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[2026] QSC 8
General information, not legal advice.
Supreme Court of Queensland
2026-01-27
Ryan J
Original judgment source is linked above.
[1] The plaintiffs applied for summary judgment on their claim. For the reasons which follow, I refuse the application.
[2] The defendant/respondent, Joel Hewish (JH) was the director of United Global Capital Pty Ltd (UGC). UGC's sole shareholder was a company called Hewish Capital Pty Ltd (HC). JH and his wife each hold 50 per cent of the shares issued by HC. JH is HC's director.
[3] UGC went into voluntary administration on 5 July 2024 and voluntary liquidation on 9 August 2024.
[4] The balance sheet of UGC recorded a loan from UGC to JH for a little over $1 million as a "non-current asset".
[5] On 23 July 2024, on the assumption that the loan was repayable on demand, the liquidator sent a letter of demand to JH for his repayment of the loan within 14 days. JH did not repay it.
[6] The liquidator and UGC, as first and second plaintiffs, sued JH for the loan debt in a claim filed on 15 November 2024. They claimed the amount of the debt (the moneys lent) plus interest.
[7] The plaintiffs' statement of claim asserted at paragraph 7 that the debt was repayable on demand in the following terms:
[8] On 17 January 2025, JH filed his original defence. In it, JH responded to paragraph 7 of the statement of claim, asserting that there were formal loan agreement documents, as follows:
(a) the second plaintiff [UGC] entered into four (4) loan facility agreements with the defendant on the dates and in the amounts set out below:
[The defence included a table setting out the dates of each agreement (30 June 2020, 20 June 2021, 30 June 2022, 30 June 2023) and the amount lent on each occasion. It said copies of the loan agreements were available for inspection.]
(b) during each of the financial years 2021, 2022 and 2023, the defendant made repayments in respect of the Loan Agreements by way of return of dividends payable to the second plaintiff's sole shareholder, Hewish Capital Pty Ltd ACN 154 156 448, of which the defendant is a director and shareholder, in at least the following amounts:
[The defence included a table setting out the dates and amounts of the asserted repayments - totalling approximately $168,000.]
(c) for the financial year ending 30 June 2024, the second plaintiff intended a further dividend ... and the defendant intended [the] direct payment of that dividend to the second plaintiff in reduction of the amounts the subject of the Loan Agreements ...
(d) the second plaintiff separately advanced various small sundry amounts to the defendant over the period 27 October 2019 to 5 July 2024 without entering into a written agreement.
[9] Although the original defence admitted that the liquidator sent a demand for the payment of the loan debt, and referred to the four loan facility agreements, it did not admit that the demand was validly issued or that the debt was due and payable "because the defendant, having made enquiries which he believes are reasonable, remains uncertain as to the truth or falsity of the allegations".
[10] On 22 May 2025, on the strength of the original defence, the plaintiffs applied for summary judgment. Their application was to be heard on 19 June 2025. However, by consent, the hearing of the application was adjourned to a date to be fixed, and the defendant was given until 9 July 2025 to file an amended defence.
[11] An amended, more detailed, defence was filed on 9 July 2025. In essence, it asserted that, as per the written loan facility agreements referred to in the original defence, the loans were for a period of seven years and were only repayable beforehand on 20 business days' written notice by the lender. Also, the defence contested the amount claimed as owing and asserted off-setting claims. And it asserted that the liquidator's demand was not valid because it was: not clearly issued by UGC; not issued in respect of the money lent; nor did it provide 20 business days' notice as required by the loan facility agreements.
[12] After the amended defence was filed, the plaintiffs brought their application for summary judgment back on before me - contending that the amended defence changed nothing, in the sense that it did not detract from the plaintiffs' entitlement to summary judgment.
[13] It is necessary to mention some features of the loan facility agreements.
(a) was said to be made "between the Borrower and the Lender";
(b) identified the Borrower as JH; and
(c) identified UGC as the Lender.
[16] In the case of an unsecured loan, each agreement defined the 'Repayment Date" to
"a date not more than seven (7) years after the loan is advanced or deemed to be advanced in accordance with the Applicable Provisions if the loan is not secured in accordance with the Applicable Provisions".
(The definition of "Applicable Provisions" is not relevant to this application for summary judgment.)
[17] Each agreement defined an "Event of Default" to include "any situation occurring which in the Lender's opinion gives grounds to believe that a material and adverse change in the business or financial condition of the Borrower has occurred or that the ability of the Borrower to perform its obligations under this agreement has been or will be materially and adversely affected".
[18] Each agreement dealt with Repayment in clause 4.3.
[19] By clause 4.3.2, each agreement provided that the Outstanding Amount (as defined in the agreement) must be repaid by the Borrower to the Lender upon the Lender requesting payment by written notice to the Borrower of not less than 20 Business Days.
[20] By clause 4.3.3, each agreement rendered the Outstanding Amount immediately payable upon an Event of Default.
[21] Each agreement included an execution page which was only signed by JH as Director of UGC. As the PDFs of the execution pages show, JH did not sign the agreement on his own behalf - even though "Stephanie Hewish" signed in a manner which one might interpret as purporting to have witnessed JH's signature in his personal capacity. The execution page may be interpreted as not providing for a witness to JH's signature in his capacity as a Director of UGC. It also omitted a signature line for JH in his personal capacity, in that there is no line of dots above the phrase "SIGNED by the said Joel Hewish".
[22] The plaintiffs argued that the defendant ought to be held to deemed admissions said to be made in paragraph 4 of the original defence.
[23] They argued that paragraph 7 of the statement of claim called for a response. And, in the absence of a response and non-compliance with rule 166 of the Uniform Civil Procedure Rules 1999, the assertions in paragraph 7 - that there was no formal loan agreement and that the debt was payable on demand - ought to be taken as admitted by the defendant. The plaintiffs argued, in effect, that the fact that the defendant said he "did not plead" to the allegation was all that mattered in this regard. That the original defence went on to plead facts about written loan agreements was not to the point. There had been no application to withdraw the deemed admission and thus I ought to proceed on the basis that it was not in dispute that the debt was repayable on demand. However, the plaintiffs admitted that their paragraph 7 could have been better pleaded and that they could not take the point too far: T 1-7 ll 25 - 30.
[24] The defendant submitted that he had no obligation to plead to an assertion as to the state of knowledge of the liquidator. He further contended that his paragraph 4 did not contain deemed admissions or, if it did, that was a consequence of the plaintiffs' inadequate pleading and he was likely to succeed in an application to withdraw them because there was a genuine dispute between the parties about whether the loan was repayable on demand or governed by the written agreements.
[25] It seemed to me that there was an argument that paragraph 4 of the original defence, viewed reasonably as a whole, did not impermissibly plead a non-admission. It seemed to me to be arguable, at least, that paragraph 4 denied the liquidator's conclusion that there was no formal loan agreement, which was the basis for the assertion that the loan was payable on demand, and was therefore sufficient: cf Melco Engineering Pty Ltd v Eriez Magnetics Pty Ltd [2007] QSC 198 (Dutney J) at [43], [49].
[26] Regardless, I was not prepared to proceed on an application for summary judgment on the basis that the defendant was to be taken to have admitted that the loans were repayable on demand because of alleged non-compliance with rule 166. Whether the plaintiffs wish to press an argument that the defendant requires leave to withdraw any deemed admission arising out of its original pleading and that simply filing an amended defence was insufficient is a matter for another day.
[27] The plaintiffs then submitted (on the assumption that I was not attracted to the deemed admissions argument) that the written loan facility agreements were either (a) invalid; (b) not made as alleged; or (c) otherwise, did not assist JH.
[28] The defendant observed that these arguments about the loan agreements did not arise on the pleadings. Further, given the early stage of the proceedings, if I were to grant summary judgment, the defendant would be denied the opportunity of considering any documents the plaintiffs would otherwise be required to disclose - being now without access to the company's books. As to the quantum of the loan, the accounting evidence before me was contradictory. The defendant submitted that it was too early to be considering an application for summary judgment.
[29] Putting to one side concerns about these matters not having been pleaded, as to (a): The invalidity of the loan facility agreements was said to arise because, in each case, the loan document had only been signed by JH once - as company director, as shown in the copies of the execution pages inserted above. Thus, the plaintiffs argued, from an objective perspective, there were no concluded loan agreements between JH and the company meaning the loans were repayable on demand.
[30] The plaintiffs referred me to a director's duties under the Corporations Legislation, which would include a duty to record the loan facility agreements, and submitted that the lack of any reference to the agreements in the company's records told against JH's intention to be bound by those agreements.
[31] JH tendered evidence to explain why it was that he came to sign each loan agreement only once. He said, in effect, that he thought he had duly executed each agreement. He said that he inadvertently failed to sign next to his name as borrower. In oral argument he observed that the execution page only had one set of lines for a signature; there was no particular place designated for JH's signature on his own behalf; and there was a reasonable argument to be had that both parties to the agreement objectively intended to be legally bound by it.
[32] In my view, the question whether the loan agreements were executed in such a way as to render them invalid was not an appropriate one for summary determination. As the plaintiffs properly conceded, if I were to find myself in a position where the way in which the loan agreements were executed gave rise to competing inferences - one that JH intended to be bound by the agreement and another than he did not - then the plaintiffs could not maintain their argument for summary judgment: T 1-12 and T 1-22.
[33] I found that there were competing inferences to be drawn about JH's intention to be bound by the loan facility agreements and the issue of his intention to be bound by them was not something I could resolve on a summary judgment application. My position was reinforced by the authorities to which I was referred (discussed below) which demonstrated that the question whether JH was to be taken to be bound by each agreement was not something to be determined summarily, without a trial, unless there was something remarkably clear about the issue. Indeed, again, and very properly, when taking me through their cases, the plaintiffs acknowledged that features of the present case operated in the defendant's favour, if not strongly in his favour, on this issue: T1-13, ll 7 - 13.
[34] An issue in Findex Group Limited v McKay [2019] FCA 2129, was whether Mr McKay was bound personally as a party to a shareholders' agreement which he had signed only once, on behalf of the company of which he was a director (also a party to the agreement), but not on his own personal behalf. At [52] - [59], Stewart J discussed the courts' approach to this issue and endorsed the approach described by Giles J in Clark Equipment Credit of Australia Ltd v Kiyose Holdings Pty Ltd (1989) 21 NSWLR 160 (at 174B-D) which had been followed in numerous subsequent cases. As Giles J explained (my emphasis):
the proper approach is to inquire whether there is to be found an intention that the signatory be personally bound to the contract evidenced in the document, meaning thereby not a subjective intention but an intention to be found objectively, notwithstanding a qualification attached to the signature. That intention, or lack thereof, is to be found in the construction of the document as a whole, including but not limited to the qualification attached to the signature, in the light of the surrounding circumstances to the extent to which evidence thereof is permissible. The inquiry is not limited to consideration of the signature and its qualification in order to determine whether or not the signature indicates an assert to be personally bound.
[35] Referring to other authorities, Stewart J observed that it was uncontroversial that the interpretation of a commercial document requires attention to (inter alia) the objects which it is intended to ensure and that preference is to be given to a construction supplying a congruent operation to the various components of the whole. Further, the meaning of a commercial contract is to be determined by what a reasonable businessperson would understand its terms to mean - having regard to (inter alia) the objects to be secured by it. And an appreciation of its objects is facilitated by an understanding of (inter alia) the genesis of and context for the transaction.
[36] Applying those principles to the question of whether JH intended to be bound personally to each loan facility agreement, in JH's favour are the facts that JH is named as a party to each agreement and, as the Borrower, stood to benefit from each agreement. (Although I note the plaintiffs' arguments that it could not be said that the written agreements were more favourable to JH than undocumented loans, repayable on demand.) The relationship between JH as the borrower and the company as the lender is a fact that is also relevant to the determination of the parties' intention and, in my view, operates in JH's favour. As is the fact that he went to the trouble of getting a witness - although it seems she misunderstood her role. But the real point is that JH's defence to the claim, namely, that the debt is not repayable on demand because its repayment is governed by the loan facility agreements, cannot be said to be so clearly untenable that it could not succeed: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 128-129 per Barwick CJ.
[37] Notwithstanding the plaintiffs' proper acknowledgement that my conclusion about their argument in (a) meant that summary judgment was not appropriate, I went on to consider their other arguments, to ensure I gave thought to everything relevant to this application.
[38] As to (b): The fact that the loan agreements were not referred to in any of UGC's relevant company material was said to mean that there was no basis for concluding that they were contemporaneous documents, thus, they had no force. In this regard, I observed a certain uniformity to the handwriting and signatures on the execution pages but acknowledge that I have not seen the original documents. The plaintiffs made it clear that they were not making "assertions or allegations": T 1-24 ll 27 - 32 and that they could not take this argument very far. However, they contended that the fact that mention of the loan agreements could not be found in the company's records meant that the conduct of the parties could not be said to be capable of proving the essential elements of an express contract.
[39] The defendant submitted that the failure to record the loans in the company's records (and the significance of that failure) was something which had to be put to JH at a trial. It was premature to make a determination about this issue now.
[40] It is enough to say that JH's evidence, on its face, supported a conclusion that the documents were executed on the dates they bore. In my view, the contest about the legitimacy of the documents is not something which can be resolved on this application for summary judgment.
[41] As to (c), the plaintiffs contended that, even if I were to conclude that the loan agreements were valid, there had been compliance with the notice requirements set out in paragraph 4.3.2 of each agreement. The plaintiffs referred me to John Anrovitsaneas v Members First Broker Network Pty Ltd [2013] VSCA 212 in which the Victorian Court of Appeal said at [41] that a reasonable person is not to be treated as a stranger to the agreement or to the circumstances which gave rise to it. On the strength of that authority, the plaintiffs submitted that the defendant could not say that the notice was invalid because he was the cause of the liquidators not knowing that the loan facility agreements existed: T 1-25 ll 41 - 45. Further, there had been an event of default, to JH's knowledge. JH had been a banned and disqualified person from 3 June 2024. There could be no complaint about the form of the notice because there was no express requirement as to its form when there had been an event of default. The plaintiffs also made arguments justifying the quantum claimed which I will not detail in these reasons but which, in short, amounted to a submission that any amounts repaid had already been accounted for.
[42] The defendant submitted that there had not been the required notice and there were issues about the amount demanded/outstanding which could not be determined summarily. Further, an event of default had not been pleaded. (I note that the plaintiffs argued, in effect, that such a pleading was embedded into the pleading that the debt was repayable and that JH ought not to be treated as a stranger to the agreement.)
[43] It may well be that the practical effect of the liquidator's demand is that sufficient notice has been given - but that is not the plaintiffs' pleaded case. While I accept that I might be able to determine the amount of the debt owing on an analysis of the company's records, I do not consider it appropriate to do so, bearing in mind the other issues which I consider ought to be determined at a trial - primarily whether the loan is governed by the written agreements or not.
[44] To conclude, as is well established, summary judgment ought only to be granted in the clearest of cases where there is a high degree of certainty about the ultimate outcome of proceedings if they were to go to trial. On the present pleadings, I could not reach that high degree of certainty and accordingly, I dismiss the application.
Stimpson & Anor
Hewish [2026] QSC 8
(1989) 21 NSWLR 160
(1964) 112 CLR 125