Taylor v Absolute Trade Supplies Pty Ltd - [2014] QCATA 307

CITATION:

Taylor v Absolute Trade Supplies Pty Ltd [2014] QCATA 307

PARTIES:	Geoffrey Nelson Taylor (Appellant)
v
Absolute Trade Supplies Pty Ltd (Respondent)

APPLICATION NUMBER:

APL369-14

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes, Member

DELIVERED ON:

3 November 2014

DELIVERED AT:

Brisbane

ORDER MADE:

The application for leave to appeal is dismissed.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where running credit account – where payment guaranteed by director – where guarantee evidence in writing – where director denies liability as guarantor – where numerous admissions of debt and payment long overdue – whether adjournment should be granted – where adjournment refused as sought only for delay – where no evidence to rebut documentation or existence of debt offered – whether judgment entered for debt in error – whether reasonable prospects of appeal

Corporations Act 2001 (Cth), s 601AB

Property Law Act 1974 (Qld), s 56

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 93, s 139

Bauskis v Liew [2013] NSWCA 297
Byrne v Kinematograph Renters’ Society Ltd [1958] All ER 579
Commercial Bank of Australia Ltd v Colonial Finance, Mortgage, Investment & Guarantee Corporation Ltd (1906) 4 CLR 57
Commonwealth of Australia v Cornwell (2007) 234 ALR 148; [2007] HCA 16
McIver Bulk Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
Rush v WA Amateur Football League Inc [2005] WASC 206
Scagliotti v Boyd [1962] Qd R 481
Smith v Gannawarra Shire Council (2002) 4 VR 344

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

This an appeal by Geoffrey Nelson Taylor (Taylor) against an order of Mr LeMass, Adjudicator, that he pay the present respondent (“Absolute”) the sum of $5,292.30 for the price of goods sold and delivered and interest thereon.
At all material times, Taylor was shareholder and sole director of a company known as Cover Installations Pty Ltd (“Cover”).[1]
[1]Search result, ASIC 21 August 2013.
On 22 August 2011 Cover arranged a monthly credit account with Absolute. The relevant application form was signed by Taylor, and by Paul Roarty (Roarty) who, it appears, was Cover’s manager. Two terms[2] of the credit account read as follows:
The account is to be maintained on strictly thirty (30) days net ... Liability shall be joint and several if there is more than one Proprietor or Applicant ...
In the event the Purchaser is a company, the directors and secretaries named in the application (“the Guarantors”) hereby jointly and severally guarantee to [Absolute] the payment to [it] of all monies payable to [it] by the purchaser. This guarantee shall not be waived by any forbearance to require payment by the Guarantors or the purchaser for any time or any other indulgence intended [sic] by [Absolute] to either the Purchaser or…

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: [2014] QCATA 307
Decision Date: 3 November 2014

CaseChat Overview and Summary

In Taylor v Absolute Trade Supplies Pty Ltd, the court was asked to determine the liability of a director who had guaranteed a running credit account with the respondent company. The director, who had been the sole shareholder and director of the company, guaranteed the debts of the company to the respondent. After the company ceased operations, the respondent pursued the director personally on the guarantee, and judgment was entered against the director for the outstanding debt. The director appealed against the judgment, arguing that the adjournment had been wrongly refused and that there were reasonable prospects of appeal.

The primary legal issues the court had to address were whether the refusal of the adjournment was justified, whether there were reasonable prospects of success on appeal, and whether the judgment had been entered in error. The court examined the documentation provided by the respondent, which included numerous admissions of debt and payment notices, and the director's denial of liability as guarantor. The director did not provide any evidence to rebut the documentation or to contest the existence of the debt.

The court found that the adjournment had been properly refused as it appeared that the director sought the adjournment merely to delay the proceedings. The court also held that there were no reasonable prospects of success on appeal because the director had not provided any evidence to rebut the documentation or to contest the existence of the debt. The court noted that the director had made numerous admissions of debt and payment notices, and had failed to provide any evidence to counter the respondent's case. The court concluded that the judgment had not been entered in error.

The court dismissed the appeal and ordered the director to pay the respondent's costs of the appeal.

Orders