St George Bank Limited v Wright (No 2) - [2009] QSC 350

SUPREME COURT OF QUEENSLAND

CITATION:

St George Bank Limited v Wright & Ors (No 2)
[2009] QSC 350

PARTIES:

ST GEORGE BANK LIMITED ACN 055 513 070
(plaintiff)

v

RONALD JOHN WRIGHT
(first defendant)

NERIDAH VALERIE WRIGHT
(second defendant)

SANDRA LOUISE PEPI
(third defendant)

SHARON LEE SCHOFIELD
(fourth defendant)

KYLE WRIGHT
(fifth defendant)

ELLIOTT HARVEY SECURITIES LIMITED
ACN 089 156 605
(second defendant by counterclaim)

MICHAEL HARVEY
(third defendant by counterclaim)

FILE NO/S:

BS 2786 of 2009

DIVISION:

Trial Division

PROCEEDING:

Hearing

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

6 November 2009

DELIVERED AT:

Brisbane

HEARING DATE:

5 November 2009

JUDGE:

McMurdo J

ORDER:

There will be judgment for the plaintiff against the defendants upon their counterclaim.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – SUMMARY JUDGMENT – whether summary judgment should be given in respect of the counterclaim

St George Bank Ltd v Wright & Ors [2009] QSC 337, cited

COUNSEL:

B D O’Donnell QC, with D de Jersey, for the plaintiff
L Venville (sol) for the first to fifth defendants
P D Tucker for the second and third defendants by counterclaim

SOLICITORS:

Gadens for the plaintiff
Archibald & Brown for the first to fifth defendants
Elliott & Harvey for the second and third defendants by counterclaim

On 26 October I gave judgment for the plaintiff against the defendants.[1] In my reasons, I referred to the counterclaim against the plaintiff and said that it appeared to follow that it should be struck out. The plaintiff had filed an alternative application to strike out parts of the Defence and the entirety of the counterclaim. I stood the matter over to yesterday to provide the parties with an opportunity to consider my reasons for judgment before making submissions about the fate of the counterclaim.
[1][2009] QSC 337.

Yesterday counsel for the plaintiff made an oral application for summary judgment on the counterclaim. They said that the bank should have a judgment because it would preclude the defendants from prosecuting any cause of action or litigating any issue which is within the counterclaim against the bank.

The counterclaim is pleaded not only against the bank but against Elliot Harvey Securities Ltd and Michael Harvey. All of the factual allegations pleaded in the counterclaim are relevant only to those parties, and not to the bank, save for that paragraph which simply incorporates the allegations pleaded within the Defence to the bank’s statement of claim. Accordingly any case within the counterclaim has been necessarily determined by my judgment. The relief claimed against the bank is for declaratory and injunctive relief going to the enforceability of the guarantee. There is also a counterclaim for “equitable compensation” which appears to relate to the defendants’ pleading that each of them (and Ronbar) was under a “special disability” in dealing with the plaintiff, a case which was not pressed in argument and which had no support in Mr Wright’s affidavit.

The defendants’ solicitor responded to…

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: [2009] QSC 350
Decision Date: 6 November 2009

CaseChat Overview and Summary

In the matter of St George Bank Limited v Wright, the dispute arose out of a transaction involving a loan and a mortgage over a property. The bank sought to recover outstanding debts from the defendant, while the defendant counterclaimed for damages related to the bank's handling of the mortgage. The matter was heard in the Supreme Court of Queensland.

The central legal issue before the court was whether summary judgment should be granted in respect of the defendant's counterclaim. The bank argued that the counterclaim was without merit and sought summary judgment to dismiss it. The court had to consider whether the defendant's counterclaim had any real prospect of success and whether there were any triable issues of fact that required a full trial.

The court determined that the defendant's counterclaim lacked merit and was unlikely to succeed. It was found that the defendant had not provided sufficient evidence to support the allegations made in the counterclaim. The court held that there were no triable issues of fact, and the counterclaim was properly dismissed. Consequently, judgment was entered in favour of the bank against the defendants on their counterclaim.

The court ordered that judgment be given for the plaintiff, St George Bank Limited, against the defendants on their counterclaim.

Orders

Orders of the court

There will be judgment for the plaintiff against the defendants upon their counterclaim.

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:	St George Bank Limited v Wright & Ors (No 2) [2009] QSC 350
PARTIES:	ST GEORGE BANK LIMITED ACN 055 513 070 (plaintiff) v RONALD JOHN WRIGHT (first defendant) NERIDAH VALERIE WRIGHT (second defendant) SANDRA LOUISE PEPI (third defendant) SHARON LEE SCHOFIELD (fourth defendant) KYLE WRIGHT (fifth defendant) ELLIOTT HARVEY SECURITIES LIMITED ACN 089 156 605 (second defendant by counterclaim) MICHAEL HARVEY (third defendant by counterclaim)
FILE NO/S:	BS 2786 of 2009
DIVISION:	Trial Division
PROCEEDING:	Hearing
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	6 November 2009
DELIVERED AT:	Brisbane
HEARING DATE:	5 November 2009
JUDGE:	McMurdo J
ORDER:	There will be judgment for the plaintiff against the defendants upon their counterclaim.
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – SUMMARY JUDGMENT – whether summary judgment should be given in respect of the counterclaim St George Bank Ltd v Wright & Ors [2009] QSC 337, cited
COUNSEL:	B D O’Donnell QC, with D de Jersey, for the plaintiff L Venville (sol) for the first to fifth defendants P D Tucker for the second and third defendants by counterclaim
SOLICITORS:	Gadens for the plaintiff Archibald & Brown for the first to fifth defendants Elliott & Harvey for the second and third defendants by counterclaim