AMR Capital Pty Ltd & Ors v Kazim & Anor [2025] QDC 109

• [4] Rule 293 permits the court to grant a defendant judgment on all or part of a plaintiff's claim if it is satisfied:

(a) the plaintiff has no real prospect of succeeding on all or part of the plaintiff's claim; and

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

• [5] As was identified on behalf of the applicants, the court must consider whether there exists a real, as opposed to a fanciful, prospect of success.[1] The question turns on whether there is a high degree of certainty about the ultimate outcome if the proceeding was to go to trial in the ordinary way.[2] The court will always retain a discretion as to whether to order summary judgment.[3] Where the facts are not in dispute and the rights of the parties turn upon a question of law, the court may give summary judgment even where the point of law is difficult.[4]
• [6] The intent of the rules enabling summary judgment applications is to limit the relief to those cases in which there is a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way and should only be granted in the clearest of cases.[5]

• [7] The applicants rely upon the express terms of the documents as pleaded. They assume the plaintiffs' pleaded facts (as opposed to legal conclusions), being:

(a) On 14 May 2018 the plaintiffs, Mr Reddicliffe Senior and the defendants entered into a loan agreement with Loan RR-02 where the plaintiffs advanced the sum of $210,000 to Mr Reddicliffe Senior with the defendants also agreeing to payment of that sum.

(b) On or about 30 April 2018 the defendants each entered into a written guarantee concerning the performance of Mr Reddicliffe Senior, for all loans provided to Mr Reddicliffe Senior by the plaintiffs, including but not limited to Loan RR‑02 and further agreed to indemnify the plaintiffs against any loss and damage suffered by the plaintiffs as a result of any default of Mr Reddicliffe Senior under all loans provided to him, including but not limited to Loan RR‑02. Each of the defendants' guarantees, at cl 10, provided this term:

"This Guarantee relates to the whole of the Debt but the total amount payable by the Guarantor to the Lender pursuant to this Guarantee is limited to the balance of the Debt owing after the Lender has exercised its rights as mortgagee under the mortgage of the properties situated at 4 Spena Road, Mareeba QLD 4880 and 3450 Kennedy Highway, Koah QLD 4880 (Mortgaged Property), including without limitation its rights to receive the rents and profits of the Mortgaged Property, to exercise its power of sale of the Mortgaged Property and to receive and recover the proceeds of any policy of insurance in respect of the mortgaged property, to the intent that the Guarantor will have no residual personal liability for any of the Debt provided always that where necessary for the purposes of any demand to be made under this Guarantee or for the purposes of notice under section 84 of the Property Law Act 1974, the amount of the Debt shall be the sum of money comprised in the Debt without regard to this limitation".

(c) On or about 28 June 2019:

(i) the plaintiffs, Mr Reddicliffe Senior and the defendants enter into a Loan Agreement with Loan No. RR-03 where the plaintiffs agreed to advance monies to Mr Reddicliffe Senior for a facility limit of $150,000. According to cl 2.3 of Loan RR-03, the approved purpose of the loan was to "refinance the existing RR-02 loan and assist with working capital". The plaintiffs advanced the sum of $150,000 to Mr Reddicliffe Senior.

(ii) the registered ownership of Mr Reddicliffe Senior's Spena Road property was transferred from him to a third-party purchaser.

(iii) when the Spena Road property settled, the net proceeds of sale were distributed to the plaintiffs to pay off Loan RR-02 in the amount of $76,399.04 and to Mr Reddicliffe Senior in the amount of $152,626.93.

(d) By 30 September 2024 Mr Reddicliffe Senior allegedly failed to pay monies owing under Loan RR-03 and he and each of the defendants thereby owe the plaintiffs the sum of $554,636.79 (inclusive of interest). Interest continues to accrue.

Do the plaintiffs have no real prospect of succeeding on all or part of their claim?

• [8] Whether or not the plaintiffs have no real prospect of succeeding on all or part of their claim properly depends upon the correct construction of the documents.
• [9] The defendants have submitted that the plaintiffs contended construction of Loan RR-03 would credit the plaintiffs in loaning Mr Reddicliffe Senior $150,000 of his own money. In other words, following the sale of the Spena Road property the plaintiffs have pleaded that they loaned the amount of $150,000 to Mr Reddlicliffe Senior upon him receiving that approximate sum in sale proceeds from the sale of his own property. More particularly therefore: can Mr Reddicliffe Senior's receipt of his own property sale proceeds be construed as being a loan from the plaintiffs? It is certainly the plaintiffs' contention that they can, given they assert that the debt to them was not repaid; instead the parties entered into Loan RR-03 in exchange for releasing the funds to Mr Reddicliffe Senior (rather than accepting those funds by way of repayment). In this respect the loan purpose of RR-03, stated in cl. 2.3, includes express reference to "refinance the existing RR-02 loan ...".
• [10] The defendants submit that the plaintiffs' claim must fail as a matter of law because there was no advance under Loan RR-03. Mr Reddicliffe Senior satisfied all debts related to each mortgage over the Spena Road property for those mortgages[6] to be released. The residue of the sale proceeds from the Spena Road property's sale were then distributed to Mr Reddicliffe Senior in the amount of $152,626.93. It was submitted that no basis therefore exists to encumber that distribution to Mr Reddicliffe Senior nor to attribute that distribution as an "advance" under Loan RR-03 by the plaintiffs to Mr Reddicliffe Senior.
• [11] In this respect, the term "advance" is defined in Loan RR-03 as "means, in respect of the Loan, a drawing of the Loan under this Agreement". "Loan" is defined to mean "the amount in cl 2.3". Clause 2.3 reads:

Mr Reddicliffe Senior may only use the Loan for the Approved Purpose outlined in the table below (or other such purpose as the Lender may allow in writing)

To refinance the existing RR-02 loan and assist with working capital"

• [12] The defendants highlight that Mr Reddicliffe Senior was always, subject to the respective mortgages being released and satisfied, the legal and beneficial owner of the Spena Road property's residue sale proceeds. Once the respective mortgages were released over the Spena Road property, including the sale proceeds paying out the plaintiffs under Loan RR-02 to release the plaintiffs' second mortgage, Mr Reddicliffe Senior was entitled to access the residue proceeds of sale (i.e., his own money). It was submitted that there was no pleaded basis to credit the plaintiffs for Mr Reddicliffe Senior obtaining access to the amount of $150,000 of his own money and that the plaintiffs' contended construction to the contrary was capricious and unreasonable. It was submitted that a construction will be preferred which avoids such a consequence.[7]
• [13] Without the need for a trial, I am not presently persuaded by the applicants' submission that the plaintiffs' claim fails as a matter of law due to the proposition that there was no advance under Loan RR-03. That is primarily because it is open for the plaintiffs to contend, even at this summary stage, that Loan RR-03 expressly provides a reference to the sale of the Spena Road property as an "initial condition precedent" (cl 2.4(a)(viii)). They contend, as they are entitled to do so, that but for Loan RR-03, they would have been repaid on the sale of the property pursuant to Loan RR-02. At this stage of the proceedings, I tend to agree as it does beg the question why the parties would have entered into Loan RR-03 at all. Further consideration of this issue is required and might be explored at trial. It certainly should not be resolved at a summary hearing. Indeed, the defendants were parties to Loan RR-03 which expressly provided a reference to the sale of the Spena Road property as an "initial condition precedent" per cl 2.4(a)(viii), and an updated list of securities in the reference schedule (item 4) which omitted the relevant mortgage. The plaintiffs assert, again which they are entitled to do so, even at this stage, that the defendants cannot now say that the fact that they may have lost the protection afforded by cl 10 supports their case because they must have known Loan RR‑03 had that effect. Therefore, it is clearly open for the plaintiffs to assert that the way in which the parties chose to document the relevant transaction had the effect that they (or at least the plaintiffs) intended for it to have. As such, I am unable to accept the proposition that the plaintiffs have no real prospect of succeeding on their claim.
• [14] Further as has been brought to my attention by the respondents, the Spena Road property mortgage was omitted by way of the updated list of securities in the reference schedule (item 4) of Loan RR-03. As identified, the defendants were parties to Loan RR-03. A resolution of this issue ought not be decided summarily given it is open to the parties to argue the approaches that they contend for. This therefore does not assist to support the proposition that the plaintiffs have no real prospect of succeeding on their claim.
• [15] Even if I am wrong about these matters, the applicants also rely upon the effect of cl 10 and cl 12 of Loan RR-03. Clause 12 confirms that the guarantees remain "in full force and effect". Clause 10 provided that the defendants guaranteed the debt, limited to an amount owing (if any) after the Spena Road property's second mortgage is utilised by the plaintiffs to reduce the debt.[8] It was highlighted that notwithstanding the guarantees at cl 10, the plaintiffs and Mr Reddicliffe Senior after Mr Reddicliffe Senior sold the Spena Road property to a third party, then pillaged any of the remaining sale proceeds in the Spena Road property:

(a) to pay off the remaining liability of Loan RR-02 in the amount of $76,399.04; and

(b) purportedly to raise a new debt against Mr Reddicliffe Senior (and the defendants) under Loan RR-03 in the amount of $150,000.

• [16] The applicants have submitted that if the plaintiffs' contended construction is permitted, that they utilised the residue of Mr Reddicliffe's Senior's Spena Road property's sale proceeds as a means of leveraging more debt to advance funds to Mr Reddicliffe Senior under Loan RR-03, it meant that the defendants lost the protection afforded to them by cl 10. As such, it would breach the proper construction of the documents to allow the plaintiffs therefore to benefit from their own wrong in undermining the guarantee's cl 10. It was said that an "Advance" under Loan RR-03 could not be defined to include Mr Reddicliffe Senior distributing his own unencumbered funds to himself from the sale proceeds in the Spena Road property. This includes after the unlawful and premature release of the Spena Road's property's second mortgage in the context of the accompanying guarantee's terms and the second mortgage's terms.
• [17] For me, whilst not ideal for the defendants, it is difficult to resolve that position summarily. Admittedly the plaintiffs' contention regarding the "Debt" is sought to be construed broadly, but this is such a factor which in my view cannot be determined summarily. At this juncture, I have not been persuaded that the plaintiffs have no real prospect of succeeding on all or part of their pleaded claim.

Is there no need for a trial of the claim or the part of the claim?

• [18] Construction issues aside, having regard to the state of the pleadings, it is plainly also possible for factual matters to be agitated. For instance, the defendants have pleaded an allegation that Mr Reddicliffe Senior forged his son's signature with respect to what is in response to a pleading about "the first variation to Loan RR-03". The same extends to a response to a pleaded "second variation to Loan RR-03". I therefore accept the proposition by the respondents that there are triable issues of fact as to whether the way in which the parties decided to document the relevant transaction was effective. I also accept, as has been highlighted to me on behalf of the respondents, that the applicants' relief in the present application is undesirable because the defendants do not apply for summary judgment of their counterclaim, with the result that even if summary judgment is granted as sought, it will not finally determine the rights of the parties to this dispute because the proceeding will continue to be resolved at a trial. Given the issues between the two proceedings are identical, there is an unavoidable, substantial risk of inconsistent findings between the proceedings which would undermine the interests of justice. There is currently no evidence before me to suggest that the defendants' counterclaim will not be pressed further. Furthermore, the defendants' own commencement of third party proceedings against their solicitors is a consideration which, I think, militates against a finding that there is no need for a trial of the claim or part of a claim particularly at this early stage, especially when the parties have not even yet provided sufficient disclosure.

• [19] It is for those reasons that I am not persuaded, pursuant to r 293, that there be judgment for the defendants against the plaintiffs for all or part of the plaintiffs' claim. The application is dismissed. I will hear from the parties as to costs and any further orders and directions.

[1] Deputy Commission of Taxation v Salcedo [2004] QSC 333; [2005], Qd R 232 at [11]- [13] (Williams JA, McMurdo P, Atkinson J agreeing).

[2] Agar v Hyde (2000) 201 CLR 552 at [57] (Gaudron, McHugh, Gummow and Hayne JJ).

[3] Willmott v McLeay [2013] QCA 84 at [15]- [17] (Holmes JA, Fraser and White JJA agreeing).

[4] Raging Thunder Pty Ltd v Bank of Western Australia Limited [2012] QSC 329 at [14]- [15] (Applegarth J).

[5] See for instance Rich v CGU Insurance Ltd [2005] HCA 16; (2005) 79 ALJR 856 (per Gleeson CJ, McHugh and Gummow JJ) and Neumann Contractors Pty Ltd v Traspunt No. 5 Pty Ltd [2010] QCA 119; [2011] 2 Qd R 114 at [80] (Muir JA, Holmes and Chesterman JJA agreeing).

[7] Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99 at 108 (Gibbs CJ).

[8] Clause 10 has been identified earlier in these reasons.