Smits v Brown - [2012] QSC 180

SUPREME COURT OF QUEENSLAND

CITATION:

Smits v Brown [2012] QSC 180

PARTIES:

LEONARDUS GERARDUS SMITS
(plaintiff)
v
WARREN THOMAS BROWN
(defendant)

FILE NO/S:

BS No. 9948 of 2009

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

22 June 2012

DELIVERED AT:

Brisbane

HEARING DATE:

27 March 2012

JUDGE:

Ann Lyons J

ORDER:

The plaintiff’s claim is dismissed and judgment entered in favour of the defendant pursuant to rule 293 of the Uniform Civil Procedure Rules 1999 (Qld).

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE –QUEENSLAND – PRACTICE UNDER RULES OF COURT
– SUMMARY JUDGMENT – where the plaintiff/respondent is the assignee of mortgage debts purchased from a company that purchased the mortgage debts from the mortgagor and sues for recovery of debts incurred by a partnership – where defendant/applicant argues that the partnership was terminated prior to the debts being incurred and where there is a written agreement terminating the partnership – where there has been a previous finding by this Court that the written agreement dissolved the partnership and immediately abrogated all of the defendant/applicant’s rights and obligations with respect to the creditors of the partnership – where there has been a previous finding by this Court regarding the same debt and the defendant/applicant argues that the entry of judgement extinguishes the plaintiff/respondent’s right to maintain proceedings on the same cause of action and alternatively that the action is barred by an Anshun estoppel – application of r 293 Uniform Civil Procedure Rules 1999 (Qld) in granting summary judgment – whether the appellant has no real prospect of successfully defending the respondent’s claim.

Partnership Act 1981 (Qld), s 11
Property Law Act 1974 (Qld), s 199
Uniform Civil Procedure Rules, r 293

Body Corporate of the Lang Business CTS 5941 v Green [2008] QSC 318
Brown v Ogle [2006] QCS 74
C G Maloney Pty Ltd v Noon [2011] NSWCA 397
Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232
Jackson v Goldsmith (1950) 81 CLR 446
Jessup v Lawyers Private Mortgages Ltd [2006] QCS 3
JM Kelly (Project Builders) Pty Ltd v Toga Developments 31 Pty Ltd (No 2) [2008] QSC 312
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Thomas v Balanced Securities Limited [2011] QCA 258

COUNSEL:

A Greinke for the plaintiff

R Derrington SC with D de Jersey for the defendant

SOLICITORS:

Morgan Conley for the plaintiff

JHK Legal for the defendant

ANN LYONS J:

This application

Pursuant to an application filed on 24 February 2012 the defendant, Warren Thomas Brown (Brown), seeks an order for summary judgment pursuant to r 293 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) against the plaintiff Leonardus Gerardus Smits (Smits) in respect of the proceedings filed by Smits on 9 September 2009.

The 2009 Claim by Smits

The basis of the claim by Smits, outlined in the Statement of Claim as amended on 1 December 2011, is as follows:

(i)…

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.

Continue reading Smits v Brown

Details

AGLC: Smits v Brown [2012] QSC 180
Case: [2012] QSC 180
Decision Date: 22 June 2012

CaseChat Overview and Summary

In the case of Smits v Brown, the respondent, Smits, sought to recover debts from the applicant, Brown, which were incurred by a partnership. Smits is the assignee of mortgage debts purchased from Tendiris Pty Ltd, which in turn had purchased the debt from the partnership. The applicant argues that the partnership was terminated prior to the debts being incurred, citing a written agreement, the 1998 Agreement. The applicant also argues that the respondent’s claim is barred by an Anshun estoppel, as the same claim was dismissed previously by Chesterman J.

The court had to decide whether the applicant had no real prospect of successfully defending the respondent’s claim, particularly given the prior dismissal of a similar claim and the alleged termination of the partnership. The court also considered whether the applicant's rights and obligations concerning the partnership’s creditors were abrogated by the 1998 Agreement, as previously found by Mullins J in Brown v Ogle.

The court found that the applicant had no real prospect of successfully defending the respondent’s claim. The court relied on the previous findings of Mullins J that the 1998 Agreement dissolved the partnership and immediately abrogated all of the applicant’s rights and obligations with respect to the creditors. The court also found that the dismissal of the previous claim by Chesterman J barred the current claim by Smits on the same cause of action, either by the principle that the entry of judgment extinguishes the right to maintain proceedings on the same cause of action or by an Anshun estoppel.

The court dismissed the plaintiff’s claim and entered judgment in favour of the defendant pursuant to rule 293 of the Uniform Civil Procedure Rules 1999 (Qld).

Orders

Orders of the court

1. The plaintiff’s claim is dismissed and judgment entered in favour of the defendant pursuant to rule 293 of the Uniform Civil Procedure Rules 1999 (Qld).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The plaintiff’s claim is dismissed and judgment entered in favour of the defendant pursuant to rule 293 of the Uniform Civil Procedure Rules 1999 (Qld). Pursuant to an application filed on 24 February 2012 the defendant, Warren Thomas Brown (Brown), seeks an order for summary judgment pursuant to r 293 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) against the plaintiff Leonardus Gerardus Smits (Smits) in respect of the proceedings filed by Smits on 9 September 2009. The basis of the claim by Smits, outlined in the Statement of Claim as amended on 1 December 2011, is as follows: Smits is the assignee of debts incurred by Ogle to Elliott & Harvey, Setglade and Baseline. He purchased the mortgage debts from Tendiris Pty Ltd in 2007 for $10 and Tendiris had purchased the debt from Elliott & Harvey for the same amount. Smits sues for recovery of debts incurred by the partnership between Brown and Ogle. An order for summary judgment is pursued by the defendant Brown because it is argued that whilst Ogle and Brown were in partnership pursuant to the 1995 Agreement, that partnership ceased on 10 September 1998 when the partnership was terminated by the 1998 Agreement. It is also argued that the 1998 Agreement is, prima facie, a complete bar to any assertion that a partnership existed after 10 September 1998. Pursuant to that Agreement, it is submitted that Brown was released from any continuing obligations under the 1995 Agreement. It is argued that Mullins J made this finding in the Brown v Ogle[1] proceedings in 2006.[1][2006] QSC 74. Furthermore, it is argued that there are no other circumstances which support a finding that a partnership existed after 10 September 1998 and that the debts incurred by Ogle, in his name and for his own purposes, were incurred after the 1995 Agreement was terminated by the 1998 Agreement. Essentially, counsel for Brown argued that Brown entered into a second agreement with Ogle on 10 September 1998 and that this agreement had two effects: first, it dissolved their partnership; and secondly, it immediately abrogated all of Brown’s rights and obligations with respect to the creditors of the partnership. The findings of Mullins J are also relied upon to support that assertion. It is further argued that the current proceedings by Smits are the same as those issued by him in July 2008 and dismissed by Chesterman J (as he then was) on 6 August 2008. Counsel for the defendant accordingly submits that the dismissal of the action by Smits against Brown by Chesterman J now bars the present claim by Smits for the same debt. That is argued on alternative bases: first, that the entry of judgment extinguishes the right to maintain proceedings based on the same cause of action;[2] and secondly, to the extent to which the claim is founded upon some other basis the action is barred by an Anshun estoppel.[3] [2]Jackson v Goldsmith (1950) 81 CLR 446; Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. [3]Thomas v Balanced Securities Limited [2011] QCA 258; C G Maloney Pty Ltd v Noon [2011] NSWCA 397.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Smits v Brown [2012] QSC 180
PARTIES:	LEONARDUS GERARDUS SMITS (plaintiff) v WARREN THOMAS BROWN (defendant)
FILE NO/S:	BS No. 9948 of 2009
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	22 June 2012
DELIVERED AT:	Brisbane
HEARING DATE:	27 March 2012
JUDGE:	Ann Lyons J
ORDER:	*The plaintiff’s claim is dismissed and judgment entered in favour of the defendant pursuant to rule 293 of the Uniform Civil Procedure Rules* 1999 (Qld).**
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE –QUEENSLAND – PRACTICE UNDER RULES OF COURT – SUMMARY JUDGMENT – where the plaintiff/respondent is the assignee of mortgage debts purchased from a company that purchased the mortgage debts from the mortgagor and sues for recovery of debts incurred by a partnership – where defendant/applicant argues that the partnership was terminated prior to the debts being incurred and where there is a written agreement terminating the partnership – where there has been a previous finding by this Court that the written agreement dissolved the partnership and immediately abrogated all of the defendant/applicant’s rights and obligations with respect to the creditors of the partnership – where there has been a previous finding by this Court regarding the same debt and the defendant/applicant argues that the entry of judgement extinguishes the plaintiff/respondent’s right to maintain proceedings on the same cause of action and alternatively that the action is barred by an Anshun estoppel – application of r 293 Uniform Civil Procedure Rules 1999 (Qld) in granting summary judgment – whether the appellant has no real prospect of successfully defending the respondent’s claim. Partnership Act 1981 (Qld), s 11 Property Law Act 1974 (Qld), s 199 Uniform Civil Procedure Rules, r 293 Body Corporate of the Lang Business CTS 5941 v Green [2008] QSC 318 Brown v Ogle [2006] QCS 74 C G Maloney Pty Ltd v Noon [2011] NSWCA 397 Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 Jackson v Goldsmith (1950) 81 CLR 446 Jessup v Lawyers Private Mortgages Ltd [2006] QCS 3 JM Kelly (Project Builders) Pty Ltd v Toga Developments 31 Pty Ltd (No 2) [2008] QSC 312 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Thomas v Balanced Securities Limited [2011] QCA 258
COUNSEL:	A Greinke for the plaintiff R Derrington SC with D de Jersey for the defendant
SOLICITORS:	Morgan Conley for the plaintiff JHK Legal for the defendant