ABF Smith Pty Ltd v Klodinsky - [2022] QDC 12

DISTRICT COURT OF QUEENSLAND

CITATION:

ABF Smith Pty Ltd v Klodinsky & Another [2022] QDC 12

PARTIES:

ABF SMITH PTY LTD
ACN 121 966 514
( Plantiff)

v

REBECCA JANE KLODINSKY
(First Defendant)

AND

GREGORY PETER O’SHEA
(Second Defendant)

FILE NO:

1045/20

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

Brisbane District Court

DELIVERED ON:

11 Febuary 2022

DELIVERED AT:

Brisbane

HEARING DATE:

31 January, 1 and 2 February 2022

JUDGE:

Porter QC DCJ

ORDER:

1. The defendants pay the plaintiff $293,065.40 inclusive of interest.

CATCHWORDS:

DEEDS AND OTHER INSTRUMENTS – FORM AND EXECUTION – Whether defendant signed Put and Call Option – Whether signature was obtained fraudulently – Whether defendant’s signature was properly attested

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSIDERATION – Whether payment of a Put Option fee was a precent condition to obligations arising from the Agreement

COUNSEL:

D. de Jersey QC for the Plaintiff

L. Stanistreet for the First Defendant

SOLICITORS:

Galillee Solicitors for the Plaintiff

Hall Partners Law for the First Defendant

Contents

Summary

Background

Events prior to 4 August 2016
Events on 4 August 2016
The Agreement
Events up to termination of the Agreement
ABF’s steps after termination
Relevant procedural history

The Issues at Trial

The execution issue

Ms Klodinsky’s version of events
Ms Klodinsky signed the Agreement at Fairweather Legal

Signature on the Agreement
Circumstances of the change in instructions
Opportunity for signing
No actual recollection
The solicitors’ evidence

Conclusion

Was Ms Klodinsky’s signature properly attested?

The Option Fee issue

Mr O’Shea’s other contentions

Conclusion

Summary

The plaintiff (ABF) claims damages for breach of a written put and call option (the Agreement) entered into between ABF, the first defendant (Ms Klodinsky) and the second defendant (Mr O’Shea) on 5 August 2016. The subject matter of the Agreement is 800,000 $1 units (the units) in the Lionsgate Income Fund No 1 Unit Trust. ABF contends that the defendants failed to complete the purchase of the units following exercise of the Put Option by ABF and claims the shortfall suffered on sale of the units.
Ms Klodinsky contends she never signed the Put Option, or if she did, she did not sign it before the attesting witness Mr Fairweather, or if she did, Mr Fairweather did not witness the Agreement in a manner which caused it to meet the requirements of a deed. She alleges further that the Put Option Fee of $1 was not paid. She contends that, if the Agreement is not a deed, the failure to pay the Put Option Fee had the result that ABF acquired no rights under the Put Option.
Mr O’Shea (who did not appear at trial) pleaded that he was not liable on the Put Option because of the failure to pay the Put Option Fee and that he was not liable for damages on termination because ABF had not strictly complied with the termination procedure in the Agreement.
For the reasons which follow, I find that Ms Klodinsky did sign…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ABF Smith Pty Ltd v Klodinsky

Details

AGLC: ABF Smith Pty Ltd v Klodinsky [2022] QDC 12
Case: [2022] QDC 12
Decision Date: 11 February 2022

CaseChat Overview and Summary

The case of ABF Smith Pty Ltd v Klodinsky involved a dispute over a Put and Call Option Agreement. ABF Smith, the plaintiff, sought payment from Klodinsky, the defendant, for the purchase of shares under the terms of the agreement. The dispute centred on whether the defendant had validly signed the Put and Call Option and if the signature was obtained through fraud or if it was properly attested. Additionally, the case examined whether the payment of a Put Option fee was a prerequisite for the obligations under the agreement to arise.

The primary legal issues the court needed to address were whether the defendant's signature on the Put and Call Option Agreement was genuine and properly executed, and if the payment of the Put Option fee was a condition precedent to the agreement's obligations. The court also needed to determine if the defendant's signature was obtained fraudulently and whether the attestation of the signature complied with legal requirements.

In resolving these issues, the court found that the defendant had indeed signed the Put and Call Option Agreement and that his signature was validly attested. The court further held that the payment of the Put Option fee was not a condition precedent for the agreement's obligations to arise. Consequently, the court ruled in favour of the plaintiff, ordering the defendant to pay the plaintiff the sum of $293,065.40 inclusive of interest.

Orders

Orders of the court

1. The defendants pay the plaintiff $293,065.40 inclusive of interest.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	ABF Smith Pty Ltd v Klodinsky & Another [2022] QDC 12
PARTIES:	ABF SMITH PTY LTD ACN 121 966 514 ( Plantiff) v REBECCA JANE KLODINSKY (First Defendant) AND GREGORY PETER O’SHEA (Second Defendant)
FILE NO:	1045/20
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	Brisbane District Court
DELIVERED ON:	11 Febuary 2022
DELIVERED AT:	Brisbane
HEARING DATE:	31 January, 1 and 2 February 2022
JUDGE:	Porter QC DCJ
ORDER:	1. The defendants pay the plaintiff $293,065.40 inclusive of interest.
CATCHWORDS:	DEEDS AND OTHER INSTRUMENTS – FORM AND EXECUTION – Whether defendant signed Put and Call Option – Whether signature was obtained fraudulently – Whether defendant’s signature was properly attested CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSIDERATION – Whether payment of a Put Option fee was a precent condition to obligations arising from the Agreement
COUNSEL:	D. de Jersey QC for the Plaintiff L. Stanistreet for the First Defendant
SOLICITORS:	Galillee Solicitors for the Plaintiff Hall Partners Law for the First Defendant