AGC (Advances) Ltd v Vapono Pty Ltd & Ors [1992] QSC 85

TRANSCRlPT OF PROCEEDINGS State Reporting Bureau, 4th F1oor, The Law Courts, George Street, BRJSBANE. 0. 4000 Tel. (07) 27:7.4360 (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.) ~J. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION ./MACKENZIE J No 934 of 1990 AGC (ADVANCES) .LIMITED Plaintiff and VAPONA PTY LTD First Defendant and JOHN ROBERT IRELAND Second Defendant and BARBARA AUDREY IRELAND Third Defendant and BRETT WILLIAM GORMAN Fourth Defendant and SUSAN MARGARET SCHOON Fifth Defendant BRISBANE .. DATE 23/3/92 JUDGMENT 1 -- 1 of 7 -- 10 20 30 40 I 50 60 230392 JUDGMENT HIS HONOUR: There will be judgment against each defendant in the sum of $540,385.74 comprisingthe debt of $371,933.24 as to 15 March 1991 together with $87i404.31 being interest at 23.5 per cent from that date to the date of judgment, and legal costs and expenses totalling $79,132.48 in accordance with Exhibit 11. The plaintiff is also entitled to recover costs of the trial as part of the judgment from each of the defendants. In the event that quantification of this amount is not agreed upon I give liberty to apply. I consider that the filing of the originating summons number 467 of 1991 was an unnecessary step in the proceedings. Any amount of costs attributable to that proceeding is not recoverable by the plaintiff. I publish my reasons. Govt. Printer, Old. 2 10 20 30 40 50 60 -- 2 of 7 -- IN THE SUPREME COURT OF QUEENSLAND Before Mr. Justice Mackenzie No. 934 of 1990 BETWEEN: AGC (ADVANCES) LIMITED Plaintiff VAPONO PTY. LTD. First Defendant JOHN ROBERT IRELAND Second Defendant BARBARA AUDREY IRELAND Third Defendant BRETT WILLIAM GORMAN Fourth Defendant SUSAN MARGARET SCHOON Fifth Defendant ADDITIONAL REASONS FOR JUDGMENT -MACKENZIE J. Delivered the 23rd day of March, 1992. Counsel: A.B. Crewe for Plaintiff. L.A. Stephens for Defendants. Solicitors: Henderson Trout for Plaintiff. Maddern Bridge & Brideaux for Defendants. Hearing date: 18th-22nd March, 1991. 9th April and 20th May, 1992 12th February, 1992 -- 3 of 7 -- IN THE SUPREME COURT OF QUEENSLAND BETWEEN: AGC (ADVANCES} LIMITED VAPONO PTY. LTD. JOHN ROBERT IRELAND BARBARA AUDREY IRELAND BRETT WILLIAM GORMAN SUSAN MARGARET SCHOON No. 934 of 1990 Plaintiff First Defendant Second Defendant Third Defendant Fourth Defendant Fifth Defendant ADDITIONAL REASONS FOR JUDGMENT- MACKENZIE J. Delivered the 23rd day of March, 1992. These additional reasons for judgment are concerned with the remaining unresolved matters discussed at pp. 28 and 29 of the reasons for judgment published on the 12th February, 1992. Further written submissions were made on behalf of the parties in respect of those issues in accordance with the terms of the -- 4 of 7 -- 2 previous reasons. Mr. Crowe for the plaintiff relies solely on cl. 53 of the standard memorandum of terms incorporated in the bills of mortgage executed on the 16th December, 1988 by the second to fifth defendants. The essence of cl. 53 for present purposes is the following: "The mortgagor . . . charges with the payment of the monies hereby secured any and all lands in respect of which the mortgagor . . . shall . . • be registered ... and the mortgagor shall . . . enter into and execute forthwith upon demand being made in that behalf a mortgage ... over any or all of the said land referred to as aforesaid as and when required by the mortgagee. The Power of Attorney contained in Clause 52 shall expressly apply to the covenants in this Clause." Prima facie, the Power of Attorney is in terms sufficient to justify execution of the subsequent securities. Mr. Stephens' submission was simply that the defendants were not aware of any clause or clauses which might permit the taking of fresh mortgages or further security. He submitted that the negotiations leading up to the execu'tion of the security on the 16th December, 1988 were conducted on that basis. He further submitted that it was the defendants' understanding that properties other than those secured by the mortgages of the 16th December, 1988 were never at risk. He referred to evidence by Mr. Ireland to the effect that Mr. Walther had said that "if the worst happens you would just lose this land". I mention that Mr. Walther categorically denied that he said anything like that to any of the defendants on the occasion identified. In addition when the suggestion was put to Mr. Walther in cross-examination there was an objection taken that that was not pleaded as a misrepresentation. Mr. Stephens -- 5 of 7 -- 3 acknowledged that and said that he was not raising it as a relevant representation at that point. Returning to Mr. Stephens' submissions, there was also a reference to the refusal to provide further security when Mr. Wal ther asked for it when further funds were advanced as evidencing the defendants' understanding. It was submitted that an estoppel or waiver arose in relation to cl. 53 in all of the circumstances. The questions of estoppel and waiver were not pleaded. Nor was there any suggestion that they were relied on in the conduct of the case. Apart from the fact that they were not pleaded, I do not accept that there was an estoppel or waiver on the evidence before me. In view of what I have said the plaintiff is entitled to the costs and expenses sought in relation to the securities executed on the 29th June, 1990. The additional submissions made by the defendants on this issue and on the principles upon which costs are awarded do not cause me to resile from the view on this issue expressed in my reasons for judgment of the 12th February, 1992. With respect to the costs of the action, it was submitted initially that, having regard to the contractual entitlement to recover legal costs and expenses, the appropriate order would be to make no order as to costs but give liberty to apply in case the anticipated agreement as to quantum did not eventuate. However in his submissions in reply to Mr. Stephens' submissions Mr. Crowe expressed the view that the making of an order in terms of "no order as to costs" would convey a misleading impression as to how costs had been dealt with and may cause confusion. He submitted that the only order necessary was "liberty to apply". -- 6 of 7 -- 4 I think that the circumstances of the case are such that that limited order is more appropriate. It remains to pronounce formal judgment. There will be judgment against each defendant in the sum of $540,385.74 comprising the debt of $371,933.24 as at 15th March, 1991, together with $87,404.31, being interest at 23.5 per cent from that date to the date of judgment and legal costs and expenses totalling $79, 132. 48 (see ex. 11 ) . The plaintiff is also entitled to recover costs of the trial as part of the judgment from each of the defendants. In the event that the quantification of this amount is not agreed upon, I give liberty to apply. I consider that the filing of Originating Summons No. 467 of 1991 was an unnecessary step in the proceedings. Any amount of costs attributable to that proceeding is not recoverable by the plaintiff. -- 7 of 7 --