D.I.Y. Tiles Pty Ltd v Cole
[2009] QDC 365
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D.I.Y. Tiles Pty Ltd v Cole[2009] QDC 365
D.I.Y. Tiles Pty Ltd v Cole[2009] QDC 365
[2009] QDC 365
DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBIN QC
No 1059 of 2009
D.I.Y. TILES PTY LTD | Plaintiff |
and | |
JILL MAREE COLE AND STEPHEN NICHOLAS JOHN COLE | Defendants |
BRISBANE
DATE 15/10/2009
ORDER
CATCHWORDS | Uniform Civil Procedure Rules r 292 Summary judgment application upon a guarantee providing for liability on demand adjourned to allow plaintiff to present evidence of the demand before action |
HIS HONOUR: This is a summary judgment application under rule 292. The respondent to it is the defendant Jill Maree Cole who has not appeared when called, although served by service upon the solicitors who were acting until very recently. She is now self-represented.
She is sued as the guarantor. I've perused her pleading which doesn't look very promising by way of establishing a defence, asserting principally that she was induced to provide the guarantee by her co-guarantor and former partner, that he had undertaken in events which had happened to ensure she was not liable under it, etc.
Notwithstanding those favourable circumstances for the application, the plaintiff, represented by Mr Thomae, has taken a cautious approach, feeling unable to distinguish the circumstances from those considered in Equititrust Limited v Gamp J and P Development Proprietary Limited [2009] QSC 115 at paragraph 19.
The importance of establishing, on an application such as the present one, the making of a demand upon the guarantor, where the instrument of guarantee in terms provides that the guarantor should be liable on demand, was emphasised.
Mr Thomae informs the Court that the plaintiff can establish a demand but has not done so in material filed in Court to date. I respect his reluctance to spare his client the risk involved in relying on doctrines whereby the commencement of proceedings may constitute a demand.
In these circumstances, the application will be adjourned until the 22nd of October 2009 as requested with the costs reserved. Order as per initialled draft.