Suncorp-Metway Ltd v Nagatsuma

SUPREME COURT OF QUEENSLAND

CITATION:

Suncorp-Metway Ltd ABN 66 010 831 722 v Nagatsuma &

Anor [2019] QSC 16

PARTIES:

SUNCORP-METWAY LTD ABN 66 010 831 722

(applicant)

v

RISA NAGATSUMA

(first respondent) and

WILLIAM JAMES ALEXANDER DAVIDSON

(second respondent)

FILE NO:

BS 1772 of 2018

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

7 February 2019

DELIVERED AT:

Brisbane

HEARING DATE:

28 September 2018

JUDGE:

Ryan J

ORDERS:

1. Pursuant to section 78(2) of the Land Title Act 1994 (Qld), the applicant recover as against the first and second respondents, possession of the property described as Lot 194 on Crown Plan NR401, Title Reference 20647021 and known as 178 Heidke Road, Malanda in the State of Queensland (also known as 178 Heidke Road, North Johnstone in the State of Queensland) (the Heidke Road Property) within 14 days.

2.    Upon the applicant by its counsel giving the usual undertaking as to damages, an injunction: that the first and second respondents, whether by themselves, their agents, employees or otherwise, be restrained until the sale of the Heidke Road Property by the applicant as mortgagee exercising power of sale under the mortgage bearing dealing number 715361425, without prior leave of the Court from:

(a)     lodging or procuring the lodgement of any caveat on the title to the Heidke Road Property;

(b)     creating or procuring the creation of any other encumbrance in connection with the Heidke Road Property;

(c)     otherwise interfering with the applicant’s sale of the Heidke Road Property.

CATCHWORDS:

MORTGAGES – MORTGAGEES REMEDIES –

POSSESSION – Section 78(2) Land Title Act 1994 (Qld) – whether respondents had real prospects of resisting claim for possession

EQUITY – GENERAL PRINCIPLES – UNDUE INFLUENCE AND DURESS – DURESS – ECONOMIC

DURESS – Where second respondent alleged that bank’s employee had dishonestly caused second respondent’s company financial loss – where second respondent’s company defaulted on loans made to it by the bank – where receivers appointed – where second respondent commenced legal proceedings to have receivers removed, relying on bank’s employee’s dishonesty – where proceeding settled – where deed of settlement required discontinuance of proceedings and included release of bank from further claims alleging employee’s misconduct – where company defaulted again – where heads of agreement signed after Farm Debt Mediation – where heads of agreement released bank from further claims alleging employee’s misconduct – whether releases voidable for economic duress

Australia & New Zealand Banking Corp v Karam (2005) 64 NSWLR 149

Berens v Bluescope Distributions Pty Ltd (2012) 39 VR 1 Coldham-Fussell v Commission of Taxation [2011] QCA 45 Crescendo Management v Westpac (1988) 19 NSWLR 40 Davidson & Anor v Suncorp Metway [2017] QCA 317 Electricity Generation Corp t/as Verve Energy v Woodside Electricity Energy Ltd [2013] WASCA 36

Hingst v Construction Engineering (Aust) Pty Ltd (No 3)
[2018] VSC 136

McKay v National Australia Bank Ltd [1998] 4 VR 677

Mitchell v Pacific Dawn Pty Ltd [2011] QCA 98
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