Court of Appeal

Australian Executor Trustees Limited v Prodap Services Pty Ltd & Ors [2014] QCA 142 (13/12341) Holmes and Morrison JJA and Dalton J 13 June 2014

Full-text: QCA14-142.pdf


PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – SUMMARY JUDGMENT – where the appellant appealed the decision of the learned primary judge dismissing an application for summary judgment – where the appellant loaned $2,831,200 to Prodap Services Pty Ltd under a loan agreement – where the loan was secured by the respondent’s guarantee – where the appellant gave the respondent a demand under the guarantee and a default notice – where the respondent contended that cl 10.3 of the loan agreement was void for uncertainty as it allowed the appellant to “change the interest rate at any time”, but does not provide a mechanism to calculate that change – where the appellant contended a term would be implied as a matter of law that changes had to be “fair and reasonable” – where the learned primary judge held that the letters notifying interest rate changes were not evidence that the rates were, in fact, fair and reasonable – whether the learned primary judge erred in not finding that there was an implied term that interest rate changes must be “fair and reasonable” to save the clause and contract from uncertainty – whether, if such a term was implied, the evidence before the learned primary judge was sufficient to prove the rates actually applied were “fair and reasonable” – whether the learned primary judge erred in dismissing the application for summary judgment

Uniform Civil Procedure Rules considered

Rule 292 - Summary judgment for plaintiff