Barboza v Blundy

[2021] QSC 82

SUPREME COURT OF QUEENSLAND

CITATION:

Barboza v Blundy & others [2021] QSC 82

PARTIES:

JANELLE BARBOZA

(plaintiff)

v

BRETT BLUNDY

(first defendant)

HONEY BIRDETTE (AUST) PTY LTD

ACN 117 200 647

(second defendant)

BNT HOLDCO PTY LIMITED

ACN 129 156 921

(third defendant)

BB RETAIL CAPITAL PTY LIMITED

ACN 006 175 033

(fourth defendant)

FILE NO/S:

BS 4181 of 2019

DIVISION:

Trial Division

PROCEEDING:

Claim

DELIVERED ON:

23 April 2021

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Bond J

ORDER:

The orders of the Court are:

1.   The plaintiff must pay the defendants’ costs of the proceeding until 8 November 2019, on the standard basis.

2.   The plaintiff must pay the defendants’ costs of the proceeding after 8 November 2019, on the indemnity basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OFFERS OF COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENTS – INFORMAL OFFERS AND CALDERBANK LETTERS – UNREASONABLE REFUSAL OF OFFER – where the defendants made two Calderbank offers – where the defendants made a third offer following the plaintiff giving evidence on the first day of trial – where the plaintiff did not accept the offers within time – where the Calderbank offers were both open for 14 days – whether the applicant acted unreasonably in not accepting the offers

Calderbank v Calderbank [1975] 3 All ER 333, cited

S.H.A Premier Constructions Pty Ltd v Niclin Constructions Pty Ltd (No 2) [2020] QSC 323, applied

COUNSEL:

S Couper QC, with B Wacker, for the defendants

SOLICITORS:

Holding Redlich for the plaintiff

Gilbert + Tobin for the defendants

Introduction

1. Barboza v Blundy [2021] QSC 68 was my judgment on the merits of this proceeding after a trial which took place on 3, 4, 5, 6, 7 and 11 August 2020.

2. In my judgment, I encapsulated the plaintiff’s case in this way (footnotes omitted):[1]

   “[1] The plaintiff was a member and director of the second defendant (the Company) from the time of its establishment in 2005 until about November 2014 when the majority shareholder (the third defendant (BNT)) acquired her shares by exercising a call option under a shareholders’ agreement.

   [2] The first defendant, Mr Blundy, is and was a highly successful retailer and entrepreneur. He was the majority shareholder of the fourth defendant (BBRC) which was the parent company of BNT.

   [3] In this proceeding, which was commenced by claim in 2019, the plaintiff complains about particular conduct of Mr Blundy, BBRC and BNT during the last year of her involvement with the Company. Essentially, her case is that Mr Blundy imposed an accelerated domestic expansion plan on the Company over her opposition to that course.  She says that the level of expenditure associated with that course operated to her disadvantage because it reduced the amount she received on exercise of the call option.

   [4] She seeks to characterise the conduct of which she complains as oppressive conduct within the meaning of s 232 of the