DJ Lewis Investments Pty Ltd v Dale [2005] QSC 246

State Reporting Bureau j^OOSj ©SC c2/\-Io Queensland Government Department of Justice and Attorney-General Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION DOUGLAS J REVISED COPIES ISSUED State Reporting Bureau Date: 24 August, 2005 No 4572 of 2005 D.J. LEWIS INVESTMENTS PTY LTD (ACN Plaintiff 111 658 676) and ROBERT NORMAN DALE Respondent BRISBANE ..DATE 12/08/2005- JUDGMENT 'ARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal ffence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for leir protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those itegories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. 1 Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 3247 4360 Fax: (07) 3247 5532 -- 1 of 7 -- 1 HIS HONOUR: This is an application for summary judgment. The part of the claim for which judgment is sought is for repayment of a sum of $600,000 pursuant to a loan agreement dated 2 December 2004. The amount of the repayment of $600,000 included the principal of $500,000 and interest of 10 $100,000 and was said to be due and payable on the first working day after 2 June 2005, which in this case was 3 June 2005. 12082005 • T20/CMP5 M/T 3/2005 (Douglas J) The defence raised an alleged variation to the loan agreement ^ to the effect that the date of repayment would be postponed to 2 December 2005. The defence also pleads at the present time that the defendant would pay interest on the loan in the sum of $200,000 on 2 December 2005. 30 In an affidavit sworn by the defendant on 11 August 2005, he deposes to an increase in the interest to $200,000 in paragraph 2 in a chronology but a later affidavit sworn 12 August 2005 by his solicitor says that- the figure of $200,000 referred to in paragraph 2 (b)(ii) of the defence in relation 40 to the interest payment was a typographical error and should read $100,000. Mr Delaney, the solicitor for the defendant, also says that the reference to increased interest in Mr Dale's affidavit sworn the previous day should be deleted as incorrect because he is now informed by Mr Dale that there was 5G no such interest increase agreed. That has the legal effect, however, that there is no consideration pleaded or apparent on the evidence for the 2 JUDGMENT 6( -- 2 of 7 -- 1 alleged agreement to vary the date of repayment of the loan. There is a factual issue, of course, between the plaintiff and the defendant about whether such an agreement was made. The plaintiff denies that it was made at any stage. The defendant then submits that nonetheless the representation alleged in respect of the date for repayment of the loan can found an estoppel . The representation sworn to by Mr Dale in his affidavit is that Mr Lewis of the defendant confirmed to Mr Dale that he was content for the principal and interest to be retained by him for a further six months during which time further negotiations could take place regarding the development and set-up of a food and drink business they had been discussing. Mr Dale goes on to say in paragraph 8 of his affidavit that: "Neither Daryl Lewis nor I required the extension to be confirmed in writing. On the basis of this agreed extension, I did not make arrangements to release the principal and interest to Daryl Lewis on 3 June 2005." On that evidence, it is difficult to see how the necessary feature of such an estoppel that the other party would have placed himself in a position of material disadvantage if departure from the assumption made between the parties be permitted has been established. See Thompson v Palmer (1933) 49 CLR 507,547 and see also Waltons Stores (Interstate) 12082005 T20/CMP5 M/T 3/2005 (Douglas J) 10 20 30 40 50 3 JUDGMENT 60 -- 3 of 7 -- Limited v Maher (1988) 164 CLR 187 where Mason CJ made the point that : "The doctrine of promissory estoppel extends to the enforcement of voluntary promises on the footing that a departure from the basic assumptions underlining the . transaction between the parties must be unconscionable." And went on to say: "As failure to fulfil a promise does not of itself amount to unconscionable conduct, mere reliance on an executory promise to do something resulting in a promisee changing his position or suffering detriment does not bring promissory estoppel into play. Something more would be required." See at 406. See also Brennan J at 423. Brennan J also, at 428-429, made the point in enumerating what was required to be proved by a plaintiff to establish an equitable estoppel, that the fact that the plaintiff acted or abstained from acting in reliance on the assumption or expectation, that the defendant knew or intended him to do so and that the plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled are all elements that need to be proved. See also the Commonwealth of Australia v Verwayen (1990) 170 CLR 394. 12082005 T20/CMP5 M/T 3/2005 (Douglas J) 1 10 20 30 40 50 4 JUDGMENT 6C -- 4 of 7 -- The difficulty that faces the defendant here, in my view, is that the evidence of Mr Dale does not establish anything beyond the fact that he did not make arrangements to release the principal and interest on 3 June 2005 on the basis of the agreed extension. It does not address the issue whether there has been any detriment to him in respect of the alleged promise to delay repayment. One might have thought, for example, if he had made arrangements to invest the money in a longer term investment which was not readily redeemable, that evidence of that nature may have been relevant to the issue of whether there had been a detriment caused by the promise which he asserts. On that legal analysis, therefore, it does not seem to me that there has yet been made out any evidence sufficient to argue that an equitable estoppel exists or might exist in respect of this alleged variation to the transaction. Mr Francis for the applicant also drew my attention to a number of factual areas where one might have thought that the respondent would have provided evidence in rebuttal to assertions made on behalf of the applicant that Mr Dale had indicated his intention to repay various investors or his willingness to settle with all of his investors but in circumstances where no reference was made to the alleged postponement of this loan. 12082005 T2 0/CMP 5 M/T 3/2005 (Douglas J) 1 10 20 30 40 50 5 JUDGMENT 60 -- 5 of 7 -- 1 He invited, me to conclude that it defied belief that the plaintiff would have agreed to the variation when the defendant says it was made on 8 February 2005, that it defied belief that any variation would not have been reduced to writing, and that any such variation would, one expect, have 10 been raised during the plaintiff's discussions with the defendant in the earlier part of this year. That may or may not be so, and it is at least marginally relevant to the issue whether the plaintiff has satisfied me 20 that the defendant has no real prospect of successfully defending all or part of the claim and that there was no need for a trial of the claim, but in my view it is not necessary to resolve the issue in reliance upon evidentiary issues such as that . 30 It seems to me that the defendant has not satisfied me in respect of whether there is evidence sufficient to either justify the variation of the agreement he sought to plead or that he would have a real prospect of establishing an 40 entitlement to postponement of his obligation to repay based on an equitable estoppel. As I have said, he has led no evidence that enables me to find that he has suffered a relevant detriment. In the 50 circumstances , it is my view, to use the language of Williams JA in Deputy Commissioner of Taxation v Salcedo [2005] QCA 227 [at 17], that he has not shown some real prospect of succeeding at a trial . 12082005 T20/CMP5 M/T 3/2005 (Douglas J) 6 JUDGMENT 6C -- 6 of 7 -- Although there is a factual issue in dispute here about whether a conversation occurred between Mr Lewis and Mr Dale in the terms asserted by Mr Dale, the legal consequences of the evidence relied upon by Mr Dale are not such as to require this matter to go to trial . Accordingly, I give judgment for the applicant for the sum of $600,000 together with interest. 12082005 T20/CMP5 M/T 3/2005 (Douglas J) HIS HONOUR: With interest in the sum of $8,753.42 from 3 June 2005 until today, 12 August 2005. HIS HONOUR: Judgment for the plaintiff for $600,000 with interest in the sum of $8,753.42 from 3 June 2005 until 12 August 2005 together with the costs of and incidental to the application and the claim. 1 10 20 30 40 50 7 JUDGMENT 60 -- 7 of 7 --