Thorne Developments Pty Ltd v Laird - [2022] QSC 217

SUPREME COURT OF QUEENSLAND

CITATION:

Thorne Developments Pty Ltd v Laird & Ors [2022] QSC 217

PARTIES:

THORNE DEVELOPMENTS PTY LTD

(plaintiff)

v
GRAHAM DAVID LAIRD AS TRUSTEE OF THE LAIRD FAMILY TRUST
(first defendant)
RICK WILLIAMSON INVESTMENTS PTY LTD
(second defendant)
GRAHAM DAVID LAIRD
(third defendant)
RICHARD JOHN WILLIAMSON

(fourth defendant)

FILE NO/S:

BS No 3570 of 2014

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

13 October 2022

DELIVERED AT:

Brisbane

HEARING DATE:

25 August 2022

JUDGE:

Davis J

ORDERS:

1.    Judgment against Graham David Laird as Trustee of the Laird Family Trust and against Rick Williamson Investments Pty Ltd in the sum of $1,476,775 plus interest at the rate of twelve per cent (12%) per annum calculated on monthly rests from 31 August 2012 to today.

2.    The parties are to agree on the calculation of interest and submit a draft order forthwith and, failing agreement, each of the plaintiff, first and second defendants have liberty to apply.

3.   The counterclaim of the first and second defendants is dismissed.

4.    By 4.00 pm on 28 October 2022, the plaintiff file and serve upon the solicitors for the first and second defendants:

(a) a list of expenses claimed over the period when the plaintiff was not represented by lawyers;

(b) any affidavits in support of the claim for such expenses;

(c) written submissions:

(i)   in support of the claim for expenses;

(ii) in support of any application for costs over any period when the plaintiff was represented by lawyers;

(iii) in defence of the fourth defendant’s claim for costs;

(iv) in support of any claim to discharge the security given for the defendants’ costs of the proceedings;

(d) any affidavits in support of the costs submissions.

5.    By 4.00 pm on 25 November 2022, any defendant wishing to be heard on costs or expenses and/or the fate of security offered by the plaintiff, shall file and serve on all other parties:

(a) written submissions:

(i)   in response to any submissions filed by the plaintiff;

(ii) in support of any costs orders sought;

(iii) as to the fate of the security provided by the plaintiff.

(b) any affidavits in support of the submissions.

6.   By 4.00 pm on 8 December 2022, the plaintiff file and serve any affidavits and written submissions in reply.

7.   After 8 December 2022, any party who has filed and served written submissions on costs or expenses may have the matter listed for further hearing before Davis J.

CATCHWORDS:

CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - CONSTRUCTION AND INTERPRETATION OF CONTRACTS - where the plaintiff sold shares to the first and second defendants by a share sale agreement - where the third and fourth defendants guaranteed the first and second defendants’ obligations under the share sale agreement - where the plaintiff, by a loan agreement, advanced the purchase price to the first and second defendants as borrowers - where the third and fourth defendants were not parties to the…

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 Thorne Developments Pty Ltd v Laird

Details

AGLC: Thorne Developments Pty Ltd v Laird [2022] QSC 217
Case: [2022] QSC 217
Decision Date: 13 October 2022

CaseChat Overview and Summary

Thorne Developments Pty Ltd, the plaintiff, brought proceedings against the first and second defendants, Graham David Laird and Rick Williamson, as well as the third and fourth defendants, Laird Family Trust and Rick Williamson Investments Pty Ltd, in the Supreme Court of Queensland. The plaintiff sought a declaration of their rights and remedies in relation to the share sale agreement and loan agreement, as well as damages for breach of contract. The central issue before the court was whether the first and second defendants were required to pay the purchase price under the share sale agreement and whether the third and fourth defendants guaranteed any obligations under the loan agreement. The court also had to determine whether interest accrued against the borrower during the period the plaintiff was deregistered. The court found that the first and second defendants were required to procure the payment of the purchase price on completion, which included the advance under the loan agreement. Once the advance was made, the obligation of the first and second defendants under the share sale agreement was discharged. The third and fourth defendants did not guarantee the obligations of the first and second defendants under the loan agreement. The court also held that interest did not accrue against the borrower during the period the plaintiff was deregistered as the loan agreement was validated by the court. Judgment was entered against Graham David Laird as Trustee of the Laird Family Trust and Rick Williamson Investments Pty Ltd in the sum of $1,476,775 plus interest. The counterclaim of the first and second defendants was dismissed. The parties were given time to agree on the calculation of interest and to file and serve written submissions and affidavits in relation to costs and expenses.

Orders

Orders of the court

1. Judgment against Graham David Laird as Trustee of the Laird Family Trust and against Rick Williamson Investments Pty Ltd in the sum of $1,476,775 plus interest at the rate of twelve per cent (12%) per annum calculated on monthly rests from 31 August 2012 to today.

2. The parties are to agree on the calculation of interest and submit a draft order forthwith and, failing agreement, each of the plaintiff, first and second defendants have liberty to apply.

3. The counterclaim of the first and second defendants is dismissed.

4. By 4.00 pm on 28 October 2022, the plaintiff file and serve upon the solicitors for the first and second defendants:

(a) a list of expenses claimed over the period when the plaintiff was not represented by lawyers;

(b) any affidavits in support of the claim for such expenses;

(i) in support of the claim for expenses;

(ii) in support of any application for costs over any period when the plaintiff was represented by lawyers;

(iii) in defence of the fourth defendant’s claim for costs;

(iv) in support of any claim to discharge the security given for the defendants’ costs of the proceedings;

(d) any affidavits in support of the costs submissions.

5. By 4.00 pm on 25 November 2022, any defendant wishing to be heard on costs or expenses and/or the fate of security offered by the plaintiff, shall file and serve on all other parties:

(a) written submissions:

(i) in response to any submissions filed by the plaintiff;

(ii) in support of any costs orders sought;

(iii) as to the fate of the security provided by the plaintiff.

(b) any affidavits in support of the submissions.

6. By 4.00 pm on 8 December 2022, the plaintiff file and serve any affidavits and written submissions in reply.

7. After 8 December 2022, any party who has filed and served written submissions on costs or expenses may have the matter listed for further hearing before Davis J.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The first construction is the correct one. The obligation of the Buyers under the Share Sale Agreement is to procure the payment of the purchase price “on Completion”. That includes procuring the advance under the Loan Agreement. Once that is effected (as it was), the obligation of the Buyers under clause 5.1(a)(iii) has been discharged. Repayment by the Borrowers pursuant to the Loan Agreement is not an obligation guaranteed by Mr Laird or Mr Williamson. Mr Laird is liable as a borrower. He assumed that liability as trustee. However, the proceedings against Mr Williamson fail.Should judgment be entered against Mr Laird in two different capacities? Mr Laird as Trustee is both a Buyer under the Share Sale Agreement and a Borrower under the Loan Agreement. In his personal capacity, he was a guarantor of the obligation to pay the purchase price under the Share Sale Agreement. For the reasons already explained, that obligation has been discharged. He is not a guarantor of obligations under the Loan Agreement. Whether judgment is entered against him as “Graham David Laird” or as “Graham David Laird as Trustee of the Laird Family Trust” really makes no difference. That is because a trustee is personally liable for debts incurred in their capacity as trustee. The trustee then has a right to seek indemnity from the trust assets. Consistently though with the pleadings, it is appropriate that judgment be entered against him as “Graham David Laird as Trustee of the Laird Family Trust”. Does interest run while Thorne Developments Pty Ltd was deregistered? Section 601AH of the Corporations Act 2001 (Cth) empowers this Court to validate anything done by a company during the period it is deregistered. Section 601AH provides, relevantly:“601AH ReinstatementReinstatement by ASIC(1)ASIC may reinstate the registration of a company if ASIC is satisfied that the company should not have been deregistered. …Reinstatement by Court(2)The Court may make an order that ASIC reinstate the registration of a company if:(a)an application for reinstatement is made to the Court by:(i)a person aggrieved by the deregistration; or(ii)a former liquidator of the company; and(b)the Court is satisfied that it is just that the company’s registration be reinstated.(3)If:(a)ASIC reinstates the registration of a company under subsection (1) or (1A); or(b)the Court makes an order under subsection (2);the Court may:(c)validate anything done during the period:(i)beginning when the company was deregistered; and(ii)ending when the company’s registration was reinstated; and(d)make any other order it considers appropriate. …Effect of reinstatement(5)If a company is reinstated, the company is taken to have continued in existence as if it had not been deregistered. A person who was a director of the company immediately before deregistration becomes a director again as from the time when ASIC or the Court reinstates the company. Any property of the company that is still vested in the Commonwealth or ASIC revests in the company. If the company held particular property subject to a security or other interest or claim, the company takes the property subject to that interest or claim. …” (emphasis added, legislative notes removed)

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Thorne Developments Pty Ltd v Laird & Ors [2022] QSC 217
PARTIES:	THORNE DEVELOPMENTS PTY LTD (plaintiff) v GRAHAM DAVID LAIRD AS TRUSTEE OF THE LAIRD FAMILY TRUST (first defendant) RICK WILLIAMSON INVESTMENTS PTY LTD (second defendant) GRAHAM DAVID LAIRD (third defendant) RICHARD JOHN WILLIAMSON (fourth defendant)
FILE NO/S:	BS No 3570 of 2014
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland at Brisbane
DELIVERED ON:	13 October 2022
DELIVERED AT:	Brisbane
HEARING DATE:	25 August 2022
JUDGE:	Davis J
ORDERS:	1. Judgment against Graham David Laird as Trustee of the Laird Family Trust and against Rick Williamson Investments Pty Ltd in the sum of $1,476,775 plus interest at the rate of twelve per cent (12%) per annum calculated on monthly rests from 31 August 2012 to today. 2. The parties are to agree on the calculation of interest and submit a draft order forthwith and, failing agreement, each of the plaintiff, first and second defendants have liberty to apply. 3. The counterclaim of the first and second defendants is dismissed. 4. By 4.00 pm on 28 October 2022, the plaintiff file and serve upon the solicitors for the first and second defendants: (a) a list of expenses claimed over the period when the plaintiff was not represented by lawyers; (b) any affidavits in support of the claim for such expenses; (c) written submissions: (i) in support of the claim for expenses; (ii) in support of any application for costs over any period when the plaintiff was represented by lawyers; (iii) in defence of the fourth defendant’s claim for costs; (iv) in support of any claim to discharge the security given for the defendants’ costs of the proceedings; (d) any affidavits in support of the costs submissions. 5. By 4.00 pm on 25 November 2022, any defendant wishing to be heard on costs or expenses and/or the fate of security offered by the plaintiff, shall file and serve on all other parties: (a) written submissions: (i) in response to any submissions filed by the plaintiff; (ii) in support of any costs orders sought; (iii) as to the fate of the security provided by the plaintiff. (b) any affidavits in support of the submissions. 6. By 4.00 pm on 8 December 2022, the plaintiff file and serve any affidavits and written submissions in reply. 7. After 8 December 2022, any party who has filed and served written submissions on costs or expenses may have the matter listed for further hearing before Davis J.
CATCHWORDS:	CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - CONSTRUCTION AND INTERPRETATION OF CONTRACTS - where the plaintiff sold shares to the first and second defendants by a share sale agreement - where the third and fourth defendants guaranteed the first and second defendants’ obligations under the share sale agreement - where the plaintiff, by a loan agreement, advanced the purchase price to the first and second defendants as borrowers - where the third and fourth defendants were not parties to the…