Wallace v Rural Bank Limited - [2014] QCA 295

SUPREME COURT OF QUEENSLAND

CITATION:

Wallace v Rural Bank Limited & Anor [2014] QCA 295

PARTIES:

CHARLIE WALLACE
(appellant)
v
RURAL BANK LIMITED
ACN 083 938 416
(respondent)
MICHELLE LAMB
(not a party to the appeal)

FILE NO/S:

Appeal No 4307 of 2014
SC No 7928 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

21 November 2014

DELIVERED AT:

Brisbane

HEARING DATE:

23 September 2014

JUDGES:

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

ORDERS:

Leave to adduce further evidence is refused.1.

The appeal is dismissed.2.

The appellant is to pay the respondent’s costs of the appeal, to be agreed or failing agreement, to be assessed on a standard basis.3.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – OTHER MATTERS – where default judgment was entered for the respondent in relation to a proceeding instituted by the respondent claiming monies owed by the appellant pursuant to trading and loan facilities granted in relation to two rural properties in Northern Queensland – where an application by the appellant to set aside that default judgment was dismissed, with costs – where the appellant appeals the dismissal of that application – whether the default judgment was a nullity as a consequence of the respondent’s failure to comply with rule 389 of the Uniform Civil Procedure Rules 1999

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – where default judgment was entered for the respondent in relation to a proceeding instituted by the respondent claiming monies owed by the appellant pursuant to trading and loan facilities granted in relation to two rural properties in Northern Queensland – where an application by the appellant to set aside that default judgment was dismissed, with costs – where the appellant appeals the dismissal of that application – whether the Primary Judge erred in finding a deed of agreement operated to disentitle the appellant from seeking to set aside the default judgment

Uniform Civil Procedure Rules 1999 (Qld), r 389

Browning v Australian and New Zealand Banking Group Ltd[2014] QCA 43, cited
Cameron v Cole (1944) 68 CLR 571; [1944] HCA 5, applied
Cusack v De Angelis [2008] 1 Qd R 344; [2007] QCA 313, cited
In re McC (A Minor) [1985] AC 528, cited
Re Macks; Ex parte Saint (2000) 204 CLR 158; [2000] HCA 62, cited
Stone v ACE-IRM Insurance Broking Pty Ltd [2004] 1 Qd R 173; [2003] QCA 218, applied

COUNSEL:

P E King for the appellant
M Gynther for the respondent

SOLICITORS:

BDG Legal for the appellant
Corrs Chambers Westgarth for the respondent

FRASER JA: I agree with the reasons of Boddice J and the orders proposed by his Honour, and the additional reasons of Morrison JA.

MORRISON JA: I have had the advantage of…

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: [2014] QCA 295
Decision Date: 21 November 2014

CaseChat Overview and Summary

Wallace, the appellant, brought an appeal against a decision of the District Court of Queensland, where the appellant’s application to set aside a default judgment entered against them in favour of Rural Bank Limited, the respondent, was dismissed. The default judgment was entered in a proceeding brought by the respondent, seeking monies owed by the appellant pursuant to trading and loan facilities granted in relation to two rural properties in Northern Queensland. The appeal presented two primary issues: whether the default judgment was a nullity due to the respondent’s failure to comply with rule 389 of the Uniform Civil Procedure Rules 1999, and whether the Primary Judge erred in finding that a deed of agreement operated to disentitle the appellant from seeking to set aside the default judgment.

The Court of Appeal found that there was no merit in the appellant's argument that the default judgment was a nullity due to non-compliance with rule 389. The court held that the respondent had provided sufficient evidence to satisfy the requirements of the rule, and therefore, the default judgment was valid. Furthermore, the Court held that the Primary Judge did not err in finding that the deed of agreement operated to disentitle the appellant from seeking to set aside the default judgment. The court found that the terms of the deed of agreement were clear and unambiguous, and that the appellant was bound by its terms.

The appeal was dismissed, and the appellant was ordered to pay the respondent’s costs of the appeal. The Court of Appeal found that the Primary Judge’s decision was correct, and that there was no basis to set aside the default judgment. The Court also found that the appellant’s argument that the deed of agreement was not binding was without merit. The Court of Appeal held that the appellant was bound by the terms of the deed of agreement, and that the Primary Judge’s decision to dismiss the appellant’s application to set aside the default judgment was correct.

Orders

Orders of the court

Leave to adduce further evidence is refused.1.

The appeal is dismissed.2.

The appellant is to pay the respondent’s costs of the appeal, to be agreed or failing agreement, to be assessed on a standard basis.3.

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:	Wallace v Rural Bank Limited & Anor [2014] QCA 295
PARTIES:	CHARLIE WALLACE (appellant) v RURAL BANK LIMITED ACN 083 938 416 (respondent) MICHELLE LAMB (not a party to the appeal)
FILE NO/S:	Appeal No 4307 of 2014 SC No 7928 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	21 November 2014
DELIVERED AT:	Brisbane
HEARING DATE:	23 September 2014
JUDGES:	Fraser and Morrison JJA and Boddice J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Leave to adduce further evidence is refused.1. The appeal is dismissed.2. The appellant is to pay the respondent’s costs of the appeal, to be agreed or failing agreement, to be assessed on a standard basis.3.
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – OTHER MATTERS – where default judgment was entered for the respondent in relation to a proceeding instituted by the respondent claiming monies owed by the appellant pursuant to trading and loan facilities granted in relation to two rural properties in Northern Queensland – where an application by the appellant to set aside that default judgment was dismissed, with costs – where the appellant appeals the dismissal of that application – whether the default judgment was a nullity as a consequence of the respondent’s failure to comply with rule 389 of the Uniform Civil Procedure Rules 1999 CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – where default judgment was entered for the respondent in relation to a proceeding instituted by the respondent claiming monies owed by the appellant pursuant to trading and loan facilities granted in relation to two rural properties in Northern Queensland – where an application by the appellant to set aside that default judgment was dismissed, with costs – where the appellant appeals the dismissal of that application – whether the Primary Judge erred in finding a deed of agreement operated to disentitle the appellant from seeking to set aside the default judgment Uniform Civil Procedure Rules 1999 (Qld), r 389 Browning v Australian and New Zealand Banking Group Ltd[2014] QCA 43, cited Cameron v Cole (1944) 68 CLR 571; [1944] HCA 5, applied Cusack v De Angelis [2008] 1 Qd R 344; [2007] QCA 313, cited In re McC (A Minor) [1985] AC 528, cited Re Macks; Ex parte Saint (2000) 204 CLR 158; [2000] HCA 62, cited Stone v ACE-IRM Insurance Broking Pty Ltd [2004] 1 Qd R 173; [2003] QCA 218, applied
COUNSEL:	P E King for the appellant M Gynther for the respondent
SOLICITORS:	BDG Legal for the appellant Corrs Chambers Westgarth for the respondent