Equititrust Limited v Gamp Developments P/L & Ors

[2009] QSC 115

Supreme Court of Queensland

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Practice and Procedure
2. › Summary judgment
3. › Claim not fully pleaded
4. › Whether summary judgment may be given in respect of a cause of action not pleaded
5. › UCPR r 292
1. Practice and Procedure
2. › Summary judgment
3. › Debt recovery
4. › Nature of cause of action for debt
5. › Whether cause of action for debt affected by variation of loan terms
1. Contract
2. › Guarantee
3. › Demand as precondition to liability
4. › Whether cause of action arises against guarantor before demand is made
1. Practice and Procedure
2. › Service
3. › Service on solicitors
4. › Whether service validly effected where solicitor did not make notation under UCPR r 115(2)
5. › UCPR r 115

Quick Take

UCPR r 292 does not limit summary judgment to cases where the plaintiff's argument precisely accords with its pleading; the rule refers to the plaintiff's 'claim' not its 'pleading', and summary judgment may be given on an unpleaded basis where there is no disadvantage to the defendant. A creditor seeking to enforce a guarantee that requires payment 'upon demand' must make a formal demand before a cause of action arises against the guarantor. Service on solicitors is not validly effected under UCPR r 115 where the solicitors do not make the notation required by r 115(2).