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- Unreported Judgment
- Appeal Discontinued (QCA)
Alternative Energy International Pty. Ltd. v Butler QDC 201
DISTRICT COURT OF QUEENSLAND
Alternative Energy International Pty Ltd v Butler & Anor  QDC 201
ALTERNATIVE ENERGY INTERNATIONAL PTY LTD ACN 114 977 552
LUKE NORMAN BUTLER
(first respondent/first defendant)
SIMONE AYELE ARABELLA BUTLER
(second respondent/second defendant)
District Court at Brisbane
3 August 2015 ex tempore
3 August 2015
THE JUDGMENT OF THE COURT IS THAT the Defendants pay to the Plaintiff the amount of $160,000 on the plaintiff’s claim and $9,000 for interest to this day, a total judgment of $169,000, and that the Defendants pay the Plaintiff’s costs of the application for summary judgment and the action to be assessed on the standard basis, or as agreed.
PRACTICE – SUMMARY JUDGMENT FOR THE PLAINTIFF – R292 – where the first and second respondents/defendants entered into a loan agreement with a lender – where the first and second respondents/defendants defaulted on repayment of the loan to the lender – where the lender assigned the benefit of the loan to the applicant/plaintiff – where on assignment of the benefit of the loan the lender, the applicant/plaintiff and the first and second respondents/defendants entered into a settlement agreement for repayment of the loan by way of mortgage over the first and second respondents/defendants’ real property – where the first and second respondents/defendants allegedly never signed and returned the mortgage – where the first and second respondents/defendants admit that they defaulted in repayment of the loan – where the first and second respondents/defendants made subsequent allegations of misleading and deceptive conduct against the attorney of the applicant/plaintiff – whether the applicant/plaintiff is entitled to summary judgment against the first and second respondents/defendants
Uniform Civil Procedure Rules 1999 (Qld) r 292
Mr B Sandford (solicitor) for the applicant/plaintiff
Mr M Jones for the first and second respondents/defendants
Lillas & Loel Lawyers for the applicant/plaintiff
Hannay Lawyers for the first and second respondents/defendants
- HIS HONOUR: Regarding the affidavit of Benjamin Leigh Sandford, I give leave for that to be filed and read on the application for summary judgment. Regarding the objections taken by Mr Jones of counsel to pages 1, 4 and 7 of Mr Sandford’s affidavit I allow those objections on the grounds that the correspondence is not relevant to the application for summary judgment. Therefore I will take no notice of that correspondence.
- However, regarding the objection to paragraph 16 of Mr Sandford’s affidavit, I allow his evidence in that regard, notwithstanding it relates to a conversation he has had with an employee of the Commonwealth Bank of Australia. I allow it on the basis that it is original evidence of what he has been told regarding the state of the account. I would admit that evidence on a hearing of this kind, as it is expeditious to do so and would incur unnecessary cost to have an affidavit sworn by that person as to that limited information. In addition, the information does not take the matter much further, in my view, overall.
- This is an application for summary judgment. Initially, a statement of claim was filed on the 22nd of April 2014. The plaintiff was Newsquare Trading Limited. The defendants were Luke Norman Butler and Simone Ayele Arabella Butler. The claim was for $160,000 for damages from breach of contract, or alternatively repayment in the sum of $160,000 advance pursuant to a loan agreement. Interest was also claimed. At that point in time, the plaintiff’s claim appeared straightforward. Basically, the plaintiff claimed that by its attorney, Mr Loel, a practicing solicitor, it entered into an agreement with Mr and Mrs Butler to lend to them $160,000.
- The allegation made at that point was that on or about the 13th of September 2013, the plaintiff’s solicitors advanced the sum of $160,000 to Mr and Mrs Butler or alternatively to Mr Butler. It was alleged that it was advanced on the basis that a property being purchased at Maleny proceeded to settlement. However, the conditions for the money to remain in the hands of Mr and Mrs Butler was alleged to have not been complied with, therefore it was alleged the money had to be repaid, together with interest.
- However, as can be seen from the court file, on the 5th of March 2015, an amended statement of claim was filed. The effect of this was to replace Newsquare Trading Limited with Alternative Energy International Pty Ltd as plaintiff. Unfortunately, while the matter had appeared reasonably straightforward according to the previous statement of claim, what has been alleged in the amended statement of claim appears, on its face, to be a case of extending, by the plaintiff, the allegations. That is, the basic allegations remain the same, except that it is alleged there was an assignment by Newsquare Trading Limited of its rights against Mr and Mrs Butler to Alternative Energy International Proprietary Limited. That assignment had effect on or about 6 June 2014, the allegation being that the lender, which had been Newsquare Trading Limited, had assigned to Alternative Energy International Pty Ltd the benefit of the loan of the sum of $160,000 to the defendants, Mr and Mrs Butler, the loan agreement, a caveat and these proceedings, namely the ones that had already been on foot.
- In addition, the amended statement of claim introduced an allegation that there was a settlement agreement executed between the lender, the plaintiff and Mr and Mrs Butler. The amended statement of claim pleads the material terms of the settlement agreement. Again, basically speaking, the effect was that Mr and Mrs Butler would execute a mortgage over their property which would secure the payment of the moneys that had previously been lent to them. The allegation is made that the lender would, upon receiving the mortgage executed by the defendants, lodge a withdrawal of caveat over the Maleny property, lodge the mortgage for registration and discontinue the proceedings against the defendants, to which the defendants would consent.
- Then it was alleged – and this seems to be, again, a typographical error – that upon the happening of the matters in subparagraph (12)(b) above, which I think should read (14)(b), the lender would unconditionally and irrevocably release and discharge the defendants from any further claim, demand or liability arising from or related to the matters at issue in these proceedings, any claim arising from or related to the facts, matters and circumstances leading to signing of the loan agreement and the terms in which the loan would be repaid and the security for such repayment. The assignment that I have previously mentioned is exhibited to Mr Loel’s affidavit, as is the settlement agreement. Mr Loel’s affidavit is filed in support of the application for summary judgment.
- However, what is alleged in the amended statement of claim is that in breach of the settlement agreement, the defendants failed, neglected or refused to sign and return the mortgage to the plaintiff. Then it is alleged the defendants have still not repaid the sum of $160,000 or any amount to the plaintiff. I have mentioned Mr Loel’s affidavit, filed in support of the application for summary judgment. I have also given leave to file and read the affidavit of Mr Sandford, which is filed also in support of the application for summary judgment.
- Mr and Mrs Butler, as defendants, have filed a notice of intention to defend and a defence. It is admitted by them that they entered into the loan agreement for the provision of $160,000. Also, it should be taken from the settlement agreement, which appears to be executed by all parties including Mr and Mrs Butler, that this allegation is not in issue. In addition, the settlement agreement executed, as I have said, by all parties including Mr and Mrs Butler, accepts that the Butlers defaulted in repayment of the loan in the terms provided by the loan agreement.
- However, Mr and Mrs Butler allege that Mr Loel made representations to Mr and Mrs Butler in or about January 2013 regarding, generally speaking, what they could recover if they entered into a transaction of advancing funds for a development in Chinchilla. The basic allegation is that Mr Loel represented that the proposed site for the Chinchilla development was worth approximately $8 million, whereas his representations were in truth and in fact false and misleading, because Mr and Mrs Butler would not receive a facility fee sufficient to repay the loan, which was one of the representations alleged against Mr Loel, and that the property associated with the Chinchilla development was worth approximately 2.5 million, whereas the allegation was Mr Loel had represented it was worth 8 million, approximately.
- Therefore it is alleged his conduct, in making the representations, was misleading and deceptive, in breach of section 18 of schedule 2 of the Competition and Consumer Act 2010. Further, or in the alternative, it is alleged the plaintiff and the lender were knowingly concerned in the misleading and deceptive conduct because Mr Loel was appointed attorney for the lender, pursuant to a power of attorney dated 16 October 2013, and Mr Loel was appointed attorney for the plaintiff, pursuant to a power of attorney dated 24 April 2014.
- Then it is alleged by Mr and Mrs Butler in the defence that by reason of the misleading and deceptive conduct, the defendants declined to provide finance for the Chinchilla development and have suffered loss and damage in an amount exceeding the plaintiff’s claim, which the defendants seek to set off against any liability they may have to the plaintiff. They give particulars as follows: the completion of the defendants’ investigations – (i); (ii) disclosure by the plaintiff; (iii) the completion of non-party disclosure; and (iv) the obtaining forensic expert evidence.
- There’s also an allegation of conflict of interest against Mr Loel. However, no specific allegation of damage is alleged. It may not be necessary to allege any specific damage, but without more it seems to be an allegation with nothing to it other than to express his breach, which may be relevant to other allegations.
- In any event, the defendants admit that they have not repaid the loan to the lender or to the plaintiff. They say on the basis of the matters pleaded, deny they are liable to the plaintiff as alleged or at all. They deny the plaintiff is entitled to interest on the loan agreement or otherwise on the basis of the matters pleaded.
- In my view, it is to be noted that Mr and Mrs Butler have not sworn an affidavit for the purposes of these proceedings before me today. I took a submission made by Mr Jones for Mr and Mrs Butler to be that Mr Loel ought to have sworn an affidavit in the circumstances, as he could respond to the allegations made in the defence, in particular the allegations made of misleading and deceptive conduct.
- This application proceeds pursuant to rule 292 of the Uniform Civil Procedure Rules. Subrule (1) provides that:
A plaintiff may, at any time after a defendant files a notice of intention to defend, apply to the court under this part for judgment against the defendant.
Subrule (2) provides:
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 orders the court considers appropriate.
- The application seeks summary judgment for the $160,000. The outline of submissions of the plaintiff seeks interest at 7 per cent from 13 December 2013 to 14 July 2015, calculated in the sum of $16,487.67.
- In the end, I have come to the view that in this case, the defendants have no real prospect of successfully defending all or a part of the plaintiff’s claim, and there is no need for a trial of the claim or the part of the claim. That is because, at the end of the day, there is no dispute, in my view, on the evidence, that the plaintiff has the authority to bring the claim; that there was due and owing to the assignor – to the plaintiff the $160,000 – that is, that sum of money was due and owing by Mr and Mrs Butler and has been duly assigned to the current plaintiff; and that the pleading of the settlement agreement is of no real consequence in this case. That is, there is only one conclusion left on all the evidence before me, and that is that when, as alleged by the plaintiff, that the mortgage was not signed and returned by Mr and Mrs Butler to the plaintiff, the plaintiff was entitled to the $160,000 and could bring proceedings for that sum.
- Mr and Mrs Butler submit through Mr Jones that there is, here, raised a set off or even a counterclaim, perhaps, because of the misleading and deceptive conduct of Mr Loel. In my view, it was not incumbent on Mr Loel to swear an affidavit anticipating what might have been said in the defence or what has been said in the defence. It was up to Mr and Mrs Butler, in my opinion, to go on oath about those matters, and they have chosen not to do so. I do not accept this is one of those cases where the defendants can point to the plaintiff’s material and submit that it is devoid of a basis for summary judgment. It was up to Mr and Mrs Butler, in my view, to swear to those facts.
- Now, in addition, I consider the pleading of the misleading and deceptive conduct to be confusing and not credible on its face, particularly because of the time gap between the alleged misleading and deceptive conduct and the entering into the loan agreement. But in addition, as to what is alleged to have been the consequences of the misleading and deceptive conduct in terms of loss and damage. By inference, one would assume that Mr and Mrs Butler found out about the misleading and deceptive conduct and there’s no allegation made that they have suffered a credible loss from the alleged misleading and deceptive conduct.
- Therefore, in all the circumstances, I come to the view that both defendants are liable on the pleadings. Mrs Butler even executed the settlement agreement. It is not suggested for one moment that she was not a party to the loan agreement. That’s basically admitted by the settlement agreement. And therefore I give a judgment for the plaintiff against the defendants. Now, Mr Sandford, that’ll be for $160,000. Is that the sum claimed for claim? Before you start worrying about interest, I’m just talking about the claim.
- MR SANDFORD: Yes. That is, your Honour. Thank you.
- HIS HONOUR: All right. Well, there’ll be summary judgment for the plaintiff against the defendants for $160,000. Now, where do you get your claim for interest? Is it from any agreement or document?
- MR SANDFORD: I believe the seven per cent is from the settlement agreement, your Honour. But – sorry, from – it’s in the terms of the mortgage that’s attached to the settlement agreement, so ‑ ‑ ‑
- HIS HONOUR: Yes. I won’t be giving it on that basis, then, so what is it ‑ ‑ ‑
- MR SANDFORD: Yeah. I accept that, your Honour. So it may need to be on the court scale.
- HIS HONOUR: What is the court scale?
- MR SANDFORD: I’m – I apologise, your Honour.
- HIS HONOUR: Yes. Well, I’m sorry, I don’t carry it with me. I don’t come into this jurisdiction armed with all of that at times. Yes. So what sum are you claiming?
- MR SANDFORD: I apologise, your Honour.
- HIS HONOUR: Well, I’d be prepared to give it at five per cent per annum. Not compounding, but simple interest. You got anything to say on that, Mr Jones?
- MR JONES: My instructing solicitor believes that the rate’s currently four per cent, but I don’t have it.
- HIS HONOUR: Four, is it? Well, that could be right.
- MR JONES: I don’t have the document before me.
- MR SANDFORD: I – to my recollection, your Honour, I had 4.5 per cent.
- HIS HONOUR: Yes.
- MR SANDFORD: But I ‑ ‑ ‑
- HIS HONOUR: Well, I’ll give it at 4.5 per cent. That’s four per cent from Mr Butler, five per cent from me, half in the middle. That’s 4.5, and I give it for 18 months. Is it about 18 months from when the claim was first filed, or should it be some other different dates? What dates do you claim?
- MR SANDFORD: I think from the filing of the – the original statement of claim, your Honour.
- HIS HONOUR: Well, that’s a bit generous.
- MR JONES: It’s 15 – it’s 15 months, your Honour.
- HIS HONOUR: Yes [indistinct]
- MR JONES: From the date of commencement of the proceedings.
- HIS HONOUR: All right. Fifteen months. Now, let me just calculate that. One six zero multiplied by 4.5 equals – divided by 100 equals – that’s 7200 per annum by 15 over 12, and we get 9000. So Mr Sandford, I’m going to allow interest at the sum of $9000. So that’ll be a total judgment, $169,000. And then what about costs?
- MR SANDFORD: Does your Honour want to hear the parties on cost now, or written submissions?
- HIS HONOUR: I think so. Try to wrap it up and not waste any more money.
- MR SANDFORD: Yes. Okay. Thank you, your Honour. My ‑ ‑ ‑
- MR JONES: Just – if I could [indistinct] there’s nothing I can say about costs on the standard basis, your Honour.
- HIS HONOUR: Yes. I’m not inclined to give them to you, Mr Sandford, on the indemnity basis. But, you know, you can try and argue.
- MR SANDFORD: Well, everything I have to say on costs is in my submissions, your Honour.
- HIS HONOUR: Yes.
- MR SANDFORD: Which is from paragraphs 32 to – sorry, 32 to 38. And that is on the basis – well, the basis that I would argue that indemnity costs should be awarded is on the basis that the plaintiff did seek to meet the defendants by entry into the settlement agreement, and that the defendants defaulted under that settlement agreement, and that was a genuine attempt by the plaintiff to settle the proceedings. And it’s only as a result of their default under that settlement agreement that the proceedings continued from that point onwards.
- HIS HONOUR: Yes. Well, I’m not in favour of your submission, I’m sorry, Mr Sandford. I – you know, people enter into agreements, but I don’t think if they don’t comply with it it follows that you can get indemnity costs.
- MR SANDFORD: I accept that, your Honour.
- HIS HONOUR: The order I make is that the defendants pay the plaintiff’s costs of the summary judgment application and of the action to be assessed on the standard basis.
- MR SANDFORD: Would your Honour be minded to make an order or agreed that they can be fixed?
- HIS HONOUR: Yes, certainly. I’ll have that. Or as agreed. All right. So the order is – the orders are: judgment for the plaintiff against the defendants for the sum of $160,000 and interest in the sum of $9000, making a total judgment of $169,000. I order the defendants pay the plaintiff’s costs of the summary judgment application and of the action to be assessed on the standard basis or as agreed.
- Published Case Name:
Alternative Energy International Pty. Ltd. v Butler & Anor
- Shortened Case Name:
Alternative Energy International Pty. Ltd. v Butler
 QDC 201
03 Aug 2015
|Event||Citation or File||Date||Notes|
|Primary Judgment|| QDC 201||03 Aug 2015||Plaintiff's application for summary judgment granted; judgment for the plaintiff on its claim for breach of contract: Samios DCJ.|
|Notice of Appeal Filed||File Number: Appeal 8678/15||31 Aug 2015||-|
|Appeal Discontinued (QCA)||File Number: Appeal 8678/16||08 Dec 2015||Appeal dismissed by consent.|