Upton v Westpac Banking Corporation - [2016] QCA 220

SUPREME COURT OF QUEENSLAND

CITATION:

Upton v Westpac Banking Corporation [2016] QCA 220

PARTIES:

JAMES SYDNEY UPTON
(appellant/applicant)
v
WESTPAC BANKING CORPORATION
ABN 33 007 457 141
(respondent)

FILE NO/S:

Appeal No 12768 of 2015
DC No 1244 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURTS:

District Court at Brisbane – [2015] QDC 278
District Court at Brisbane – Unreported, 10 December 2015

DELIVERED ON:

2 September 2016

DELIVERED AT:

Brisbane

HEARING DATE:

23 June 2016

JUDGES:

Holmes CJ and Fraser and Philip McMurdo JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Dismiss the appeal.

2.   Refuse the amended application filed in this court on 15 June 2016.

3.   Refuse the application filed 9 August 2016.

4.   Order the appellant to pay the costs of the appeal, the amended application filed 15 June and the application filed 9 August 2016.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where the applicant guaranteed a loan facility provided to a third party company by the respondent bank – where the company was placed into liquidation in 2013, constituting an event of default under the loan facility and the applicant’s guarantee – where the respondent commenced proceedings in the District Court for a debt owing in the applicant’s capacity as guarantor – where on 10 November 2015 the learned primary judge gave summary judgment against the applicant – where on 30 May 2016 the applicant filed an application for leave to appeal against the summary judgment – where the application is out of time – whether the explanation for delay and merit of the proposed appeal warrant an extension of time

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – ENFORCEMENT OF JUDGMENTS AND ORDERS – GENERALLY – where the respondent bank took a mortgage over property owned by the third party company – where, upon the event of default, the respondent appointed receivers who took some steps towards, but did not complete, a sale of the property – where the appellant counterclaimed against the respondent contending that by failing to sell the property the respondent had breached its duty under ss 85 and 89 Property Law Act 1974 (Qld) – where the learned primary judge struck out the counterclaim with liberty to replead – where the appellant filed an amended counterclaim and applied for a stay of the summary judgment pending the determination of the counterclaim on the basis that damages for the counterclaim would set off or substantially reduce the debt to the respondent – where the application was dismissed – where the appellant contends the primary judge erred in refusing the application – whether the appellant’s claim against the respondent warrant’s execution of the summary judgment to be stayed

Property Law Act 1974 (Qld), s 85, s 85(1), s85(3), s 89(1)

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: [2016] QCA 220
Decision Date: 2 September 2016

CaseChat Overview and Summary

Upton, a guarantor of a loan facility, appeals against a summary judgment obtained by Westpac Banking Corporation in the District Court, which ruled in favour of the bank in its action for a debt owed by the guarantor. The guarantor argues that the judgment should be set aside or an extension of time granted to appeal, as the delay was due to the bank’s failure to sell a mortgaged property, which the guarantor claims constituted a breach of duty under the Property Law Act 1974 (Qld). The guarantor also contends that the primary judge erred in dismissing the application to stay the execution of the summary judgment pending the determination of the counterclaim. The primary issues for the court to decide were whether the explanation for the delay in filing the appeal and the merit of the proposed appeal warrant an extension of time, and whether the counterclaim warranted a stay of the summary judgment.

The court dismissed the appeal as the application for leave to appeal was out of time. The court found that the explanation for the delay was not sufficient to warrant an extension of time, and the merit of the proposed appeal did not justify an extension. The court also found that the guarantor’s claim against the bank did not warrant a stay of the summary judgment. The court held that the bank did not breach its duty under the Property Law Act 1974 (Qld) by failing to sell the mortgaged property, and the guarantor’s counterclaim did not have sufficient merit to warrant a stay of the summary judgment.

The court ordered that the appeal be dismissed, the amended application filed on 15 June 2016 be refused, and the application filed on 9 August 2016 be refused. The court also ordered that the guarantor pay the costs of the appeal, the amended application, and the application filed on 9 August 2016.

Orders

Orders of the court

1. Dismiss the appeal.

2. Refuse the amended application filed in this court on 15 June 2016.

3. Refuse the application filed 9 August 2016.

4. Order the appellant to pay the costs of the appeal, the amended application filed 15 June and the application filed 9 August 2016.

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

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 [2016] QCA 220
PARTIES:	JAMES SYDNEY UPTON (appellant/applicant) v WESTPAC BANKING CORPORATION ABN 33 007 457 141 (respondent)
FILE NO/S:	Appeal No 12768 of 2015 DC No 1244 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURTS:	District Court at Brisbane – [2015] QDC 278 District Court at Brisbane – Unreported, 10 December 2015
DELIVERED ON:	2 September 2016
DELIVERED AT:	Brisbane
HEARING DATE:	23 June 2016
JUDGES:	Holmes CJ and Fraser and Philip McMurdo JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Dismiss the appeal. 2. Refuse the amended application filed in this court on 15 June 2016. 3. Refuse the application filed 9 August 2016. 4. Order the appellant to pay the costs of the appeal, the amended application filed 15 June and the application filed 9 August 2016.
CATCHWORDS:	APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where the applicant guaranteed a loan facility provided to a third party company by the respondent bank – where the company was placed into liquidation in 2013, constituting an event of default under the loan facility and the applicant’s guarantee – where the respondent commenced proceedings in the District Court for a debt owing in the applicant’s capacity as guarantor – where on 10 November 2015 the learned primary judge gave summary judgment against the applicant – where on 30 May 2016 the applicant filed an application for leave to appeal against the summary judgment – where the application is out of time – whether the explanation for delay and merit of the proposed appeal warrant an extension of time PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – ENFORCEMENT OF JUDGMENTS AND ORDERS – GENERALLY – where the respondent bank took a mortgage over property owned by the third party company – where, upon the event of default, the respondent appointed receivers who took some steps towards, but did not complete, a sale of the property – where the appellant counterclaimed against the respondent contending that by failing to sell the property the respondent had breached its duty under ss 85 and 89 Property Law Act 1974 (Qld) – where the learned primary judge struck out the counterclaim with liberty to replead – where the appellant filed an amended counterclaim and applied for a stay of the summary judgment pending the determination of the counterclaim on the basis that damages for the counterclaim would set off or substantially reduce the debt to the respondent – where the application was dismissed – where the appellant contends the primary judge erred in refusing the application – whether the appellant’s claim against the respondent warrant’s execution of the summary judgment to be stayed Property Law Act 1974 (Qld), s 85, s 85(1), s85(3), s 89(1)