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Plaza v Parra[2023] QMC 13

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Plaza v Parra [2023] QMC 13

PARTIES:

LEONARDO PLAZA

v

JUAN EMILIO CANISING PARRA

FILE NO/S:

M1383/23

DIVISION:

Civil

PROCEEDING

Application filed 14 September 2023
for summary judgment and to strike defence

ORIGINATING COURT:

Brisbane Magistrates Court

DELIVERED ON:

5 December 2023

DELIVERED AT:

Brisbane

HEARING DATE:

3 November 2023

MAGISTRATE:

A/Magistrate Janelle (Payne) Boegheim

ORDER:

  1. 1.
    The plaintiff’s application for summary judgment,  filed 14 September 2023, is dismissed.
  2. 2.
    Paragraphs 4(c), 6(c), 9(b)(i) and 10(b)(i) of the Defence filed 9 August 2023 are struck out under r 171(1)(a) and (b) Uniform Civil Procedure Rules 1999 (Qld).
  3. 3.
    The balance of the plaintiff’s application, filed 14 September 2023, to strike out the Defence filed 9 August 2023, is dismissed.
  4. 4.
    The defendant is directed to file and serve any amended defence by 4pm on 19 December 2023.
  5. 5.
    I will hear the parties in relation to costs.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – where the plaintiff applies for summary judgment pursuant to r 292 of the Uniform Civil Procedure Rules 1999 (Qld) - Where plaintiff and defendant co-sureties of guaranteed debt – where dispute as to whether co-surety or instead the primary debtor paid the creditor the guaranteed debt – whether the defendant has no real prospect of successfully defending the relevant part of the plaintiff’s claim – whether there is no need for a trial of the relevant part of the plaintiff’s claim

PROCEDURE – CIVIL PROCEEDINGS – PLEADINGS – STRIKING OUT – where the plaintiff seeks, in the alternative, an order that all or certain paragraphs of the amended defence and counterclaim be struck out pursuant to r 171 of the Uniform Civil Procedure Rules 1999 (Qld) – whether application to strike out should be granted for all or part of the defence.

Uniform Civil Procedure Rules 1999 (Qld) rr 171, 292

CFI Rentals Pty Ltd v Roussos & Anor [2017] QCA 308

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

Lavin & Anor v Toppi & Ors 254 CLR 459; [2015] HCA 4

COUNSEL

De Waard, M of Counsel for the plaintiff

Delaney, A (sol) for the defendant

SOLICITORS

Mills Oakley, for the plaintiff

Delaneys Lawyers, for the defendant

Nature of the application

  1. [1]
    By Application filed 14 September 2023, the plaintiff seeks summary judgment pursuant to r 292 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR). In the alternative, the plaintiff seeks an order that all, or certain paragraphs[1] of, the Defence be struck out pursuant to r 171 of the UCPR.

The parties’ material

  1. [2]
    At the hearing, the plaintiff, who appeared by Mr De Waard of Counsel instructed by Mills Oakley, relied on his Application and an Affidavit of the plaintiff both filed 14 September 2023, along with the pleadings filed to date.[2]
  1. [3]
    The defendant, who appeared by his solicitor, Mr Anthony Delaney, relied on an affidavit of Mr Delaney, with 8 exhibits, sworn the day prior to the hearing and filed by leave at the hearing. Initially, the defendant’s counsel objected to the Affidavit on the ground of hearsay (no objection having been made to the lateness or relevance of the Affidavit to the Defence as pleaded) but such objection was withdrawn and the defendant’s Affidavit was ultimately filed by leave, by consent.
  1. [4]
    The plaintiff’s counsel and defendant’s solicitor both provided written outlines of argument on the morning of the hearing.

Background

  1. [5]
    The proceeding was commenced by Claim and statement of Claim filed 12 July 2023. The plaintiff’s substantive claim is for co-contribution under a guarantee.
  1. [6]
    From the pleadings filed to date, it is not in dispute that:
  1. the plaintiff and defendant incorporated Easy Clean GC Pty Ltd (Easy Clean) for the purpose of conducting a cleaning business; and the plaintiff and the defendant were once directors and shareholders of Easy Clean;
  1. on 26 April 2022, Easy Clean obtained funding of $260,000 from Grow Funding Pty Ltd (Grow Funding) under a written Loan Agreement;
  1. both the defendant and the plaintiff provided a Guarantee & Indemnity in relation to the Loan Agreement;
  1. the plaintiff provided a mortgage over his personal property located at Mount Coolum, Queensland (the Property) as additional security.
  1. [7]
    Paragraphs 13 and 14 of the Statement of Claim plead that:
  1. 13.
    As a result of the Grow Funding Demand, and in light of the Guarantee and Indemnity, on or about 13 April 2023, the Plaintiff sold the Property;
  2. 14.
    At settlement of the sale of the Property:
  3. (a)
    Pursuant to the Loan Agreement, the Grow Funding Demand and the Guarantee and Indemnity, the Plaintiff paid to Grow Funding the sum of $226,785.08 to Grow Funding (“the Outstanding Amount); and
  4. (b)
    Grow Funding Defendant discharged the Mortgage over the Property.
  1. [8]
    The plaintiff deposes that Easy Clean did not have the funds available to pay Grow Funding, such that he had to sell the Property in order to obtain the necessary funds; and that he engaged a realtor to facilitate such sale. [3] He further deposes that settlement of the Property was completed on 13 April 2023. The Plaintiff relies on a letter from Page Property Law dated 14 August 2023 and a PEXA record showing Loan Payout “Kolrepp Law $226,785.08”.[4]  
  1. [9]
    On 14 August 2023, a Notice of Intention to Defend and a Defence was filed on behalf of the defendant. The Defence admits quite a few of the plaintiff’s allegations[5] but does not admit or deny:
  1. the issuing of demand (paragraph 4(a) of the Defence);
  1. that the plaintiff sold the Property (paragraph 6(a) of the Defence);
  1. the plaintiff sold the Property as a result of the Grow Funding Demand (paragraph 6(b)).
  1. [10]
    Paragraph 4(c)(i) of the Defence cavils with the construction of the Grow Funding Demand and says it was not a demand for payment but a request for contact only.
  1. [11]
    Paragraph 6(c) of the Defence alleges that the plaintiff was not required to sell the Property as a result of the G[r]ow Funding Demand. The basis of the denial is said to be the matters in paragraph 4(c) of the Defence.
  1. [12]
    In Paragraph 7 of the Defence squarely denies the allegation that the plaintiff paid to Grow Funding the sum of $226,785.08 to Grow Funding. The defendant pleads in paragraph 7 that: “The basis of the denial is because on a date unknown to the Defendant, Easy Clean paid Grow Funding all monies owing under the Loan Agreement, which thereby had the legal effect of:
  1. (a)
    Releasing any contingent responsibilities the Plaintiff and the Defendant may have owed under the terms of the Loan Agreement and the Guarantee and Indemnity; and
  2. (b)
    Releasing any liability owing under the terms of the Mortgage.”
  1. [13]
    That allegation (amongst others) appears again in paragraph 10(b)(ii) and is part of the defence pleaded in paragraph 11 and 12 of the Defence, in response to paragraphs 17-22 of the Statement of Claim.
  1. [14]
    There appears to have been no further particulars provided, nor requested.
  1. [15]
    No Reply was filed to allegations contained in the defendant’s Defence and the defendant alleges non-admissions arising from the same.
  1. [16]
    On 14 September 2023, the plaintiff, by his solicitors, filed an application for summary judgment and to strike out the Defence.
  1. [17]
    In written submissions for the defendant on the applications, the two grounds of Defence pressed were as follows (verbatim):[6]
  1. “No formal demand was made upon the Plaintiff and/or the Defendant for the payment of the monies owing under the guarantee” (the first ground of defence”);
  1. “The monies paid by the Plaintiff to Grow Funding were not paid by him as guarantor, but rather paid on behalf of Spruces as part of the purchase monies for the purchase of the Business by Spruces” (“the second ground of defence”);

Summary judgment: relevant rule and principles

  1. [18]
    Pursuant to r 292(2) of the UCPR, the court may give judgment for the plaintiff against the defendant for all or part of the plaintiff’s claim and may make any other order the Court considers appropriate if the Court is satisfied that:

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

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

  1. [19]
    Both the plaintiff and the defendant relied on the well-established principles set out by Atkinson J in Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232;  and Daubney J in Elderslie Property Investments v Dunn [2007] QSC 192 at [6].
  1. [20]
    In Deputy Commissioner of Taxation v Salcedo at [17],  Williams JA (with whom McMurdo P and Atkinson J agreed) stated:

“… 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 trial; if that is established then the matter must go to trial. …”

  1. [21]
    I accept, as submitted by the plaintiff, that the onus is on the applicant to prove the claim, but once a prima facie case has been made out entitling the applicant to judgment, then the evidentiary onus shifts to the respondent, to put on material to persuade the court why it should not be satisfied that the defendant has no real prospect of defending the claim.[7] 
  1. [22]
    If the facts are not in dispute, a judicial officer sitting in the civil applications list would be expected to be in the same position as a trial judge to determine issues of law.[8] The mere size of an Affidavit from a defendant does not excuse this responsibility.
  1. [23]
    However, the overall burden of proof in an application under r 292 remains on the plaintiff;[9] and even where the requirements of r 292(2) are met, the Court retains the ultimate discretion in deciding whether to award summary judgment.[10]
  1. [24]
    Magistrate Pinder also fulsomely set out the core principles in Queensland Building and Construction Commission v Perry’s Prestige Properties Pty Ltd & Anor [2023] QMC 7 at [7] to [19].

Strike out application: relevant rule and principles

  1. [25]
    Rule 171 UCPR provides:

171 Striking out pleadings

(1)  This rule applies if a pleading or part of a pleading—

(a)  discloses no reasonable cause of action or defence; or

(b)  has a tendency to prejudice or delay the fair trial of the proceeding; or

(c)  is unnecessary or scandalous; or

(d  is frivolous or vexatious; or

(e)  is otherwise an abuse of the process of the court.

(2)  The court, at any stage of the proceeding, may strike out all or part of the pleading and order the costs of the application to be paid by a party calculated on the indemnity basis.

(3)  On the hearing of an application under subrule (2), the court is not limited to receiving evidence about the pleading.

  1. [26]
    Magistrate Pinder also fulsomely set out the core principles: Jayden Andrew Oppermann t/a J & K O's Construction v  Trott & Anor [2023] QMC 8 but I have had regard to rule itself and the authorities of the Supreme Court cited, directly.
  1. [27]
    In Royalene Pty Ltd v The Registrar of Titles and Mistilis (2007) QSC 059 at [6] the Supreme Court said in respect of r 171 UCPR:

“The focus of argument was principally on UCPR 171(1)(a) which is concerned with pleadings that disclose no reasonable cause of action or defence. UCPR 171(3) provides that on the hearing of an application to strike out part of a pleading, the court is not limited to receiving evidence about the pleading. Even to the extent that that may involve a relaxation of the approach that applied under the former rules, there is still good reason to regard the applicable principle to be that the discretion to strike out should only be exercised where the defence raised is obviously untenable. Conversely it should not be exercised except in clear cases. (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, 130; Dey v Victorian Railways Commissioners (1949) 78 CLR 62, 84 and 91). That is especially so where the case is  pleaded as a circumstantial one and the inference to be drawn from evidence critical to determining liability is not common ground and the evidence is untested.”

ANALYSIS

The first ground of defence

  1. [28]
    In the course of oral argument, the first ground of defence based on the need for or construction of the demand was not strongly pressed. That was a sensible course given paragraph 5.6 of the Loan Agreement expressly did not require the making of demand. Paragraph 5.6 provided that:

“The Guarantor’s obligation to pay the Guaranteed Moneys is a primary obligation. We are not obliged to enforce any right against any person or property or demand payment from you or any other person before demanding payment by the Guarantor of the Guaranteed Moneys”.

  1. [29]
    The letter dated 14 February 2023 from Grow Funding, that the plaintiff alleges constitutes a demand, is included in the defendant’s material, as it was provided to the defendant’s solicitors on 2 August 2023 pursuant to a request under Rule 222 of the UCPR. The demand is entitled “Final Demand and Default Notice for Insolvency”. It is addressed to (“The Guarantor/s Leonardo Plaza”). The letter sets out a debt balance of $249,950.20 and, after setting out the background and the claimed basis for the guarantor’s liability, states:

“We demand that you as the guarantor contact us by no later than (5) days from the date of this letter to discuss the final amount in satisfaction of the obligations under the Agreement (Subjected to the present value of the day).

Should you fail to comply with the demands set out above, we reserve all of our rights without further notice including to:

  1. (a)
    Charge additional amounts to the Company and/or the Guarantor/s in respect of any further legal or administrative costs that may be incurred to recover the equipment and any amounts owing by the Company;
  2. (b)
    Pursue the guarantor to recover any amounts owing under the Agreement; and
  3. (c)
    Notify a credit reporting agency that the Company and the guarantor have defaulted on their obligations under the Agreement;
  4. (d)
    Send the matter to a third-party legal partner and start legal proceedings against the company and all parties involved.
  5. (e)
    Repossess the asset using a third-party agent.

Should you have any queries, please contact us to discuss.

In any event, please revert to the agreement for clarity on your obligations.

Please ignore this letter if you have already spoken to Grow about the final debt and this matter has been sorted.

Regards

Grow Funding”

  1. [30]
    The letter is clear that Grow Funding is seeking payment and the serious consequences that will follow if payment is made. Without something more, it cannot be said that a demand was required; or that if it was, that the letter of 14 February 2023 is not a demand on the plaintiff as guarantor.
  1. [31]
    In CFI Rentals Pty Ltd v Roussos & Anor [2017] QCA 308, the Court of Appeal ((Fraser and Philippides and McMurdo JJA) allowed an appeal from the District Court where the primary judge erred in construing the guarantee as requiring a demand be made. The relevant clause also stated that the guarantor’s obligations were primary obligations.  In a joint judgment of Fraser and Philippides and McMurdo JJA, the Court of Appeal held at [7] to [8]:
  1. “7.
    On the hearing of the appeal, the respondents correctly accepted that the primary judge had erred in construing the guarantee as requiring that a demand be made before an equitable charge was created pursuant to cl 7. This followed from clause 1, which stated:
  2. “1.
    Guarantee
  3. 1.1
    The guarantor unconditionally and irrevocably guarantees to Cashflow IT that the Debtor will pay to Cashflow IT all amounts payable by the Debtor to Cashflow IT and the due and punctual performance by the Debtor of all its obligations to Cashflow IT under the Transactions.
  4. 1.2
    The liability of the guarantor is a principal liability.”
  5. 8.
    Clause 2, to which the primary judge referred, provided for a separate indemnity, additional to and independent of the guarantee in cl 1.[3] The terms of cl 1 of the guarantee, properly construed, provide that the first respondent’s obligations were primary obligations. The terms of cl 1, as the appellant argued, admitted no ambiguity and secured all payments pursuant to the lease at the time for making the payments. Clause 1.2 was explicit that the liability was a principal liability. Accordingly, on its terms, no demand is required by the appellant prior to the first respondent incurring liability.[Emphasis added]
  1. [32]
    As presently pleaded, the paragraphs of the Defence that rely on the need for, or construction of the demand (paragraphs 4(c), 6(c), 9(b)(i) and 10(b)(i)) will unnecessarily elongate a trial as they do not disclose a reasonable defence. They ought be struck out under r 171(1)(a) and (b) UCPR.
  1. [33]
    To progress the matter, a direction will be made as to the time for filing of an amended defence to remove these paragraphs and attend to any consequent amendments. Such direction does not stay or delay the other obligations the parties have under the UCPR, including as to disclosure.

The second ground of defence

  1. [34]
    Whilst the second ground of defence was articulated more clearly in written and oral submissions than in the Defence, paragraph 15(b) of the plaintiff’s submissions acknowledges a ground of defence that Easy Clean caused the payment.
  1. [35]
    The plaintiff pleads that Easy Clean was placed into “external administration”. A statutory report of the liquidator’s dated 7 June 2023 (the Liquidator’s Report), exhibited to the defendant’s material, enlightens that:
  1. “1.2
    Company History and Nature of the Business
  2. The Company operated a cleaning services business in Gold Coast, Queensland. On 7 February 2023 the Company was placed in voluntary administration and [Terry John Rose] and Matthew Bookless [of SV Partners] were appointed Administrators. We continued to trade the Company’s business under a Management and Licence Agreement with the director of the Company, and on 5 March 2023 finalised a sale agreement. Further details on sale of business are provided on section 2.1 below.”

The key part of the liquidator’s report said to be relevant was paragraph 2.1, which read as follows:

  1. “2.1
    Business
  2. As detailed in my previous report to creditors, the Company’s business was sold to Spruces Co Pty Ltd (Spruces”) for the total sum of $279,950 payable as follows:
  3. $249,950 to Grow Funding (a secured creditor); and $30,000 to the liquidation account over a 12 month period.
  4. I determined the sale to be commercial. At the time of this report, I am informed the debt owed to Grow Funding has been satisfied in full from the sale of the director’s residence and an amount of $9,466 has been recovered in liquidation. I expect the balance to be recovered in due course.”
  1. [36]
    Because of the words “I am informed the debt owed to Grow Funding has been satisfied in full from the sale of the director’s residence”, the initial objection was not pressed by the plaintiff and the plaintiff placed great weight on these words.
  1. [37]
    In Part 1.3 (Receipts and Payments) of the Liquidator’s Report, the receipts appeared to include an amount of $9,466 for “Sale of Business (Instalments Received as at 7 June 2023).
  1. [38]
    Later in the report, the following appeared:
  1. “2.8
    Secured Creditor
  2. Note 1 “The Company held two facilities subject to a registered security interest by Grow; a Business Loan and a Funded Finance@Word rental agreement. Grow lodged a proof of debt for $249,500 in the Administration.  Both Leo Plaza and Emilio Cansing have provided personal guarantees for the above facilities.  As detailed in section2.1 of the report, Grow has now been paid out in full.”
  1. [39]
    Of some significance is that in paragraph 3.1 of the Liquidator’s Report, the plaintiff is said to be a director of the Spruces Co Pty Ltd (the purchaser). A Company extract was also provided by the plaintiff.
  1. [40]
    Section 2.1 and the apparent sale agreement dated 5 March 2023 are significant as the alleged sale agreement (if 5 March 2023) predates the plaintiff’s allegations that:
  1. on 13 April 2023, he sold his personal property to satisfy a demand from Grow Funding for $226,785.08;
  1. on 3 and 24 May 2023, the plaintiff made demand from the defendant to pay half of the outstanding amount of $113,392.54;
  1. on 13 August 2023, the plaintiff paid Grow Funding $226,785.08 from settlement of the sale of his property.
  1. [41]
    No point was taken that the proceeding was commenced prior to the alleged payment.
  1. [42]
    Without the benefit of the liquidator’s evidence - and in no way deciding the matter - paragraph 2.1 of the Liquidator’s Report is open to a number of interpretations. One available interpretation is that:
  • Easy Clean’s business (including assets and goodwill) was sold to Spruces (a related entity of the plaintiff) for $279,950;
  • A sale price of $279,500, against the $226,785.08 paid to Grow Funding would potentially leave a surplus of $52,714.92 to Easy Clean and not a residual liability to the guarantors;
  • the Plaintiff sold his property, in part, to enable his company, Spruces, to pay the purchase price of $279,950 that his company, Spruces, was liable to pay to purchase Easy Clean’s goodwill, and not in his capacity as guarantor;
  • Easy Clean as vendor (not the plaintiff) was entitled to the sale proceeds from Spruces;
  • As is common with a settlement, the purchaser (Spruces) discharged the liabilities of Easy Clean and the purchased business from the purchase price.
  • A sale price of $279,500, against the $226,785.08 paid to Grow Funding would potentially leave a surplus of $52,714.92 to Easy Clean and not a residual liability to the guarantors.
  1. [43]
    In Lavin & Anor v Toppi & Ors [2015] HCA 4 (Lavin), the High Court clarified the principles governing the rights between co-sureties with joint and several liability in respect of a guaranteed debt (original footnotes):
  1. “32.
    The rationale of the right to contribution, both at law and in equity, was described by Kitto J in Albion Insurance Co Ltd v Government Insurance Office (NSW)[11] "as one of natural justice" which ensures "that persons who are under co ordinate liabilities to make good the one loss (eg sureties liable to make good a failure to pay the one debt) must share the burden pro rata."[12]  In cases of suretyship, the concern is to ensure that the common burden of suretyship is borne equally as between co sureties, so that the exercise by a creditor of its contractual right under its guarantee to recover the guaranteed debt in full from one of several co sureties does not leave that surety to bear a disproportionate share of the burden of suretyship.
  2. […]
  3. 34.
    In Mahoney v McManus,[13] Gibbs CJ (with whom Murphy and Aickin JJ agreed) said that:
  4. "the doctrine of contribution is based on the principle of natural justice that if several persons have a common obligation they should as between themselves contribute proportionately in satisfaction of that obligation.  The operation of such a principle should not be defeated by too technical an approach".
  5. Coordinate liabilities
  6. 36.
    From the moment of Luxe's default, or at the very latest from the Bank's demand on the guarantors, each of the guarantors was under a common obligation to pay to the Bank the whole of the guaranteed debt.  As persons jointly or severally liable in respect of the same debt, each of them was bound, among themselves, to contribute equally to the discharge of that liability[18].  At that time, each of them shared "a common interest, and a common bur[d]en"[19] in respect of the guaranteed debt.”
  1. [44]
    It was expressly accepted by the defendant that a co-guarantor is generally required to contribute equally to the repayment of a debt and if one guarantor pays more than their share of the debt, they have a right to seek contribution of the overpayment.[14] The defendant contends however, that the plaintiff was not acting as co-guarantor making payment of a debt for the benefit of the sureties; but the plaintiff making a payment to purchase Grow Funding’s business for Spruces.
  1. [45]
    As can be seen, much turns on whether in making the payment to Grow Funding, the plaintiff was (1) acting under the burden of suretyship; or (2) was making a payment on behalf of Spruces as purchaser causing the primary debtor (Easy Clean) to discharge the liability to Grow Funding from the funds Easy Clean was otherwise entitled to receive under the possible sale agreement to Spruces. In the second scenario, the plaintiff might not have made the payment as surety.
  1. [46]
    If the plaintiff’s company, Spruces, received the assets and goodwill of Easy Clean (said by the Liquidator to be a commercial market value of $279,500, and sufficient to discharge Easy Clean’s liabilities in respect of the loan of $226,785.08), the plaintiff might be asking his co-surety (the defendant) to bear a disproportionate share of suretyship.
  1. [47]
    To be clear, it is not for this application to make any finding about any of the above and I do not do so: the facts may well be explicable but that is a matter for trial.
  1. [48]
    Even though the plaintiff appears to be a director of both entities, the plaintiff’s Affidavit does not address the sale to Spruces or the Liquidator’s Report that pre-dated it. Far from being pointless, a trial is necessary to hear from the liquidator and the plaintiff (and potentially Spruces).
  1. [49]
    There are some other matters that might require exploration at trial:
  1. in paragraph 2.1.1 of the Liquidator’s Report, the stated liability to Grow Funding of $249,500 is more than the $226,785.08 the plaintiff contends he needed to pay to Grow Funding;
  1. the $9,466 received by the liquidators to date is less than the surplus of $52,714.92 that would arise from such a sale;
  1. if there was in fact a sale to Spruces, should the sale proceeds of $279,500 (or at least the $226,785.08 + $9,466 potentially received to the benefit of Easy Clean)  to be accounted for in the receipts and payments in a subsequent report of the Liquidator.
  1. [50]
    As it stands this early in the proceeding, the court cannot reconcile these matters or ascertain whether the alleged Spruces’ Sale occurred and if so, the amount the liquidator directly or indirectly recovered for the benefit of Grow Funding.
  1. [51]
    For the above reasons, I am not in any way satisfied that the defendant has no prospect of success or there is no need for a trial of the claim. Rather, there is a very real factual dispute as to whether Easy Clean’s liability to Grow Funding was satisfied from the alleged sale of Easy Clean’s business to Spruces. If that is the case, the primary debtor - not the surety - has discharged the liability and foundation of the right to contribution from a co-surety does not exist. Far from having no prospect of success, the defence, if made out at trial, might defeat the claim entirely.
  1. [52]
    Though this ground become stronger in submissions and the material produced at the hearing – and may now require further particulars - this ground of defence was pleaded in the Defence.
  1. [53]
    The Application for summary judgment is dismissed.

Costs

  1. [54]
    I will hear from the parties in relation to costs.

Footnotes

[1] Paragraphs 2,3,4,5,6,7,9,10,11.

[2] Court documents 1 to 4.

[3] Affidavit filed 14 September 2023, paras 32 to 37.

[4] Affidavit filed 14 September 2023, paras 36 to 37 and pages 18-20 of the exhibits.

[5] Paragraph 1 of the Defence admits paragraphs 1, 2, 3, 5, 6, 8, 9, 10 of the Statement of Claim. Paragraph 4, 7 and 12, 18, 19, 20, 21 and 22 are admitted with some caveats.

[6] Defendant’s submissions, paragraph 18.

[7] LCR Mining Group Pty Ltd v Ocean Tyres Pty Ltd [2011] QCA 105 at [22] per White JA (with whom Margaret Wilson AJA and Ann Lyons J agreed); Elderslie Property Investments v Dunn [2007] QSC 192 at [7]-[8].

[8] Willmott v McLeay [2013] QCA 84 at [15]-[17]; Bolton Properties Pty Ltd v JK Investments (Australia) Pty Ltd [2009] 2 Qd R 202.

[9] Elderslie Property Investments v Dunn [2007] QSC 192 at [8].

[10] Willmott v McLeay [2013] QCA 84 at [15]-[17]; Bolton Properties Pty Ltd v JK Investments (Australia) Pty Ltd [2009] 2 Qd R 202.

[11] (1969) 121 CLR 342 at 349‑350.

[12] See also HIH Claims Support Ltd v Insurance Australia Ltd (2011) 244 CLR 72 at 87 [36].

[13] (1981) 180 CLR 370 at 378; [1981] HCA 54.

[14] Outline of Submissions for the Defendant, paragraph 10, citing Burke v Lfot Pty Ltd (2002) 209 CLR 282 at 299, [38].

Close

Editorial Notes

  • Published Case Name:

    Plaza v Parra

  • Shortened Case Name:

    Plaza v Parra

  • MNC:

    [2023] QMC 13

  • Court:

    QMC

  • Judge(s):

    A/Magistrate Janelle (Payne) Boegheim

  • Date:

    05 Dec 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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