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[2009] QSC 350
Supreme Court of Queensland
2009-11-06
McMurdo J
Original judgment source is linked above.
Archibald & Brown for the first to fifth defendants
Elliott & Harvey for the second and third defendants by counterclaim
[1] On 26 October I gave judgment for the plaintiff against the defendants.[1] In my reasons, I referred to the counterclaim against the plaintiff and said that it appeared to follow that it should be struck out. The plaintiff had filed an alternative application to strike out parts of the Defence and the entirety of the counterclaim. I stood the matter over to yesterday to provide the parties with an opportunity to consider my reasons for judgment before making submissions about the fate of the counterclaim.
[2] Yesterday counsel for the plaintiff made an oral application for summary judgment on the counterclaim. They said that the bank should have a judgment because it would preclude the defendants from prosecuting any cause of action or litigating any issue which is within the counterclaim against the bank.
[3] The counterclaim is pleaded not only against the bank but against Elliot Harvey Securities Ltd and Michael Harvey. All of the factual allegations pleaded in the counterclaim are relevant only to those parties, and not to the bank, save for that paragraph which simply incorporates the allegations pleaded within the Defence to the bank's statement of claim. Accordingly any case within the counterclaim has been necessarily determined by my judgment. The relief claimed against the bank is for declaratory and injunctive relief going to the enforceability of the guarantee. There is also a counterclaim for "equitable compensation" which appears to relate to the defendants' pleading that each of them (and Ronbar) was under a "special disability" in dealing with the plaintiff, a case which was not pressed in argument and which had no support in Mr Wright's affidavit.
[4] The defendants' solicitor responded to yesterday's application, by informing me of two things. The first was that his clients would be appealing against my judgment. Of itself, that would not provide a sufficient reason for not disposing of the counterclaim. If my judgment is reversed on appeal then the counterclaim could be revived. Secondly, he referred to the prospect that Ronbar, by the administrators of its Deed of Company Arrangement, would be making a claim against the bank. The submission appeared to be that the counterclaim should be left as it is to permit Ronbar to be joined as a counterclaimant. However, I must deal with the proceedings as they are presently constituted. My judgment does not affect the position between the bank and Ronbar and nor would the dismissal of the counterclaim do so.
[5] Consequently, there will be judgment for the plaintiff bank against the defendants upon their counterclaim.
St George Bank Limited
Wright & Ors