Upton v Westpac Banking Corporation - [2017] QCA 171

SUPREME COURT OF QUEENSLAND

CITATION:

Upton v Westpac Banking Corporation & Ors [2017] QCA 171

PARTIES:

JAMES SYDNEY UPTON
(appellant)
v
WESTPAC BANKING CORPORATION
ABN 33 007 457 141
(respondent)
SHAUN CHRISTOPHER MCKINNON
Added by counterclaim
(second respondent)
GRAHAM ROBERT KILLER
Added by counterclaim
(third respondent)

FILE NO/S:

Appeal No 8886 of 2016
DC No 1244 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane – [2015] QDC 278

DELIVERED ON:

11 August 2017

DELIVERED AT:

Brisbane

HEARING DATE:

13 March 2017

JUDGES:

Fraser and Gotterson JJA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal dismissed.

2. The appellant pay the respondents’ costs of the appeal.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – ORDERS SET ASIDE OR VARIED – where the appellant appeals against the dismissal of his application under r 668 of the Uniform Civil Procedure Rules 1999 (Qld) to set aside the summary judgment given against him – where the appellant was refused an extension of time to appeal against the summary judgment – where the appellant applied under r 668 alleging that facts had been discovered, that if discovered in time, would have entitled the appellant to a different order – whether the appellant can establish that there was an error by the primary judge in concluding that these were no new facts discovered after summary judgment was given against him

Uniform Civil Procedure Rules 1999 (Qld), r 668

Amos v Wiltshire[2016] QCA 77, considered
IVI Pty Ltd v Baycrown Pty Ltd [2007] 1 Qd R 428; [2006] QCA 461, considered
Rockett v The Proprietors – “The Sands” Building Units Plan No 82 [2002] 1 Qd R 307; [2001] QCA 99, considered
Upton v Westpac Banking Corporation[2016] QCA 220, related
Westpac Banking Corporation v Upton [2015] QDC 278, related

COUNSEL:

The appellant appeared on his own behalf
E J Goodwin for the respondents

SOLICITORS:

The appellant appeared on his own behalf
Henry Davis York Lawyers for the respondents

FRASER JA: I agree with the reasons for judgment of Mullins J and the orders proposed by her Honour.
GOTTERSON JA: I agree with the orders proposed by Mullins J and with the reasons given by her Honour.
MULLINS J: On 10 November 2015 the learned primary judge gave summary judgment against the appellant Mr Upton in favour of the respondent Westpac Banking Corporation in the amount of $617,440.17 for principal and interest (but not enforcement costs and expenses) based upon the guarantee and indemnity (the guarantee) signed on 3 December 2008 by Mr Upton (as varied by letters of variation dated 20 August 2010, 13 September 2011 and 5 May 2012). Judgment was also given against Mr Upton in respect of his counterclaim against the second and third respondents who were receivers and managers appointed by Westpac to the property at Dugandan…

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: [2017] QCA 171
Decision Date: 11 August 2017

CaseChat Overview and Summary

Upton appeals against the dismissal of his application under r 668 of the Uniform Civil Procedure Rules 1999 (Qld) to set aside the summary judgment given against him in favour of Westpac Banking Corporation. The court was required to determine whether there was an error by the primary judge in concluding that no new facts were discovered after summary judgment was given against the appellant. This was the main legal issue the court needed to decide. The court had to examine the facts and circumstances surrounding the discovery of the alleged new facts, and assess whether they were indeed new and whether they would have entitled the appellant to a different order if discovered in time.

The Court of Appeal, comprising McMurdo JA, with whom the other members agreed, found that the appellant failed to establish an error by the primary judge in concluding that the new facts were not discovered after the summary judgment was given. The court held that the appellant's evidence did not demonstrate that the alleged new facts were unknown to him at the relevant time and that they would have made a difference to the outcome of the summary judgment application. The Court of Appeal also found that the appellant's application under r 668 was an abuse of process because it was an attempt to relitigate issues that had already been decided by the primary judge. The appeal was dismissed, and the appellant was ordered to pay the respondents' costs of the appeal.

In summary, the Court of Appeal found that the appellant's r 668 application was an abuse of process, and there was no error by the primary judge in concluding that no new facts were discovered after summary judgment was given against the appellant. The appeal was dismissed, and the appellant was ordered to pay the respondents' costs of the appeal.

Orders

Orders of the court

1. Appeal dismissed.

2. The appellant pay the respondents’ costs of the appeal.

Background

Background to the litigation

Mr Upton now appeals against the dismissal of his r 668 application and the other orders made on 5 August 2016. The receivers were not named as parties to that application and had therefore not appeared at the hearing on 5 August 2016. They were not parties to this appeal, but to the extent that their presence may have been required for the disposition of the appeal, the representatives for Westpac were also instructed to appear for the receivers.The facts supporting the summary judgment The facts identified by the primary judge for the purpose of the summary judgment application were set out in [3]-[14] and [24]-[25] of the reasons. They were summarised by McMurdo JA (with whom the other members of the court agreed) in the Court of Appeal judgment at [7]-[13] as follows:“[7]The relevant facts for the bank’s claim, which for the most part are now undisputed, were as follows. Mr Upton was sued as the guarantor of a loan or loans by the bank to a company called Cambridge Pacific Investments Pty Ltd of which he was the director and which was the trustee of a trust under which he was a beneficiary. In May 2013 he caused the company to be removed as trustee immediately before placing it into liquidation. He was its sole director from August 2007 until 10 August 2014 when the company was deregistered.[8]Part of the bank’s security was a registered mortgage over the Dugandan property. When that property was transferred to the replacement trustee, CPAC Residential Pty Ltd, it became bound by the mortgage. In January 2014 the bank appointed the receivers to the property pursuant to a power conferred by the mortgage. As I will discuss, the receivers took some steps towards selling the property but no sale was made.[9]The Dugandan property was purchased in September 2007, financed by the bank’s loan to Cambridge Pacific Investments. The borrower’s liability was capped at $539,000 (plus 20 per cent to cover certain fees, costs, expenses and interest). Mr Upton guaranteed the borrower’s performance. In December 2008 the bank made a further loan to Cambridge Pacific Investments, this time for the purchase of a house at Norman Park. Mr Upton also guaranteed the repayment of this loan, which was capped at $396,000 (plus 20 per cent for fees, etc.).[10]In August 2010 the original loan of $539,000 was increased by a further advance of $30,000. Mr Upton as a guarantor agreed to this increase. Between December 2010 and September 2012 there was a series of further variations to the terms of that loan of 2007 and each was agreed by Mr Upton as a guarantor.[11]In February 2013 Cambridge Pacific Investments sold the Norman Park property and an amount of approximately $500,000 was paid from the sale proceeds to the bank.[12]The liquidation of Cambridge Pacific Investments in May 2013 constituted an event of default for the purposes of its borrowing and Mr Upton’s guarantee. At first the bank agreed to Mr Upton’s request that the bank accept payments of interest, as Mr Upton proposed in an email to an officer of the bank in May 2013, to ‘allow us to sell the [Dugandan] property in a more orderly fashion.’ But the property was not sold and the receivers were appointed in January 2014.[13]In the meantime, of course, interest had continued to accrue and in April 2015, when the bank commenced its proceeding against Mr Upton, it claimed a total of $665,742.13, comprised of $560,723.53 for principal, $56,716.64 for interest and $48,301.96 for enforcement costs and expenses. The bank was given judgment for that principal and interest.” (footnote omitted)

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Upton v Westpac Banking Corporation & Ors [2017] QCA 171
PARTIES:	JAMES SYDNEY UPTON (appellant) v WESTPAC BANKING CORPORATION ABN 33 007 457 141 (respondent) SHAUN CHRISTOPHER MCKINNON Added by counterclaim (second respondent) GRAHAM ROBERT KILLER Added by counterclaim (third respondent)
FILE NO/S:	Appeal No 8886 of 2016 DC No 1244 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Brisbane – [2015] QDC 278
DELIVERED ON:	11 August 2017
DELIVERED AT:	Brisbane
HEARING DATE:	13 March 2017
JUDGES:	Fraser and Gotterson JJA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal dismissed. 2. The appellant pay the respondents’ costs of the appeal.
CATCHWORDS:	APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – ORDERS SET ASIDE OR VARIED – where the appellant appeals against the dismissal of his application under r 668 of the Uniform Civil Procedure Rules 1999 (Qld) to set aside the summary judgment given against him – where the appellant was refused an extension of time to appeal against the summary judgment – where the appellant applied under r 668 alleging that facts had been discovered, that if discovered in time, would have entitled the appellant to a different order – whether the appellant can establish that there was an error by the primary judge in concluding that these were no new facts discovered after summary judgment was given against him Uniform Civil Procedure Rules 1999 (Qld), r 668 Amos v Wiltshire[2016] QCA 77, considered IVI Pty Ltd v Baycrown Pty Ltd [2007] 1 Qd R 428; [2006] QCA 461, considered Rockett v The Proprietors – “The Sands” Building Units Plan No 82 [2002] 1 Qd R 307; [2001] QCA 99, considered Upton v Westpac Banking Corporation[2016] QCA 220, related Westpac Banking Corporation v Upton [2015] QDC 278, related
COUNSEL:	The appellant appeared on his own behalf E J Goodwin for the respondents
SOLICITORS:	The appellant appeared on his own behalf Henry Davis York Lawyers for the respondents