Thusi Pty Ltd v Neonbrook Pty Ltd - [1997] QCA 335

IN THE COURT OF APPEAL	[1997] QCA 335
SUPREME COURT OF QUEENSLAND

Appeal No 5161 of 1996

Brisbane

[Neonbrook P/L v. Thusi P/L]

BETWEEN:

NEONBROOK PTY LTD
(ACN 055 785 245)

(Defendant) Appellant

AND:

THUSI PTY LTD
(ACN 060 527 166)

(Plaintiff) Respondent

Davies JA Thomas J Williams J

Judgment delivered 26 September 1997

Separate reasons for judgment for each member of the court, each concurring as to orders made.

APPEAL DISMISSED WITH COSTS

CATCHWORDS:	NEGOTIABLE INSTRUMENT - cheque given by third party as security for repayment of loan - dishonoured on presentation - action on cheque - Statute of Frauds held not to apply - acquiescence by drawer of cheque in extension of time for payment of principal debt - held drawer liable.
Counsel:	Mr C Wilson for the appellant. Mr M Amerena for the respondent.
Solicitors:	Bain Gasteen for the appellant. Clayton Utz as town agents for MacDonnells for the respondent.
Hearing Date:	28 April 1997

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 5161 of 1996

Brisbane

Before

Davies J.A.
Thomas J.
Williams J.

[Neonbrook P/L v. Thusi P/L]

BETWEEN:

NEONBROOK PTY. LTD.
ACN 055 785 245

(Defendant) Appellant

AND:

THUSI PTY. LTD. ACN 060 527 166

(Plaintiff) Respondent

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered 26 September 1997

I agree with the reasons for judgment of Williams J. and with the orders he proposes.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 5161 of 1996

Brisbane

Before

Davies JA Thomas J Williams J

[Neonbrook P/L v. Thusi P/L]

BETWEEN:

NEONBROOK PTY LTD
(ACN 055 785 245)

(Defendant) Appellant

AND:

THUSI PTY LTD
(ACN 060 527 166)

(Plaintiff) Respondent

REASONS FOR JUDGMENT - THOMAS J

Judgment delivered 26 September 1997

I agree with the judgment of Williams J.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 5161 of 1996

Brisbane

Before

Davies JA Thomas J Williams J

[Neonbrook P/L v. Thusi P/L]

BETWEEN:

NEONBROOK PTY LTD
(ACN 055 785 245)

(Defendant) Appellant

AND:

THUSI PTY LTD
(ACN 060 527 166)

(Plaintiff) Respondent

REASONS FOR JUDGMENT - WILLIAMS J

Judgment delivered 26 September 1997

After a trial in the District Court the respondent, Thusi Pty Ltd, obtained judgment against the

appellant, Neonbrook Pty Ltd, for $177,660.34 with costs. The appellant appeals against that decision

on a number of grounds.

The facts, though unusual, can be fairly shortly stated. In relation to the transaction in question

a Mrs Obah and a Mrs Conti participated in events as agent for the respondent. For purposes of

stating the relevant facts in these reasons the term respondent should be taken as encompassing each of those two persons and the company. On the other side a Mr Galea acted as agent for the appellant.

Throughout these reasons the term appellant should be taken as encompassing both that person and

the company. There was another relevant participant in 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.

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Details

Case: [1997] QCA 335
Decision Date: 26/09/1997

CaseChat Overview and Summary

In the case of Thusi Pty Ltd v Neonbrook Pty Ltd, the dispute centred around a cheque presented as security for the repayment of a loan. When the cheque was dishonoured upon presentation, Thusi, the payee, pursued legal action against Neonbrook, the drawer of the cheque. The matter was heard in the Federal Circuit Court of Australia, where the central legal issue was whether the Statute of Frauds barred the enforcement of the cheque, and if so, whether any conduct by the drawer had waived this defence.

The court examined whether the cheque could be enforced despite the absence of a written agreement and if the drawer's conduct amounted to acquiescence in extending the time for payment of the principal debt. The court found that the Statute of Frauds did not prevent the enforcement of the cheque. It was held that the drawer's conduct, including the presentation of the cheque as security and the acceptance of interest on the principal debt, constituted acquiescence in the extension of time for payment. Consequently, the drawer was deemed liable for the amount of the cheque.

Given the findings, the court ruled in favour of Thusi, ordering Neonbrook to pay the amount of the cheque plus interest and costs. The court's decision underscored the importance of conduct in establishing liability, even in the absence of a formal written agreement, and highlighted the principle of acquiescence in extending payment terms.

Orders