Robielle Pty Ltd v Pilsack Pty Ltd
[2010] QDC 338
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- Unreported Judgment
- Robielle Pty Ltd v Pilsack Pty Ltd[2010] QDC 338
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Robielle Pty Ltd v Pilsack Pty Ltd[2010] QDC 338
Robielle Pty Ltd v Pilsack Pty Ltd[2010] QDC 338
DISTRICT COURT OF QUEENSLAND
CITATION: | Robielle Pty Ltd v Pilsack Pty Ltd & Ors [2010] QDC 338 |
PARTIES: | ROBIELLE PTY LTD ACN 111 205 282 Plaintiff v PILSACK PTY LTD ACN 065 055 389 First Defendant and BARRY ROBERT FISHER Second Defendant and AAA ACCOUNTING PTY LTD ACN 078 837 000 Third Defendant and RODNEY SOMERVILLE Fourth Defendant |
FILE NO: | 304 of 2006 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court at Maroochydore |
DELIVERED ON: | 5 August 2010 |
DELIVERED AT: | Maroochydore |
HEARING DATE: | 9 July 2010 |
JUDGE: | K S Dodds, DCJ |
ORDER: | Further submissions to be received from the parties about orders to be made in light of reasons. Costs reserved. |
CATCHWORDS: | APPLICATION FOR JUDGMENT – where denial of allegations of fact not accompanied by a direct explanation for the belief the allegations are untrue – where allegations of fact are taken to have been admitted Uniform Civil Procedure Rules 1999 r 166, r 292 Case cited: Cape York Airlines Pty Ltd v QBE Insurance (Australia) Ltd [2008] QSC 302 |
COUNSEL: | J W Lee for the plaintiff S M Gerber for the first and second defendants No appearance for the third and fourth defendants |
SOLICITORS: | Adrian Hawkes Lawyers for the Plaintiff Sutton’s Law for the first and second defendants No appearance for the third and fourth defendants |
- [1]This was an application filed 8 June 2010 for judgment against the first and second defendants (the defendants) for $93,000 for breach of a compromise agreement.
- [2]Rule 292 of the Uniform Civil Procedure Rules 1999 (UCPR) provides:
- “(1)A plaintiff may at any time after a defendant files a notice of intention to defend, apply to the Court under this part for judgment against the defendant.
- (2)If the Court is satisfied that–
- (a)the defendant has no real prospect of successfully defending all or a part of the plaintiff’s claim; and
- (b)there is no need for a trial of the claim or the part of the claim;
the Court may give judgment for the plaintiff against the defendant for all or the part of the plaintiff’s claim and may make any other order the Court considers appropriate.”
- [3]The plaintiff’s application is based upon rule 166 UCPR. Sub-rules (1), (4) and (5) of rule 166 are as follows:
- “(1)An allegation of fact made by a party in a pleading is taken to be admitted by an opposite party required to plead to the pleading unless—
- (a)the allegation is denied or stated to be not admitted by the opposite party in a pleading; or
- (b)rule 168 applies.
---
- (4)A party’s denial or non-admission of an allegation of fact must be accompanied by a direct explanation for the party’s belief that the allegation is untrue or cannot be admitted.
- (5)If a party’s denial or non-admission of an allegation does not comply with subrule (4) the party is taken to have admitted the allegation.”
- [4]The plaintiff has submitted that the defendants’ defence to the statement of claim means the defendants are taken to have admitted the plaintiff’s claim for $93,000.[1]
- [5]The proceeding was originally commenced by the plaintiff filing a claim and statement of claim on 2 November 2006. An amended claim and statement of claim was filed on 4 June 2009. On 18 December 2009 a Judge of this Court gave the plaintiff leave to file a further amended statement of claim (statement of claim). This the plaintiff did on 20 January 2010.
- [6]The defendants filed their further amended defence on 11 March 2010 (defence).
- [7]According to the pleadings as they presently stand the plaintiff’s action arises from the purchase by the plaintiff from the first defendant in November 2004 of a business described as “marketing rights to sell listed products of registered builders” for $120,000. The plaintiff’s claim seeks $120,000. Alternatively it seeks $93,000 for breach of a compromise agreement.
The relevant pleadings
- [8]Paragraph 27 of the statement of claim pleaded that the first and second defendants offered the plaintiff the sum of $93,000 in full and final settlement of its claim being a written offer contained in a letter from the first and second defendants’ solicitors Gardiners, which offer was subject to the plaintiff executing an acceptance on the body of the letter and returning it.
- [9]In response to paragraph 27, the defence of the defendants denied the offer and acceptance as alleged, denied any settlement as alleged or otherwise at law, asserted the first defendant volunteered to make certain payments without obligation on conditions, including as to the behaviour of the male director of the plaintiff, which were not complied with and asserted payments made voluntarily by the first defendant, being $5000, were repayable to the first defendant with interest.
- [10]Paragraph 28 of the statement of claim pleaded that the plaintiff accepted the offer within its terms by signing the letter and returning it but the defendants had failed or refused to pay the sum of $93,000 as promised or at all.
- [11]In response to paragraph 28, the defence of the defendants denied paragraph 28, admitted non-payment of the sum of $93,000 and asserted that there was no offer as alleged or at all.
- [12]Paragraph 29 of the statement of claim pleaded the plaintiff’s acceptance constituted a contract of compromise between the plaintiff and the first and second defendants with respect to the matters in issue in the pleadings which contract the first and second defendants had breached. Paragraph 30 pleaded that it was an implied term of the agreement that the said sum of $93,000 would be paid within a reasonable time. Paragraphs 31 and 32 pleaded inter alia that the first and second defendants had failed to pay any part of the $93,000, that in the premises the first and second defendants repudiated the contract of compromise which repudiation had been accepted by the plaintiff, the contract of compromise terminated and the plaintiff was entitled to damages for breach.
- [13]In response to paragraphs 29 to 32 of the statement of claim the defendants denied there was any contract of compromise or any liability or obligation which could be compromised, asserted that the sum of $5000 with interest was repayable by the plaintiff to the first defendant, asserted the plaintiff was liable in damages to the first defendant for breach of agreement, and in the alternative asserted that if there was a contract of compromise the plaintiff did not comply with or satisfy the preconditions for payment under the contract of compromise. A set-off of the plaintiff’s liability to pay $5000 with interest to the defendant’s against any liability the defendants may have to the plaintiff was claimed.
The alleged compromise
- [14]The compromise pleaded is based upon a letter written by solicitors then acting for the first and second defendants dated 28 June 2005 that is, before any proceeding was commenced in the Court, addressed to the directors of the plaintiff. (the letter). The letter:
- asserted that the solicitor’s advice to the first and second defendants was that the agreement which underlay the payment by the plaintiff of the sum of $120,000 as a purchase price was terminated due to breaches of the agreement by the plaintiff;
- notwithstanding their client was willing to make certain payments on the following basis:
- “(i)the keys to the display room are returned immediately;
- (ii)the payments are made on the basis of our client having no obligation to pay such monies;
- (iii)the payments in no way oblige our clients to make further payments;
- (iv)that our client continues to have the right to institute proceeding against you for breach of the contract;
- (v)that if you take any action against our client the payments are immediately refundable and are to be treated as loan monies. Further, you will pay interest on the monies payable at 10%.” ;
- payments would be made when commission payments from the first defendant’s business were made and would be likely to occur over a period of nine months. No guarantee as to any certain amount being paid in any month could be made, that is, the plaintiff would never be guaranteed certain amounts on any particular day;
- it was anticipated the total of such payments would be in the vicinity of $93,000. If made the defendant would consider forgiveness of the debt of $7000 owed to the defendants by the plaintiff. In this regard the defendants may ask that the plaintiff execute a deed outlining the payments made and the parties would have no claim against each other;
- payments were made in good faith and were made contrary to legal advice received;
- if the defendants were continually harassed or were contacted by the Directors of the plaintiff then it was likely that no further payments would be made;
- if the Directors of the plaintiff continuously contacted the plaintiff’s solicitors then it was likely the defendants’ legal bills would be taken from any good faith payments.
The letter asked both directors of the plaintiff to sign a copy of the letter and return it to the solicitors with the keys to the plaintiff’s office. It continued “upon receipt of the above you accept the good faith (no obligation) nature of our client’s proposal--- Clearly this letter is written on a without prejudice basis.”
- [15]The letter was signed by the two directors of the plaintiff under the words “we acknowledge the contents of the above letter and sign in our own capacity and on behalf of our company”.
Discussion
- [16]It may be arguable whether the content of the letter could support an enforceable contract of compromise. The application for judgment however is not concerned with that, rather focuses on what the applicant has submitted is the lack of a direct explanation for the first and second defendants’ belief that allegations of fact in the plaintiff’s statement of claim were untrue. Those allegations of fact were:
- the defendants offered the plaintiff $93,000 in full and final settlement of its claim by the letter mentioned above;
- the plaintiff accepted the offer by the plaintiff executing an acceptance where required on the letter, signing it and returning it;
- the plaintiff’s acceptance constituted a contract of compromise between the plaintiff and the first and second defendants;
- it was an implied term of the contract the sum of $93,000 would be paid within a reasonable time;
- the defendant’s had failed or refused to pay the sum of $93,000 as promised or at all, had thereby repudiated the contract which repudiation has been accepted by the plaintiff.
- [17]The defence of the defendants denied:
- the offer and acceptance alleged in paragraph 28 of the statement of claim;
- any settlement of the claim as alleged or otherwise at law;
- that the plaintiff accepted the offer in the letter by signing the letter and returning it to the defendants as alleged in paragraph 28 of the statement of claim;
- that there was any contract of compromise as alleged in paragraph 29 of the statement of claim or any liability of obligation which could be compromised.
They admitted they had not paid the sum of $93,000.
- [18]As Daubney J pointed out in Cape York Airlines Pty Ltd v QBE Insurance (Australia) Ltd [2008] QSC 302, rule 166(4) of the UCPR requires that a party’s denial of an allegation of fact must be accompanied by a direct explanation for the party’s belief that the allegation is untrue. That compels the pleader “to expose at an early stage of the proceeding its rationale for a joinder of issue on a particular allegation” and compels the pleader to formulate that rationale.[2]
- [19]The material in the defence to accompany the denials which may touch upon why the pleaders believe the allegations of fact denied are untrue is in the response to paragraph 27 of the statement of claim where it is asserted that the first defendant volunteered to make certain payments without obligation on conditions which were not complied with and in the response to paragraph 28 where it is asserted there was no offer as alleged or at all. Otherwise there is no direct explanation for the belief of the defendants that the allegations of fact denied are untrue.
- [20]The defendants’ defence contains no direct explanation why they believe the allegation that they offered the plaintiff $93,000 in full and final settlement of its claim is untrue, nor why they believe the allegation the plaintiff accepted the offer by executing an acceptance where required on the letter signing and returning it is untrue. The material referred to above as accompanying the denials may touch upon why a compromise may be denied. It offers no direct explanation about the other denials.
- [21]It follows from the conclusion I have reached that the first and second defendants are to be taken to have admitted the following allegations of fact:
- the first and second defendants offered the plaintiff $93,000 in full and final settlement of the claim by the letter;
- the plaintiff accepted the offer by executing an acceptance where required on the letter, signing it and returning it;
- it was an implied term of the contract the sum of $93,000 would be paid within a reasonable time;
- the first and second defendants had not paid the sum of $93,000 as promised or at all.
- [22]The plaintiff’s pleading claims $120,000 from the first, second, third and fourth defendants on a variety of bases:
Against the first defendant-
- as monies had and received;
- as damages or compensation pursuant to the Trade Practices Act 1974 (Cth);
- as equitable compensation or restitution;
- as damages for breach of contract.
Against the second defendant-
- as damages or compensation pursuant to the Trade Practices Act 1974 (Cth).
It further or in the alternative claims liquidated damages in the sum of $93,000 against the first and second defendants for breach of a compromise agreement.
Additionally it claims $120,000 against the third and fourth defendants as damages or compensation pursuant to the Trade Practices Act 1974 (Cth) and against the third defendant as damages for negligence or breach of contract.
- [23]I will receive further submissions from the parties about orders to be made in light of these reasons.
- [24]Costs reserved.