Mitchell v Pacific Dawn Pty Ltd
[2011] QCA 98
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- Notable Unreported Decision
- Appeal Determined (QCA)
- Mitchell v Pacific Dawn Pty Ltd[2011] QCA 98
- Add to List
Mitchell v Pacific Dawn Pty Ltd[2011] QCA 98
Mitchell v Pacific Dawn Pty Ltd[2011] QCA 98
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | |
DELIVERED ON: | 13 May 2011 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 21 February 2011 |
JUDGES: | Fraser and Chesterman JJA and Ann Lyons J |
ORDERS: |
|
CATCHWORDS: | EQUITY – GENERAL PRINCIPLES – UNCONSCIONABILITY, UNCONSCIONABLE DEALINGS AND OTHER FORMS OF EQUITABLE FRAUD – where the appellant and respondent entered into a lump sum contract for building works with a “guaranteed upper limit cost” – where disputes arose under the contract in relation to liquidated damages for delay, variations to the contract, and progress payment claims – where the parties entered into a settlement agreement to resolve these disputes – where the appellant sought to avoid the settlement agreement on the basis that he had entered into it as a result of coercion, economic duress or unconscionable conduct – where the trial judge held that the settlement agreement was enforceable – where the appellant argued that the trial judge erred in finding that the settlement agreement was a compromise of legitimate contending claims, that the respondent did not threaten to breach the contract and that the respondent had or believed it had a potential claim for liquidated damages – whether the trial judge erred in finding that the settlement agreement was enforceable Supreme Court of Queensland Act 1991 (Qld), s 75 Blomley v Ryan (1956) 99 CLR 362; [1956] HCA 81, cited |
COUNSEL: | L D Bowden for the appellant |
SOLICITORS: | Shand Taylor Lawyers for the appellant |
[1] FRASER JA: In September 1999 the appellant Mr Mitchell, as the builder, made a contract with the respondent Pacific Dawn Pty Ltd (“Pacific Dawn”), as the proprietor, for the construction of a multi-storey unit development at High Street in Toowong, Brisbane. The “guaranteed upper limit cost” under the contract was $2,650,000 and the date for practical completion was 25 April 2000. H H Tan Architects Pty Ltd was named in the building contract as Pacific Dawn’s architect. The contract provided for liquidated damages at the rate of $6,000 per week for the builder’s failure to bring the works to practical completion by the date for practical completion. The contract gave the architect authority to certify the date when in the architect’s opinion the works were practically complete, to determine whether to grant the builder extensions of time for practical completion, to issue progress certificates to the builder for the progressive payment of the contract price, and to give notices relating to liquidated damages.
[2] Mr Mitchell did not bring the works to practical completion until 22 December 2000,[1] about 33 weeks after the due date. Disputes arose about Pacific Dawn’s entitlement to claim liquidated damages for Mr Mitchell’s delay in achieving practical completion, about variations to the contract, and about amounts claimed by Mr Mitchell. The disputes were resolved by a settlement agreement made at a meeting on 22 December 2000 attended by Mr Mitchell, Pacific Dawn’s directors Mr and Mrs Fan, and the architect’s representative, Mr Tan. Mr Tan chaired the meeting. The settlement agreement was recorded in handwritten minutes signed by Mr Mitchell and Mr and Mrs Fan. Under the settlement agreement Mr Mitchell accepted that the varied contract price was $2,831,387.40 and that Pacific Dawn would pay the unpaid balance of that amount to Mr Mitchell by a first instalment of $160,000 on the same day and a second instalment of $46,799 plus GST together with the balance of $66,250 in retention money being held by Pacific Dawn to cover the cost of rectifying defects on or before 22 June 2001.
[3] Mr Mitchell challenged the settlement agreement. He alleged that it was unenforceable because he had entered into it under coercion or economic duress, or as a result of Pacific Dawn’s unconscionable conduct, or because Pacific Dawn had misrepresented its own financial means to Mr Mitchell.
[4] After a trial in 2002, Ambrose J decided that the parties had made the settlement agreement at the 22 December 2000 meeting but that Pacific Dawn could not enforce it because Mr Mitchell had entered into it as a consequence of unconscionable conduct and economic duress by Pacific Dawn.[2] Pacific Dawn appealed against the decision that the settlement agreement was unenforceable. In November 2003 the Court allowed Pacific Dawn’s appeal, set aside that decision and ordered a new trial.[3] The Court held that Ambrose J had proceeded under a misapprehension that on 22 December 2000 Pacific Dawn owed Mr Mitchell nearly $280,000 under progress certificate 11, when in fact there was then no money owing or due and payable to Mr Mitchell under that or any other certificate.[4]
[5] There then followed a long delay whilst the parties unsuccessfully attempted to negotiate a resolution of their dispute. Eventually, there was a second trial in 2009 at which the question to be answered was formulated in the following terms:
“On the assumption that the agreement pleaded in paragraph 22 of the Third Further Amended Statement of Claim and paragraph 23 of the Fourth Further Amended Defence and Counterclaim was entered into, was that agreement arrived at by the application of coercion or duress such as to make it unenforceable as pleaded in paragraphs 18-25 of the Third Further Amended Statement of Claim, or as a result of misrepresentation as alleged in paragraph 24 thereof or as a result of unconscionable conduct as alleged in paragraph 24A thereof, which paragraphs are defended in paragraphs 19-26 of the Fourth Further Amended Defence and Counterclaim, which paragraphs are in turn replied to in paragraphs 23-34 of the Amended Reply and Answer?”[5]
The trial judge’s conclusions
[6] Mr Mitchell’s misrepresentation claim was founded on his allegations that: at the 22 December 2000 meeting, Mr Tan and Mr and Mrs Fan stated that Mr Mitchell had to accept a total payment of $2,836,387.47 for the job because that was all that Pacific Dawn could and would pay; Mr Mitchell had to accept a payment that day based on that figure or he would get nothing; and if he refused the offer Pacific Dawn would sue him for damages for delay. Mr Mitchell alleged that the true facts were that Pacific Dawn had the financial means to pay more than $2,836,387.47 for the contract works and that Pacific Dawn had no right to bring an action against him seeking damages for delay.
[7] In final submissions at the trial, Mr Mitchell’s counsel abandoned the allegation that the settlement agreement was arrived at as a result of misrepresentation. In this appeal Mr Mitchell did not challenge the trial judge’s findings that when the settlement agreement was made on 22 December 2000 Pacific Dawn was able to pay only $160,000 to Mr Mitchell out of the final payment of $206,799 plus GST (the unpaid amount of the agreed settlement of $2,831,387.40), and the balance was to be paid within six months because Pacific Dawn expected to receive monies from settling pre-sales during that time.[6] Those facts were reflected in the terms of the settlement agreement.
[8] The trial judge rejected Mr Mitchell’s other claims. The trial judge analysed the relevant events in considerable detail[7] and summarised his conclusions in the following passage:
“In my view the discussions before the agreement on 22 December 2000 cannot be characterised as ones where economic duress was brought to bear by the defendant or were such as to allow the resulting agreement to be described as an unconscionable bargain. Both parties had issues with each other about how much should be paid by Pacific Dawn to Mr Mitchell.
Mr Mitchell believed there had been delays in paying him and that he was entitled to more money than he had received. Pacific Dawn’s directors believed that they had reached agreement with Mr Mitchell as to the amount he would receive to bring the project to its long delayed completion. They also believed that they had potential claims against him for liquidated damages and in respect of claims for payment by him that were not justifiable on the paperwork he had produced. They were aggrieved by the long delay in the promised completion of the project and its effect on Pacific Dawn’s ability to sell units in the building at an earlier stage. Both sides were financially stretched. I do not accept that Mr Mitchell was in any position of special disadvantage as compared to the position of Pacific Dawn.
The amount Mr Mitchell was entitled to on an objective view of the events requires the resolution of a number of contentious issues. It seems to me that the evidence does not support the conclusion that the building contract had been varied to become a ‘cost plus’ agreement in early 2000. There was a good case that the parties had agreed to vary the total amount payable to an adjusted contract sum of $2,836,387.47 between 6 and 9 November 2000. As part of that agreement the cost to complete the project was $183,635.66. It seems most likely to me, on the proper understanding of the letter of 9 November 2000, that the balance of Progress Claim No. 11, $278,959.21 less the advance of $140,000.00 paid on 10 November, was agreed to be paid on practical completion so that Mr Mitchell was not entitled to go back on that agreement as he had purported to do. After 21 December there was nothing still owing for Progress Claim No. 11, taking into account the draw down of the retention sum and the other payments made. Arguably, therefore, he was entitled only to the balance of the cost to complete of $183,635.66 less the sums paid in excess of Progress Claim No. 11 by 21 December 2000 and the amounts paid for the tiles and the water connection by Pacific Dawn. By 21 December $310,494.00 had been paid. The difference between that figure and $278,959.21 is $31,534.79. The amount paid for the ceramic tiles and the water connection by Pacific Dawn totalled $62,400.57. The total of those two amounts is $93,935.36. There is a respectable, and in my view probably successful argument, therefore, that he was only entitled to $183,635.66 less $93,935.36 leaving a sum of $89,700.30 due on practical completion.
His claims to payment on a cost plus basis and for the further variations in his Progress Claim No. 12 were, therefore, probably not maintainable. Even if they were maintainable they faced difficulties because of his inclusion of amounts irrelevant to this contract or which had already been paid by Pacific Dawn or which had been claimed, arguably, by him as his builder’s fee earlier than should have been the case. Nor would he have succeeded in a claim for a further 7.5% fee additional to the contract price on the view I take about the proper construction of the contract. He did not contemplate making such a claim until after that possible interpretation of the contract was mentioned in the judgment of the Court of Appeal. Even if the contract lent itself to such an interpretation, there is a strong likelihood that a court would have rectified the agreement to reflect the fact that the parties had agreed that it should have been included in the “guaranteed upper limit” price originally agreed. On this approach to the assessment of the amount to which he was entitled one also has to take into account the prospect of a counterclaim for damages for delay.
Mr Mitchell’s expectation was to be paid $333,411.00 on the day. It was not met. He was paid $160,000.00 with the promise of a further payment of $46,799.00 plus GST on or before 22 June 2001, a time when the defendant anticipated it would be in a position to realise some money from unit sales. He was also relieved from a potential claim for about $192,000.00 for liquidated damages for delay and from claims arising from an examination of the accounts he said justified the amount he sought where several of them appeared not to back up his claims and the defendant could argue validly that he was not entitled to the payments he sought.
The defendant was willing to pay the money it offered on the basis that it was all the money it could pay. In the context that does not seem to me to be a threat to breach the contract but rather an expression of its bargaining position given its view of the proper application of the contract, its doubts about the legitimacy of the claims made by Mr Mitchell and its own right to claim damages for the delay. On my view of the probable result of the dispute between the parties Mr Mitchell was paid more than his entitlement.”[8]
[9] The trial judge held that the settlement agreement was a compromise of competing claims and that Pacific Dawn did not apply economic duress to Mr Mitchell or enter into an unconscionable bargain with him. His Honour found that: Pacific Dawn had not threatened improperly to breach the building contract, but was “trying to perform it on its understanding of its proper interpretation”; Pacific Dawn had “legitimate questions about the amount Mr Mitchell claimed to be owed”; and Mr Mitchell did not make the settlement agreement under compulsion or in the absence of any real choice, as was indicated by a threat he made during the 22 December 2000 meeting to leave.[9] The trial judge was satisfied that Mr Mitchell was not “compelled by duress or economic coercion imposed by [Pacific Dawn] to sacrifice a valuable claim for the immediate satisfaction of receiving only a fraction of what was really due to him”.[10]
[10] Accordingly, the trial judge answered the question posed for determination as follows:
“On the assumption that the agreement pleaded in paragraph 22 of the Third Further Amended Statement of Claim and paragraph 23 of the Fourth Further Amended Defence and Counterclaim was entered into, it was not arrived at by the application of coercion or duress such as to make it unenforceable as pleaded in paragraphs 18-25 of the Third Further Amended Statement of Claim, or as a result of misrepresentation as alleged in paragraph 24 thereof or as a result of unconscionable conduct as alleged in paragraph 24A thereof, which paragraphs are defended in paragraphs 19-26 of the Fourth Further Amended Defence and Counterclaim, which paragraphs are in turn replied to in paragraphs 23-34 of the Amended Reply and Answer.”[11]
Mr Mitchell’s arguments
[11] Although Mr Mitchell’s notice of appeal set out thirty separate grounds of appeal, Mr Mitchell’s counsel confirmed that many of the grounds were included to form a basis for the first ground of appeal, which contended that the trial judge wrongly concluded that the settlement agreement was a compromise of legitimate contending claims, that Pacific Dawn did not threaten to breach its contract with Mr Mitchell, and that Pacific Dawn had or believed it had a potential claim for damages for delay.
[12] Mr Mitchell argued that Pacific Dawn manipulated him by: concealing the fact that it lacked the financial means to pay what was due; suddenly confronting Mr Mitchell at the meeting on 22 December 2000 with Mr Tan’s statements to the effect that “you can’t get blood out of a stone”; making illegitimate counterclaims; failing in substantial ways to adhere to its contractual obligations; and otherwise breaching and threatening to breach its contractual obligations. It was submitted that a close analysis of the dealings between the parties in the period between 6 November and 22 December 2000 revealed errors in the trial judge’s reasons for rejecting the same arguments.
The practical completion agreement
[13] The first relevant event in that period was the “practical completion agreement”, which Pacific Dawn alleged was made at a meeting on 6 November 2000 attended by Mr Fan, Mr Tan, Mr Mitchell, and another person employed by “Mitchell Builders”, Mr Tones. A few days beforehand, Currie & Brown, a quantity surveyor employed by Pacific Dawn’s financier, the National Australia Bank (“NAB”), had issued a drawdown certificate for Mr Mitchell’s most recent progress claim (“Claim 11”). Claim 11 certified an adjusted contract sum of $2,836,387.47, an estimated cost to complete of $183,635.66, and that NAB held $140,403 as retention under the building contract.
[14] Mr Fan’s evidence was that an agreement was concluded on 6 November 2000. The trial judge found that at the 6 November 2000 meeting, Mr Mitchell did say that practical completion would occur by 20 November 2000.[12] Mr Mitchell did not challenge that finding, which was soundly based in the evidence of Mr Tones. However, Mr Mitchell’s counsel referred to Mr Mitchell’s evidence that, whilst Mr Fan and Mr Tan sought his agreement to accept the further amount of $183,635.66 as the amount required to complete the construction, no agreement was reached on that day. Mr Mitchell argued that Mr Fan was “inclined to agree” in cross-examination that no agreement was actually reached on 6 November 2000 but, as the terms of that submission acknowledged, the relevant passage of evidence was ambiguous.[13]
[15] Whether or not the practical completion agreement was finally reached on 6 November 2000 is not particularly significant. There were certainly reasonable grounds for Pacific Dawn to believe that Mr Mitchell had agreed to its essential terms either then or shortly afterwards. According to a letter from Mr Tan to Mr Mitchell dated 9 November 2000, it was agreed at the meeting on 6 November 2000 that:
“… Claim 11 processed by Currie & Brown be accepted and that the amount of $183,635.66 stated in the Claim will be the amount required to complete … Pacific Dawn will arrange for the release of $140,403.00 retention held by National Bank on confirmation of acceptance of the amount stated in Claim 11 prepared by Currie & Brown.
… the requirement to review all invoices raised at the meeting will not be necessary if the above Currie & Brown claim was confirmed.
… if the amount remains the same as per Claim 11 … the retention amount will be released on Friday (10 November 2000), with the balance on completion of the project and the need for presentation of all invoices will not be necessary for the release.”
Mr Mitchell endorsed the letter that he accepted “this offer … on the clear understanding that I will be paid my final claim within 7 days of the Final Certificate issued by Currie & Brown”.
Termination of the practical completion agreement
[16] Mr Mitchell argued that the trial judge was mistaken in concluding that Mr Mitchell was not entitled to go back on the practical completion agreement as he purported to do.[14] He argued that he had terminated the practical completion agreement, so that he was not limited to the adjusted contract sum of $2,836,387.47 and the cost to complete of $183,635.66 stated in Claim 11.
[17] According to Mr Mitchell’s argument, it followed that Pacific Dawn acted unreasonably and in breach or threatened breach of the building contract because it failed to pay Claim 11, and a subsequent claim, within the five day period for payment of progress claims specified in the building contract and because it insisted that Mr Mitchell agree to a settlement on 22 December 2000 on the footing that he was limited to an adjusted contract sum worked out with reference to the practical completion agreement.
[18] Mr Mitchell relied upon the following passage from the reasons of McPherson JA in the earlier appeal:
“On 6 November, which was the day before certificate no 11 was due for payment, a meeting was convened, which was attended on one side by Mr Fan (who was the principal of the defendant proprietor) and Mr Tan the architect, and on the other side by the plaintiff and his foreman Mr Tones. At the meeting, the defendant agreed to pay certificate no 11 forthwith and also to arrange for release of retention money of $140,403, in return for payment to the plaintiff of a further sum of $183,653.66 to be paid on completion of the works, which was then expected to take place on 15 November 2000. For reasons apparently related to further work that had to be done, the plaintiff later advised that the project would be completed on 25 December 2000. What was more, certificate no 11 was not paid in full at once as promised. Instead an amount of $140,000 was paid on 10 November; a further amount of $60,000 on 1 December; and a third amount of $100,000 on 21 December, taking the total paid to $300,000, which was a little more than the sum of $278,959.21 including GST due under certificate no 11.
As a result of the defendant’s failure to pay certificate no 11 on time as promised, the plaintiff treated the variation agreement of 6 November as no longer binding, and reverted to the terms of the contract as it had been before that date. In the meantime, however, the plaintiff was being threatened by unpaid subcontractors one of whom was threatening to enter the site and remove materials which he had placed there. On 22 December a further meeting was arranged between the parties represented as before, at which the compromise agreement was reached that is now the principal subject of this appeal. The agreement, as found by his Honour, was that the plaintiff agreed at that meeting to accept, in full settlement of all his claims under the contract, payment by the defendant of:
(a)$160,000.00 inclusive of GST on 22 December 2000;
(b) $46,799.00 plus GST on or before 22 June 2003; and
(c) $66,250.00 from retention funds then being held to cover costs of rectifying defects.”[15]
[19] The evidence did not support the view that any delay in payment of Claim 11 justified Mr Mitchell in treating the practical completion agreement as no longer binding. On the evidence, the sum of $140,000 was paid on 10 November 2000, being the date specified for its payment in Mr Tan’s letter of 9 November 2000. The issue therefore concerns the effect of Pacific Dawn’s alleged delay in paying the balance due under the practical completion agreement. As the trial judge noted, the letter of 9 November 2000 speaks of the balance being released on completion of the project, which Mr Mitchell contemplated as being 20 November 2000.[16] Although the letter was not entirely clear on this point, I would respectfully endorse the trial judge’s conclusion that according to the letter of 9 November 2000 the balance of Claim 11 was agreed to be paid on practical completion.
[20] McPherson JA held in the earlier appeal that the sum due under Claim 11 had been paid by that time.[17]Consistently with that view, in a letter to Mr Tan dated 13 November 2000 Mr Mitchell did not suggest that the payment of $140,000 on 10 November 2000 was insufficient to meet the requirements of the practical completion agreement. Furthermore Mr Mitchell did not challenge the trial judge’s finding that Mr Mitchell asked Mr Fan to send the letter dated 17 November 2000 by which Mr Fan confirmed that “the balance of the agreed total amount of $2,836,387.47 will be available on Practical Completion of the above project.”[18] As the trial judge also recorded, Mr Mitchell accepted that his letter dated 29 November 2000, which referred to a meeting on that date, was consistent with the terms of the practical completion agreement.[19]
[21] The trial judge was correct in holding that Mr Mitchell was not entitled to disregard the practical completion agreement.
Abandonment of the practical completion agreement
[22] Mr Mitchell also argued that the practical completion agreement was mutually abandoned by the parties’ conduct in not asserting the existence of the practical completion agreement after Mr Mitchell sent to Mr Tan letters which contained the following passages:
“I have assumed now that Bill wants to fall back to the original contract as at our meeting of yesterday, that is fine & suits me much better. I will have the cost sheets photocopied to the [sic] up to todays stage & on [sic] assessment along with actual invoices & projective invoices for this month will also be available on Wednesday & Friday.” (Letter dated 21 November 2000).
“As requested by your Client that they now require the cost sheets – so as the job reverts back to Cost Plus – I now provide them as attached.” (Letter dated 22 November 2000).
[23] Mr Mitchell argued that this conduct evidenced mutual abandonment of the practical completion agreement, under which Mr Mitchell was not required to supply invoices.
[24] That conduct must be viewed in the context of the trial judge’s findings that (before Mr Mitchell sent those letters) he had failed to achieve the promised practical completion date of 20 November 2000, he had required further funds to achieve practical completion, and in that context he had agreed to supply Pacific Dawn with the documents relating to the construction work.[20] The trial judge also accepted Mr Fan’s evidence that at a meeting on 29 November 2000 between Mr Tan, Mr Mitchell, and Mr Tones, which Mr Fan attended for a period, Mr Fan “confirmed that monies outstanding under the Contract, in accordance with the agreement dated 6 November 2000, would be paid in full at practical completion”. There is no ground for setting aside that finding of fact, which implied that Pacific Dawn understood that the practical completion agreement remained in force.
[25] The proper interpretation of those events may be that the parties agreed to vary the practical completion agreement by reinstating the requirement that Mr Mitchell supply Pacific Dawn with invoices evidencing the cost of construction. It remained reasonable for Pacific Dawn to regard the other elements of the practical completion agreement as being in force up to the time of the settlement agreement on 22 December 2000.
Conditional acceptance of the practical completion agreement
[26] Mr Mitchell argued that his endorsement on the 9 November 2000 letter rendered his acceptance of the practical completion agreement conditional, and that the condition was not satisfied because NAB’s retainer of Currie & Brown ceased once all of the bank funds were drawn down. However Mr Mitchell’s endorsement was irrelevant if, as Mr Fan said in his evidence, the practical completion agreement was made on 6 November 2000. Furthermore, even if Mr Mitchell’s argument accurately characterised the legal effect of Mr Mitchell’s endorsement on the 9 November 2000 letter, it would not follow that Mr Fan should have appreciated as much. Acceptance of the argument would not justify a finding that the trial judge erred in concluding that Pacific Dawn did not threaten to breach the contract and merely expressed its bargaining position in light of “its view of the proper application of the contract, its doubts about the legitimacy of the claims made by Mr Mitchell and its own right to claim damages for the delay.”[21]
Pacific Dawn’s financial difficulties
[27] Mr Mitchell’s argument that Pacific Dawn was unable to meet its contractual obligations and concealed that fact was inconsistent with the trial judge’s finding of fact that it was “much more likely that both parties were financially stretched and each knew that about the other.”[22] The finding was amply supported by the evidence. The trial judge accepted that Mr Fan indicated at the 22 December 2000 meeting that Pacific Dawn “had no money left”,[23] but at the trial Mr Mitchell abandoned his claim that this amounted to a misrepresentation. The trial judge also made the following findings:[24]
(a) Pacific Dawn financed the contract (with its “guaranteed upper limit” of $2,650,000) through a $2.7 million facility with NAB.
(b) Pacific Dawn had little margin to pay for any significant variations under the building contract, but by August 2000 variations claimed by Mr Mitchell had taken the adjusted contract sum to almost $2.8 million.
(c) In order to meet the variation claims Mrs Fan sold a house she owned in August 2000. That produced a further $219,000 to meet the cost of variations.
(d) By 6 November 2000, Pacific Dawn’s facility with the NAB was nearly exhausted, but in Claim 11 Mr Mitchell claimed $278,959.21 and estimated that the cost to complete the project was $183,635.66.
(e) Although on 17 November 2000 Mr Fan sent a letter to Mr Mitchell verifying that Pacific Dawn could pay the agreed sum ($2,836,387.47) to bring the works to practical completion, Mr Mitchell’s own enquires through his bank of Pacific Dawn’s bank caused him to believe that Pacific Dawn may not be able to obtain sufficient funds to make the payment.
(f) By 18 November 2000 Pacific Dawn was anxious for practical completion to occur. Every passing day was putting financial pressure on it because interest was accruing under its facility with NAB. A number of units in the development had been pre-sold, and Pacific Dawn was dependent on the receipt of settlement monies from unit sales to repay its facility.
(g) On 6 December 2000, Pacific Dawn borrowed $100,000 from a family friend of Mr and Mrs Fan to ensure there would be enough money available for them to live and for Pacific Dawn to pay the monies that would be owed to Mr Mitchell upon practical completion, Mr Tan’s architectural fees, interest payments and strata title fees. The money was in fact used to repay a different debt.
(h) By the time of the settlement meeting on 22 December 2000, Pacific Dawn’s financial situation “was very tight, it having already accessed over $300,000 in funds in addition to the $2.7 million facility from NAB in order to pay variations under the building contract.”[25]
[28] The finding in (e) that Mr Mitchell’s enquiries through his bank of Pacific Dawn’s bank caused him to believe that Pacific Dawn may not be able to obtain sufficient funds to make the payment of the agreed total amount of $2,836,387.47 was supported by the evidence, as Mr Mitchell’s counsel acknowledged in argument in the appeal. Further evidence of Mr Mitchell’s appreciation of Pacific Dawn’s financial position is found in Pacific Dawn’s acceptance under the practical completion agreement that the retention amount should be released and the fact that it was released. Those were powerful indications that Pacific Dawn was under financial pressure. There was a further indication to that effect if Mr Mitchell believed, as he contended in his letter to Mr Tan dated 15 December 2000, that Pacific Dawn was indebted to him for more than $500,000 and was in default in payment of Claim 11.
[29] There can be no doubt that Mr Mitchell was aware of Pacific Dawn’s financial difficulties well before the 22 December 2000 meeting. Mr Mitchell argued though that Pacific Dawn concealed the severity of its financial predicament. According to a document which Mr Mitchell’s counsel supplied to the Court at the hearing of the appeal, Pacific Dawn’s case at trial was that the amount payable under the practical completion agreement was $602,997.87, made up of $278,959.21 for Claim 11, $140,403 retention money, and $183,635.66 as the agreed amount to complete the project after Claim 11. On Mr Mitchell’s case it was necessary to add GST of $18,363.56 upon the last item. Yet, so Mr Mitchell argued, after Pacific Dawn had paid the $140,000 retention on 10 November 2000, it had available to it no more than about $300,000, comprising about $80,000 in its commercial bill facility and $220,000 from the proceeds of sale of Mrs Fan’s property. It was submitted to follow that Pacific Dawn acted unconscientiously by thereafter concealing that fact and representing that it was able to pay what would become due to Mr Mitchell under the building contract or the practical completion agreement.
[30] It is not clear to me that this case was litigated, but Mr Mitchell’s argument should not be accepted in any event. That argument misrepresented Pacific Dawn’s case,[26] which the trial judge accepted,[27] that payment of the $140,403 retention under the practical completion agreement was intended as a part payment of Claim 11. The effect of the practical completion agreement as found by the trial judge was that Mr Mitchell was obliged to achieve practical completion by 20 November 2000 in return for payment of the agreed total price of $2,836,387.47, with payments after 6 November 2000 up to the date of practical completion totalling $462,594.87, comprising $278,959.21 for Claim 11 plus the agreed cost to complete of $183,635.66. That should be accepted. At the very least , Pacific Dawn’s stance in that respect was not unreasonable.
[31] Mr Fan gave evidence that Pacific Dawn would have been able to pay the balance of the monies payable to Mr Mitchell out of the agreed figure of $2,836,387.47 but was unable to do so because of certain additional payments Pacific Dawn was required to make. That evidence was consistent with the evidence accepted by the trial judge that Pacific Dawn paid Mr Mitchell a total amount of $522,400.57 referable to the practical completion agreement, comprising:
(a) $140,000 paid on 10 November 2000 out of the released retention money.[28]
(b) $52,900.57 paid for ceramic tiles on 29 September 2000. Mr Mitchell’s counsel pointed out that this payment pre-dated the practical completion agreement, which he argued was designed to crystallise the amount payable by Pacific Dawn. Even so, it was reasonable for Pacific Dawn to set off this payment against the amount payable under the practical completion agreement, since it was only after the practical completion agreement that Pacific Dawn discovered that Mr Mitchell had wrongly claimed payment for the ceramic tiles in Claim 11 (and in other progress claims).[29]
(c) $9,500 paid for the water connection fee after 20 November 2000. Mr Mitchell had failed to fulfil his obligation under the practical completion agreement to achieve practical completion by 20 November 2000 and claimed that he could not do so without further funds, which he acknowledged should be deducted from his Claim 11.[30]
(d) $60,000 paid on 2 December 2000. Pacific Dawn paid this amount after Mr Mitchell told Mr Fan at a meeting on 29 November 2000 that Mr Mitchell needed that sum to pay his sub-contractors before practical completion.[31]
(e) $100,000 paid on 21 December 2000. Pacific Dawn paid this amount after Mr Mitchell told Mr Tan that Mr Mitchell needed funds immediately because there were sub-contractors on site who were threatening to remove materials.[32]
(f) $160,000 paid on 22 December 2000 pursuant to the settlement agreement.
[32] It is clear that Pacific Dawn was under considerable financial pressure, but I am not persuaded that Pacific Dawn misrepresented its capacity to pay what it reasonably considered was due to Mr Mitchell under the building contract or the practical completion agreement.
[33] It is not necessary to decide whether Pacific Dawn was liable to meet Mr Mitchell’s demand for GST, but the basis for that demand was unclear. Mr Mitchell alleged that he had reached agreement with Pacific Dawn concerning the application of GST to future progress claims, but there was no evidence of any such agreement. Mr Mitchell merely asserted that there was such an agreement and referred to a letter he had written to Mr Tan on 25 May 2000, which implied that Pacific Dawn would be liable to pay GST. The Court was not referred to evidence that Pacific Dawn agreed with that claim.
Entitlement to an additional fee of 7.5 per cent
[34] Under cl 1.4.3 of the “Lump Sum Contract for simple building works” Pacific Dawn was obliged to pay to Mr Mitchell the “Contract Sum” of $2,650,000.[33] Appendix I to the contract provided:
“1.Mitchell Construction will construct the Residential and Commercial Development at 62 High Street for a guaranteed upper limit cost of $2,650,000.00.
2.All savings will be shared equally between Bruce Mitchell Construction and Pacific Dawn Pty. Ltd.
…
4.A fee of 7.5% of the construction cost will be paid to Bruce Mitchell Construction at completion of the project.”
[35] Mr Mitchell’s counsel argued that the trial judge erred in rejecting the claim that the fee of 7.5 per cent was payable in addition to the “guaranteed upper limit cost” of $2,650,000. The suggested error was submitted to be important because the addition of the fee would increase by $198,750 the amount which Mr Mitchell lost as a result of the compromise in the 22 December 2000 settlement agreement.
[36] I would affirm the trial judge’s conclusion that upon the proper construction of the contract the 7.5 per cent fee was not payable in addition to the “guaranteed upper limit cost”.[34] Paragraph 4 of Appendix I does not express the fee as a percentage of the “guaranteed upper limit cost”. Rather, it is expressed as a percentage of the “construction cost”. The emphatic terms of the description of the amount of $2,650,000 – as a “guaranteed upper limit” – are inimical to Mr Mitchell’s contention that the fee was intended to be paid in addition to that amount. Mr Mitchell’s preferred construction is also not likely to represent the parties’ contractual intention, objectively ascertained, because it would weaken Mr Mitchell’s incentive to save costs, that apparently being an object of paragraph 2.
[37] The trial judge’s construction was also consistent with evidence that Pacific Dawn had earlier decided not to proceed with the project when Mr Mitchell had supplied Mr Tan with a cost estimate of $2,809,977 (comprising $2,613,934 for the works and a builder’s margin of 7.5 per cent ($196,043)) and agreed to proceed only after Mr Mitchell offered to enter into the lump sum building contract with the “guaranteed upper limit” in August 1999.[35]
[38] In any event, the trial judge was correct in holding that this issue was only of marginal relevance to the question whether there was economic duress or an unconscionable bargain, since neither party dealt with the other on the basis that the 7.5 per cent fee was an additional sum payable to Mr Mitchell.[36] Mr Mitchell’s contention that the fee was payable in addition to the “guaranteed upper limit cost” was first raised after judgment in the first appeal, in which McPherson JA observed that it was agreed that if the construction costs did not exceed that limit Mr Mitchell would receive “an additional fee of 7.5% = $198,750 plus 107.5% of the cost of variations and extras for which [Pacific Dawn] was liable under the contract.”[37] The Court was not referred to any evidence that at any time before the settlement agreement Mr Mitchell or Pacific Dawn believed that the fee was payable in addition to the “guaranteed upper limit cost”. For that reason, the question does not bear significantly upon the claims of unconscionable conduct and economic duress.
“Cost plus contract”
[39] Mr Mitchell also argued that by a course of conduct the building contract was converted into a “cost plus contract”. Mr Mitchell’s evidence in that regard was as follows: in January 2000 Mr Tan suggested that the basis of payment under the contract should be changed to a “cost plus arrangement”; Mr Mitchell accepted the offer by a letter dated 30 January 2000 to Mr Tan, in which Mr Mitchell stated “I would agree with you, due to all the design changes, etc. that working on a cost plus basis is the most sound way to [work] the job”; after Mr Mitchell sent that letter he submitted progress claim number 5; and Currie & Brown responded with progress certificate number 3 in which item 3 noted that the project “is a ‘cost plus’ contract [with] a shared savings incentive scheme.”
[40] Mr Mitchell did not point to any evidence that Mr Tan or Currie & Brown was authorised by Pacific Dawn to vary the terms of the building contract. Mr Mitchell’s evidence also did not go so far as to suggest that there was any express agreement to abandon the contractual provision for a “guaranteed upper limit” of $2,650,000. Mr Mitchell’s counsel noted that Mr Tan referred in evidence to the contract as a “cost plus [contract] with a ceiling of 2.65 million plus profits”, but the context makes it clear that this was Mr Tan’s interpretation of the building contract rather than an admission by him, much less by Pacific Dawn, that the building contract had been varied.
[41] Mr Mitchell also argued that his letter of 30 January 2000 might be treated as an offer accepted by the course of conduct over several months, but the letter was not in the form of an offer to vary the contract, Mr Mitchell accepted in evidence that he had received no response to it, and Mr Mitchell’s pleading did not allege that the letter was an offer or that it was accepted by conduct.
Pacific Dawn’s counterclaim for delay
[42] At the 22 December 2000 meeting, Pacific Dawn foreshadowed the prospect of a claim against Mr Mitchell for liquidated damages for delay, which amounted to some $192,000 (representing 32 weeks at $6,000 per week), if Mr Mitchell did not accept the settlement. Mr Mitchell argued that the proper understanding of the evidence was that Pacific Dawn had earlier abandoned any such claim.
[43] In that respect, Mr Mitchell argued that the trial judge was mistaken in finding that Mr Tan had earlier sent to Mr Mitchell a letter which informed Mr Mitchell that Pacific Dawn had a claim for liquidated damages for 32 weeks at $6,000 per week. In fact, the trial judge merely referred to the evidence of Mr Fan and Mr Tan to the effect that such a letter was sent and observed that “in any event, Mr Mitchell was clearly aware of the issue from the meeting of 14 December 2000 …”.[38]
[44] Mr Mitchell relied upon the statement in item 4 of the minutes of that meeting signed by Mr Tan on 14 December 2000 that Pacific Dawn “has agreed to pay all claims minus 2.5% (Contract Retention) when all invoices are reconciled – by Wednesday 20 December 2000.” However the minutes themselves did not further identify “all claims” mentioned in that item and Mr Fan did not accept the accuracy of the minutes.[39] Mr Fan’s evidence was that at the 14 December 2000 meeting he denied Mr Mitchell’s claim that Pacific Dawn owed Mr Mitchell more than $500,000 and stated that “I only owe you the money from certificate 11 and the rest of the money we agreed in the minutes on 6 November.”
[45] I do not accept Mr Mitchell’s argument that Pacific Dawn abandoned its claim for liquidated damages for delay. The trial judge’s contrary finding, that Pacific Dawn had foreshadowed a possible claim for liquidated damages for delay at the meeting on 14 December 2000,[40] is unassailable given that Mr Fan’s evidence that he made it clear at the meeting that he had a right to claim damages for late completion because of Mr Mitchell’s delay was corroborated by Mr Mitchell’s statement in his letter of 15 December 2000 that he was “totally shocked to think Bill Tan was looking for some compensation for the delay of practical completion.” Whether or not Pacific Dawn formalised the assertion of its right to liquidated damages in a letter is beside the point. On the evidence Mr Mitchell knew for at least a week before the settlement meeting on 22 December 2000 that Pacific Dawn was contemplating making a substantial claim for damages for delay.
[46] Mr Mitchell argued that the trial judge should have found that Pacific Dawn’s claim for damages for delay was not legitimate because, although the date for possession of the site was 21 September 1999, Pacific Dawn only obtained the local government’s preliminary approval for work on the foundations and slab up to the ground level on 22 December 1999 and only obtained a development permit for the works on 21 June 2000. Mr Mitchell argued that he could not be held responsible for delay when it was illegal for him to do the necessary work under the building contract at all because of the absence of the necessary local government approval.
[47] This argument also cannot be accepted. Clause 9.2 of the building contract obliged Mr Mitchell to give notice upon it becoming evident to him that the progress of the works was likely to be delayed and entitled him to claim a reasonable extension of time for practical completion in such an event. Although Mr Mitchell gave evidence in broad terms that the project was delayed “through the failure of [Pacific Dawn] to obtain building approval for the project”, he did not request an extension of time on that ground. Mr Mitchell did not even advert to any such request in his letter of 15 December 2000. As the trial judge observed, Mr Mitchell acknowledged in evidence that he had not made any request under the building contract for an extension of time. Furthermore, any such request could not have accounted for most of Mr Mitchell’s delay in completing the work, because all of the alleged delays of which Mr Mitchell gave evidence were said to have occurred in the first 16 weeks of construction.[41] The Court was not referred to any evidence which falsified the trial judge’s conclusion that there was no significant evidence which would have justified the 30 week delay in a 34 week construction program. [42]
[48] Regardless of the precise effect upon Pacific Dawn’s legal rights of the absence of a necessary building permit, there is no ground for overturning the trial judge’s relevant findings that Pacific Dawn was aggrieved by the long delay in the promised completion of the project and its effect on Pacific Dawn’s ability to sell units in the building, and that Pacific Dawn’s directors believed that Pacific Dawn had potential claims against Mr Mitchell for liquidated damages.[43]
Mr Mitchell’s practical completion claim
[49] Mr Mitchell also argued that Pacific Dawn breached the contract when Mr Tan failed to issue a progress certificate within five days of receiving Mr Mitchell’s practical completion claim on 12 December 2000. The trial judge rejected that argument, essentially because the variations which Mr Mitchell claimed were additional to Claim 11, were not accepted by Pacific Dawn, and were not the subject of any assessment or approval by Currie & Brown.[44] The variations were also not approved by the architect. Furthermore, if Mr Mitchell was entitled to make such a claim, Pacific Dawn was entitled to set it off against its foreshadowed counterclaim for liquidated damages for delay.
Conclusion
[50] I would affirm the trial judge’s conclusions that the settlement agreement made on 22 December 2000 was a genuine compromise of legitimate contending claims and that the position adopted by Pacific Dawn was objectively reasonable and reflected its assessment of its entitlement and its own financial capacity. Those findings require rejection of Mr Mitchell’s contention that Pacific Dawn was guilty of unconscientious conduct. Both parties being under similar pressures, and Mr Mitchell having failed to prove any misrepresentation or manipulative conduct by Pacific Dawn, there is also no ground for concluding that Mr Mitchell suffered from a “special disadvantage” vis-à-vis Pacific Dawn, as is required for such a case.[45]
[51] Mr Mitchell’s claim that he made that contract under economic duress such as would justify the Court in refusing to enforce it was also rightly rejected by the trial judge. In Crescendo Management Pty Ltd v Westpac Banking Corporation[46] McHugh JA observed of claims of economic duress that:
“The proper approach in my opinion is to ask whether any applied pressure induced the victim to enter into the contract and then ask whether that pressure went beyond what the law is prepared to countenance as legitimate? Pressure will be illegitimate if it consists of unlawful threats or amounts to unconscionable conduct.”
[52] In deciding whether a threatened breach of contract involves illegitimate pressure or merely part of the “rough and tumble of the pressures of normal commercial bargaining” it is necessary also to take into account whether the persons allegedly exerting such pressure has acted in good or bad faith.[47] Accordingly, even if (which Mr Mitchell did not prove) Pacific Dawn’s insistence upon the terms of the settlement agreement involved any breach or threatened breach of contract it would not follow that the settlement agreement should not be enforced. When account is taken of the reasonableness and honesty of Pacific Dawn’s position such pressure as was felt by Mr Mitchell was plainly not “illegitimate pressure”.
Disposition
[53] For those reasons Mr Mitchell’s appeal should be dismissed.
[54] At the conclusion of argument at the hearing of the appeal the Court sought supplementary submissions from the parties concerning the orders which should be made in the event that the appeal was dismissed. Pacific Dawn argued that Mr Mitchell’s proceedings should be brought to an end, because the only claim he foreshadowed in the event of dismissal of the appeal was for the recovery of monies claimed to be owing under the 22 December 2000 settlement agreement. Pacific Dawn contended that no such claim was viable because it had not been made in Mr Mitchell’s pleading. If Mr Mitchell’s proceeding was brought to an end, Pacific Dawn indicated that, for commercial reasons, it would forego its counterclaim for damages for the wrongful lodgement of a caveat by Mr Mitchell. In that event, Pacific Dawn would seek only an order for the return to it of a bank guarantee it had lodged with the Court, and orders for costs.
[55] Mr Mitchell argued that in the event the appeal was dismissed then the matter should be remitted to the trial judge to further deal with remaining issues according to law. Mr Mitchell contends that the remaining issues are:
“1.Whether on the proper interpretation of the December agreement and in the events which have occurred, the defendant is indebted to the plaintiff in the sum of $54,177 (or part thereof) in respect of outstanding building costs and GST?
- Whether the defendant was entitled to deduct from the final payment in June 2001, the sum of $10,856.62 (or part thereof), for rectification of defects?
- Whether the plaintiff was entitled to claim the sum of $11,871.86 for extra work performed on the premises from December 2000 until June 2001?”
[56] I am not prepared to hold that this Court should now shut Mr Mitchell out from pursuing his foreshadowed claim by summarily terminating his proceedings. It is in issue on the pleadings whether Pacific Dawn was obliged to pay Mr Mitchell any part of his final claim made in June 2001.[48] That issue was not determined by the trial judge’s answer to the separate question. Mr Mitchell’s pleading may require some amendment to articulate the precise claim he wishes to pursue in light of the trial judge’s answer to the separate question, but the pleading makes allegations which arguably encompass Mr Mitchell’s foreshadowed claim, or at least give some notice of it. Mr Mitchell’s fourth further amended statement of claim claims $435,756.60 under the “Varied Agreement” (meaning the building contract as varied on 30 January 2000).[49] That amount is the difference between the amount which the pleading alleges was payable under the Varied Agreement, $3,335,445.82 inclusive of GST, and an amount which the pleading alleges was paid in respect of the building works.[50] Paragraph 29 of Mr Mitchell’s fourth further amended statement of claim alleges that from 22 December 2000 until 11 March 2001 he “undertook further work to complete the building works pursuant to the Varied Agreement” and paragraph 31 alleges that Pacific Dawn made payments to Mr Mitchell which included a payment in June 2001 (after the 22 December 2000 settlement agreement) of $106,872.28. It is not clear that the trial judge’s rejection of Mr Mitchell’s claim that the building contract was varied in the manner he pleads necessarily requires rejection of his foreshadowed claim, although the pleading might require amendment to omit reference to that alleged variation and to take the 22 December 2000 settlement agreement into account.
[57] The issues which remain in the proceedings following the trial judge’s determination of the separate issue, including the questions whether Mr Mitchell requires and should be given leave to amend his pleading to pursue his foreshadowed claim, should be resolved in the trial division. That will follow as of course upon the dismissal of Mr Mitchell’s appeal. That conclusion is subject to one further consideration, namely, that the foreshadowed claim and the counterclaim appear to fall within the jurisdiction of the Magistrates Court. It therefore seems appropriate to transfer the proceedings to that court for determination,[51] but I would allow the parties an opportunity to make submissions on that topic.
[58] Pacific Dawn is entitled to its costs of the appeal. It sought those costs on an indemnity basis on the ground that Pacific Dawn made offers to settle the proceedings during 2004 and 2007 which were more favourable than the result of the trial judge’s determination. However Pacific Dawn did not contend that it had made any offer to settle Mr Mitchell’s appeal. Although the circumstances in which costs on an indemnity basis might be awarded are at large, costs are not ordinarily ordered on an indemnity basis in an appeal unless there is some unusual circumstance or unreasonable conduct beyond mere non-acceptance of an offer to settle made in the trial division.[52] No sufficient ground has been shown for departing from the usual order that costs of the appeal be assessed on the standard basis.
Proposed orders
[59] I would dismiss the appeal with costs to be assessed on the standard basis. I would also direct that the parties exchange and lodge written submissions by 23 May 2011 upon the question whether the Court should order that the proceedings in the trial division be transferred to the Magistrates Court.
[60] CHESTERMAN JA: I agree with the orders proposed by Fraser JA for the reasons given by his Honour.
[61] ANN LYONS J: I have had the advantage of reading in draft the reasons of Fraser JA, with which I agree. I also agree with the orders proposed by his Honour.
Footnotes
[1] Fourth amended statement of claim, paragraph 29, which was admitted in paragraph 29 of the fifth further amended defence.
[2] Mitchell v Pacific Dawn Pty Ltd [2003] QSC 86.
[3] Mitchell v Pacific Dawn Pty Ltd [2003] QCA 526.
[4] Mitchell v Pacific Dawn Pty Ltd [2003] QCA 526 at [14]-[15] per McPherson JA, Mackenzie and Wilson JJ agreeing.
[5] Mitchell v Pacific Dawn Pty Ltd [2010] QSC 243 at [5]. Despite the “assumption” it was common ground at trial and on appeal that Ambrose J’s finding at the first trial conclusively established that the parties entered into the settlement agreement on 22 December 2000.
[6] Mitchell v Pacific Dawn Pty Ltd [2010] QSC 243 at [110].
[7] Mitchell v Pacific Dawn Pty Ltd [2010] QSC 243 at [35]-[112].
[8] Mitchell v Pacific Dawn Pty Ltd [2010] QSC 243 at [174]-[179].
[9] Mitchell v Pacific Dawn Pty Ltd [2010] QSC 243 at [180]-[181].
[10] Mitchell v Pacific Dawn Pty Ltd [2010] QSC 243 at [182], citing Mitchell v Pacific Dawn Pty Ltd [2003] QCA 526 at [10].
[11] Mitchell v Pacific Dawn Pty Ltd [2010] QSC 243 at [183].
[12] Mitchell v Pacific Dawn Pty Ltd [2010] QSC 243 at [37].
[13] Transcript 4-53, lines 1-5.
[14] Mitchell v Pacific Dawn Pty Ltd [2010] QSC 243 at [176].
[15] Mitchell v Pacific Dawn Pty Ltd [2003] QCA 526 at [4]-[5] (emphasis added).
[16] Mitchell v Pacific Dawn Pty Ltd [2010] QSC 243 at [53].
[17] Mitchell v Pacific Dawn Pty Ltd [2003] QCA 526 at [14].
[18] Mitchell v Pacific Dawn Pty Ltd [2010] QSC 243 at [57].
[19] Mitchell v Pacific Dawn Pty Ltd [2010] QSC 243 at [74].
[20] Mitchell v Pacific Dawn Pty Ltd [2010] QSC 243 at [64].
[21] Mitchell v Pacific Dawn Pty Ltd [2010] QSC 243 at [179].
[22] Mitchell v Pacific Dawn Pty Ltd [2010] QSC 243 at [119].
[23] Mitchell v Pacific Dawn Pty Ltd [2010] QSC 243 at [119].
[24] Mitchell v Pacific Dawn Pty Ltd [2010] QSC 243 at [9], [25], [26], [35]-[37], [57], [62], [75], [109].
[25] Mitchell v Pacific Dawn Pty Ltd [2010] QSC 243 at [109].
[26] Mitchell v Pacific Dawn Pty Ltd [2010] QSC 243 at [48].
[27] Mitchell v Pacific Dawn Pty Ltd [2010] QSC 243 at [176].
[28] Mitchell v Pacific Dawn Pty Ltd [2010] QSC 243 at [49], [96], [176].
[29] Mitchell v Pacific Dawn Pty Ltd [2010] QSC 243 at [27]-[28], [176].
[30] Mitchell v Pacific Dawn Pty Ltd [2010] QSC 243 at [60], [64]-[65], [176].
[31] Mitchell v Pacific Dawn Pty Ltd [2010] QSC 243 at [73], [96], [176].
[32] Mitchell v Pacific Dawn Pty Ltd [2010] QSC 243 at [93], [96], [176].
[33] The term was defined in cl 1.2.7 by reference to Appendix Item B7.
[34] Mitchell v Pacific Dawn Pty Ltd [2010] QSC 243 at [14], [114]-[115].
[35] Mitchell v Pacific Dawn Pty Ltd [2010] QSC 243 at [8]-[9].
[36] Mitchell v Pacific Dawn Pty Ltd [2010] QSC 243 at [14].
[37] Mitchell v Pacific Dawn Pty Ltd [2003] QCA 526 at [1].
[38] Mitchell v Pacific Dawn Pty Ltd [2010] QSC 243 at [89]-[90].
[39] See the letter from Mr Tan to Mr Mitchell dated 15 December 2000.
[40] Mitchell v Pacific Dawn Pty Ltd [2010] QSC 243 at [88].
[41] Mitchell v Pacific Dawn Pty Ltd [2010] QSC 243 at [22].
[42] Mitchell v Pacific Dawn Pty Ltd [2010] QSC 243 at [22].
[43] Mitchell v Pacific Dawn Pty Ltd [2010] QSC 243 at [175].
[44] Mitchell v Pacific Dawn Pty Ltd [2010] QSC 243 at [77], [177].
[45] Blomley v Ryan (1956) 99 CLR 362; Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 337; Louth v Diprose (1992) 175 CLR 621; Bridgewater v Leahy (1998) 194 CLR 457.
[46] (1988) 19 NSWLR 40 at 46. See also Westpac Banking Corporation v Cockerill (1998) 152 ALR 267; National Australia Bank v Freeman [2001] QCA 473.
[47] DSND Subsea Ltd v Petroleum Geo Services ASA [2000] BLR 530 at para 131 per Dyson J, repeated by Dyson J in Carillion Construction Ltd v Felix (UK) Ltd [2001] BLR 1 at para 24.
[48] Fifth further amended defence, paragraphs 31, 32 and 33, and amended reply and answer, paragraphs 39-43.
[49] Fourth further amended statement of claim, paragraphs 6, 32, 33, and paragraph 1 of the claim for relief.
[50] Fourth further amended statement of claim paragraphs 29, 31, and 32.
[51] Supreme Court of Queensland Act 1991 (Qld), s 75.
[52] See Yara Nipro Pty Ltd v Interfert Australia Pty Ltd [2010] QCA 164 at [15] and the decisions there cited.