National Concreting Pty Limited v Fix Force Contracting Limited
[2010] QDC 446
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- Unreported Judgment
- National Concreting Pty Limited v Fix Force Contracting Limited[2010] QDC 446
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National Concreting Pty Limited v Fix Force Contracting Limited[2010] QDC 446
National Concreting Pty Limited v Fix Force Contracting Limited[2010] QDC 446
DISTRICT COURT OF QUEENSLAND
CITATION: | National Concreting Pty Limited & Anor v Fix Force Contracting Limited & Anor [2010] QDC 446 |
PARTIES: | National Concreting Pty Limited (ACN 133 037 233) (First Plaintiff) and Christopher Lawson (Second Plaintiff) v Fix Force Contracting Limited (ACN 118 080 130) (First Defendant) and Kerri-Ann Piticco (Second Defendant) |
FILE NO/S: | 1116/2010 |
DIVISION: | Civil |
PROCEEDING: | Application to set aside default judgment |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 19 November 2010 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 15 July 2010 |
JUDGE: | Tutt DCJ |
ORDER: |
|
CATCHWORDS: | APPLICATION TO SET ASIDE DEFAULT JUDGMENT – Uniform Civil Procedures Rules 1999 r 290 – where companies entered into agreement to provide and receive services – where debt “repayment plan” was negotiated – who were the parties in fact to the agreement – whether satisfactory explanation for failure to appear and file Notice of Intention to Defend and Defence – whether a valid defence and counter-claim exist – whether repayment plan entered into under duress – whether there is a defence “on the merits” to the claim. Uniform Civil Procedures Rules 1999 rr 173, 290 ACN 072776811 (formerly Advance Australasia) Pty Ltd v Advance Watch Co. (Far East) Ltd [2005] QSC 159 Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSW LR 40 Deemcope v Cantown Pty Ltd [1995] 2 VR 44 Forsyth & Anor (as trustees for the C & S Forsyth Superannuation Fund) v Gibbs [2008] QCA 103 IRM Pacific Pty Ltd v Nudgegrove Pty Ltd & Ors [2008] QSC 195 National Mutual Life Association of Australia v Oasis Developments Pty Ltd 1983 2 Qd. R 441 |
COUNSEL: | W J Kilian for the Applicants/Defendants |
SOLICITORS: | Lawson, E. for the Respondents/Plaintiffs Doyles Construction Lawyers for the Applicants/Defendants |
Introduction:
- [1]There is an application before the court by the first and second defendants (“the defendants”) pursuant to r 290 of the Uniform Civil Procedure Rules (UCPR) that the default judgment entered against them on 1 June 2010 in favour of the first and second plaintiffs (“the plaintiffs”) in this proceeding be set aside together with an order for costs.
- [2]The application came before McGill SC DCJ on 2 July 2010 in the first instance but only the preliminary point of whether the default judgment was regularly entered was determined by His Honour who then adjourned the substantive application to set aside the judgment, for hearing on 15 July 2010 because of the lateness of affidavits served on the plaintiffs who wished to file material in response.
- [3]His Honour decided that the default judgment was regularly entered and the issue now to be decided is whether that judgment should be set aside and the defendants have the opportunity to defend the plaintiffs’ claim.[1]
Background:
- [4]The plaintiffs’ claim filed 13 April 2010 is for “Liquidated damages or alternatively debts due and owing from the defendants” pursuant to “a written agreement dated 8 December 2009” and a “verbal agreement on or about 10 December 2009” between the parties wherein it was agreed that “in consideration for the first plaintiff paying all expenses incurred by the first defendant in carrying out” work for third parties[2] “all monies invoiced by the first defendant” to the third parties “would be provided to the first plaintiff.”[3]
- [5]It would appear that before any written agreement was formalised between the parties the “proposed agreement” was put into effect and payments commenced to be advanced by the first plaintiff to the first defendant. The arrangement being that the first defendant would in due course pay to the first plaintiff all monies received from third parties when those third parties had been invoiced by the first defendant for work carried out by it.
- [6]The exhibits to the affidavit of Christopher Lawson filed 12 July 2010 include a series of invoices and other employee details in respect of work carried out by the first defendant for the company TJH for which payments were made by the first plaintiff.
- [7]It further appears that “the Proposed Agreement” (which formalised the terms of the original agreement between the parties but not the “Broadened Agreement”) was forwarded to the defendants and the document being “CL-9” to Christopher Lawson’s affidavit was signed by the second defendant (it would appear) both on behalf of the first defendant as a director and in her personal capacity. The document also contains some handwriting upon it including the date “8 December 2009” and some deletions. The document is by no means clear on its face as to its full force or effect nor why there is provision for it to be signed by either the second plaintiff (Christopher Lawson) or the second defendant (Kerri-Ann Piticco) in their respective personal capacities.
- [8]The second plaintiff deposes that the terms of the original agreement were “broadened…….on or about 10 December 2009…… so that the first plaintiff cover all expenses of the first defendant in completing all works and all monies invoiced and received by the first defendant would be forwarded to the first plaintiff.” This then became “the Broadened Agreement.”[4]
- [9]Thereafter there was a considerable exchange of communication between the parties in January/February 2010 with invoices being rendered by the first defendant to the first plaintiff for which payment was made by the first plaintiff.[5]
- [10]The second plaintiff further deposes that the agreement between the parties was terminated “on the evening of 26 January 2010” and new terms by way of an oral agreement were entered into in “a telephone conversation with the second defendant.”[6] Thereafter the second plaintiff “caused” further payments to be forwarded to the first defendant in accordance with the new agreement struck on 26 January 2010.
- [11]Ultimately on “Monday, 1 March 2010” the second defendant emailed the second plaintiff seeking to “arrange frequent payments (a payment arrangement) to pay the outstanding amount”. That email concludes with the words in bold print, “We sincerely thank you for your patience.”[7]
- [12]
“We would like to propose an amount of $20,000.00 per month to repay the debt to National Concrete we hope to make the first repayment in the first week of April and in the first week of every month thereafter until full amount of debt is paid to National Concrete, we would also like to obviously pay more if our finances allow us to so to shorten the length of time it will take to have debt paid.
We hope this amount is satisfactory. obviously in the duration of making repayments as we pick up more work we can then maybe repay more than the proposed amount.
Thank you.”
This email was in response to an email from the second plaintiff nominating “5.00 pm on Friday 5 March 2010” as the deadline to receive “a payment plan to repay the debt owed to National Concreting Pty Ltd”.[9]
- [13]The second plaintiff then responded to the second defendant proposing “additional terms for repayment plan” by firstly confirming the amount of the debt and nominating an interest component of “9% per annum beginning from 1 March 2010.”[10]
- [14]The second defendant responded to the second plaintiff’s further proposal by further email of “Wednesday 10 March 2010” in the following terms:[11]
“In relation to your E-mail outlaying payment dates etc – You have requested we pay a additional interest amount of 9% per annum from the e-mail Fix Force Contracting Pty Ltd received from you on monday 8th march 2010 i am of the understanding that this 9% must be paid to National Concreting Pty Ltd on the 1st of October 2010 please let me know if i am correct. i am not disputing the 9% i would just like to know is it to be paid on the date – 1st of october 2010
All other Details outlaid in your Terms Fix Force Contracting Pty Ltd Agrees.
Thank you.”
- [15]Later that day the second plaintiff responded to the second defendant’s email setting out in precise terms the manner of calculation of the interest payable from time to time on the outstanding debt to 30 September 2010.[12]
- [16]On “Thursday 11 March 2010” the second defendant responded to the second plaintiff’s email in the following terms:[13]
“Thank you for explaining the 9% interest component. Again thank you.”
- [17]In the event, the first defendant breached the repayment plan after having paid the sum of $5,300.00 only to the first plaintiff on 7 April 2010 and has thereafter failed to pay the balance amount claimed of $120, 448.68 to the first plaintiff.
Defendants’ Submissions:
- [18]The defendants submit that whatever legal obligations were undertaken between the parties to this proceeding they were undertaken between the first plaintiff and the first defendant only with the second plaintiff and second defendant being officers of the respective companies who transacted the business on behalf of their respective companies.
- [19]The defendants further submit that this is “evident” from the statement of claim filed “that the only cause of action pleaded is one between the first plaintiff and the first defendant.”[14] The defendants therefore submit that “judgment was erroneously entered against second defendant in her personal capacity.”[15]
- [20]The defendants further submit that notwithstanding their failure to file their Notice of Intention to Defend and Defence within the time stipulated under the UCPR, they have a valid Defence and Counter-claim to the plaintiff’s claim a draft of which is exhibited to the second defendant’s affidavit filed 30 June 2010.[16]
- [21]In the draft defence, while denying “that they had reached any agreement with the plaintiffs” the defendants admit that the plaintiffs paid to them the aggregate sum of $309,628.50 as claimed by the plaintiffs in paragraphs 5, 6, 7 and 8 of the plaintiffs’ statement of claim.[17]
- [22]The defendants further admit paragraphs 14 to 21 inclusive of the plaintiffs’ statement of claim which deal with the proposed “repayment plan” entered into by the parties referred to in paragraphs [11] to [16] hereof but say that any such repayment plan “was vitiated as a result of duress caused by threats of Elaine Lawson (the wife of the second plaintiff) that caveats would be lodged on the family home and the income of the second plaintiff ‘docked’ for the next twenty years”.[18]
- [23]The defendants further deny generally the plaintiffs’ claim against them and propose to counter-claim against the plaintiffs for alleged “loss and damage” they have suffered, the extent of which “is still to be quantified but will in all estimation be well over $100,000”.[19] This submission is on the basis that the defendants have an “equitable set off” against the plaintiff’s claim pursuant to rule 173 of the UCPR.
Plaintiff’s Submissions:
- [24]The plaintiffs’ primary submission is that the defendants have failed to satisfy the most important criteria to have the default judgment set aside, that is that the defendants have a defence “on the merits” to the plaintiffs’ claim for the reasons set out in the affidavit of Christopher Lawson and exhibits thereto filed 12 July 2010.
- [25]The plaintiffs made a number of submissions during the course of the hearing that there was an agreement between the parties; the evidence deposed to in the material filed shows that agreement was acted upon with monies paid by the first plaintiff to the first defendant but the first defendant failed to honour its terms of the agreement. Perhaps the plaintiff’s submission is best summarised by the following:
“the defendant entered into the agreement, complied with the terms of the agreement up until the stage where they received money and didn’t forward it to the plaintiffs. They received money from Theiss John Holland and third parties and didn’t forward that money to the plaintiffs under the terms of the agreement”.[20]
- [26]The plaintiffs further submit that the defendants were not subject to any “duress” as alleged, in terms of the “payment plan” as it was “the defendants who proposed the payment plan and the amount of the payment plan and in that correspondence acknowledged the debt owing to the plaintiffs”.[21]
Legal Principles Applicable:
- [27]As set out by McPherson J in National Mutual Life Association of Australia v Oasis Developments Pty Ltd,[22] in the event that a default judgment has been entered regularly the following issues are required to be determined:
- (a)Whether or not the defendant has given a satisfactory explanation for its failure to appear;
- (b)whether or not there has been any delay in making the application;
- (c)whether or not the defendant has a prima facie defence on the merits of the claim on which the judgment is founded.
- [28]In weighing up these factors his Honour stated:
“Speaking generally it may be said that it is the last of these considerations that is the most cogent. It is not often that a defendant who has an apparently good ground of defence would be refused the opportunity of defending even though a lengthy interval at the time had elapsed provided that no irreparable prejudice is thereby done to the plaintiff.”
Duress:
- [29]As set out above the defendants also allege that the “payment plan” agreed to by the defendants was so agreed under duress, essentially exerted by the second plaintiff’s wife as referred to in paragraph [22] hereof.
- [30]There are a number of authorities on the topic of “duress” and what is needed to establish it in order to escape legal consequences, but a succinct summary of what has to be established was provided by McHugh JA (as he then was) in Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSW LR 40 at 45-46 when he said:
“In my opinion the overbearing of the will theory of duress should be rejected. A person who is the subject of duress usually knows only too well what he is doing. But he chooses to submit to the demand or pressure rather than take an alternative cause of action. 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. But the categories are not closed. Even overwhelming pressure, not amounting to unconscionable or unlawful conduct, however, will not necessarily constitute economic duress.
In their dissenting advice in Barton v Armstrong [1973] 2 NSWLR 598; [1976] AC 104, Lord Wilberforce and Lord Simon of Glaisdale pointed out (at 634;121): “… in life, including the life of commerce and finance, many acts are done under pressure, sometimes overwhelming pressure, so that one can say that the actor has no choice but to act. Absence of choice in this sense does not negate consent in law: for this the pressure must be one of a kind which the law does not regard as illegitimate [sic?]. Thus, out of the various means by which consent may be obtained – advice, persuasion, influence, inducement, representation, commercial pressure – the law has come to select some which it will not accept as a reason for voluntary action: fraud, abuse of relation of confidence, undue influence, duress or coercion.”
In Deemcope v Cantown Pty Ltd[23] the court further stated:
“The comments of McHugh JA were noted with approval by Lord Goff of Chieveley in Dimskal Shipping Co SA v International Transport Workers Federation [1991] 3 WLR 875 at 883. McHugh JA also observes at 46:
“It is unnecessary, however, for the victim to prove that the illegitimate pressure was the sole reason for him entering into the contract. It is sufficient that the illegitimate pressure was one of the reasons for the person entering into the agreement. Once the evidence establishes that the pressure exerted on the victim was illegitimate, the onus lies on the person applying the pressure to show that it made no contribution to the victim entering into the agreement: Barton v Armstrong (at 633; 120) per Lord Cross.”
“The pronouncement of McHugh JA appears to be the most recent and authoritative by an Australian court on this topic and, with respect, I adopt it.”
Counterclaim - Setoff:
- [31]As set out above the defendants raise issues in their draft counter-claim which can be appropriately described as an equitable set-off. See Derham, R (2003) “The Law of Set-Off (3rd ed) Oxford University Press at [2.63]; see also Spry, I.C.F (1980) “Equitable Remedies” (2nd ed) Sweet and Maxwell at page 168(f). The learned author, referred (ibid at 173) to the decision of Hill v Ziymac [1908] 7 CLR 352. At 361, Griffith CJ quotes, with approval, (at 362) Lord Cottenham L.C. in Rawson v Samuel (1841) Cr & Ph 161 at p 178:
“We speak familiarly of equitable set off, as distinguished from the set off at law; but it will be found that this equitable set off exists in cases where the party seeking the benefit of it can show some equitable ground for being protected against his adversary’s demand. The mere existence of cross demands is not sufficient.”
- [32]For an equitable setoff to exist it must be sufficiently connected with a party’s claim that it would be inequitable to allow the party to obtain judgment without allowing the setoff for the other party’s claim.[24] In ACN 072776811 (formerly Advance Australasia) Pty Ltd the plaintiff admitted that it owed the defendant $180,000.00. However the plaintiff had sued for damages for breach of an agreement between the parties. The defendant had a counter-claim for $180,000.00. Judgment was entered for the defendant on the counter-claim. The argument was rejected that the judgment should not be entered on the counter-claim until the resolution of the claim by the plaintiff for damages which would then be setoff against the $180,000.00.[25]
- [33]Further McMeekin J in IRM Pacific Pty Ltd v Nudgegrove Pty Ltd & Ors [2008] QSC 195 at paragraph [9] conveniently summarises the legal principles on point when he said:
“[9] Traditionally it is said, in reliance on Rawson v Samuel (1841) 1 Cr & Ph 161, that an equitable set off arises when a defendant pleads matters which “impeach” the validity of the plaintiff’s claim. Keane JA recently explained the principles in Forsyth & Anor (as trustees for the C & S Forsyth Superannuation Fund) v Gibbs [2008] QCA 103:
[9] Consistently with the technique of equity, which does not seek to define what an elephant is but knows one when it sees one, the principles governing the availability of equitable set-off of cross-claims are couched in open textured terms, such as "sufficient connection" and "unfairness". In some cases, it will be necessary to engage in an evaluation of a range of facts which might establish "sufficient connection" or "unfairness" of the relevant kind. But the principles to be applied are not so vague or subjective that it is never possible to determine, for the purposes of an application for summary judgment, that the facts alleged by a defendant simply fall short of what is required.
[10] It is important to emphasise that the availability of an equitable set-off between cross-claims does not depend upon an unfettered discretionary assessment of whether it would be "unfair" in a general sense for a plaintiff to insist on payment of the debt owed to it while the cross-claim remains unpaid. It is essential that there be such a connection between the claim and cross-claim that the cross-claim can be said to impeach the claim so as to make it unfair for the claim to be allowed without taking account of the cross-claim” (citing United Dominions Corporation Limited v Jaybe Homes Pty Ltd [1978] Qd R 111 at 116 – 117; Hill Corcoran Constructions Pty Ltd v Navarro & Anor [1992] QCA 017.)
Findings:
- [34]On the basis of the material filed and the submissions made I make the following findings in this application:
Default Judgment against second defendant:
- (a)I find that the parties which incurred legal obligations to each other are the first plaintiff and first defendant and not the second plaintiff and second defendant who were at all material times directors only of the first plaintiff and first defendant respectively through whom each corporation transacted its business.
- (b)I find further that neither the second plaintiff nor the second defendant incurred personal obligations in respect of the business transactions between their respective companies and that at all material times they were each acting as an officer and agent only of their respective companies as is confirmed by all documentation, correspondence and other communications between the parties. As I read the material there is no evidence before the court to involve either the second plaintiff or the second defendant in their personal capacities in legal obligations vis a` vis the first plaintiff and first defendant respectively or each other.
- (c)I therefore find that in so far as judgment by default was regularly entered against the second defendant on a formal basis under the UCPR, it should be set aside for the reasons set out above.
Failure to Appear:
- (d)I find that the first defendant has not given a satisfactory explanation for its failure to appear and file its Notice of Intention to Defend and Defence within time for the following reasons:
- (i)It was put on notice by the first plaintiff as evidenced by the various exhibits to the affidavit of Christopher Lawson prior to the “repayment plan” being breached, that the first plaintiff was insistent upon deadlines being met;
- (ii)In particular and relevantly to the current application, despite the claim and statement of claim being served upon the first defendant at its registered office by express post on 16 April 2010, it failed to instruct solicitors to act on its behalf until Wednesday 26 May 2010, that is almost six weeks later, at which time there was then only a request for an extension of time in which to file the Notice of Intention to Defend and Defence;
- (iii)Within two hours of the second plaintiff receiving this request he responded to the first defendant’s lawyer refusing to grant the “14 day extension to file your client’s defence” but extending the time to file the document to “31 May 2010”, in the absence of which notice was given that the first plaintiff intended to seek default judgment against the defendants;[26]
- (iv)In the absence of a Notice of Intention to Defend and Defence being filed by 31 May 2010 judgment by default was then entered by the plaintiffs on 1 June 2010. The only explanation given by the defendants for their not being able “to continue to instruct” their lawyers at this time was because they “experienced cash flow problems”.[27] It seems to me that it would have been a simple matter to file a Notice of Intention to Defend and a Defence within the extended time allowed in view of the second plaintiff’s very clear and direct attitude on point and if it was considered that further particulars were required of the first plaintiff’s claim a request therefor could have then been made.
For these reasons I find that the first defendant has not given a satisfactory explanation for its failure to file its Notice of Intention to Defend and Defence within time.
Delay in Applying to set default judgment aside:
- (e)I find that the defendants’ current application to set aside the judgment on 18 June 2010 was made in a timely manner after they became aware through their solicitor that judgment by default had been entered against them on 1 June 2010 but in the light of my findings above, no issue arises on this point.
Defence on the merits to the claim:
- (f)I find that on a consideration of all of the evidence before the court the first defendant has not established that it has a prima facie “defence on the merits” to the first defendant’s claim for the following reasons:
- (i)I am satisfied and so find that there was clearly an agreement between the first plaintiff and the first defendant to incur legal obligations with each other for services rendered and received, which continued at least, during the months of December 2009 and January 2010 respectively and for which the first plaintiff advanced various sums of money to the first defendant, only part of which was repaid to the first plaintiff under the agreement; (emphasis added)
- (ii)It was the first defendant itself which initiated a “repayment plan” with the first plaintiff to pay the first plaintiff monies which the first plaintiff claimed were owing to it under the agreement;
- (iii)The first defendant agreed to the terms of that plan including the payment of interest;
- (iv)The first defendant then made a part payment under that plan but failed to honour the repayment plan in full;
- (v)There is no evidence before the court that at any time during this period did the first defendant challenge the amount claimed to be owing by it to the first plaintiff but to the contrary was at all times co-operative and conciliatory with the first plaintiff in negotiating the “repayment plan” even to the point of “sincerely” thanking the first plaintiff “for your patience”;[28]
Duress allegation:
- (g)I find further that there is no evidence of the first or second defendant being the subject of duress “caused by threats of Elaine Lawson (the wife of the second plaintiff)” which would have induced the second defendant on behalf of the first defendant to agree to the “repayment plan” referred to in the material filed as all of the evidence on point referred to in subparagraphs (f)(ii), (iii), (iv) and (v) above would indicate that the second defendant not only agreed to the terms thereof willingly but initiated the arrangement in the first place. There is no evidence that the first or second defendant was subject to any “illegitimate pressure” on behalf of the first respondent to agree to the “repayment plan.”
Equitable Set-Off:
- (h)I find further that the proposed counter-claim by the first defendant is in the nature of an equitable setoff which refers to issues of a general nature and which to use the words of Keane JA in Forsyth, lack the necessary (or “sufficient”) “connection between the claim and cross-claim that the cross-claim can be said to impeach the claim so as to make it unfair for the claim to be allowed without taking account of the cross-claim.”
Conclusion:
- [35]I am therefore satisfied that the first plaintiff has established that the first defendant has no reasonable prospects of defending its claim against it and the application to set aside the default judgment obtained by it against the first defendant is dismissed.
- [36]In accordance with my findings in paragraph [34] above the application to set aside default judgment against the second defendant is allowed.
Costs:
- [37]As the first plaintiff has been successful in its substantive application against the first defendant, in the exercise of my discretion, I order that the first defendant pay the first plaintiff’s costs of and incidental to the application against the first defendant including reserved costs, to be agreed or assessed on the standard basis. I make no other costs orders.
Footnotes
[1] See order and reasons of McGill SC DCJ of 1 June 2010.
[2] Initially Thiess John Holland (“TJH”) but then for other third parties.
[3] Paragraph [6] of Affidavit of Christopher Lawson filed 12 July 2010.
[4] Paragraph [11] of Affidavit of Christopher Lawson.
[5] See exhibits CL-10 to CL-19 respectively to the affidavit of Christopher Lawson.
[6] Paragraph [34] of Affidavit of Christopher Lawson.
[7] Exhibit CL-20 to Affidavit of Christopher Lawson.
[8] Ibid at Exhibit CL-22
[9] CL-21 to Affidavit of Christopher Lawson.
[10] Ibid at Exhibit CL-23.
[11] Ibid at Exhibit CL 24.
[12] Ibid at Exhibit CL-25.
[13] Ibid at Exhibit CL-26.
[14] Paragraph 10 of Defendants’ written supplementary submissions of 15 July 2010.
[15] Ibid at paragraph [11].
[16] Exhibits “E” and “F” to Affidavit of Kerri-Anne Piticco filed 30 June 2010.
[17] Paragraphs [5] to [8] inclusive of the Defendants’ Draft Defence.
[18] Paragraph [14] of Affidavit of Kerri-Anne Piticco filed 30 June 2010.
[19] Ibid at paragraph [23].
[20] Hearing transcript p 36 ll 45-50.
[21] Hearing transcript p 37 ll 47-50.
[22] 1983 2 Qd. R 441 at 449 applying the statement of principle from Aboyne Pty Ltd v Dixon Homes Pty Ltd [1980] Qd. R 142 per Kelly J. This statement of principle has been affirmed by the Court of Appeal in Rochford & Anor v Habashy & Anor 2005 QCA 97 at [4] and elsewhere including Deputy Commissioner of Taxation v Johnstone (2006) QSC 61 at [3] citing Yankee Doodles Pty Ltd v Blemvale Pty Ltd QSC Atkinson J 23 June 1999 at [13].
[23][1995] 2 VR 44.
[24] See footnote at r 173.10 and following of Civil Procedure Queensland by Butterworths and to the decision of ACN 072776811 (formerly Advance Australasia) Pty Ltd v Advance Watch Co. (Far East) Ltd [2005] QSC 159.
[25] Ibid at paragraph [28].
[26] Exhibit “C” to Affidavit of Kerri-Ann Piticco filed 30 June 2010.
[27] Paragraph [14] of Second Defendant’s affidavit filed 30 June 2010.
[28] Exhibit CL-20 to Affidavit of Christopher Lawson.