Thomson v Australia and New Zealand Banking Group Ltd [No 2]
[2024] QCA 83
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Thomson v Australia and New Zealand Banking Group Ltd [No 2][2024] QCA 83
Thomson v Australia and New Zealand Banking Group Ltd [No 2][2024] QCA 83
SUPREME COURT OF QUEENSLAND
CITATION: | Thomson v Australia and New Zealand Banking Group Limited [No 2] [2024] QCA 83 |
PARTIES: | CAROLYN MARY THOMSON (appellant/applicant) v AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED ACN 005 357 522 (respondent) |
FILE NO/S: | Appeal No 3513 of 2022 Appeal No 4341 of 2022 SC No 8958 of 2019 |
DIVISION: | Court of Appeal |
PROCEEDING: | Miscellaneous Application – Civil |
ORIGINATING COURT: | Supreme Court at Brisbane – [2022] QSC 18 (Williams J); Unreported, 18 March 2022 (Williams J) |
DELIVERED ON: | Date of Order: 7 May 2024 Date of Publication of Reasons: 14 May 2024 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 7 May 2024 |
JUDGES: | Mullins P and Morrison and Bond JJA |
ORDER: | Date of Order: 7 May 2024 Leave to file an application to vacate the delivery of judgment and to reopen the appellant’s appeal for the purpose of adducing further or additional evidence is refused. |
CATCHWORDS: | APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – OTHER MATTERS – OTHER CASES – where the applicant sought to file an application to reopen her appeals in order to adduce new evidence shortly before judgment was to be delivered – where the material sought to be adduced by the appellant was irrelevant to the issues before the primary judge and the Court of Appeal – whether the application for leave to reopen the appeals should be granted Thomson v Australia and New Zealand Banking Group Limited [2024] QCA 73, considered Tremco Pty Ltd v Thomson [2018] QDC 101, cited |
COUNSEL: | The appellant/applicant appeared on her own behalf C Curtis for the respondent |
SOLICITORS: | The appellant/applicant appeared on her own behalf Herbert Smith Freehills for the respondent |
- [1]THE COURT: On 7 May 2024, the Court proposed to deliver judgment in these two appeals, which had been reserved since 4 December 2023. Before it did so, the appellant sought to file an application seeking leave to reopen the appeals in order to adduce new evidence, and that delivery of the judgment be postponed accordingly.
- [2]The appeals were heard on the papers. The appellant proposes that the further evidence be heard on the papers also.
- [3]After hearing argument this Court refused leave to file the applications, announced that reasons for the refusal would be published at a later date, and delivered the judgments in the appeals.[1] These are the reasons for refusing leave to bring the application to reopen.
- [4]Central to the dismissal of the appeals were the following matters:
- there was no suggestion that the learned primary judge had misapplied the relevant legal principles;[2]
- the statutory demand was based upon two agreements, one of which was said to have been made on 22 March 2018 (between ANZ and Tremco Pty Ltd, PWA Financial Group Pty Ltd and Thomson Lawyers), and the other on 12 October 2018 between ANZ and the appellant;
- the material did not support that either such agreement was made;[3]
- indeed, the further material sought to be adduced on those appeals tended to show that no binding agreement had been reached, though it was not necessary to reach a final conclusion on those aspects;[4]
- the material did not support the case advanced; namely, that one of the particular amounts alleged in the statutory demand had, in fact, been agreed;[5] and
- accordingly, the learned primary judge was right to find that there was a genuine dispute as to the debts the subject of the statutory demand.
- [5]The material now sought to be adduced falls into one general category, namely that concerning the sale by Tremco Pty Ltd of the appellant’s property under a writ of execution.
- [6]That category is irrelevant to the issues before the learned primary judge, and this Court. The case was concerned with whether the appellant’s statutory demand was the subject of a genuine dispute such that it should be set aside. The Tremco sale had nothing to do with that, as this Court found.[6] It would be pointless to allow such material to be advanced.
- [7]The second aspect sought to be advanced is a submission that the District Court judge who heard a case between Tremco Pty Ltd and the appellant[7] lacked jurisdiction to hear the trial. In those proceedings, Tremco sought to make the appellant liable for debts incurred by a company that traded with Tremco, Kadoe Pty Ltd, while it was insolvent, on the basis that the appellant was a de facto director of Kadoe.[8] The proceedings were transferred from the Supreme Court to the District Court on 6 October 2017. There was no challenge to that order.
- [8]It is impossible to see that the point has any relevance to the issues before this Court, which were confined to whether the learned primary judge was right to find there was a genuine dispute as to the debts the subject of the statutory demand, and to set the statutory demand aside. Even if this point had any relevance, it was not a point argued at the hearing below, or on the hearing of the appeals.
- [9]The application to reopen entirely lacks merit.
- [10]For these reasons, the appellant’s application for leave to bring the application to reopen was refused.
Footnotes
[1] Thomson v Australia and New Zealand Banking Group Limited [2024] QCA 73 (“Reasons”).
[2] Reasons at [36]-[41].
[3] Reasons [162]-[203], [204]-[216] and [222].
[4] Reasons [226]-[233].
[5] Reasons [281]-[294].
[6] Reasons [296]-[297].
[7] Tremco Pty Ltd v Thomson [2018] QDC 101.
[8] Tremco Pty Ltd v Thomson [2018] QDC 101 at [1]-[3].