Carinya Cove Pty Ltd v Nyholt Constructions Pty Ltd
[1998] QCA 474
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- Unreported Judgment
- Carinya Cove Pty Ltd v Nyholt Constructions Pty Ltd[1998] QCA 474
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Carinya Cove Pty Ltd v Nyholt Constructions Pty Ltd[1998] QCA 474
Carinya Cove Pty Ltd v Nyholt Constructions Pty Ltd[1998] QCA 474
COURT OF APPEAL
PINCUS JA
THOMAS JA
SHEPHERDSON J
Appeal No 3938 of 1998
IN THE MATTER OF THE CORPORATIONS LAW
and
IN THE MATTER OF CARINYA COVE PTY LTD
(ACN 064 186 090) Appellant/Plaintiff
and
NYHOLT CONSTRUCTIONS PTY LTD
(ACN 008 538 641) Respondent/Defendant
BRISBANE
DATE 22/10/98
JUDGMENT
PINCUS JA: This appeal relates to a judgment of the Supreme Court dealing with an application to set aside two statutory demands which can be referred to as numbers 7 and 8. Number 7 was in respect of an amount of $2,115 and number 8 in respect to an amount of $28,232. In each instance the Judge decided in favour of the creditor, that is, His Honour refused to set aside the demands. The notice of appeal and subsequent outlines raise some points which could be described as substantial, by which I do not mean to imply that they had any prospect of success. Shortly before the matter came on for hearing, new counsel were engaged and Mr Morris QC has fined the argument down to two relatively narrow, and if I may say so, rather small points.
The first point suggested by Mr Morris is that the primary judge should not have dismissed the application, but rather should have set aside the demand conditionally upon the appellant's paying the amount claimed in exchange for a bank guarantee. The reference to exchange for a bank guarantee does not require any elaborate explanation. In essence what happened was that the $28,000 became payable as retention moneys under a building contract when and if the respondent provided the bank guarantee which it proposed to do. What Mr Morris says in effect is that the fair thing to do was to require the appellant to pay the money then and there and to pay it in exchange for the guarantee. This would have been a sensible solution, no doubt, but it was not one which was proposed to the primary judge and it does not seem to me that it should assist the appellant now. That is, the judge, in my view, made no error in declining to dismiss the application on the basis which Mr Morris puts forward, because that was never proposed to him by the appellant below.
The second point is one which is rather more complex and it is that the amount payable pursuant to the statutory demand should be reduced by the sum of $5,000 in accordance with certain evidence which has been discussed before us briefly by Mr Morris and by Mr Sullivan, who appears for the respondent.The argument relating to the $5,000 is in essence this. Mr Morris says that if the judge's decision stands, then there will be or may be an issue estoppel in respect of what I will call the $5,000 dispute. What His Honour in fact said about it is very brief. His Honour, in his reasons, made a finding which is at page 522 of the record, that when the demand was issued, Carinya Cove Pty Ltd, the appellant, was and still is indebted to Nyholt Constructions Pty Ltd, the respondent, for the precise amount demanded. If that stood alone, and if the findings in such a case as this were capable of giving rise to an issue estoppel, there might be one in respect of the $5,000 dispute. However later on on the same page, His Honour made this reference to the $5,000:
"The applicant's material refers to an assignment of a debt of $5,000. This point was not the subject of argument before me and I do not take it into account."
There was some discussion in the course of Mr Morris' argument as to whether or not the first finding is capable of giving rise to an issue estoppel; but it seems to me unnecessary to decide that point, because the first finding must be read with His Honour's reservation, if I can use that expression, of the $5,000 point. It was not a matter which was raised before him; he made no decision about it. It is my opinion that the reasons read as a whole could not possibly amount to an expression of view, even a tentative one, as to what the fate of the $5,000 debt should be.
This conclusion makes it unnecessary for us to discuss the details of the $5,000 dispute and it is fortunate this is so, because it would really be an extraordinary course to burden the Court of Appeal with the decision, for the first time, of that point when it was not even raised by the appellant below.
The view which I take, for these reasons, is that neither of the points which have been raised by Mr Morris succeeds and the appeal should simply be dismissed with costs.
THOMAS JA: I agree. I would add that the bank guarantee had been tendered to the appellant before the demand and had been wrongly refused. The respondent was plainly entitled thereafter to be paid the retention money. The demand was valid even though imprecisely described by reference to the superintendent's certificate.
With respect to the $5,000, I agree with what Mr Justice Pincus has said. I note that there is some evidence that suggests that the $5,000 which was intended to be the subject of the assignment was based upon an alleged wrongful deduction under a separate contract. The suggestion that there was an assignment of part of the debt or debts that had been demanded was simply not litigated, and neither the Court below nor this Court ought to find that a deduction was required from the actual amounts of the demands.
I agree that the appeal should be dismissed with costs.
SHEPHERDSON J: I agree with the orders proposed by the learned presiding Judge and with the reasons which he has given.