Witherspoon & Anor v Hutson & Ors

[2015] QCA 109

Queensland Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › General principles
3. › Points not taken below
4. › Effective concession at first instance
5. › Whether party bound by conduct of case
6. › Whether permitted to raise new factual dispute on appeal
1. Appeal
2. › Interference with discretion of court below
3. › Refusal of adjournment
4. › Whether discretion miscarried
5. › House v The King principles
1. Banking and Finance
2. › Banks
3. › Bank accounts
4. › Interest and overdrafts
5. › Whether debiting of overdraft facility constitutes payment of interest
6. › Whether overdraft facility remained available for debiting of interest
1. Mortgages
2. › Receivers
3. › Appointment
4. › Events of default
5. › Deregistration of guarantor company
6. › Whether deregistration constituted event of default under security documents
7. › Whether notice of specific default required
8. › Whether default capable of remedy
9. › Whether relief against forfeiture available
10. › Property Law Act 1974 (Qld), s 95(3)

Quick Take

A party who effectively concedes a factual matter at first instance (by not disputing it and using it as the basis for alternative submissions) will generally not be permitted to raise a factual dispute on that matter for the first time on appeal, even in the context of summary proceedings on an originating application. The deregistration of a guarantor company constitutes an event of default under security documents that define deregistration as such, regardless of whether the lender specified that default in its notice of demand or deed of appointment. Relief against forfeiture under s 95(3) of the Property Law Act 1974 (Qld) is not available where the default is in the nature of an event (deregistration) rather than the breach of a covenant or obligation.