Stevenson v Carter-Lannstrom

Case [2020] QCA 284

SUPREME COURT OF QUEENSLAND

CITATION:

Stevenson & Anor v Carter-Lannstrom & Anor [2020] QCA 284

PARTIES:

JUDITH MARGARET STEVENSON
(first applicant/appellant)
ANTHONY DAVID GRAY
(second applicant/appellant)
v
MARGARET CARTER-LANNSTROM AND ADAM JAMES CARTER-LANNSTROM AS TRUSTEES FOR THE MARGARET CARTER-LANNSTROM SELF-MANAGED SUPERANNUATION FUND
(respondents)

FILE NO/S:

Appeal No 13895 of 2019
Appeal No 5644 of 2020
SC No 4300 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension of Time/General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – Unreported, 14 March 2019 (Flanagan J); [2019] QSC 169 (Burns J)

DELIVERED ON:

11 December 2020

DELIVERED AT:

Brisbane

HEARING DATE:

9 November 2020

JUDGES:

Morrison and McMurdo and Mullins JJA

ORDERS:

In Appeal No 13895 of 2019:

1.   The application for an extension of time within which to appeal on the part of Anthony David Gray is refused, with costs.

2.   The application by Judith Margaret Stevenson is adjourned to a date to be fixed, costs reserved.

In Appeal No 5644 of 2020:

1.   The application for extension of time by Anthony David Gray is refused, with costs.

2.   The application by Judith Margaret Stevenson is adjourned to a date to be fixed, costs reserved.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – where the respondents, carrying on business as money lenders, loaned $500,000 to a corporation – where a loan agreement was executed and the appellants entered into a deed of guarantee and indemnity, under which they jointly and severally guaranteed the performance of repayment under the loan agreement – where a demand was made on the appellants pursuant to the guarantee on 8 April 2016 – where the lender commenced proceedings against the appellants on 29 April 2016 – where defences were filed by both appellants on 16 June 2016 – where Mr Gray filed an amended defence on 11 April 2017, and a pleading in substantially the same terms as Mr Gray’s amended defence was served on behalf of Mrs Stevenson – where on 14 March 2019 Flanagan J ordered that the amended defences be struck out – where in Appeal No 5644 of 2020 the appellants seek to challenge those orders – where the application seeking an extension of time within which to appeal was filed more than 13 months out of time – whether an extension should be granted

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – where on 14 November 2016 the lender filed an application for summary judgment – where it was adjourned by agreement – where on 20 February 2019 the respondents filed a further application for summary judgment or, alternatively, an order striking out the amended defences – where that application was heard by Flanagan J – where on 3 May 2019 an application for summary judgment was filed – where the application came on for hearing by Burns J on 31 May 2019 – where Burns J gave summary judgment on…

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AGLC
Stevenson v Carter-Lannstrom [2020] QCA 284
Case
[2020] QCA 284
Decision Date

CaseChat Overview and Summary

In Stevenson v Carter-Lannstrom, the appellants, Judith Margaret Stevenson and Anthony David Gray, sought to challenge orders made by the lower court in relation to a loan agreement and a deed of guarantee and indemnity. The respondents, acting as money lenders, had loaned $500,000 to a corporation, with the appellants jointly and severally guaranteeing the repayment of the loan. The case was before the court on two separate appeals concerning the granting of summary judgment and the striking out of amended defences. The appellants sought extensions of time to appeal against the lower court's orders, with the applications being filed out of time.

The primary legal issues before the court were whether extensions of time should be granted for the appellants to appeal against the lower court's orders, and if so, on what grounds. The appellants argued that they had not received copies of the material upon which the orders were made, that Mr Gray was in custody without access to legal and other necessary resources, and that the respondents knew of the appellants' circumstances. They further contended that the respondents' claim was founded on an illegality, as a Self-Managed Superannuation Fund could not lawfully trade as a money-lender, and that there were other triable issues.

The court found that the appellants had not provided sufficient justification for the delay in filing the appeals. The appellants had not received copies of the material upon which the orders were made, but it was noted that they had been served with the original summary judgment application and had filed submissions in response. The court also found that the appellants' circumstances did not warrant an extension of time, as they had been aware of the proceedings and had not taken up the opportunity to re-plead. The court held that the appellants' claims of illegality and other triable issues did not provide sufficient grounds for an extension of time.

The court ultimately refused the applications for extensions of time to appeal in both Appeal No 5644 of 2020 and Appeal No 13895 of 2019, with costs. The application by Judith Margaret Stevenson was adjourned to a date to be fixed, with costs reserved. The court held that the appellants had not provided sufficient justification for the delay in filing the appeals and that their claims of illegality and other triable issues did not warrant an extension of time.

Orders

Orders of the court

In Appeal No 13895 of 2019:

1. The application for an extension of time within which to appeal on the part of Anthony David Gray is refused, with costs.

2. The application by Judith Margaret Stevenson is adjourned to a date to be fixed, costs reserved.

In Appeal No 5644 of 2020:

1. The application for extension of time by Anthony David Gray is refused, with costs.

2. The application by Judith Margaret Stevenson is adjourned to a date to be fixed, costs reserved.

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

For these reasons it seems to me appropriate to adjourn the current proceedings before this Court insofar as they concern Mrs Stevenson, to permit her time to obtain legal assistance (if possible) and present her own case to this Court.Summary judgment – orders of Burns J Burns J referred to a number of matters in the course of his reasons concerning the grant of summary judgment. They included:[38](a)the appellants did not dispute that the deed of guarantee was executed by them or that the borrower had defaulted in repayment of the loan;(b)the only basis of defence was contained in defences which had been struck out by Flanagan J;(c)neither of the appellants had taken up the opportunity to re-plead;(d)Mr Gray’s submissions were confined to the question of interest;(e)no viable defence had been articulated by either of the appellants in the period of three years since the proceeding had been commenced;(f)there were, in addition, repeated failures to properly comply with orders of the court, including attendance at a court-ordered mediation; and(g)in supplementary written submissions, Mr Gray contended that there were several triable issues, but all that was submitted as to the claim under the guarantee was that the interest rate was unconscionable, and “Nobody would willingly enter into such arrangements without some reason. These are the representations relied upon and the joint venture arrangements which the plaintiffs could contest at trial”.[39][38]Reasons below at [21].[39]Reasons below at [22]. His Honour then said:[40]“[23] Although the onus is on the plaintiffs to make out an entitlement to summary judgment, the determination of that issue necessarily requires a consideration of whether the defendants have established some real prospect of succeeding at trial. The submission extracted immediately above hardly does that. To the extent that it was intended by the first defendant to refer back to the contents of the struck out amended defences, it may simply be observed that, if there was a defence to any part of the plaintiff’s claim, it should have been advanced in a proper way well before now.[24]I am satisfied that the defendants have no real prospect of successfully defending the plaintiff’s claim and, further, that there is no need for a trial of that claim. The plaintiffs are entitled to judgment pursuant to r 292 UCPR on the amount representing the principal advanced under the loan agreement and guaranteed under the deed together with interest and costs…”[40]Reasons below at [23]-[24]; internal reference omitted. In approaching the matter the learned primary judge relied upon decisions including Deputy Commissioner of Taxation v Salcedo.[41] Salcedo deals with the test for summary judgment under the UCPR, namely that summary judgment will not be obtained as a matter of course, and the court must determine whether the applicant has shown that the respondent has no real prospect of succeeding at a trial and that there is no need for a trial.[41][2005] 2 Qd R 232 at 234-236; [2005] QCA 227.Consideration – the proposed challenge to the orders of Burns J

Ratio Decidendi

Legal Principle Established

Mr Gray contends that the time should be extended to appeal against the orders of Justice Flanagan, the explanation for the delay being “largely bound up with” the appeal against the orders of Burns J in Appeal No 13895 of 2019. As to the grounds of such an appeal, they were said to be:(a)the appellants never received copies of the material upon which the orders of Flanagan J were made; (b)whilst Mr Gray received a sealed copy of the order made on 14 March 2019, he was then in custody (and had been since 23 January 2019) without access to legal and other necessary resources; that incarceration affected his ability to re-plead defences or advance matters within given timeframes;(c)Mr Gray only received the transcript of the reasons for judgment by Flanagan J on 24 April 2020;(d)the matters were dealt with by Flanagan J on an ex parte basis, but the appellants would have responded had they been able to do so; on 11 March 2019 the respondents knew that Mr Gray was in custody at the Brisbane Correctional Centre, he had been conducting the matter for his mother (Mrs Stevenson), the address for service was a serviced office in Brisbane and no longer effective for either of the appellants because of Mr Gray’s imprisonment, and Mrs Stevenson was still living at an address in Shailer Park, where she had been a resident for more than 50 years;(e)the respondents knew that Mrs Stevenson was under the influence of Mr Gray, and his circumstances were of concern;(f)the respondents’ claim was founded upon an illegality as a Self-Managed Superannuation Fund could not lawfully trade as a money-lender; and(g)there were other triable issues based on:(i)there was a relationship between Mr Gray and Ms Carter-Lannstrom “regarding these and indistinct (sic) commercial matters out of which the loan arrangements and sureties arise”;(ii)that relationship impacted upon the relationship between Mr Gray and his mother, who was aged and commercially inexperienced;(iii)the loan and security transactions “should be considered in the context of the commercial arrangements between the parties overall and their undertakings and conduct throughout”;(iv)the loan and security transactions were unconscionable, particularly as to the interest rate and surety given;(v)Mrs Stevenson was unduly influenced by Mr Gray, to the knowledge of Ms Carter-Lannstrom; and(vi)misrepresentations affected the arrangements in relation to Chinese funding for construction.Consideration – challenges to orders of Flanagan J Once the proceedings commenced, notices of address for service for both the appellants were filed, specifying Mr Gray’s chambers (Level 27, 32 Turbot Street, Brisbane) as their address for service. That address for service also appeared on the amended defences dated 15 December 2016.[8][8]AB 71, 76. As at November 2016 the address for service of the appellants was that of their lawyers, Viana Lawyers. The original summary judgment application was served on that address, by email and post.[9] When submissions were filed in response to that application by Mr Gray on behalf of both appellants, his address for service was listed at his chambers.[10] Mr Gray’s affidavit of 7 December 2016 said he was “Attorney for [Mrs Stevenson] and authorised to swear this Affidavit accordingly”.[11][9]AB 94; AB 200, para 2; AB 204-205.[10]AB 102-103.[11]AB 198, para 1.