Symx Land Developments Pty Ltd v Pugh

Case [2025] QSC 137

SUPREME COURT OF QUEENSLAND

CITATION:

Symx Land Developments Pty Ltd v Pugh [2025] QSC 137

PARTIES:

SYMX LAND DEVELOPMENTS PTY LTD ACN 606 744 727 (AS TRUSTEE FOR THE LAND DEVELOPMENT UNIT TRUST)

Plaintiff

v

SHANE LLOYD PUGH

First defendant

VANESSA CAROL PUGH

Second defendant

FILE NO:

BS 10828/22

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

10 June 2025

DELIVERED AT:

Brisbane

HEARING DATES:

21-22 October 2024, 1 November 2024

JUDGE:

Hindman J

ORDER:

Subject to hearing from the parties about the form of orders, judgment is to be entered for the plaintiff against the defendants as follows:

(a)     $2,280,000 pursuant to a guarantee given by each of the defendants on 28 August 2020.

(b) Interest pursuant to s. 58 of the Civil Proceedings Act 2011 (Qld) on the amount in (a) calculated from 30 August 2022.

(c)      The second defendant’s counterclaim is dismissed. 

(d)      The defendants are to pay the plaintiff’s costs of the proceeding. 

CATCHWORDS:

CONTRACT OF GUARANTEE – CONSTRUCTION AND EFFECT – GENERALLY – where the plaintiff owned and was selling property – where the first defendant and the second defendant were married to each other – where the first defendant was the director of a company – where the company entered into an agreement to purchase the property from the plaintiff – where this agreement relevantly comprised a contract, a deed of variation that contained a deed of guarantee, and a further deed of variation – where the second defendant was appointed a director of the company after the date of the contract but before the deed of variation was executed – where the defendants signed documents referred to as “undertakings” that provided they would guarantee the buyer company’s obligations under the contract – where settlement proceeded and title in the property was transferred to the company – where the company failed to provide to the plaintiff the whole of the purchase price under the contract – where the plaintiff claims against the defendants a debt and damages, including pursuant to the deed of guarantee – whether the deed of variation (and guarantee) is void for uncertainty – whether the deed of variation (and guarantee) is void and unenforceable against the second defendant on the basis of unconscionability at common law or under s. 20 of the Australian Consumer Law – whether the defendants in fact guaranteed the company’s obligations under the contract – whether the contract and later contractual documents were in fact entered into by the plaintiff

Civil Proceedings Act 2011 (Qld), s. 58
Competition and Consumer Act 2010 (Cth), sch. 2, s. 20
Corporations Act 2001 (Cth), ss. 126, 127(1)

Property Law Act 1974 (Qld), s. 45

ANZ Banking Group v Londish [2014] NSWSC 202, cited
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447, considered
Commonwealth Bank of Australia v Crowe [2004] NSWSC 330, cited
Commonwealth Bank of Australia v Ridout Nominees Pty Ltd [2000] WASC 37, cited
Council of…

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AGLC
Symx Land Developments Pty Ltd v Pugh [2025] QSC 137
Case
[2025] QSC 137
Decision Date

CaseChat Overview and Summary

Symx Land Developments Pty Ltd sought a judgment against Shane and Rozlyn Pugh for breach of a guarantee agreement and damages for breach of contract. The property in dispute was located at 101 and 105 Mount Gravatt-Capalaba Road, Upper Mt Gravatt. The Pughs argued that the guarantee agreement was void for uncertainty, that it was unenforceable against Rozlyn Pugh on the basis of unconscionability, and that they had not guaranteed the company's obligations under the contract. The court found that the guarantee agreement was enforceable and that the Pughs were liable for the balance purchase price of $2.28 million, plus interest and costs. The court rejected the Pughs' defences and Rozlyn Pugh's counterclaim.

The court considered the arguments put forward by the Pughs, including their contention that the guarantee agreement was void for uncertainty. However, the court found that the agreement was clear and unambiguous, and that the Pughs were liable for the balance purchase price of the property. The court also rejected the Pughs' argument that the guarantee was unenforceable against Rozlyn Pugh on the basis of unconscionability. The court found that there was no evidence of unconscionability on the part of Symx, and that Rozlyn Pugh had signed the guarantee agreement willingly and with full knowledge of its contents. Finally, the court rejected the Pughs' argument that they had not guaranteed the company's obligations under the contract. The court found that the Pughs had signed the guarantee agreement, and that they were therefore liable for the balance purchase price of the property. The court awarded judgment to Symx in the amount of $2.28 million, plus interest and costs. The Pughs' counterclaim was dismissed.

Orders

Orders of the court

Subject to hearing from the parties about the form of orders, judgment is to be entered for the plaintiff against the defendants as follows:

(a) $2,280,000 pursuant to a guarantee given by each of the defendants on 28 August 2020.

(b) Interest pursuant to s. 58 of the Civil Proceedings Act 2011 (Qld) on the amount in (a) calculated from 30 August 2022.

(c) The second defendant’s counterclaim is dismissed.

(d) The defendants are to pay the plaintiff’s costs of the proceeding.

Background

Background to the litigation

The plaintiff is entitled to judgment against both defendants. The second defendant’s counterclaim against the plaintiff fails. Factual background Symx seeks to sell property The plaintiff (Symx) was the owner of the properties situated at 101 and 105 Mount Gravatt-Capalaba Road, Upper Mt Gravatt (Property). The Property comprised vacant land and was suitable for development, with a development approval (DA) and building approval (BA) for a 53 residential unit complex in place. Symx at all material times was represented by Xiaoguang Yu, also known as Vincent Yu (Mr Yu). Mr Yu was the sole director of Symx from 12 November 2019 to 4 December 2020.[1] There was no secretary of Symx at that time. A new director and secretary of Symx was appointed on 4 December 2020. Symx has authorised Mr Yu to continue to deal with all matters relating to the Property since that time. [1]D1, trial bundle. In 2020, Symx had been the owner of the Property for a number of years and had been looking to sell the Property since about late 2018 or early 2019. It was keen to recoup from the sale the original purchase price plus holding costs, such that it was interested in achieving a sale price exceeding $3.8m (excluding GST). Having had no success selling the Property through a different agent, in about late 2019 the Property was placed for sale with Jane Tan (Ms Tan), a real estate agent. The agreed commission payable on a successful sale was to be 2% plus GST of the contract price. Ms Tan advertised the Property for sale through various channels, including a BBX trade group. BBX Australia is a trade platform, like Bartercard. A BBX trade group listing for the Property around 18 October 2019 indicates that the Property may have been advertised as land with DA and BA for 53 residential units, at a price of $3,388,000 with 20% of that amount payable in BBX trade dollars.[2] Ms Tan recalled the Property also being advertised as open to expressions of interest and offers over $4m/$3.8m.[2]Pages 1-6, supplementary trial bundle. One of the users of the BBX trade group was Rozlyn Ingles (Ms Ingles). Ms Ingles is a real estate agent. Ms Ingles contacted Ms Tan indicating that she could introduce a buyer to purchase the Property. A conjunction sale was proposed, with a split commission of 50/50. A conjunction agreement dated 2 September 2020 was eventually executed.[3] [3]B21, trial bundle. The buyer Ms Ingles introduced to Ms Tan was Valour Investment Group No 3 Pty Ltd (Valour). Valour was the trustee of the V3 Trust that was established on 24 June 2019. The controlling mind behind Valour (and its sole director at the time) was the first defendant, Shane Pugh (Mr Pugh). Mr Pugh was also the sole unit holder of the V3 Trust. Mr Pugh, by trade, was an experienced commercial flooring contractor. He performed that work through a company/companies. He described working in that industry as up and down, hot or cold. He had ambitions to engage in property development. He envisaged building properties and supplying flooring for same. He had some experience in investing in residential property, including through companies and trusts. It appears that at various times he had interests (directly or indirectly) in about 13 residential properties. But he was not a particularly successful property investor. A property deal that went sour had resulted in his personal bankruptcy, but by 2020 he was no longer in bankruptcy. He had no real financial ability to engage in any substantial property development but he did not see that as an impediment: in his view property developers often had financially successful projects, including the development of blocks of multiple units, without committing any of their own funds. He had “no money to buy the land. We had actually no money at the time.”[4] He described his involvement in property development at the time he became aware of the Property as “none whatsoever”. [4]T1-104, LL 11-13.

Evidence

Evidence Before The Court

Valour has subsequently entered into external administration. The anticipated development at the Property by Valour never commenced. Evidence given in the proceeding Two witnesses were called on behalf of the plaintiff – Mr Yu and Ms Tan. Their evidence was not seriously shaken in cross-examination and I generally accept their evidence. Two witnesses were called on behalf of the defendants – Mr Pugh and Mrs Pugh. Without independent corroboration I would be hesitant to accept as entirely accurate any evidence that Mr Pugh gave. He has been demonstrated to be a person who is loose with the truth in order to further his own interests. I do not have the same level of concern about Mrs Pugh. She did present as someone who would generally just go along with whatever Mr Pugh required of her, although perhaps somewhat deliberately not properly informing herself when she had the capacity to do so, simply in order to keep the peace between herself and her husband. Preliminary finding Although ultimately I do not think anything turns on it, the defendants pleaded that Ms Ingles was the agent of Symx. I reject that contention. Ms Ingles was plainly acting as buyer’s agent – on behalf of Valour – as the factual background adequately demonstrates. It does not matter that Valour did not pay her or that for that reason Mr Pugh did not consider her to be Valour’s agent. Nor does it matter that she ultimately received payment for her part in the sale of the Property through the commission that was paid by Symx (under the conjunction agreement). Claim made by Symx By the proceeding, Symx seeks to recover from Mr and Mrs Pugh: (a)$300,000 pursuant to the terms of the Guarantee and/or Extension Agreement (or more precisely the Second Undertakings); (b)$1.98m as damages for Valour’s breach of contract, pursuant to the terms of the Guarantee (the cash component of the balance purchase price not paid at settlement,[30] less the $300,000 referred to above); (c)interest and costs. [30]$2.68m less $400,000 in BBX trade dollars. No claim is made by Symx in respect of any unpaid BBX trade dollars or pursuant to the deed of gift. Defences of Mr and Mrs Pugh The primary defence of both defendants is that the Deed of Variation (and the Guarantee within it) is void for uncertainty such that the Guarantee is not enforceable against either of the defendants. There are a number of other defences pleaded by both defendants about which no specific submissions were made by the defendants. Whilst the second defendant’s counsel was instructed not to abandon any pleaded defences, he candidly acknowledged that he had orally addressed the defences that he considered had prospects. The second defendant did not make any submissions of substance beyond indicating his reliance on the submissions made on behalf of the second defendant. I will deal with each of the defences not specifically addressed by the defendants in submissions in a relatively brief way. Defence of Mrs Pugh only

Decision

Reasons for decision

Again, even if the Second Undertakings were void for uncertainty it would not alter the defendants’ liability under the Guarantee for the balance purchase price payable by Valour after settlement ($2.68m, including $400,000 payment in BBX trade dollars). Conclusion The claim against the defendants under the Guarantee succeeds. The separate claim against the defendants under the Extension Agreement (specifically the Second Undertakings) fails. The defendants’ pleaded defences and the second defendant’s counterclaim fail. Subject to hearing from the parties about the form of orders, judgment is to be entered for the plaintiff against the defendants as follows: (a)$2,280,000 pursuant to a guarantee given by each of the defendants on 28 August 2020. (b)Interest pursuant to s. 58 of the Civil Proceedings Act 2011 (Qld) on the amount in order (a) calculated from 30 August 2022. (c)The second defendant’s counterclaim is dismissed. (d)The defendants are to pay the plaintiff’s costs of the proceeding.

Ratio Decidendi

Legal Principle Established

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