DIY Tiles Pty Ltd v Cole

[2009] QDC 365

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 1059 of 2009

D.I.Y. TILES PTY LTD	Plaintiff
and
JILL MAREE COLE AND STEPHEN NICHOLAS JOHN COLE	Defendants

BRISBANE

..DATE 15/10/2009

ORDER

CATCHWORDS

Uniform Civil Procedure Rules r 292

Summary judgment application upon a guarantee providing for liability on demand adjourned to allow plaintiff to present evidence of the demand before action

HIS HONOUR: This is a summary judgment application under rule 292. The respondent to it is the defendant Jill Maree Cole who has not appeared when called, although served by service upon the solicitors who were acting until very recently. She is now self-represented.

She is sued as the guarantor. I've perused her pleading which doesn't look very promising by way of establishing a defence, asserting principally that she was induced to provide the guarantee by her co-guarantor and former partner, that he had undertaken in events which had happened to ensure she was not liable under it, etc.

Notwithstanding those favourable circumstances for the application, the plaintiff, represented by Mr Thomae, has taken a cautious approach, feeling unable to distinguish the circumstances from those considered in Equititrust Limited v Gamp J and P Development Proprietary Limited [2009] QSC 115 at paragraph 19.

The importance of establishing, on an application such as the present one, the making of a demand upon the guarantor, where the instrument of guarantee in terms provides that the guarantor should be liable on demand, was emphasised.

Mr Thomae informs the Court that the plaintiff can establish a demand but has not done so in material filed in Court to date. I respect his reluctance to spare his client the risk involved in relying on doctrines whereby the commencement of proceedings may constitute a demand.

In these circumstances, the application will be adjourned until the 22nd of October 2009 as requested with the costs reserved. Order as per initialled draft.

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CaseChat Overview and Summary

The matter of DIY Tiles Pty Ltd v Cole involved a summary judgment application brought by the plaintiff, DIY Tiles Pty Ltd, against the defendant Jill Maree Cole. Jill Cole, who had been served with the application through her former solicitors, was now self-represented. She was sued as the guarantor of a debt owed by her former partner, Stephen Nicholas John Cole, to the plaintiff. The application was brought under Rule 292 of the Uniform Civil Procedure Rules, seeking summary judgment on the basis of the guarantee which provided for liability on demand.

The primary legal issue before the court was whether the plaintiff had established a demand upon Jill Cole, as required by the terms of the guarantee, in order to justify summary judgment. The plaintiff's counsel, Mr. Thomae, indicated that while the plaintiff could establish a demand, they had not yet provided the necessary evidence in the materials filed with the court. The counsel's approach was cautious, noting that the circumstances were similar to those considered in Equititrust Limited v Gamp J and P Development Proprietary Limited. The importance of demonstrating the demand was highlighted by the court, given that the guarantee explicitly stated that the guarantor would be liable on demand.

In light of the plaintiff's reluctance to rely on doctrines that might consider the commencement of proceedings as a demand, the judge decided to adjourn the application until October 22, 2009. This adjournment allowed the plaintiff an opportunity to present the evidence of the demand before the court. The costs of the application were reserved pending the outcome of the further proceedings. The court's decision underscored the necessity of providing concrete evidence of the demand, especially in cases where the guarantee clearly stipulates liability on demand.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established