Thomas v St George Bank - [2013] QCA 136

SUPREME COURT OF QUEENSLAND

CITATION:

Thomas v St George Bank [2013] QCA 136

PARTIES:

MATTHEW EDWARD THOMAS
(appellant)
v
ST GEORGE BANK – A DIVISION OF WESTPAC BANKING CORPORATION
ABN 33 007 457 141
(respondent)

FILE NO/S:

Appeal No 9453 of 2012
SC No 9772 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

31 May 2013

DELIVERED AT:

Brisbane

HEARING DATE:

22 April 2013

JUDGES:

Holmes, White and Gotterson JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    Allow the appeal.

2.    Set aside the orders made below.

3. Remit the matter to the trial division for hearing of the respondent’s application under r 374, such hearing not to be listed earlier than a fortnight after the delivery of this judgment.

4.    Direct that the appellant file, within one week of delivery of this judgment, an affidavit setting out the details of his claimed provision of further and better particulars to the respondent’s solicitors on or about 17 August 2012, specifying the means and time of delivery, identifying any human agent associated with that delivery by name and address, and annexing any documentary evidence in his possession which would support the occurrence of that delivery.

5.    Order that the appellant pay the respondent’s costs of the hearing on 27 September 2012.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF THE COURT – ORDERS SET ASIDE OR VARIED – where the respondent brought a claim in October 2011 against the appellant for moneys owed under the terms of a guarantee – where the appellant was ordered to provide further and better particulars – where the respondent, alleging failure to comply with the order, applied to the court for judgment under r 374 Uniform Civil Procedure Rules – where the applications judge had before him correspondence from the appellant’s solicitor advising that he was overseas and that the particulars had in fact been provided, and requesting a week's adjournment of the application – where the appellant did not appear at the hearing of the application and judgment was entered for the respondent – where adjourning the application for a week with a direction to the appellant to file an affidavit as to service of the particulars with an appropriate costs order would have worked no prejudice to the respondent – where the further and better particulars allegedly served were before the court on appeal – where the respondent argued that they were so deficient that service of them would not have amounted to compliance with the order and judgment would properly have been given in any event – whether the appellant would ordinarily be given an opportunity to remedy such deficiencies – whether, in circumstances where there had been a question raised about service of the particulars, the immediate exercise of the discretion under r 374 was unreasonable and constituted a substantial injustice

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.

Continue reading Thomas v St George Bank

Details

AGLC: Thomas v St George Bank [2013] QCA 136
Case: [2013] QCA 136
Decision Date: 31 May 2013

CaseChat Overview and Summary

Thomas has appealed against the decision of the primary judge, arguing that the court should have afforded him an opportunity to remedy any deficiencies in the further and better particulars he had provided, before entering judgment. The respondent argued that the further and better particulars were so deficient that service of them would not have amounted to compliance with the order and that judgment would properly have been given in any event. The court held that the appeal should be allowed, the orders made below set aside, and the matter remitted to the trial division. The court found that the primary judge should have afforded the appellant an opportunity to remedy any deficiencies in the further and better particulars he had provided, before entering judgment. The court found that, in the circumstances, adjourning the application for a week with a direction to the appellant to file an affidavit as to service of the particulars with an appropriate costs order, would have worked no prejudice to the respondent. The court found that the further and better particulars allegedly served were before the court on appeal. The court found that the immediate exercise of the discretion under r 374 was unreasonable and constituted a substantial injustice. The court ordered that the appellant file an affidavit within one week of the delivery of this judgment, setting out the details of his claimed provision of further and better particulars to the respondent’s solicitors on or about 17 August 2012. The court ordered that the appellant pay the respondent’s costs of the hearing on 27 September 2012.

Orders

Orders of the court

1. Allow the appeal.

2. Set aside the orders made below.

3. Remit the matter to the trial division for hearing of the respondent’s application under r 374, such hearing not to be listed earlier than a fortnight after the delivery of this judgment.

4. Direct that the appellant file, within one week of delivery of this judgment, an affidavit setting out the details of his claimed provision of further and better particulars to the respondent’s solicitors on or about 17 August 2012, specifying the means and time of delivery, identifying any human agent associated with that delivery by name and address, and annexing any documentary evidence in his possession which would support the occurrence of that delivery.

5. Order that the appellant pay the respondent’s costs of the hearing on 27 September 2012.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	Thomas v St George Bank [2013] QCA 136
PARTIES:	MATTHEW EDWARD THOMAS (appellant) v ST GEORGE BANK – A DIVISION OF WESTPAC BANKING CORPORATION ABN 33 007 457 141 (respondent)
FILE NO/S:	Appeal No 9453 of 2012 SC No 9772 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	31 May 2013
DELIVERED AT:	Brisbane
HEARING DATE:	22 April 2013
JUDGES:	Holmes, White and Gotterson JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Allow the appeal. 2. Set aside the orders made below. 3. Remit the matter to the trial division for hearing of the respondent’s application under r 374, such hearing not to be listed earlier than a fortnight after the delivery of this judgment. 4. Direct that the appellant file, within one week of delivery of this judgment, an affidavit setting out the details of his claimed provision of further and better particulars to the respondent’s solicitors on or about 17 August 2012, specifying the means and time of delivery, identifying any human agent associated with that delivery by name and address, and annexing any documentary evidence in his possession which would support the occurrence of that delivery. 5. Order that the appellant pay the respondent’s costs of the hearing on 27 September 2012.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF THE COURT – ORDERS SET ASIDE OR VARIED – where the respondent brought a claim in October 2011 against the appellant for moneys owed under the terms of a guarantee – where the appellant was ordered to provide further and better particulars – where the respondent, alleging failure to comply with the order, applied to the court for judgment under r 374 Uniform Civil Procedure Rules – where the applications judge had before him correspondence from the appellant’s solicitor advising that he was overseas and that the particulars had in fact been provided, and requesting a week's adjournment of the application – where the appellant did not appear at the hearing of the application and judgment was entered for the respondent – where adjourning the application for a week with a direction to the appellant to file an affidavit as to service of the particulars with an appropriate costs order would have worked no prejudice to the respondent – where the further and better particulars allegedly served were before the court on appeal – where the respondent argued that they were so deficient that service of them would not have amounted to compliance with the order and judgment would properly have been given in any event – whether the appellant would ordinarily be given an opportunity to remedy such deficiencies – whether, in circumstances where there had been a question raised about service of the particulars, the immediate exercise of the discretion under r 374 was unreasonable and constituted a substantial injustice