporting affidavit and whether it identified the nature of the dispute. The respondent also argued that the evidence relied upon was not stamped, which would make it inadmissible.
The court held that there was a genuine dispute concerning the existence of a contract between the respondent and Marminta. The correspondence and evidence showed that the parties had agreed on terms, albeit subject to certain conditions. The supporting affidavit was sufficient to support the application as it identified the nature of the dispute and exhibited the relevant correspondence. The court also found that the lack of stamping did not render the evidence inadmissible as it was not an instrument that was legally binding or a contract that was dutiable.
The court set aside the statutory demand and ordered that costs of the application would follow the result of the action for specific performance filed by Marminta. The court also directed that the trial of that action should be held as early as was convenient, with a potential trial date as early as June.

Orders