Stevenson v Carter-Lannstrom[2020] QCA 284

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  On 18 May 2015 the respondents, carrying on business as money lenders, loaned $500,000 to a corporation by the name of Lismore South Developments Pty Ltd.  The purpose of the loan was to assist in the purchase of a property in New South Wales.  A loan agreement was executed and the appellants entered into a deed of guarantee and indemnity, under which they jointly and severally guaranteed the performance of repayment under the loan agreement.  Mr Gray is Mrs Stevenson’s son.
2. [2]
   The due date for repayment was extended on several occasions, from 17 August 2015 until 22 October 2015.  No further extensions were granted.
3. [3]
   In August and October 2015 certain payments of interest owing under the loan agreement were repaid by the borrower, but no further payment has been made.  The lender demanded $874,030.25 on 8 April 2016, but that demand was not met.
4. [4]
   On 8 April 2016 a demand was made on the appellants pursuant to the guarantee.
5. [5]
   The lender commenced proceedings against the appellants on 29 April 2016.  Defences were filed by both appellants on 16 June 2016.
6. [6]
   On 14 November 2016 the lender filed an application for summary judgment.  It was adjourned by agreement, but in the meantime notices of address for service for both defendants had been filed.  They specified the address of Mr Gray, then a barrister in private practice, as the address for service.
7. [7]
   On 2 November 2016 the borrower (Lismore South Developments Pty Ltd) was wound up in insolvency.
8. [8]
   Mr Gray filed an amended defence on 11 April 2017, and a pleading in substantially the same terms as Mr Gray’s amended defence was served on behalf of Mrs Stevenson.  The central allegation in the defences was that the loan agreement had been “dependent upon a number of other matters between the parties”, including the sourcing of further funding from people in China, as well as alleged representations to the effect that Ms Carter-Lannstrom had the ability to put the borrower in touch with those persons in order to facilitate the funding.  It was alleged that the representations were untrue and that further funding could not be secured and, further, that if the representations had not been made the appellants would not have entered into the deed of guarantee.
9. [9]
   On 25 July 2018 the appellants filed and served new notices of address for service, specifying an address on Eagle Street, Brisbane.
10. [10]
    Caseflow management orders were made in June 2018, directing the provision of a list of documents and participation in a mediation.  Though a list of documents was provided by the appellants, attempts to arrange a mediation proved fruitless.
11. [11]
    The respondents’ requests for further and better particulars of the amended defences were the subject of an unsatisfactory response.  That resulted in the making of a consent order on 6 December 2018.  However, there was only limited compliance with that order by the appellants.
12. [12]
    On 20 February 2019 the respondents filed a further application for summary judgment or, alternatively, an order striking out the amended defences.  That application was heard by Flanagan J on 14 March 2019.  His Honour ordered that the amended defences be struck out and that the appellants file and serve any further amended defences by 4 April 2019.  No further amended defences were filed.
13. [13]
    A copy of the orders made by Flanagan J was served on the appellants at their address for service on Eagle Street, Brisbane.  That occurred on 20 March 2019.  By that time Mr Gray was being held in custody on remand in respect of a number of alleged offences.  Therefore, a copy of the orders of Flanagan J was also forwarded by express post to Mr Gray at the Brisbane Correctional Centre.  He acknowledged receipt of the copy of those orders by a letter dated 22 March 2019.
14. [14]
    A week later, on 29 March 2019, a barrister appeared, purportedly as amicus curiae, but to assist Mrs Stevenson.
15. [15]
    On 3 May 2019 an application for summary judgment was filed.  It was served on each of the appellants at their address for service on Eagle Street, Brisbane, and a copy was also posted to Mr Gray at the Brisbane Correctional Centre.  He acknowledged receipt of that material by a letter dated 8 May 2019.
16. [16]
    The first return date of the application was on 24 May 2019, when there was no appearance for either of the appellants.  It was adjourned to 31 May 2019 for hearing.  An amended application was filed the same day and served on Mr Gray by a letter dated 24 May 2019, received at the Brisbane Correctional Centre three days later.  The amendments were not in any way substantial, merely correcting the reference to the relevant provision of the Uniform Civil Procedure Rules 1999 (Qld)^[1] under which the respondent sought relief, and specifying the orders of the court which, it was contended, had been breached.
17. [17]
    The application came on for hearing on 31 May 2019.  The respondents were represented by solicitors and Counsel.  Mr Gray appeared on his own behalf.  He had previously purported to represent his mother, save for the occasion when a barrister had appeared on an amicus curiae basis.  However, at the hearing on 31 May 2019 Mr Gray said he was “unable to represent [his] mother, due to [his] being incarcerated”.
18. [18]
    Mr Gray sought an adjournment on the basis that he needed time to allow Legal Aid to assess his application to them for assistance.  The request for adjournment was refused.  As the learned primary judge noted,^[2] Mr Gray had been aware of the application since at least 8 May 2019 when he acknowledged service of the material, and had been aware of the orders made by Flanagan J since 22 March 2019.  He also knew of the need to re-plead his defence but had done nothing about it.
19. [19]
    As for Mrs Stevenson, the learned primary judge dealt with the question of service upon her in these terms:^[3]

“As for the second defendant, her non-appearance cannot stand in the way of judgment.  By rr 17 and 140 UCPR, the defendants were required to provide an address for service for the purposes of the proceeding, and they did so.  After the subject application was filed, it was served at the address provided by the defendants in their most recent notices of address for service.  That was valid service under the rules: rr 112(1)(d) and 112(3)(a) UCPR.  Although the second defendant does not appear to have been served with the amended application, she chose not to appear on the first return of the original application (24 May 2019) and, according to the first defendant, was aware that the application would come back before the court on 31 May [2016].  As previously observed, the amendments to the application were not substantial.  Like the first defendant, the second defendant did nothing to comply with the terms on which leave to re-plead her defence was given by Flanagan J.”

20. [20]
    The assertion by Mr Gray, noted in that passage, that his mother was aware the application would come back on before the court on 31 May, was because Mr Gray told the learned primary judge that his mother “was aware that there was to be a review today” but was “not aware that judgment is going to be entered … today”.^[4]

The applications for extension of time to appeal

21. [21]
    The orders of Flanagan J (striking out the defences) were made on 14 March 2019.  In Appeal No 5644 of 2020 the appellants seek to challenge those orders.  The application seeking an extension of time within which to appeal was filed on 25 May 2020, more than 13 months out of time.
22. [22]
    The orders of Burns J (giving summary judgment) were made on 16 July 2019.  In Appeal No 13895 of 2019 the appellants seek to challenge those orders.  The application seeking an extension of time within which to appeal was filed on 13 December 2019, four months out of time.
23. [23]
    In deciding whether to grant an extension of time the court examines whether any good reason has been shown to account for the delay and whether it considers it is in the interests of justice to grant the extension.  Even where there is no satisfactory explanation for the delay the court may grant an extension if a refusal to do so would produce a miscarriage of justice.^[5]
24. [24]
    In Spencer & Anor v Hutson & Ors^[6] this Court observed:

“The prescribed time limits for appeals serve the important purpose of bringing finality to litigation.  They are not lightly to be ignored.  [Beil v Mansell (No 1) [2006] 2 Qd R 199 at 207 [38]].  An applicant for an extension of the time for bringing an appeal must show that there is good reason for the court to relieve that party of the consequences of the expiration of the prescribed period for bringing an appeal.  A demonstration that there is a good reason to extend time will usually involve an explanation for that party’s delay.  [Beil v Mansell (No 1) [2006] 2 Qd R 199 at 207-208 [38]-[41]].”

25. [25]
    The principles applicable to an application for an extension of time are well settled.  The court may grant an extension of time but only if positively satisfied it is proper to do so.  In doing so, it is appropriate to consider the merits of the substantive application and to refuse an extension of time if the appeal is plainly hopeless.^[7]
26. [26]
    As will appear, in Appeal No 13895 of 2019 there is no satisfactory explanation by Mr Gray for the delay in filing a notice of appeal, and the proposed appeal lacks merit.  That application for an extension of time should be refused, at least so far as Mr Gray is concerned.
27. [27]
    In Appeal No 5644 of 2020 the explanation for the delay lies in a combination of the difficulties Mr Gray faced while incarcerated as well as the interchange between Mr Gray and the court registry over the filing of documents.  Whatever the merits of the appeal are, it is nonetheless plain that the respondents were advised promptly that an appeal had been lodged and were thereafter under no mistake that it was intended to pursue an appeal.  An attempt was made to file the notice of appeal on 7 August and the attempts to regularise the filing continued until the end of September 2019.  In my view, a sufficient explanation for the delay has been given and I would not refuse an extension of time on that basis.  However, as will become apparent the proposed appeal lacks any merit and for that reason the extension of time should be refused, so far as concerns Mr Gray.
28. [28]
    In each case Mrs Stevenson’s position is different from that of Mr Gray.  For reasons which follow, her applications should be adjourned.

Orders - Flanagan J

29. [29]
    The application before Flanagan J sought judgment against the appellants pursuant to r 374(5) of the UCPR, for failure to comply with court orders made on 6 December 2018, requiring a response to a request for further and better particulars.  Those orders had been made by consent but there had been no compliance with them.
30. [30]
    His Honour noted that Mr Gray, on his own behalf and on behalf of Mrs Stevenson, had provided some particulars in September 2018, but they were, in his Honour’s view, “wholly inadequate”.  That state of affairs brought about the consent orders on 6 December 2018.
31. [31]
    Flanagan J gave consideration to the defences set up in the pleadings.  The first was an allegation by the appellants that while they acknowledged the making of the loan, they contended that the respondents had promised to take certain actions in terms of introducing them to various clients for the purposes of the loan being made.  The second defence was an assertion that the loan was subject to joint venture arrangements.  As to that, his Honour observed that there was no evidence as to who made those arrangements, the terms of the arrangements, and that no particulars had been forthcoming in that regard.  In addition, his Honour noted that each of the loan agreements and guarantees contained express provisions that the borrower and guarantor had not relied upon any promise or representation unless it was reduced to writing.  No such written document had been produced to support the existence of the contended joint venture agreement.
32. [32]
    In those circumstances the respondents had sent a letter under r 444 of the UCPR, outlining the defects in the pleadings.  No reply had been made to that letter, notwithstanding that Mr Gray had requested an extension until 25 January 2019 to respond, and that extension had been granted.
33. [33]
    His Honour gave reasons for striking out the defences in these terms:

“It is evident from the r 444 letter that in pleading the two contentions, both in relation to the joint venture agreement and the loan arrangements, the defendants have failed to comply with numerous rules of the Uniform Civil Procedure Rules, including r 149 which requires that a pleading must contain a statement of all the material facts on which the party relies.  The present pleading does not reveal any material facts as to the terms and making of the joint venture agreement.  Further rules that require specific things to be pleaded including rr 150, 155, 157, 158 and 160 of the Uniform Civil Procedure Rules have also not been complied with.  These matters are outline [sic] in some detail in the r 444 letter dated 13 January 2019.

Given that none of these deficiencies, which are quite properly identified, have been addressed by either the first or second defendants, it is appropriate, in my view, that the defence be struck out in whole.”

34. [34]
    As noted above, the defences were struck out but the appellants were given leave to re-plead by 4 April 2019.

The proposed challenges to the orders of Flanagan J

35. [35]
    Mr Gray contends that the time should be extended to appeal against the orders of Justice Flanagan, the explanation for the delay being “largely bound up with” the appeal against the orders of Burns J in Appeal No 13895 of 2019.  As to the grounds of such an appeal, they were said to be:

    1. (a)
       the appellants never received copies of the material upon which the orders of Flanagan J were made;
    2. (b)
       whilst Mr Gray received a sealed copy of the order made on 14 March 2019, he was then in custody (and had been since 23 January 2019) without access to legal and other necessary resources; that incarceration affected his ability to re-plead defences or advance matters within given timeframes;
    3. (c)
       Mr Gray only received the transcript of the reasons for judgment by Flanagan J on 24 April 2020;
    4. (d)
       the matters were dealt with by Flanagan J on an ex parte basis, but the appellants would have responded had they been able to do so; on 11 March 2019 the respondents knew that Mr Gray was in custody at the Brisbane Correctional Centre, he had been conducting the matter for his mother (Mrs Stevenson), the address for service was a serviced office in Brisbane and no longer effective for either of the appellants because of Mr Gray’s imprisonment, and Mrs Stevenson was still living at an address in Shailer Park, where she had been a resident for more than 50 years;
    5. (e)
       the respondents knew that Mrs Stevenson was under the influence of Mr Gray, and his circumstances were of concern;
    6. (f)
       the respondents’ claim was founded upon an illegality as a Self-Managed Superannuation Fund could not lawfully trade as a money-lender; and
    7. (g)
       there were other triable issues based on:

       1. there was a relationship between Mr Gray and Ms Carter-Lannstrom “regarding these and indistinct (sic) commercial matters out of which the loan arrangements and sureties arise”;
       2. that relationship impacted upon the relationship between Mr Gray and his mother, who was aged and commercially inexperienced;
       3. the loan and security transactions “should be considered in the context of the commercial arrangements between the parties overall and their undertakings and conduct throughout”;
       4. the loan and security transactions were unconscionable, particularly as to the interest rate and surety given;
       5. Mrs Stevenson was unduly influenced by Mr Gray, to the knowledge of Ms Carter-Lannstrom; and
       6. misrepresentations affected the arrangements in relation to Chinese funding for construction.

Consideration – challenges to orders of Flanagan J

36. [36]
    Once the proceedings commenced, notices of address for service for both the appellants were filed, specifying Mr Gray’s chambers (Level 27, 32 Turbot Street, Brisbane) as their address for service.  That address for service also appeared on the amended defences dated 15 December 2016.^[8]
37. [37]
    As at November 2016 the address for service of the appellants was that of their lawyers, Viana Lawyers.  The original summary judgment application was served on that address, by email and post.^[9]  When submissions were filed in response to that application by Mr Gray on behalf of both appellants, his address for service was listed at his chambers.^[10]  Mr Gray’s affidavit of 7 December 2016 said he was “Attorney for [Mrs Stevenson] and authorised to swear this Affidavit accordingly”.^[11]
38. [38]
    The material before Flanagan J revealed that when the appellants responded to a request for particulars of the defence, that response was relayed by Viana Lawyers on their behalf.^[12]
39. [39]
    By August 2018 the address for service of each of the appellants had been changed from their lawyers to “Suite 60, Level 54, 111 Eagle Street, Brisbane City”.  When the solicitors for the respondents sent a letter under r 444 of the UCPR, it was to that address, as well as being emailed to Mr Gray’s email account.^[13]  That email was appropriate for Mr Gray, as he responded from that email address when he provided the further and better particulars which had been requested.^[14]  The particulars provided were signed by Mr Gray “For and on behalf of the First & Second Defendants”.^[15]
40. [40]
    The address at 111 Eagle Street was also listed on the appellants’ list of documents.^[16]  The email which had been used for Mr Gray was still applicable in September 2018, as Mr Gray responded to a request for further and better particulars from that address.^[17]  It remained applicable through October 2018, at which time Mr Gray responded to the respondents’ solicitors, confirming that he represented Mrs Stevenson “as her Attorney”.^[18]  It was still applicable in November 2018 when Mr Gray responded on behalf of both appellants in relation to the proposed mediation.^[19]
41. [41]
    Mr Gray’s email remained applicable in terms of correspondence into January 2019.  On 13 January 2019 a r 444 letter was sent by the respondents’ solicitors,^[20] and Mr Gray sought an extension until 25 January 2019 to respond, using that email and continuing to nominate the address at 111 Eagle Street as the applicable address for service.^[21]
42. [42]
    On 21 February 2019 the respondents’ solicitors served a copy of the application, which was ultimately heard by Flanagan J, together with an affidavit relating to that application, on the appellants at their address for service at 111 Eagle Street.^[22]  That application was for judgment under r 374(5) of the UCPR, alternatively summary judgment, and in the next alternative, that the defences be struck out.^[23]
43. [43]
    At the time that application was served, the address at 111 Eagle Street was still the notified address for service of each of the appellants.
44. [44]
    Three days before the hearing before Flanagan J the respondents’ solicitor became aware that Mr Gray “may have been extradited from New Zealand to appear before the Brisbane Magistrates Court on fraud charges”.^[24]  Because of that he ascertained the address for prisoners at the Brisbane Correctional Centre and arranged for a letter to be sent to Mr Gray at that address.  That letter advised Mr Gray of the fact that the application was returnable on 14 March 2019.  It also noted that the application and supporting affidavit had been served on Mr Gray by way of email.^[25]  The letter enclosed the material filed in support of the application.^[26]
45. [45]
    It appears that Mr Gray was taken into custody on 23 January 2019.^[27]  However, as late as 18 January 2019 he was corresponding from his email with the solicitors for the respondents, and giving his address for service at 111 Eagle Street, Brisbane.^[28]
46. [46]
    The solicitors for the respondent were not notified of any alternative address or reason to think that that address was not effective to bring the application to the attention of Mr Gray or Mrs Stevenson.  When it became evident he was in custody a copy of the material was sent to him in prison, albeit three days prior to the hearing.
47. [47]
    Flanagan J was informed by Counsel then appearing for the respondents that Mr Gray had “recently been taken into custody in respect of fraud charges”.^[29]  Each of the appellants’ names was called and there was no response.
48. [48]
    That being the case and given the failure to comply with the orders of Bond J on 6 December 2018, and the failure to respond to the r 444 letter sent on 14 January 2019, it might have been doubted that there was a realistic basis upon which the orders of Flanagan J made on 14 March 2019 could be successfully challenged.  The application had been regularly served and there is reason to think that Mr Gray was aware of it given that he had correspondence sent to him on 11 March, three days prior to that hearing.
49. [49]
    In any event, the orders of Flanagan J were sent to Mr Gray at the Brisbane Correctional Centre on 20 March 2019.^[30]  Mr Gray responded on 22 March 2019, acknowledging receipt of the orders.^[31]  In that letter Mr Gray asserted that he and Mrs Stevenson had not received any of the material filed to obtain those orders, but that is not to the point.  The application and affidavit material was regularly served upon the notified address for service.  Further, in his letter Mr Gray indicated his intention to seek that the foreshadowed hearing on 29 March 2019 be adjourned for the purpose of filing amended defences, and extending the order of Flanagan J accordingly.  For that purpose he sought the consent of the respondents.
50. [50]
    Mr Gray’s letter of 22 March 2019 also said this:^[32]

“It is likely that I can no longer represent [Mrs Stevenson] in this matter; and I am writing to her now, asking that she contact Legal Aid to obtain independent advice & separate representation.  For the record, I confirm that Mrs Stevenson is a 78 year old aged pensioner, without means & possible claims against me relevant to this matter…

I will continue to represent myself to the extent that I am able to do so…”

51. [51]
    On 22 March 2019 Mr Gray also wrote to the registrar of the Supreme Court in relation to the case review then scheduled to be heard on 29 March 2019.^[33]  In the letter Mr Gray said he had been “conducting the matter for myself and on behalf of the second defendant (my 78 year old, aged pensioner mother) as her lawful attorney”.  He then referred to his imprisonment on 23 January 2019, stating:^[34]

“I have also been without contact with my mother, who apart from being totally unaware of progress in the matter since I agreed to provide further & better particulars of both defences by 25 January, 2019 … should have the opportunity to obtain separate legal advice including the possibility of action against me, before any adverse steps are taken against her.  I am writing to her now asking that she make contact with Legal Aid accordingly.”

52. [52]
    The letter went on to assert that neither he nor Mrs Stevenson had received a copy of the application or material in relation thereto and “were unaware of the hearing on 14 March, 2019”.^[35]
53. [53]
    On 8 May 2019 Mr Gray sent a second letter to the respondents’ solicitors.^[36]  He renewed his request for consent to an adjournment for two months and went on:

“As you know, I have not received any of the material upon which the earlier orders are based.  Please send the same to me by post at the B.C.C. as soon as possible.  The address at Suite 60, Level 54, 111 Eagle Street, Brisbane no longer applies (since my incarceration on 23 January 2019) for either Mrs Stevenson or myself.  I regret that I cannot yet provide an alternative address for service and do not have the ability to file an appropriate notice at this time.  However, I will write to the court to confirm these various things.

I do not believe that it is possible for me to appear on either 24 May 2019 or 31 May 2019.  However, I will apply for approval to do so by video link as suggested in the order of Justice Bowskill made 3 May 2019.  I confirm that Mrs Stevenson can no longer be represented by me …

…

In addition, Mrs Stevenson may pursue claims against me together with claims she has against Mrs Carter-Lannstrom and her SMSF.”

54. [54]
    It is also of significance that the orders of Flanagan J gave leave to re-plead by 4 April 2019.^[37]  Mr Gray was aware of that order by no later than 22 March 2019.  Notwithstanding that, no amended defence was filed nor (apparently) prepared.  Further, whilst Mr Gray sought agreement to an adjournment of two months, no such agreement was forthcoming.  In those circumstances one might have expected some effort or application to seek an extension of the time to re-plead.  No such application was filed until the present one on 25 May 2020.
55. [55]
    There is therefore no basis upon which Mr Gray could successfully attack the orders of Flanagan J made on 14 March 2019.
56. [56]
    Further, there is no satisfactory explanation for Mr Gray’s delay in applying to challenge the orders of Flanagan J.  His incarceration certainly created difficulties for him but he was aware of the orders by 22 March 2019, some 14 months before he eventually applied to this Court.  The delay is very long and not satisfactorily explained.  But even if it were, the prospects of his success on the proposed appeal are non-existent.
57. [57]
    Therefore, as against Mr Gray I would refuse an extension of time within which to appeal against the orders of Flanagan J.
58. [58]
    I am unable to reach a similar state of conviction in relation to the application so far as it concerns Mrs Stevenson.  There are assertions by Mr Gray that she was unaware of the proceedings before Flanagan J and that her interests may not have been adequately represented by Mr Gray himself.  There is the added feature that Mr Gray purported to appear on her behalf under a Power of Attorney and not as a proper legal representative.
59. [59]
    There is also an affidavit from Mrs Stevenson which swears that matters to do with the legal proceedings were left in Mr Gray’s hands entirely and there is a suggestion that she may not have been aware of the service of the applications in 2019.
60. [60]
    For these reasons it seems to me appropriate to adjourn the current proceedings before this Court insofar as they concern Mrs Stevenson, to permit her time to obtain legal assistance (if possible) and present her own case to this Court.

Summary judgment – orders of Burns J

61. [61]
    Burns J referred to a number of matters in the course of his reasons concerning the grant of summary judgment.  They included:^[38]

    1. (a)
       the appellants did not dispute that the deed of guarantee was executed by them or that the borrower had defaulted in repayment of the loan;
    2. (b)
       the only basis of defence was contained in defences which had been struck out by Flanagan J;
    3. (c)
       neither of the appellants had taken up the opportunity to re-plead;
    4. (d)
       Mr Gray’s submissions were confined to the question of interest;
    5. (e)
       no viable defence had been articulated by either of the appellants in the period of three years since the proceeding had been commenced;
    6. (f)
       there were, in addition, repeated failures to properly comply with orders of the court, including attendance at a court-ordered mediation; and
    7. (g)
       in supplementary written submissions, Mr Gray contended that there were several triable issues, but all that was submitted as to the claim under the guarantee was that the interest rate was unconscionable, and “Nobody would willingly enter into such arrangements without some reason.  These are the representations relied upon and the joint venture arrangements which the plaintiffs could contest at trial”.^[39]
62. [62]
    His Honour then said:^[40]

“[23] Although the onus is on the plaintiffs to make out an entitlement to summary judgment, the determination of that issue necessarily requires a consideration of whether the defendants have established some real prospect of succeeding at trial.  The submission extracted immediately above hardly does that.  To the extent that it was intended by the first defendant to refer back to the contents of the struck out amended defences, it may simply be observed that, if there was a defence to any part of the plaintiff’s claim, it should have been advanced in a proper way well before now.

[24] I am satisfied that the defendants have no real prospect of successfully defending the plaintiff’s claim and, further, that there is no need for a trial of that claim.  The plaintiffs are entitled to judgment pursuant to r 292 UCPR on the amount representing the principal advanced under the loan agreement and guaranteed under the deed together with interest and costs…”

63. [63]
    In approaching the matter the learned primary judge relied upon decisions including Deputy Commissioner of Taxation v Salcedo.^[41]  Salcedo deals with the test for summary judgment under the UCPR, namely that summary judgment will not be obtained as a matter of course, and the court must determine whether the applicant has shown that the respondent has no real prospect of succeeding at a trial and that there is no need for a trial.

Consideration – the proposed challenge to the orders of Burns J

64. [64]
    Mr Gray contended that there were various errors in the approach of Burns J on the summary judgment application.  They may be summarised as follows:

    1. (a)
       that his Honour’s consideration of the repeated failures to comply with orders of the court was irrelevant on an application under r 292 of the UCPR;
    2. (b)
       his Honour had “undoubtedly formed the dim view” of Mr Gray by virtue of some previous hearing in 2017, referred to as “the Tobin matter”;
    3. (c)
       the material established triable issues including unlawful lending by a Self-Managed Superannuation Fund, the contractual arrangements were “but part of broader arrangements” between Mr Gray and Ms Carter-Lannstrom involving breached obligations and misrepresentations, the true nature of the legal obligations required analysis at a trial, and the interest rate was excessive;
    4. (d)
       Mr Gray’s request for an adjournment should not have been refused;
    5. (e)
       separate consideration of the position of Mrs Stevenson was ignored; and
    6. (f)
       the court was misled in relation to whether the material before Flanagan J had been served upon Mr Gray, and the debilitating effect of Mr Gray’s incarceration was effectively ignored.
65. [65]
    The contention that the adjournment should have been granted is one which should be rejected, at least as against Mr Gray.  As the learned primary judge noted, a copy of the orders of Flanagan J was served on Mr Gray at his address for service in Eagle Street, and as well copies were sent to him at the Brisbane Correctional Centre.  He acknowledged receipt of a copy of the orders on 22 March 2019.  Subsequently the application for summary judgment as well as the supporting affidavit were served at the Eagle Street address and a copy was posted to Mr Gray at the Brisbane Correctional Centre.  He acknowledged receipt of that material by letter dated 8 May 2019.
66. [66]
    The first return of the application was 24 May 2019 but it was adjourned to 31 May 2019 for hearing.  Mr Gray appeared at that hearing.  However, his appearance was only on behalf of himself, as the learned primary judge noted.  Mr Gray told his Honour that he could not represent his mother because of his incarceration.^[42]
67. [67]
    There cannot be any doubt that on 31 May 2019 Mr Gray had received the application and material some three weeks before that and was well aware that summary judgment was being sought.  The adjournment was sought on the basis that he had recently made an application to Legal Aid for assistance.  As his Honour noted, that application had only been made on 15 May 2019.  His Honour noted during the course of argument that the application had been made late in the proceedings and since the adjournment was only to allow the Legal Aid Office to consider it, the adjournment should be refused.
68. [68]
    In my view, the learned primary judge cannot be shown to have erred in the exercise of his discretion as to the application for an adjournment.  Mr Gray was a qualified lawyer well able to articulate the basis of any defence that he contended, even if his incarceration had limited his ability to prepare a formal amended defence.  That there had been a persistent failure to properly particularise any defence, as well as plead one, simply lent force to a conclusion that no proper defence could be articulated.
69. [69]
    As matters stood on 31 May 2019 when the application for summary judgment was heard, there was no material which would properly satisfy a court that there was a real prospect of success for defending the claim.  As was noted by the learned primary judge, the defences which had been filed had been struck out.  In any event, those defences had not contested the loan documents or guarantees, but sought to raise other matters based upon an alleged joint venture, alleged misrepresentations and vague assertions of arrangements between the parties, all of which were suggested to have affected the entitlement under the deed of guarantee.  As was also noted by the learned primary judge, both the loan agreement and the deed of guarantee contained warranties that they were not executed on account of any promise, representation or statement.^[43]
70. [70]
    In my view, the learned primary judge was right to reject such assertions as disclosing a real prospect of a defence.  They were not pleaded, not properly particularised, nor was there affidavit material which condescended to details which would illuminate such a case, particularly in the face of the provisions of the deed.
71. [71]
    The learned primary judge’s reference to the failures to comply with orders was relevant in that sense.  Notwithstanding incarceration, the proper articulation of a defence had not occurred.  As his Honour noted, this included non-compliance with orders, lack of response to r 444 letters, and a deficient pleading.
72. [72]
    In my view, it cannot be demonstrated that the learned primary judge erred in rejecting the contention that triable issues had been demonstrated.
73. [73]
    Similar considerations apply to the assertions that there was unlawful lending by a Self-Managed Superannuation Fund, or that the rate of interest was excessively high.  No material was filed to substantiate those assertions.
74. [74]
    Finally, it is not the case that the learned primary judge ignored the impact of Mr Gray’s incarceration.  It was a matter highlighted in the submissions, and noted in his Honour’s reasons.  Relevant to that consideration was the fact that even before his incarceration Mr Gray had not been able to properly articulate a valid defence.
75. [75]
    The assertion that the learned primary judge had formed a dim view of Mr Gray by reason of some previous matter in 2017 does not bear scrutiny.  It is a mere assertion in the outline of Mr Gray before this Court, and was not raised before the learned primary judge.  There was no request for his Honour to recuse himself on that basis.
76. [76]
    Other matters asserted in the outline before this Court fall into a similar category.  Reference was made to “related company wind up proceedings in the Court, which were and are germane”,^[44] and to “real estate and other security not relied upon for mitigation of loss”.^[45]  They can be set to one side.
77. [77]
    At the conclusion of the hearing before the learned primary judge the parties were directed to supply further submissions concerning the interest calculation.  As it happened Mr Gray took advantage of the opportunity to advance further submissions going to the merits of the summary judgment application.  That was by letter dated 3 June 2019.  Points made in that submission included:

    1. (a)
       the difficulties confronted by Mr Gray because of his incarceration;
    2. (b)
       that he had not been in contact with Mrs Stevenson and “She is not aware of anything further in relation to the matter”;
    3. (c)
       that the material relied upon before Flanagan J had never been delivered to him; in those circumstances Flanagan J had been misled by the respondents, who contended that the material had been brought to Mr Gray’s attention before the matter was heard by Flanagan J;
    4. (d)
       the particulars which had been provided were adequate and further particulars that were requested went largely to matters of evidence; in that respect, assertions that the respondents did not understand the case in the defence were misleading, as demonstrated by the ability of their Counsel to articulate “all but the unconscionability element” in the written submissions;
    5. (e)
       that disclosure had been made appropriately;
    6. (f)
       that an assertion that the appellants refused to mediate was false in the circumstances; and
    7. (g)
       there were triable issues which included the necessity to explore the loan arrangements, the unconscionability of the arrangements, and mortgage security over real estate had been taken but not realised.
78. [78]
    The further submissions advanced by Mr Gray were considered by the learned primary judge.^[46]  In the circumstances, it is difficult to accept that Mr Gray did not have a chance to lay out any real prospect of defending the respondents’ claim.
79. [79]
    In my view, it has not been demonstrated that there was any error on the part of the learned primary judge insofar as the case against Mr Gray is concerned.
80. [80]
    I am unable to come to the same conclusion with respect to Mrs Stevenson.  It is the fact that Mr Gray did not appear on her behalf before the learned primary judge, and advised his Honour that Mrs Stevenson was not aware that the matter was anything other than a review.  Further, there seems, on the material before this Court, to be the possibility that she was disadvantaged at the hearing before Burns J because the material had not come to her attention.
81. [81]
    As to service on her, the material had only been provided at the Eagle Street address for service.  Counsel for the respondents made the point before the learned primary judge that there was no Notice of Acting in Person nor any change of address for service.^[47]  Counsel then observed “We can only do what we can do”, prompting the learned primary judge to respond, “Well, you could serve her”.  That elicited the response by Counsel, “Well, if we could locate her …”^[48]  Other material before this Court suggests that when the proceedings first commenced they were served on Mrs Stevenson at her residential address in Shailer Park.  Her affidavit deposes that she received “a summons in relation to a claim” by Ms Carter-Lannstrom in late 2016, at her residential address.^[49]  She also deposes that she had not been served with any other papers at Shailer Park.^[50]  The response by Counsel identified above may not have been accurate in the circumstances.
82. [82]
    It remains the case that there is doubt about the efficacy of service on the notified address for service actually bringing the matter to the attention of Mrs Stevenson.  Service of the summary judgment application was in February 2019, after Mr Gray had been taken into custody and was then in prison in New Zealand.  He did not return to Queensland until March 2019.  The possibility of Mrs Stevenson being unaware is a real one, as is the possibility that she misunderstood the nature of the application on 31 May 2019.  I express no final view on these matters.
83. [83]
    In those circumstances I would make no further finding until Mrs Stevenson has had the opportunity to arrange legal assistance (if possible) and to respond further.  Therefore I would adjourn the further hearing of her application until she has had that opportunity.

Conclusion and disposition of the applications

84. [84]
    For the reasons above I propose the following orders:

In Appeal No 13895 of 2019:

1. The application for an extension of time within which to appeal on the part of Anthony David Gray is refused, with costs.

2. The application by Judith Margaret Stevenson is adjourned to a date to be fixed, costs reserved.

In Appeal No 5644 of 2020:

1. The application for extension of time by Anthony David Gray is refused, with costs.
2. The application by Judith Margaret Stevenson is adjourned to a date to be fixed, costs reserved.

85. [85]
    McMURDO JA:  I agree with Morrison JA.
86. [86]
    MULLINS JA:  I agree with Morrison JA.