Westpac Banking Corporation v Leckenby - [2015] QSC 363

SUPREME COURT OF QUEENSLAND

CITATION:

Westpac Banking Corporation v Leckenby & anor [2015] QSC 363

PARTIES:

WESTPAC BANKING CORPORATION
ABN 33 007 457 141

(plaintiff)

v
MARK DONALD LECKENBY  (ALSO KNOWN AS MARK LECKENBY)

(first defendant)

ENERGY MAXIMISER PTY LTD
ACN 140 832 186

(second defendant)

ICOMMS CONSULTING PTY LTD
ACN 101 631 270

(third defendant)

FILE NO/S:

BS No 10597 of 2014

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

18 December 2015

DELIVERED AT:

Brisbane

HEARING DATE:

10 December 2015

JUDGE:

Martin J

ORDER:

1.   Application allowed.

2.   Applicant is to bring in a minute of order reflecting these reasons.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSOR – SUMMARY JUDGMENT – where the plaintiff entered into a loan agreement which was guaranteed by the defendants – where the plaintiff seeks to recover the amount owing under the loan from the guarantors – where the applicant plaintiff applies for summary judgment – where the respondent defendants resist the application on the basis that the first defendant raises by way of set-off, a counterclaim – where there is a suspension clause in relation to the set-off – whether the set-off can be relied upon – whether it is appropriate to grant summary judgment in circumstances where case flow directions have been made

Uniform Civil Procedure Rules 1999, r 292

Capital Finance Australia Ltd v Airstar Aviation Pty Ltd [2004] 1 Qd R 122

Norman; Re Forest Enterprises Ltd v FEA Plantation Ltd (2011) 280 ALR 470

COUNSEL:

MJ Luchich for the plaintiff

RJ Anderson QC for the defendants

SOLICITORS:

Minter Ellison for the plaintiff

Grasso Searles Romano Lawyers for the defendants

In June 2011, Westpac Banking Corporation (‘Westpac’) lent money to Auzion Enterprises Pty Ltd (‘Auzion Enterprises’) . The loan was secured by a guarantee from each of the first, second and third defendants. That is not admitted on the pleadings, but the applicant’s unchallenged evidence supports that conclusion. Westpac pleads, and supports with sworn evidence, that in December 2013 Auzion Enterprises was in default. The defendants do not admit this allegation – on the basis that they do not have sufficient information to enable them to plead.
In its Claim, Westpac seeks to recover the amount owing under the loan from the guarantors. In this application it seeks judgment against the guarantors pursuant to rule 292 of the Uniform Civil Procedure Rules 1999.
The defendant’s resist the application on only these bases:
(a)     the first defendant raises, by way of set-off, a counterclaim that is not the subject of any denials by the plaintiff,
(b)     disclosure, even of matters relevant to Westpac’s own case, has not yet occurred, but the parties have agreed that it occur in early 2016, and
(c)     the parties have agreed to a mediation in April 2016.
The set-off
Mr Leckenby pleads in his counterclaim that Westpac acted contrary to instructions and in breach of its duty which, together with…

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: [2015] QSC 363
Decision Date: 18 December 2015

CaseChat Overview and Summary

In the case of Westpac Banking Corporation v Leckenby, the plaintiff, Westpac, sought to recover the amount owing under a loan agreement from the defendants, who had guaranteed the loan. The matter was before the court on Westpac's application for summary judgment against the defendants. The defendants resisted the application, arguing that the first defendant had a counterclaim which could be set off against the debt owed, despite the existence of a suspension clause in relation to the set-off. The court was required to determine whether the set-off could be relied upon and whether it was appropriate to grant summary judgment given that case flow directions had been made.

The court considered the unusual timing of the application for summary judgment, given that the parties had recently agreed to orders for disclosure and for participation in a mediation. However, the court found that this fact, without more, did not demonstrate that summary judgment was inappropriate. The court also considered the defendants' argument that the first defendant's counterclaim could be set off against the debt owed, despite the existence of a suspension clause. The court found that the defendants had not demonstrated that the set-off could be relied upon and that it was appropriate to grant summary judgment.

The court concluded that the applicant had demonstrated that this was a case in which summary judgment should be allowed. The court made orders to that effect, granting the application and requiring the applicant to bring in a minute of order reflecting the reasons for the decision. The court did not make any orders in relation to the defendants' counterclaim, finding that it was not necessary to do so given the outcome of the application for summary judgment.

Orders

Orders of the court

1. Application allowed.

2. Applicant is to bring in a minute of order reflecting these reasons.

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

The fact that after the parties agreed to orders for disclosure and for participation in a mediation the plaintiff brought this application is unusual but, without more, does not demonstrate that summary judgment is inappropriate.Conclusion The applicant has demonstrated that this is a case in which summary judgment should be allowed and I will make orders to that effect.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Westpac Banking Corporation v Leckenby & anor [2015] QSC 363
PARTIES:	WESTPAC BANKING CORPORATION ABN 33 007 457 141 (plaintiff) v MARK DONALD LECKENBY (ALSO KNOWN AS MARK LECKENBY) (first defendant) ENERGY MAXIMISER PTY LTD ACN 140 832 186 (second defendant) ICOMMS CONSULTING PTY LTD ACN 101 631 270 (third defendant)
FILE NO/S:	BS No 10597 of 2014
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	18 December 2015
DELIVERED AT:	Brisbane
HEARING DATE:	10 December 2015
JUDGE:	Martin J
ORDER:	1. Application allowed. 2. Applicant is to bring in a minute of order reflecting these reasons.
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSOR – SUMMARY JUDGMENT – where the plaintiff entered into a loan agreement which was guaranteed by the defendants – where the plaintiff seeks to recover the amount owing under the loan from the guarantors – where the applicant plaintiff applies for summary judgment – where the respondent defendants resist the application on the basis that the first defendant raises by way of set-off, a counterclaim – where there is a suspension clause in relation to the set-off – whether the set-off can be relied upon – whether it is appropriate to grant summary judgment in circumstances where case flow directions have been made Uniform Civil Procedure Rules 1999, r 292 Capital Finance Australia Ltd v Airstar Aviation Pty Ltd [2004] 1 Qd R 122 Norman; Re Forest Enterprises Ltd v FEA Plantation Ltd (2011) 280 ALR 470
COUNSEL:	MJ Luchich for the plaintiff RJ Anderson QC for the defendants
SOLICITORS:	Minter Ellison for the plaintiff Grasso Searles Romano Lawyers for the defendants