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Bolton Properties Pty Ltd v J K Investments (Australia) Pty Ltd[2009] QCA 135

Reported at [2009] 2 Qd R 202

Bolton Properties Pty Ltd v J K Investments (Australia) Pty Ltd[2009] QCA 135

Reported at [2009] 2 Qd R 202

 

SUPREME COURT OF QUEENSLAND

PARTIES:

(plaintiff/respondent)

v

J K INVESTMENTS (AUSTRALIA) PTY LTD

(defendant/appellant)

FILE NO/S:

SC No 5 of 2008

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

DELIVERED ON:

22 May 2009

DELIVERED AT:

Brisbane

HEARING DATE:

10 March 2009

JUDGES:

Holmes and Chesterman JJA and Daubney J

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. The appeal is dismissed

2. The appellant shall pay the respondent’s costs of the appeal, to be assessed on the standard basis

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDING OF FACT – PROOF AND EVIDENCE – OTHER MATTERS – where two different copies of the contract in question allegedly existed – where one copy was initialled by director of appellant and the other not – where standard commercial conditions had been proven – whether contract had been sufficiently proven to establish debt

INTERPRETATION – ADMISSIBILITY OF EXTRINSIC EVIDENCE IN RELATION TO INSTRUMENTS – MATTERS PARTICULARLY RELATING TO CONTRACTS – COLLATERAL CONTRACTS – CONSISTENCY OF COLLATERAL CONTRACT WITH MAIN CONTRACT – where appellant argued that there was an understanding between the parties who were family members – where the understanding absolved the appellant from being required to pay the balance of a debt owed to the respondent – whether such understanding existed – whether a trial was required to determine its existence – whether appellant was required to pay outstanding amount

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – SUMMARY JUDGMENT – where summary judgment entered against appellant – general discussion of what is required under rules 292 and 293 of the UCPR to summarily dismiss a matter

Uniform Civil Procedure Rules 1999 (Qld) r 292, r 293

Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41, considered

Australia & New Zealand Banking Group Limited v Barry [1992] 2 Qd R 12, considered

AVS Catering Pty Ltd v Brisbane Broncos Corporation Pty Ltd [2005] QSC 395, considered

Bernstrom v National Australia Bank Limited [2000] 1 Qd R 469; [2002] QCA 231, distinguished

Cloverdell Lumber Co Pty Ltd v Abbott (1924) 34 CLR 122; [1924] HCA 4, cited

Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232; [2005] QCA 227, questioned

Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1, cited

Elderslie Property Investments No 2 Pty Ltd v Dunn Anor [2007] QSC 192, followed

Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87; [1983] HCA 25, applied

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69, cited

Gray v Morris [2004] 2 Qd R 118; [2004] QCA 5, followed

Queensland University of Technology v Project Constructions (Aust) Pty Ltd (in liq.) [2003] 1 Qd R 259; [2002] QCA 224, followed

Rich v CGU Insurance Ltd (2005) 79 ALJR 856; [2005] HCA 16, cited

Swain v Hillman (2001) 1 All ER 91, applied

Three Rivers District Council v Bank of England (No 3) [2001] 2 All ER 513; [2001] UKHL 16, considered

COUNSEL:

A P J Collins for the appellant

M D Martin for the respondent

SOLICITORS:

Pearson Law for the appellant

Shand Taylor Lawyers for the respondent

[1]  HOLMES JA:  I have had the benefit of reading the judgment of Chesterman JA.  I agree with his Honour that summary judgment was properly entered in this case, and that the appeal should be dismissed with costs.  I do not agree, with respect, with his Honour’s reasons insofar as he equates a claim (or defence) which has “no real prospect of succeeding” with one which is “bound to fail”.  I think that there is some difference between the two, although, as Chesterman JA says, they may be “elusively close”.  While I doubt that the exploration of finer shades of meaning in this regard is really productive, because differences of opinion may reflect no more than entirely subjective perceptions of meaning, the first implies, to me at least, a conclusion reached after a hard-headed assessment, rejecting spurious arguments, while the second suggests a refusal to act unless complete conviction can be reached.

[2] Whether that characterisation is sound or not, the test to which one must adhere is the “no real prospect” test in UCPR 292 and UCPR 293, and I do not think it can be safely paraphrased in the way Chesterman JA proposes.  Of course, one must also observe the requirement that the court be satisfied that “there is no need for a trial of the claim or the part of the claim”;  summary judgment cannot be granted without that confidence.  My views remain as expressed in the passage from my judgment in Queensland University of Technology v Project Constructions (Aust) Pty Ltd (in Liq.) [2003] 1 Qd R 259 at 264-5, which Chesterman JA has quoted. 

[3]  CHESTERMAN JA:  The appellant seeks to set aside a judgment for $317,514.10, together with interest of $187,427.06, entered summarily against it on 19 August 2008.  The application for judgment had been brought pursuant to UCPR r 292 which provides that:

“1.A plaintiff may, at any time after a defendant files a notice of intention to defend, apply to the court ... for judgment against the defendant.

  1. If the court is satisfied that -

(a)the defendant has no real prospect of successfully defending all or a part of the plaintiff’s claim;  and

(b) there is no need for a trial of the claim or the part of the claim;

the court may give judgment for the plaintiff against the defendant for all or the part of the plaintiff’s claim and may make any other order the court considers appropriate.”

[4]  UCPR r 293 which applies to applications for summary judgment by defendants is in identical terms.

[5] Both appellant and respondent accepted that the principles governing summary judgment were established by a decision of this court, Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232.  That case is not, however, the only decision bearing upon the meaning and mode of applying UCPR r 292. 

[6] In Bernstrom v National Australia Bank Ltd [2003] 1 Qd R 469 Jones J (with whom McMurdo P and Cullinane J agreed) said:

“This new rule results, not only in a change in terms, but also reflects a change in the philosophy from that embodied in the former rules and in the propositions identified in Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87.” 

His Honour then referred to Swain v Hillman [2001] 1 All ER 91, a decision on an almost identical English rule, in which Lord Woolf said (at 92):

“… the court now has a very salutary power ... to dispose summarily of both claims or defences which have no real prospect of being successful.  The words ‘no real prospect of succeeding’ do not need any amplification, they speak for themselves.  The word ‘real’ distinguishes fanciful prospects of success or ... they direct the court to the need to see whether there is a ‘realistic’ as opposed to a ‘fanciful’ prospect of success.”

[7] His Lordship went on (at 94):

“It is important that a judge in appropriate cases should make use of the powers ... It saves expense;  it achieves expedition;  it avoids the court’s resources being used up on cases where this serves no purpose, and ... generally ... it is in the interests of justice.  If a claimant has a case which is bound to fail, then it is in the claimant’s interests to know as soon as possible that that is the position.  Likewise, if a claim is bound to succeed, a claimant should know that as soon as possible.”

[8] Jones J concluded that these passages were:

“... clearly consonant with the philosophy of the UCPR as set out in r 5.  It is this philosophy which underpins the change in approach reflected in the new rules.”

[9] This view of the rule was challenged in Gray v Morris [2004] 2 Qd R 118.  In my judgment I drew attention to what the High Court had said in Fancourt at 99:

“The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried:  see Clarke v Union Bank of Australia Ltd (1917) 23 CLR 5;  Jones v Stone [1894] AC 122;  Jacobs v Booth’s Distillery Co (1901) 85 LT 262”.

[10]  In Jones the Privy Council had said that an application for summary judgment should succeed only where “there can be no reasonable doubt” that the applicant was entitled to judgment.

[11]  My judgment went on (at 125):

“For my part I do not consider that the new rules require any robust assessment of the outcome of litigation in advance of the trial.  The reasons which lie behind the caution expressed by the High Court and the Privy Council are still valid.  A plaintiff who claims to have a cause of action should not be prevented from prosecuting his claim unless it be obvious that he cannot succeed.  ...  The new rules, just as the old, are concerned with depriving a litigant of participation in the process which the law has always regarded as being the appropriate means of determining rights.  The deprivation should only occur in a clear case, as the High Court said.”

[12]  I, too, referred to Swain and the passages which Jones J had quoted, and drew attention to the use by Lord Woolf of the phrases “no real prospect of succeeding” and “a case which is bound to fail”; which appeared to have been used interchangeably,  from which I concluded:

“The Master of the Rolls may well have amplified the meaning of the Rule though he denied it needed any amplification.  A claim or defence which has no real prospect of success is one which is bound to fail.  If one adopts this as the proper test then one has a clear basis on which to proceed.  A claim which is bound to fail is one which cannot succeed.  It is one which cannot possibly succeed.  It is one which has no prospect of success.”

[13]  The judgment also drew attention to the debate in Three Rivers District
Council v Bank of England (No 3) [2001] 2 All ER 513 in which Lord Hope (with whom Lord Steyn agreed) had remarked (at 541-2) that the difference between the phrases “is the claim bound to fail”, and “does the claim have a real prospect of success”, was “not easy to determine” and that the difference between the two tests was “elusive”.  Lord Hobhouse seemed to equate “no real prospect of success” with “hopelessness”.  He had remarked (568):

“There is no point in allowing claims to proceed which have no real prospect of success, certainly not in proceeding beyond the stage where their hopelessness has clearly become apparent.”

[14]  I thought three conclusions emerged from the cases.  They were:

1.It is a serious step to order judgment in advance of trial.

2.The rules as to summary judgment were to be applied in order to do justice between the parties.

  1. A claim or defence which has “no real prospect of succeeding” is one which is “hopeless” or one which is “bound to fail”.

[15]  My judgment went further than that of the other members of the court.  McMurdo J (with whom McPherson JA agreed) said (133):

“... rr. 292 and 293 should be applied by reference to their clear and unambiguous language, without a need for any paraphrase or comparison with a previous rule.  But in the application of the plain words ... and in particular the consideration of whether there is a need for a trial, a court must keep in mind why the interests of justice usually require the issues to be investigated at a trial.  In my view it surely remains the case, as Mason, Murphy, Wilson, Deane and Dawson JJ said in Fancourt ... ‘The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried’.”

[16]  The judgments in Gray addressed a concern that the enthusiasm expressed in Bernstrom might develop a jurisprudence of summary determinations which did not recognise the principle that it was an exceptional remedy to be granted only in clear cases where it was obvious that the applicant was entitled to judgment.  There was, I think, a real danger that Bernstrom might have led to a rough and ready assessment of cases brought under UCPR r 292.

[17]  The same warning was sounded by Holmes J (with whom Davies JA and Mullins J agreed) in Queensland University of Technology v Project Constructions (Aust) Pty Ltd (in liq) [2003] 1 Qd R 259 at 264-5:

“The more appropriate inquiry is in terms of the Rule itself:  that is, whether there exists a real, as opposed to a fanciful, prospect of success.  However, it remains, without doubt, the case that: ‘great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case.’ ”

[18]  As the law reporter politely put it, Gray was “not followed” in Salcedo
McMurdo P said (233):

“UCPR r 292 and r 293 should be applied using their clear and unambiguous language and keeping in mind the purpose of the UCPR to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.”

[19]  Williams JA insisted (234-5) that the rules had:

“... brought about significant changes in the law and procedure relating to summary judgment”

and said that, quoting from Swain:

“The words ‘no real prospect of succeeding’ ... direct the court to the need to see whether there is a ‘realistic’ as opposed to a ‘fanciful’ prospect of success.  ...  [the rule] saves expense;  it achieves expedition;  it avoids the court’s resources being used up on cases where this serves no purpose.”

[20]  Atkinson J, too, thought that the rules had wrought a change in jurisprudence and that the task of a court deciding an application for summary judgment was to:

“apply the plain meaning of the words ... and not impose a gloss taken from the practice ... that applied ... before the … UCPR.”

and that:

“… the test to be applied is that adopted ... in Swain ... that is, the court must consider whether there exists a real, as opposed to a fanciful, prospect of success.”

[21]  There is a difficulty with the “new” approach supported by Bernstrom and Salcedo.  It is that the judgments do not make clear what is meant by “no real prospect”.  Although the words are said to be “clear and unambiguous” or “plain and unambiguous” it has been thought necessary to essay an explanation of them.  A “real” prospect is one that is “not fanciful”, but one does not prove no “real prospect of success” by showing only that success is improbable.  That the words of the rule need such elaboration is, in my opinion, to admit that they are not plain and unambiguous.

[22]  The real difficulty, however, is not understanding what the language of UCPR r 292 signifies, but to know what test to apply in order to determine, without the investigative processes and procedures of a trial, whether a party to litigation should suffer judgment against it.  It was for this reason that I remarked in AVS Catering Pty Ltd v Brisbane Broncos Corporation Pty Ltd [2005] QSC 395 at [14]:

“The only safe principle to apply when dealing with applications ... for summary judgment is that which I expressed in Gray… ‘[A] claim ... which has “no real prospect of succeeding” is one which is “hopeless” or one which is “bound to fail”.’  Any other approach runs the risk that judgment will be given undeservedly, as a trial would have demonstrated.  Those who see in the terminology of the rule ‘a new philosophy’ have yet to give content to it, and to explain why it values expedition more highly than justice.  Likewise, those who profess to be able to determine, summarily, whether a claim has a real prospect of success, or only a fanciful one, have yet to describe how they do so.”

[23]  It is the last consideration which is the critical one.  If summary judgment is not to work injustice it must be limited to those cases where it can be seen that a plaintiff or defendant, as the case may be, could not succeed at a trial of the action.  It is only where a trial can be seen to be pointless that judgment should be entered summarily.  Whatever form of words one uses the reality must be that it will only be just to deprive a party of its right to prosecute its claim or defence where it can be seen that the claim or defence cannot succeed.  If it might succeed, if there is a possibility of success, it cannot be just (though it might be expeditious) to enter summary judgment. 

[24]  In practical terms I suspect the rule means that summary judgment should not be given where the facts upon which the parties’ respective rights depend are disputed, or where the respondent to the application for summary judgment adduces evidence as to the existence of facts which, if proved, would establish a defence or a right to relief.  In other words it is only where all the facts are known and/or are established beyond controversy that the court should embark upon determining whether to give summary judgment.  Where relevant facts are controverted, or where it appears that facts may exist which would affect a right of action or defence, there should be a trial to determine the facts.

[25]  This, in truth, has been the approach taken in the cases decided under UCPR r 292 which I analysed in Gray, despite what was said in those cases about the “new” approach which the brave new words of the rule were thought to have made necessary. 

[26]  It follows that where the facts are settled and the respective rights of the parties turn upon questions of law UCPR r 292 would require the court to give judgment in advance of trial, even where the point is difficult.  This conclusion involves the departure from the practice under the former rules as to summary judgment as explained in Theseus Exploration NL v Foyster (1972) 126 CLR 507 and Sunbird Plaza Pty Ltd v Boheto Pty Ltd [1983] 1 Qd R 248.  To that extent UCPR r 292 may have brought about change.

[27]  If one adopts the “bound to fail” formula then there is a definitive criterion by which to determine whether summary judgment should be given.  A case which is bound to fail is one which is hopeless, or one which cannot succeed.  By contrast, if one decides whether a claim or defence has a real prospect of succeeding, one is called upon to make an evaluation of the prospect.  Are the prospects sufficient to justify the appellation “real” or should they be confined to the “fanciful” class?  The evaluation must occur on materials which, of necessity, are incomplete and will often occur in a busy Applications List.  The criteria for evaluation are imprecise.  Prospects may be real though it is improbable they will succeed.  A case which has “no real prospect of success” is different in kind to one which is “bound to fail”, but is elusively close to it.

[28]  The “new approach” leaves little room for, if it does not altogether exclude, the judicial caution which was the hallmark of the determination of applications for summary judgment before the rules were recast in their present form.  Indeed, the judgment in Bernstrom, with which Williams JA agreed in Salcedo, expressly endorses the relaxation of that cautious approach.  The High Court has however consistently affirmed the applicability of that caution.  It did so recently in Agar v Hyde (2000) 201 CLR 552, in which Gaudron, McHugh, Gummow and Hayne JJ said (575-6) with respect to the summary disposition of cases:

“It is, of course, well accepted that a court whose jurisdiction is regularly invoked ... should not decide the issues raised in those proceedings in a summary way except in the clearest of cases.  Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes.  The test to be applied has been expressed in various ways ... but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.”

[29]  The reference to the “test ... expressed in various ways ...” was to what Dixon J had said in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91:

“A case must be very clear indeed to justify the summary intervention of the court”

and to the judgment of Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130:

“... a case ... so clearly untenable that it cannot possibly succeed.”

[30]  In Rich v CGU Insurance Ltd (2005) 79 ALJR 859 at 858 Gleeson CJ, McHugh and Gummow JJ repeated:

“... the general principle ... that issues raised in proceedings are to be determined in a summary way only in the clearest of cases.”

[31]  The insistence that summary judgment be given only in “the clearest cases”, those about which there is “a high degree of certainty” is inconsistent with UCPR r 292 having brought a new approach to summary judgment.  The reaffirmation of the traditional caution by the High Court invalidates any determination of the merits of a case in advance of trial except in clear cases, as it described.

[32]  If one accepts, as one must, the authority of the High Court and the continuing applicability of the principles expressed in Fancourt and Agar, two consequences follow.  The first is that the phrase “no real prospects of success” designates a case as to which it is highly certain that a trial is unnecessary.  The High Court has warned about relying upon any particular form of words but it must be right that one can describe such a case as “hopeless” or “bound to fail”, the terms used in Gray to describe the sorts of case in which summary judgment may be entered.  The second consequence is that there is no “new approach”.  The principles which used to govern applications for summary judgment still do so.

[33]  Williams JA tried to avoid this consequence in Salcedo by both affirming the new philosophy and claiming that it was “not incompatible” with Fancourt.  The reality is, however, that any new philosophy or inclination to award summary judgment in other than the obvious cases, the ones that are bound to fail, is inconsistent with Fancourt and Agar.

[34]  McMurdo P attempted to resolve the dilemma by warning of the need for caution by specific reference to what the High Court had said in Agar.  Atkinson J did not address the problem.

[35]  The rights of litigants are better protected by insisting upon a test that deprives a party of its right to trial only in “the clearest cases”, those which are “hopeless” or “bound to fail”:  those about which there is “a high degree of certainty” that they will fail.  “A real prospect of success” should be understood as having this meaning, which will accord with principle and authority.

[36]  The respondent’s claim was for the unpaid balance of the purchase price due from the appellant under two contracts for the sale of land at Hervey Bay and Maryborough;  stamp duty exigible on the sales, payable by the appellant under the contract but paid by the respondent;  and interest.

[37]  In October 2002 the respondent and appellant executed a written contract for the sale of land at 47 Torquay Road, Hervey Bay (“Lot 1”) described as Lot 1 on RP 153011 for a price of $1,350,000.  The respondent was the vendor and the appellant the purchaser.  The contract settled and the appellant became the registered proprietor of the land on 11 December 2002.

[38]  The appellant paid a deposit of $20,000 as required by the contract but on settlement paid only $792,066.62.  This singularity may be explained by the fact that the appellant and respondent were owned by members of the same family.  The respondent’s sole director at the time was the mother of the appellant’s sole director, Mr Justin Kidd.  Control of the respondent has now passed to another son, Mr Stephen Kidd. 

[39]  Also in October 2002 the respondent and the appellant executed a second written contract for the sale of land at 72 and 74 Ellena Street, Maryborough (“Lot 2”) by the respondent to the appellant for a price of $715,000.  The land was on two separate titles, Lot 2 on RP 91472 and Lot 1 on RP 91504.  The contract of sale settled but the appellant paid only $433,275.28 of the price.

[40]  On 20 December 2002 the appellant paid the respondent the further sum of $300,000 in reduction of the deficiency in the purchase price under both contracts, and another sum of $250,000 on 31 December.  Apparently there was no apportionment of the sums between the two contracts.  The payments (including the deposit) left a balance owing by the appellant to the respondent of $269,658.10. 

[41]  On settlement of the contract for Lot 2 only the title to RP 91472 was transferred to the appellant which became the registered proprietor on 16 December 2002.  The parties to the transaction overlooked the fact that the land sold comprised two titles.  The oversight was noticed by the appellant in February 2005.  Thereafter a transfer of Lot 1 RP 91504 was prepared and duly registered on 16 September 2005.  The appellant had, in the meantime, enjoyed beneficial title to that lot.

[42]  Evidence in support of the application was given by Mr Stephen Kidd who deposed that although his mother, Ms Dahl was the sole director of the respondent between 28 February 2002 and 22 August 2006, he was involved in the management of the respondent’s affairs and was familiar with its dealings, including the contracts of sale to the appellant.  He produced copies of the relevant contracts and by reference to the respondent’s bank records proved the receipt of the monies I mentioned.  The payments when compared to the contracts in evidence establish the shortfall which was the subject of the claim.  Mr Kidd exhibited the instruments of transfer, and proof of their registration which effected the conveyance of the properties to the appellant.

[43]  Mr Stephen Kidd also deposed to the fact that the respondent bought a bank cheque in the sum of $47,850 which was the amount of stamp duty payable on the conveyance of Lot 1.  Mr Kidd does not depose in terms to the delivery of the cheque to the Commissioner of State Revenue but that is the clear inference from his affidavit.  The respondent claimed that amount together with $6 which was the fee it paid to purchase the bank cheque.  The sum of the deficiency in price and stamp duty is $317,514.10.

[44]  Clause 23 of the standard commercial conditions forming part of each contract provided:

“... all stamp duty on this contract and any duty in respect of the conveyance by the [respondent] to the [appellant] shall be paid by the [appellant] and if not paid by the [appellant] may be paid by the [respondent] and recovered from the [appellant] as a liquidated debt.”

[45]  Paragraph 2 of the amended statement of claim pleaded that:

“The [respondent] agreed to sell the Hervey Bay property and the Maryborough property to the [appellant] by separate Contracts entered into in or about … October 2002.”

and set out particulars of the terms of the contracts which were both described as “REIQ Second Edition Commercial Land and Building Contracts with no special conditions.”

[46]  Paragraphs 4 to 9 then set out the material terms of the contract for the sale of Lot 1. Paragraphs 10 to 19 set out the material terms of the contract for the sale of Lot 2.

[47]  By paragraph 2 of the defence the appellant admitted:

“... the allegation in paragraph 2 of the statement of claim and says the (respondent) ... and (appellant) ... entered into a financial restructuring agreement designed to prevent the Bolton Group from insolvent trading.  Part of the agreement included the sale of 47 Torquay Road, Hervey Bay and 72 Ellena Streets, Maryborough.  Negotiations in relation to the financial restructuring agreement commenced in late February 2002.  The agreement details were finalised in or around 23 April 2002.”

[48]  The balance of the defence consists of assertions that the appellant was unable to admit or plead to the allegations in the statement of claim because of “the passing of time and not being in possession of original documents and records relevant to the time nominated as material by the (respondent).” 

[49]  The appellant by its director, Mr Justin Kidd, filed an affidavit in defence of the application for summary judgment.  Mr Kidd deposed:

“... the director of the (respondent) at the relevant time was Ms Claire … Dahl.  Ms Dahl is the mother of both myself and Stephen ... Kidd. ... she was the sole director of the (respondent) at the relevant time.

...  Stephen ... Kidd was not a director of the (respondent) at the relevant time and did not become a director until mid 2006.

In or around December 2001 the Bolton Group of Companies received advice from its accountant ... that the group may be trading insolvent.

... in response to the advice I approached the other directors of the (respondent) and discussions took place in relation to raising funds ... to prevent ... further insolvent trading and being wound up ... .

Further advices were sought from ... the ... accountant and we received ... advise (sic) ... the various transactions designed by the ... accountant were implemented.

Initially, a private sale contract was prepared for [Lot 1] though [Lot 2 was] later included as ... valuations for [Lot 1] failed to meet the expected financing required to facilitate this aspect of the refinancing by the Boltons Group.

...  whilst Stephen … Kidd was privy to much of the contractual transactions referred to in his ... Statement of Claim ... his exclusion or misrepresentation of the relevant facts and details of the transactions in his affidavit, does not provide an accurate record of the events or transactions involved at that time.  ... the various transactions have considerable complexities and Stephen .. Kidd has either no or little knowledge of them or has forgotten the details of the transactions and the basis led to them when preparing his affidavit.”

[50]  As far as one can gather from Mr Justin Kidd’s affidavit the advice given by the solicitors was for one company, presumably a member of the “Bolton group” to draw a cheque in the sum of $500,000 payable to him.  The cheque was then to be paid to the appellant, Mr Kidd’s company, which would in turn draw a cheque in favour of another company in the group which would draw a cheque in favour of another company and so on until a cheque for the same amount was paid to the original drawer of the cheque.  What the purpose of this “round robin” was to be was not explained by Mr Justin Kidd.  Nor was it explained how the transaction, which would have left each of the companies involved in exactly the same financial position as before the receipt and drawing of the cheques, helped to “avoid further insolvent trading or assist in refinancing the ... group ...”.  The transaction appears to have been incapable of effecting any improvement to the finances of any of the companies though, depending upon how the accounts were drawn, a false impression to that effect may have been created.

[51]  Mr Justin Kidd’s affidavit then goes on to depose that the standard conditions of contract were not attached to the contracts he executed on behalf of the appellant, and that he initialled each page of those contracts.  The point of this is that the copies of the contracts annexed to Mr Stephen Kidd’s affidavit do not appear to have been initialled as Mr Justin Kidd describes.

[52]  The appellant advanced two arguments in support of the appeal.  The first was that the contracts had not been sufficiently proved.  The second was that the material established the existence of a wider transaction, “parallel” to the contracts of sale, the terms and effect of which might absolve the appellant from the obligation to pay the balance of the contract prices, and that there should be a trial to investigate whether that was so. 

[53]  The first argument runs immediately into the difficulty that the appellant in its defence admitted the agreements to sell and purchase the properties.  There is a further difficulty:  there was clear proof that title to the properties was conveyed to the appellant which became, and remains, the registered proprietor of them.  The consideration for each purchase is set out in the transfers proved in evidence.  They were not controverted by the appellant.  These facts point ineluctably to the existence of contracts for sale at identified prices.

[54]  The contracts which the respondent asserted were the record of the transactions between the parties, were put into evidence.  Each contains a page apparently executed by Mr Justin Kidd on behalf of the appellant.  He did not deny in the appellant’s defence or his affidavit that he executed the original contracts.  Mr Justin Kidd does not assert any basis on which the appellant became proprietor of the lands other than by contract, as the respondent alleged and which the copies of the contracts and the transfers produced tended to prove.  If there was such a basis Mr Justin Kidd must know it. 

[55]  As to the point that the standard conditions were not attached to the documents executed by Mr Justin Kidd, the contracts recite that they comprise:

“... the following parts:

(a)...

(b)...

(c)...

(d)Standard commercial conditions; and

(e)...”

[56]  The standard conditions have been proved.  They were identified by Mr Stephen Kidd.  His identification was not controverted by Mr Justin Kidd.  Their only relevance is to prove the appellant’s liability to pay stamp duty on the purchases and interest on unpaid balances of the purchase price.  The appellant formally admitted that the rate of interest claimed by the respondent was the appropriate rate fixed by the contracts.

[57]  Whether or not there were in existence two copies of the contracts, the pages of one of which Mr Justin Kidd initialled, is immaterial.  The appellant does not contest the terms of the contracts put into evidence by the respondent.

[58]  The first argument fails.

[59]  The second argument is also without substance.  On the face of the documents the appellant bought real property and short-paid the price.  If it is to resist a claim for the balance it will have to prove, or to show the possibility that it can prove, that it paid the price in full or somehow became absolved from the obligation to pay it.

[60]  As to the first Mr Justin Kidd does not claim the price was paid in full.  It would have been easy to prove if it were the case.  There would have been cheques and/or receipts and/or records of deposit.  If payment in full had been made it is not something Mr Justin Kidd would have forgotten.

[61]  The real argument seems to be that by some means not explained the “parallel” or “wider” transaction exonerated the appellant from the obligation to pay the full price.  There is no satisfactory evidence that there was a wider transaction of which the sales were a part.  If there was such a transaction the appellant has provided no explanation of the means by which it dissolved its debt to the respondent.

[62]  Even if the contracts of sale were part of some wider transaction meant to alleviate the financial predicament of associated companies, the appellant and the respondent were bound by the particular legal incidents of the transactions, the contracts for sale, into which they entered inter se unless the contracts were shams, which no-one suggested.  See Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471 at 486-7.

[63]  No release of the debt under the respondent’s seal has been deposed to or produced.  Nothing in the nature of an accord and satisfaction for the debt has been suggested by the appellant.  There is no evidence of an estoppel which might prevent the enforcement of the debt or any indication that evidence of such an estoppel might be produced.

[64]  The appeal should be judged by reference to the test earlier stated:  is the appellant’s defence hopeless, or bound to fail?  If it has a prospect of success judgment should not have been entered against it summarily.  In a case such as this the test comes down to whether the facts deposed to by the respondent and on which it based its claim are disputed, or whether the appellant has adduced evidence showing the existence of facts which, if proved at trial, would establish a defence.

[65]  The appellant has not controverted the facts nor adduced any evidence showing that it might have a defence.  The appeal should be dismissed with costs. 

[66]  DAUBNEY J: Whilst I agree with Chesterman JA that this appeal should be dismissed, I respectfully do not agree with his Honour’s interpretation of the “no real prospect of success” test postulated under rr 292 and 293 of the Uniform Civil Procedure Rules in respect of summary judgment applications by plaintiffs and defendants respectively.

[67] In Elderslie Property Investments No 2 Pty Ltd v Dunn & Anor[1], I ventured the opinion[2] that:

“Since Deputy Commissioner of Taxation v Salcedo, it is firmly established that UCPR 292 is to be applied according to its tenor, and the ‘no real prospect of successfully defending’ test contained in UCPR 292(2)(a) is to be applied according to its own terms and not according to the considerations relevant under the previous rules for summary judgment.”

[68]  I adhere to that view as to what ought now be regarded as settled law in the interpretation of this test under rr 292 and 293.

[69] In Salcedo[3], after reviewing the competing previous authorities in Queensland and the English judgments which construed the cognate provisions in the Civil Procedure Rules (UK), Williams JA said, at [17]:

“That review of the authorities clearly establishes to my mind that there has been a significant change brought about by the implementation of r. 292 and r. 293 of the UCPR.  The test for summary judgment is different, and the court must apply the words found in the rule.  To use other language to define the test (as was contended for in this case by counsel for the appellant relying on the reasoning of Chesterman J. in Gray v Morris) only diverts the decision-maker from the relevant considerations.  But, and this underlies all that is contained in the UCPR, ultimately the rules are there to facilitate the fair and just resolution of the matters in dispute.  Summary judgment will not be obtained as a matter of course and the judge determining such an application is essentially called upon to determine whether the respondent to the application has established some real prospect of succeeding at a trial;  if that is established then the matter must go to trial.  In my view, the observations on summary judgment made by the judges of the High Court in Fancourt v. Mercantile Credits Ltd (1983) 154 C.L.R. 87 at 99 are not incompatible with that application of r. 292 and r. 293;  what is important is that in following the broad principle laid down by their Honours the test as defined by the rules is applied.”

[70] McMurdo P and Atkinson J both agreed with Williams JA.  The President added, at [2] – [3]:

“[2]UCPR r. 292 and r. 293 should be applied using their clear and unambiguous language and keeping in mind the purpose of the UCPR to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.

[3]Nothing in the UCPR, however, detracts from the well established general principle that issues raised in proceedings will be determined summarily only in the clearest of cases.  Gaudron, McHugh, Gummow and Hayne JJ, said in Agar v. Hyde, recently cited with approval by Gleeson C.J., McHugh and Gummow JJ. in Rich v. CGU Insurance Ltd:

‘... Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes.  The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.’ ”

[71] Atkinson J also said, at [42]:

“What a court must do in determining an application for summary judgment pursuant to r. 292 and r. 293 of the Uniform Civil Procedure Rules 1999 (UCPR), is apply the plain meaning of the words of those rules and not impose a gloss taken from the practice and procedure that applied to summary judgment applications before the introduction of the UCPR.”

[72] Rule 292(2) confers on the court a discretion, not an obligation, to grant summary judgment only if it is satisfied of both of two matters, namely:

“(a)the defendant has no real prospect of successfully defending all or a part of the plaintiff’s claim;  and

(b)there is no need for a trial of the claim or the part of the claim.”  (underlining added)

[73]  Persuading the court that there is “no real prospect of successfully defending all or part of the plaintiff’s claim” is a necessary step on the path to summary judgment, but satisfaction of this element alone does not compel the exercise of the discretion in a particular way.

[74] When considering this element in a plaintiff’s summary judgment application, however, the question is not whether the defendant’s case is “hopeless” or “bound to fail”.  As Holmes J (as her Honour then was) said in Queensland University of Technology v Project Constructions (Aust) Pty Ltd (in liq) [2003] 1 Qd R 259 at 265:

“The more appropriate inquiry is in terms of the Rule itself:   that is, whether there exists a real, as opposed to a fanciful, prospect of success.”

[75]  This standard of evaluation of the defendant’s case is different from that which applied prior to the introduction of the UCPR.  Under the Rules of the Supreme Court, the relevant discretion to grant summary judgment was enlivened “unless the defendant satisfies the Judge with respect to the claim, or part of the claim, to which the application relates that there is a question in dispute which ought to be tried or that there ought for some other reason to be a trial of that claim or part” – O 18 r 1 (1A); see also O18A r 3 in similar terms.

[76]  So far as triable issues of fact were concerned, this meant that summary judgment was not (or ought not have been) granted unless the court was “fully persuaded that there was no real question to be tried, that is that there were no facts shown such as would lead to the inference that at the trial of the action the ... defendants might be able to establish a defence to the plaintiff’s claim”.[4]  This accorded with the proposition articulated by Isaacs J in Cloverdell Lumber Co Pty Ltd v Abbott  that a defendant could defeat a summary judgment application by showing “such a state of facts as leads to the inference that at the trial of the action he may be able to establish a defence to the plaintiff’s claim.”[5]

[77]  There is, to my mind, a palpable difference between the former process of assessing whether a defendant had shown enough as at least to enable an inference to be drawn that the defendant might be able to establish a defence at trial, and the current requirement for the court to be satisfied that the defendant has a real, not fanciful, prospect of successfully defending the claim.

[78]  But that is not the end of the matter.  Rule 292 also requires the judge to be satisfied that there is no need for a trial, and then, once the discretion arises, to exercise the discretion so conferred.  The need to be satisfied in respect of this second element and, in any event, the proper judicial exercise of the discretion to grant or deny summary judgment are each matters which invoke the necessity for a judge to exercise great care, and proceed with appropriate caution, having regard to the patent seriousness of a decision to summarily terminate a proceeding by effectively denying a party the opportunity to present its case at a trial “in the ordinary way, and after taking advantage of the usual interlocutory processes”[6]

[79]  The facts of the present case are set out at length in the judgment of Chesterman JA, and there is no need for me to repeat them.  His Honour’s reasons for concluding that the appellant’s defence was, to use his language, hopeless or bound to fail are those which I respectfully adopt for concluding that the appellant did not demonstrate that it had a real, as opposed to a fanciful, prospect of defending the claim.  Nothing was put before the learned primary judge to demonstrate that there was any other need for a trial of the claim.  Nor has it been demonstrated in any way that the primary judge so erred in the exercise of the discretion to grant summary judgment as to warrant a conclusion that the discretion miscarried.

[80]  In the result, therefore, I agree that the appeal should be dismissed with costs.

Footnotes

[1] [2007] QSC 192.

[2] At [6].

[3] Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232.

[4] Australia & New Zealand Banking Group Limited v Barry [1992] 2 Qd R 12 at 14 per Macrossan CJ.

[5] (1924) 34 CLR 122 at 134.

[6] Agar v Hyde (2000) 201 CLR 552, per Gaudron, McHugh, Gummow and Hayne JJ at 576.

Close

Editorial Notes

  • Published Case Name:

    Bolton Properties P/L v J K Investments (Australia) P/L

  • Shortened Case Name:

    Bolton Properties Pty Ltd v J K Investments (Australia) Pty Ltd

  • Reported Citation:

    [2009] 2 Qd R 202

  • MNC:

    [2009] QCA 135

  • Court:

    QCA

  • Judge(s):

    Holmes JA, Chesterman JA, Daubney J

  • Date:

    22 May 2009

Litigation History

EventCitation or FileDateNotes
Primary JudgmentSC5/08 (No Citation) SC5/08 (No Citation)19 Aug 2008Application for summary judgment; application granted and summary judgment entered
Appeal Determined (QCA)[2009] QCA 135 [2009] 2 Qd R 20222 May 2009Summary judgment properly entered; appeal dismissed: Holmes and Chesterman JJA and Daubney J

Appeal Status

Appeal Determined (QCA)
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