Pezzelato v AGPN Pty Ltd[2016] QDC 73

DISTRICT COURT OF QUEENSLAND

1. [1]
   After this proceeding was commenced by the plaintiff’s Claim and Statement of Claim and disputed by the requisite Notice of Intention to Defend and Defence, the parties progressed the proceeding to the point of resolution at a mediation.  

2. [2]
   The result of the mediation was an agreement compromising the proceeding in written terms dated 7 August 2015.  The plaintiff now applies for summary judgment for the balance of money owing under the mediation agreement in reliance upon the default of the defendant in making payment in accordance with the mediation agreement and the provision whereby the parties agreed that such judgment could be obtained in clause 6 of the agreement. 

No appearance by Defendant

3. [3]
   The defendant did not appear at the hearing of this application but I am satisfied that the defendant, who has since changed its name to AGPN Pty Ltd, ACN 005 567 493, has received due service and notice of the application.  This is evident by the parties’ consent to the adjournment of the application by filing on 5 February 2016 a consent adjournment signed by both parties or their representatives.  The defendant has been called by the bailiff both in the name subject of the initial proceedings and in its changed name by which it is now known.  There was no appearance.

Background 

4. [4]
   The plaintiff’s claim was for damages for breach of contract or, alternatively, estoppel for misleading and deceptive conduct involving approximately $326,000 together with a claim for interest and costs of the proceeding. 

5. [5]
   The parties participated in a mediation convened by Mr Philp QC on 7 August 2015.  The proceedings were resolved and the hearing dates set for the trial were vacated pending completion of the terms of settlement.  The mediation agreement is in written form.  Clause 2 prefaces the agreement this way:

The parties have agreed to resolve the proceedings on the terms set out below, without admission of liability by the defendant.

6. [6]
   The operative part of the agreement required the defendant to pay a settlement sum in the compromised amount of $100,000 by way of instalments of $5000 by 5 September 2015 and $5000 per month on the 15th of each month thereafter with the final payment being due by 5 April 2017 (clause 3).  The agreement also dealt with the mode and mechanics of payments.  Clause 6 provided for the consequences of default in this form:

If any payment due under clause 3 is not paid by the dates identified in that clause,

1. (a)
   the plaintiff shall be entitled to judgment in its favour for the balance of the settlement sum outstanding at that date, with an affidavit of the plaintiff’s solicitor being sufficient proof of the debt; and  

2. (b)
   the defendant shall consent to judgment for the balance of the settlement sum outstanding. 

7. [7]
   The plaintiff has shown in the affidavits that the defendant made the first two (2) instalments but then defaulted and has not paid any further instalments required by clause 3.  Whilst not strictly required to do so, the plaintiff made demand on the defendant for the relevant instalment in November 2015 then filed this application once that demand and any further instalment was not met. 
8. [8]
   The defendant company has been represented during the course of the proceedings, however, by the time this application was filed, the defendant’s former solicitors advised that they had no instructions and would be seeking leave to withdraw.  They remained on the record, though, until the defendant filed a notice that it was acting in person on 1 February 2016.  As I alluded to earlier, the parties cooperated in this application at least to the extent of adjourning its first return date from 5 February 2016 until today but it seems the defendant has lost any interest in the proceeding.  

9. [9]
   As is proper, the plaintiff through counsel has alerted the court to a foreshadowed argument communicated by a further solicitor for the defendant (although not on the record).  In effect, the solicitor foreshadowed an argument that a proper construction of the mediation agreement did not permit the plaintiff to claim an entitlement to judgment for the whole of the unpaid sum but rather only those instalments which remained overdue at the time.

Application for judgment

10. [10]
    The plaintiff relies upon rule 658 of the Uniform Civil Procedure Rules 1999 (Qld) to seek judgment for the balance of the amount owing under the mediation agreement.  In the alternative, judgment is sought pursuant to rule 292.

11. [11]
    Rule 658 provides for the general power as follows:

1. (1)
   The court may, at any stage of a proceeding, on the application of a party, make any order, including a judgment, that the nature of the case requires.

12. [12]
    Further it seems to me that rule 190(1) applies, which provides:

1. (1)
   If an admission is made by a party, whether in a pleading or otherwise after the start of the proceeding, the court may, on the application of another party, make an order to which the party applying is entitled on the admission.

13. [13]
    It seems to me that although the mediation agreement is prefaced in clause 2 by the resolution being “without admission of liability by the defendant”, the effect of that is subject to the more detailed qualification provided by clause 6 whereby the defendant through its consent provides the requisite admission for the balance of the settlement sum outstanding being obtained by judgment.

14. [14]
    It is not necessary that I decide the appropriate power of the court since in my view the power rests under both rules. 

15. [15]
    It is trite law that the meaning of terms of a contract or document are to be determined by what a reasonable person would understand them to mean.  That ordinarily requires consideration not only of the text but also of surrounding circumstances known to the parties and to the purpose and object of the transaction. 

16. [16]
    It seems to me that clause 6 is plain and clear, that is, the entitlement to judgment is for the whole of the balance of the settlement sum outstanding under the agreement and not limited by any piecemeal amount which may be subject of a default of a due date from time to time.  Clearly, by clause 6, the parties provided a trigger for the completion of the whole proceedings. 

Conclusion and Orders

17. [17]
    For these reasons, I make orders in terms of the draft that:

1. (1)
   judgment be entered for the plaintiff against the defendant in the amount of $90,000;

2. (2)
   interest on that sum be in the amount of $1092.77 pursuant to section 58 of the Civil Proceedings Act 2011 (Qld);  and

3. (3)
   the defendant will pay the plaintiff’s costs of and incidental to the application to be assessed on the indemnity basis.

18. [18]
    In relation to the assessment of costs, it seems to me that this is an appropriate case, having regard to the compromise of the parties, the lack of any attention given by the defendant to contest the application for judgment, and the plain and obvious result which ought follow by virtue of the mediation agreement. 

Judge D. P. Morzone QC