SUPREME COURT OF QUEENSLAND
CITATION: | Water at Wooyung Pty Ltd v. JP Success Investments Pty Ltd [2005] QSC 218 |
PARTIES: | WATER AT WOOYUNG PTY LTD |
FILE NOS: | BS 2518 of 2005 and BS 2519 of 2005 |
DIVISION: | Trial |
PROCEEDING: | Claim |
ORIGINATING COURT: | Supreme Court of Queensland |
DELIVERED ON: | 10 August 2005 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 3 June 2005 |
JUDGE: | Helman J. |
CATCHWORDS: | CORPORATIONS LAW — application to set aside statutory demand for payment of non-judgment debt - whether respondents can rely on causes of action for moneys had and received as they existed at the time when the statutory demands were served – whether deed of settlement effected an accord and satisfaction of any such claims s. 459 Corporations Act 2001 |
COUNSEL: | Mr C.D. Coulsen for the applicants Mr C.L. Francis for the respondents |
SOLICITORS: | Nyst Lawyers for the applicants BCI Law for the respondents |
INTRODUCTION
A.Water is a proposed development located approximately 8km south of Pottsville and approximately 30km south of NSW/QLD border (“the Project”).
B.Jeff and Penny attended Ultimate Coaching events held by Speak International Pty Ltd (“Speak”) to obtain advices on life coaching and wealth creation (“the Services”).
C.Jeff and Penny were offered membership and accepted membership in a group of Speak’s clients called the Inner Sanctum (“Inner Sanctum”).
D.As a result of their membership in the Inner Sanctum, Water offered to Jeff, Penny and JP Success by way of “invitation to treat” units in WUT [the Water at Wooyung Unit Trust] (“the Units”).
E.JP Success, in response to the invitation to treat, offered to purchase 1 million units in WUT for $1.00 per unit and facilitated the following payments to the account of Water as part of its offer:
(1)the sum of $250,000 by Jeff and Penny on behalf of JP Success on 14 July 2004; and
(2)the sum of $750,000 by Jeff and Penny on behalf of JP Success on 23 July 2004.
F.Water has not accepted JP Success’s offer to purchase Units.
G.JP Success no longer wishes to purchase units in the WUT and Water no longer wish to sell JP Success units in the WUT.
H.Jeff, Penny and JP Success no longer wish to invest money in the Project and Water no longer wishes Jeff, Penny or JP Success to invest money in the Project.
I.Without admission of liability, Water has agreed to pay to JP Success $1,070,000.00 (“the Water Monies”) being:
(1)a refund of the $1,000,000 referred to in paragraph E; and
(2)settlement monies of $70,000.00.
and JP Success has agreed to accept such payments in full and final satisfaction of any and all claims it has against Water and Dale arising out of its offer to acquire the Units.
J.RDGC is a company in the in the [sic] business of property development.
K.Jeff and Penny agreed with RDGC to acquire options to purchase property located at Redbank Plains and Coomera (“the Options”).
L.Pursuant to the Options:
(1)On or about 20 April 2004 Jeff and Penny paid to the account of RDGC the sum of $4,000.00 for an option to purchase property located at Redbank Plains;
(2)On or about 20 April 2004 Jeff and Penny paid to the account of RDGC the sum of $4,000.00 for an option to purchase property located at Redbank Plains; and
(3)On or about 25 May 2004 Jeff and Penny, paid to the account of RDGC the sum of $10,000.00 for an option to purchase property located at Coomera.
M.Jeff and Penny no longer wish to be involved in acquiring the Options and RDGC no longer wishes Jeff and Penny to be involved in acquiring the Options.
N.Without admission of liability, RDGC has agreed to refund Jeff and Penny $18,000.00 (“the Options Monies”) and Jeff and Penny have agreed to accept such payment in full and final satisfaction of any and all claims it [sic] has against RDGC arising out of its [sic] offer to acquire the options.
Clauses 2, 3, 4, and 5 were as follows:
2.WATER’S COVENANTS TO JEFF, PENNY AND JP SUCCESS
2.1Water will:
(1)pay to JP Success the Water Monies (total sum of $1,070,000.00) (inclusive of GST in the event any GST is deemed to be payable) in full and final settlement of any and all claims (whether now known or not) Jeff, Penny and JP Success has arising out of or in any way connected with the Units, Project, Services or Inner Sanctum;
(2)make payment of the Water Monies to JP Success by way of cheque payable to JP Success from Water’s solicitors’ trust account, ‘Nyst Lawyers Trust Account’ (or by bank cheque) to be paid following receipt by Water’s solicitors of an original signed copy of this Deed by Jeff, Penny and JP Success as follows:
Amount | Date |
$90,000.00 |
29 April 2005 |
$92,000.00 |
6 May 2005 |
$888,000.00 |
31 May 2005 |
(3)Water’s solicitors will upon the execution of this Deed forward a Consent order in proceeding BS 2518/2005 adjourning the proceedings to Friday 3 June 2005 to Jeff, Penny and JP Success’ solicitors for execution; and
(4)execute all necessary documents to give effect to the terms of this Deed.
3.JEFF, PENNY AND JP SUCCESS COVENANTS TO WATER
3.1Subject to the strict compliance with this Deed, Jeff, Penny and JP Success agree and acknowledge that payment of the Water Monies:
(1)is made by Water without admission of liability;
(2)is in full and final satisfaction of any claims Jeff, Penny or JP Success has or may have arising out or of in any way connected with the Units, Project, Services or Inner Sanctum;
(3)covers any legal fees arising out of or in any way related to the Units and this Deed; and
(4)agrees that no further monies are owed to Jeff, Penny and JP Success in relation to the Units, Project, Services and/or the Inner Sanctum;
3.2Subject to strict compliance with this Deed, Jeff, Penny and JP Success:
(1)releases and discharges Water, WUT, Dale and his associated corporate entities, companies, staff, consultants, employees and trusts from and against any and all claims, demands, actions, suits, causes of actions or proceedings whether now known or not, presently in existence, arising out of or in any way connected to the Units or the factual background to the Units and including associated events surrounding the Units; and
(2)agrees that clause 3.2(1) of this Deed may be pleaded as a bar to any action, suit or proceeding commenced or taken at any time by Jeff, Penny or JP Success against Water, Dale and/or his associated corporate entities with respect to or in any way connected with the Units or the factual background to the Units and including associated events surrounding the Units.
3.3The release contained in clause 3.2 will be of no effect in the event that a liquidator or trustee in bankruptcy recoups the Water Monies or any part thereof as a preferential payment.
3.4Jeff, Penny and JP Success will cause their solicitors to sign and return the Consent Order referred to in clause 2.1(3) to Water’s solicitors forthwith upon receipt of the Consent Order.
3.5JP Success will sign a written statement as contained in Annexue [sic] ‘A’ discontinuing the Statutory Demand dated 9 March 2005 and deliver it to Dale upon Water, Dale and RDGC performing their obligations under this Deed.
3.6Upon Water paying the Water Monies to JP Success and upon Water and Dale providing a signed copy of this Deed to Jeff, Penny and JP Success then Jeff, Penny and JP Success will sign the written statement as contained in Annexure ‘B’ attached hereto and deliver it to Dale. Once signed, the written statement may be used at the sole discretion of Dale, Water, Jeff, Penny and JP Success. Clause 6.1 hereto is not applicable to the use of the written Statement by Dale, Water, Jeff, Penny or JP Success in accordance with this clause.
4.RDGC’s COVENANTS TO JEFF, PENNY AND JP SUCCESS
4.1RDGC will:
(1)pay to Jeff and Penny the Options Monies (inclusive of GST in the event any GST is deemed to be payable) in full and final settlement of any and all claims (whether now known or not) Jeff, Penny or JP Success has arising out of or in any way connected with the Options;
(2)make payment of the Options Monies to Jeff, Penny and JP Success by way of cheque payable to Jeff and Penny from RDGC’s solicitors’ account, ‘Nyst Lawyers Trust Account’ (or by bank cheque) to be paid following receipt by RDGC’s solicitors of an original signed copy of this Deed by Jeff, Penny and JP Success as follows:
Amount | Date |
$10,000.00 |
29 April 2005 |
$8,000.00 |
6 May 2005 |
(3)RDGC’s solicitors will upon the execution of this Deed forward a Consent Order in proceeding BS 2519/2005 adjourning the proceedings to Friday 3 June 2005 to Jeff, Penny and JP Success’ solicitors for execution;
(4)execute all necessary documents to give effect to the terms of this Deed; and
(5)cause all files and documents held by Water, RDGC, Dale or any of his associated corporate entities concerning Jeff, Penny or JP Success to be returned to Jeff and Penny at the same time as the payment referred to in clauses 4.1(1) is made.
5.JEFF, PENNY AND JP SUCCESS COVENANTS TO RDGC
5.1Subject to the strict compliance with this Deed, Jeff, Penny and JP Success agrees and acknowledges that payment of the Option Monies:
(1)is made by RDGC without admission of liability;
(2)is in full and final satisfaction of any claims Jeff, Penny and JP Success has or may have arising out or of in any way connected with the Options;
(3)covers any legal fees arising out of or in any way related to the Options and this Deed; and
(4)agrees that no further monies are owed to Jeff, Penny or JP Success in relation to the Options;
5.2Subject to compliance with this Deed, Jeff, Penny and JP Success:
(1)release and discharge RDGC, Rob Dale and his associated corporate entities, companies, staff, consultants, employees and trusts from and against any and all claims, demands, actions, suits, causes of actions or proceedings whether now known or not, presently in existence, arising out of or in any way connected to the Options or the factual background to the Options and including associated events surrounding the Options; and
(2)agrees that clause 5.2(1) of this Deed may be pleaded as a bar to ay action, suit or proceeding commenced or taken at any time by Jeff, Penny and JP Success against RDGC, Dale and/or his associated corporate entities with respect to or in any way connected with the Options or the factual background to the Options and including associated events surrounding the Options.
5.3The release contained in clause 5.2 will be of not effect in the event that a liquidator or trustee in bankruptcy recoups the Options Monies or any part thereof as a preferential payment
5.4Jeff, Penny and JP Success will cause their solicitors to sign and return the Consent Order referred to in clause 4.1(3) to RDGC’s solicitors forthwith upon receipt of the Consent Order.
5.5JP Success will sign a written statement as contained in Annexue [sic] ‘C’ discontinuing the Statutory Demand dated 9 March 2005 and deliver it to Dale upon Water, Dale and RDGC performing their obligations under this Deed.
5.6Upon RDGC paying the Options Monies to Jeff and Penny and upon RDGC and Dale providing a signed copy of this Deed to Jeff, Penny and JP Success then Jeff, Penny and JP Success will sign the written statement as contained in Annexure ‘D’ attached hereto and deliver it to Dale. Once signed, the written statement may be used at the sole discretion of Dale, Water, Jeff, Penny and JP Success. Clause 6.1 hereto is not applicable to the use of the written Statement by Dale, Water, Jeff, Penny and JP Success in accordance with this clause.
First, there is the mere accord executory which, on the authorities, does not constitute a contract and which is altogether unenforceable, giving rise to no new rights and obligations pending performance and under which, when there is performance (but only when there is performance), the plaintiff’s existing cause of action is discharged. Secondly, at the other end of the scale is the accord and satisfaction, under which there is an immediate and enforceable agreement once the compromise is agreed upon, the parties agreeing that the plaintiff takes in satisfaction of his existing claim against the defendant the new promise by the defendant in substitution for any existing obligation. Somewhere between the two, there is the accord and conditional satisfaction, which exists where the compromise amounts to an existing and enforceable agreement between the parties for performance according to its tenor but which does not operate to discharge any existing cause of action unless and until there has been performance.
Where there is a mere accord executory, no suit can be maintained upon the compromise unless and until there has been performance, and then suit is ordinarily unnecessary. Upon default in performance, the plaintiff’s existing cause of action continues unaffected. With accord and satisfaction, either party may sue upon the compromise, but only on the compromise and for nothing else: the original cause of action has gone. Where there is accord and conditional satisfaction, the plaintiff is bound to await performance and accept it if tendered, but if there be no performance, then the plaintiff may proceed according to general principles called into play when any agreement is repudiated: the plaintiff may either treat the agreement (the accord) as at an end and proceed on his original cause of action; or he may, at his option, sue on the compromise agreement, in place of the original cause of action. Thus, the consequence should there be default in performance varies according to the case. (pp. 10-11 per Phillips J.A., with whom Winneke P. and Charles J.A. agreed)
