Bond v Curragh Queensland Mining Pty Ltd
[2022] QSC 275
•8 December 2022
SUPREME COURT OF QUEENSLAND
CITATION:
Bond v Curragh Queensland Mining Pty Ltd [2022] QSC 275
PARTIES:
CASSIDY ANNE BOND
(plaintiff)
v
CURRAGH QUEENSLAND MINING PTY LTD
ABN 55 095 450 418(defendant)
FILE NO/S:
RS 546 of 2021
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court at Rockhampton
DELIVERED ON:
8 December 2022
DELIVERED AT:
Rockhampton
HEARING DATE:
21 November 2022
JUDGE:
Crow J
ORDER:
1. Cross application of defendant filed 5 September 2022 is dismissed.
2. Parties to confer to reach agreement on form of orders for plaintiff’s application.
3. If parties cannot reach agreement, the matter is listed for further hearing on 15 December 2022.
CATCHWORDS:
EQUITY – GENERAL PRINCIPLES – FRAUDULENT AND INNOCENT MISREPRESENTATION – RELIANCE AND INDUCEMENT - where the plaintiff has made a claim for damages to which the Workers’ Compensation and Rehabilitation Act 2003 (Qld) applies – where parties settled the matter at mediation and executed a release and discharge –where the plaintiff now applies for judgment in terms of the release and discharge - where the defendant has filed a cross-application to set aside the release and discharge – where the defendant pleads that the plaintiff made misrepresentations – where the defendants pleads these representations were relied upon by the defendant when signing the release and discharge - whether the plaintiff made false representations – whether the plaintiff made false representation intending to induce the release and discharge – whether the defendant was induced by these representations.
Attorney-General (NSW) v Peters (1924) 34 CLR 146, cited
Civil Proceedings Act 2011 (Qld), s 50.
Uniform Civil Procedure Rules 1999 (Qld), r 547, r 549
Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 275
Workers’ Compensation and Rehabilitation Regulation 2014 (Qld), s 123, s 125
COUNSEL:
S Deaves KC for the plaintiff/respondent
DJ Campbell KC for the defendant/applicant
SOLICITORS:
VBR Lawyers for the plaintiff/respondent
BT Lawyers for the defendant/applicant
The plaintiff, Ms Bond, is currently 23 years of age having been born on 17 June 1999. When Ms Bond was aged 17 years, she obtained an apprenticeship as a fitter and turner with Curragh Queensland Mining Pty Ltd (Curragh). Unfortunately, Ms Bond was only 4 months into her apprenticeship when she suffered personal injury in the course of her employment on 14 August 2017.
According to Exhibit 4, her Notice of Claim, Ms Bond’s right hand was severely crushed when a lifting frame fell upon it. Ms Bond was unable to return to work after the injury. On 6 August 2020, Ms Bond lodged a Notice of Claim for Damages under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCRA). The Notice of Claim did not disclose any source of income or financial support since the injury other than income and compensation received from Curragh and WorkCover Queensland.
The Notice of Claim did set out a calculation of compensation payable in respect of past economic loss by continuation of Ms Bond’s lost earnings as an apprentice. In respect of future economic loss, the loss was quantified as a loss of wages as a tradesperson but discounted by 35%, being a discount “by 20% to make reasonable allowance for the claimant’s residual earning capacity, having regard to her transferable skills and the competition that he [sic] will face from experienced workers with an established skill set…” and “this sum is further discounted by 15% in view of the general contingencies and vicissitudes of life”.[1]
[1]Exhibit 4, ‘Notice of Claim’.
On 19 February 2021 Curragh admitted liability for the accident pursuant to s 281 of the WCRA. On 14 April 2021 a compulsory conference was held pursuant to s 289 of the WCRA, however, the plaintiff’s claim was not resolved. On 3 June 2021 Ms Bond commenced an action in this court. Relevantly, in respect of past economic loss the plaintiff quantified a loss as her loss of apprentice and tradesperson wages from the date of accident to the date of issue of the Statement of Claim, less income or benefits earned from Curragh and WorkCover Queensland.
In respect of future economic loss, the plaintiff claimed loss of a tradesperson’s nett wage at $1600 npw (nett per week) less a residual earning capacity of $300 npw for a period of 49 years (5% discount factor 971) less 15% for contingencies which quantified a claim for future economic loss of $1,320,560.
On 17 June 2021, Ms Bond provided Curragh with a Statement of Loss and Damage pursuant to r 547 Uniform Civil Procedure Rules 1999 (Qld) (UCPR) (Exhibit 5) which quantified past and future economic loss in the same manner as the Statement of Claim.
On 12 May 2022, the claim was mediated. Ms Bond provided Curragh with a schedule of her damages[2] with a total claim value of approximately $1.66 million. Again, the past economic loss was calculated by loss of apprentice wages then tradesperson wages with reduction only for the earnings received from Curragh and WorkCover Queensland. Schedule B to the schedule of damages quantified loss of future earning capacity as a loss of tradesperson wages of $1,919.63 per week less residual income earning capacity of $300 per week, a sum of $1,619.63 per week, discounted by 20% for all contingencies until age 65 and then discounted by 50% for all contingencies from age 65 to 67.
[2]Affidavit of J D Roche, filed 5 September 2022, exhibit JDR-27.
The action was compromised at the mediation for the sum of $1,200,000. The release and discharge[3] and the mediation agreement was signed by Ms Bond, executed by or on behalf of both Curragh and WorkCover Queensland and by the mediator, Sydney Williams KC. The mediator filed his certificate in accordance with r 329 UCPR on 24 May 2022.
[3]Affidavit of C A Bond, filed 28 July 2022, exhibit CAB-04.
As the settlement sum had not been paid, on 18 July 2022, Ms Bond filed an application seeking judgment in her favour against Curragh for the sum of $1.2 million. Later, on 8 September 2022, Ms Bond amended her application seeking judgment or alternatively pursuant to the compromise dated 12 May 2022 and/or under s 50 of the Civil Proceedings Act 2011 (Qld).
On 5 September 2022, Curragh filed an application seeking orders that the compromise be set aside. On 5 September 2022 directions were made for the exchange of pleadings in the defendant’s application to have the settlement set aside. By its Statement of Claim filed 15 September 2022, Curragh raises five matters by which it seeks to have the Deed of Settlement set aside as a result of fraudulent misrepresentation.
Curragh submits that individually or in combination, the five matters point to the inference that the plaintiff has engaged in self-employment or earned income from business activities which the plaintiff failed to disclose in her Notice of Claim, its Statement of Loss and Damage, Statement of Claim, and schedule of damages. Ms Bond alleges that none of the five matters referred to involve her working as an employee or being self-employed or earning any income. Ms Bond says the matters relate to either personal expenditure or other items associated with her relationship with Bogdan Golenkov.
Ms Bond was 18 years and 2 months old when she met Ms Golenkov. Ms Bond commenced a romantic relationship with Mr Golenkov in or about October or November 2017 when she was aged approximately 18 years and 4 months. Ms Bond and Mr Golenkov were engaged on 24 December 2019. Ms Bond says she broke off her relationship with Mr Golenkov about October or November 2020, however, she remained close with Mr Golenkov, with Mr Golenkov often expressing his “desire to recommence our romantic relationship”.[4]
[4]Affidavit of C A Bond, filed 14 November 2022, paragraph 12.
Ms Bond says that Mr Golenkov could speak English, Russian and Chinese, and had a Russian mother and a Chinese stepfather. Ms Bond says that Mr Golenkov’s parents appeared very wealthy. Ms Bond says that Mr Golenkov’s parents conducted business in China through a business known as Hong Kong Richie. Ms Bond says she last saw Mr Golenkov on 2 March 2022 when he came to Ms Bond’s residence to collect personal belongings, at which point he demanded that Ms Bond give back the engagement ring. Ms Bond refused to return the engagement ring and despite attempts by phone and messaging to contact Mr Golenkov, she has not heard from him since 2 March 2022 and does not know where he is. Nothing else is known of Mr Golenkov, other than that he is at least 20 years older than Ms Bond.
In view of the ending of the relationship between Ms Bond and Mr Golenkov on 2 March 2022, counsel for Ms Bond urges that I ought to infer that it was Mr Golenkov who made an anonymous fraud report submission to WorkCover Queensland on 1 April 2022. In my view, it is unnecessary to draw that inference. What is known is that a person made an anonymous fraud report to WorkCover Queensland on or about 1 April 2022, however, that was not communicated to the solicitors for Curragh until 3 June 2022.
The solicitors for Curragh thereafter embarked upon extensive investigations to attempt to establish whether the anonymous fraud submission contained information that was true. Exhibit JDR-4,[5] the letter of BT Lawyers of 20 June 2022 states that the nature of the anonymous fraud information was that it alleged that Ms Bond ran her own business and worked overseas in the United States of America and China since the incident. Ms Bond denies that she has done so.
[5]Affidavit of J D Roche, filed 8 August 2022.
Expenditure at Totally Workwear of $2,314.49
Curragh has proved that between 11 June 2019 and 18 May 2021, Ms Bond has expended $2,314.49 at Totally Workwear. That is most unusual for a person who is unable to work and calls for some explanation. Ms Bond explained in her affidavit and also in her oral evidence that the vast majority of the items referred to was workwear for her former partner, Mr Golenkov. Ms Bond admits that some of the amounts did include jeans for herself and other items for other family members, but that most of the items were jeans, steel-capped boots, and shirts for Mr Golenkov. Given their close and affectionate relationship whilst they were engaged, the purchases in my view are unsurprising.
I do note that one purchase on 11 June 2019 was some $958.40. The balance of the other purchases are under $257. The purchases occurred entirely whilst Ms Bond and Mr Golenkov were in a relationship, and I have little hesitation in accepting Ms Bond’s sworn affidavit explanation for the expenditure as verified in her sworn evidence.
The purchases from Totally Workwear therefore do not lead to an inference that Ms Bond was working or engaged in a business earning remunerative income prior to the settlement of her claim.
Expenditure in Victoria of $1,921.65
Curragh alleges that whilst Ms Bond was living in Victoria, she spent $1,921.65 on work-related expenses. Ms Bond denies this. The total sum comprises of amounts paid to Officeworks, Ready Industries, Bunnings and Jaymarc Industries. Ms Bond explained in her affidavit and also in her oral evidence that she had purchased goods worth $726.99 from Officeworks. Ms Bond has explained that she had been advised by her psychologist to try to write as much as she could with her injured right hand and so she purchased a whiteboard, whiteboard markers, A4 paper, notepads, a laminator, and laminating pouches. Ms Bond says that she practiced writing on the whiteboard and wrote on the A4 paper and notepads and used the laminator and laminating pouches to laminate things that she had created, as she had a great deal of spare time. The payments were perhaps a little unusual but were well-explained and not indicative of any work-related expenses.
The Bunnings invoice of $361.96 was for gardening equipment, being rakes, gloves, a lopper and leaf scoops. Again, Ms Bond claimed that her psychologist advised that she should be as active as she could and undertake things such as light gardening. Ms Bond says that she could not mow the lawn and did not have a mower and had Jim’s Mowing doing the heavy work, but she did the light work.
The two remaining amounts are a $477.40 payment to Jaymarc Industries, being the supply of new fencing and a $355.30 payment to Ready Industries, being light temporary fencing. Ms Bond was tasked by Mr Golenkov in assisting in organising with repairs of Mr Golenkov’s parents’ Victorian residence and purchased the pool fencing and instructed Ready Industries to undertake the temporary fencing on behalf of Mr Golenkov’s parents. Ms Bond later received reimbursement for this. Again, these expenditures are not indicative of any work-related activity.
Bondys Blades
On 10 May 2021, Bondys Blades Pty Ltd was registered as an Australian Proprietary Limited company. The sole owner of all shares in Bondys Blades was Ms Bond. The sole director and secretary of the company was Ms Bond’s mother, Michelle Bond. The principal place of residence for the company was Ms Bond’s residence in Bucasia. In 2020, the company rented premises from Mackay Furnished Office Suites in Wood Street, Mackay, but Ms Bond payed all of the $3,200 for rent.
In late May, early June, the company paid McKays Solicitors the sum of $830. On 2 July there was a payment of $957 to a web designer. There were then payments made by Ms Bond for wages to Nadine Mckay and Chantelle Leppien. These bare facts do support an inference that Ms Bond was conducting a hairdressing business via the company but utilising her mother, Michelle Bond, as the sole director and secretary.
It is an inference, however, that cannot be drawn on the balance of the evidence provided. Ms Bond’s mother, Michelle Bond, and her mother’s cousin, Nadine McKay, had spoken about starting up a barber shop in Mackay for many years. Ms McKay is a hairdresser by trade and Ms Bond provided financial assistance to start up the business. Ms Bond therefore paid for the expenses that I have mentioned. Ms Bond said she was simply loaning her mother money and that she did not want any cut of the profits, but rather hoped when the business was trading and successful her mother would re-pay her all monies that Ms Bond had loaned her mother, as Ms Bond swore that she trusted her mother. There were no documents brought into existence concerning the loan. The business, however, did not get off the ground, it never operated, did not cut any hair, nor did it earn any income. Not only has Ms Bond deposed to this, but Ms Michelle Bond has deposed to this, and Ms Michelle Bond was not required for cross-examination.
Therefore, I accept that Ms Bond was an investor in a business insofar as she loaned her mother money to pay for the start-up costs of the business, however, the business did not in fact start up.
Bond International Trading
As a part of Ms Bond’s rehabilitation, she undertook an import/export course which was funded by WorkCover Queensland. Ms Michelle Bond enthusiastically registered an ABN somewhat ambitiously called “Bond International Trading” without even telling Ms Bond she had decided to register an ABN.
Ms Lawson, a friend, organised a business card which also somewhat ambitiously nominated Ms Bond as “CEO of Bond International Trading”. The business or business name did not trade nationally nor internationally.
Passenger Cards
In the period between 28 December 2017 and 24 March 2020, Ms Bond undertook seven overseas trips. Firstly, Ms Bond went to Dubai in December 2017 and January 2018. Ms Bond then went to Abu Dhabi and returned back through Singapore to Australia in September/October 2018. Ms Bond then travelled from Brisbane to Hong Kong and then Hong Kong to the United States, then back to Sydney in May 2019. Ms Bond then went to China, Singapore and Hong Kong in July and August 2019. In October 2019 Ms Bond travelled to Hong Kong and Singapore, arriving back in Brisbane on 19 December.
Later, on 19 January 2020, Ms Bond travelled from Sydney to Beijing and then onto Singapore, returning back to Brisbane on 24 March 2020. It is true that on three of the arrival cards (15 May 2019, 25 September 2019, and 19 December 2019) Ms Bond indicated her main reason for travel was business. Ms Bond deposes, and I accept, that on the three passenger cards where she listed the reason for travel as business, she did so because she was accompanying her then-partner Mr Golenkov as Mr Golenkov was overseas for business purposes.
Ms Bond swears, and I accept, that she did not take any employment nor any income whilst overseas or on any of the trips. Ms Bond swears, and it is not disputed, that before her first trip overseas, she informed her WorkCover Queensland claims manager that she would be travelling overseas, and she also told Curragh that she was travelling overseas and that no concerns were raised.
Hong Kong Richie
Prior to July 2018, Mr Golenkov worked as a geologist with Curragh. After July 2018, Mr Golenkov has been employed by a company called Hong Kong Richie which has offices in China and London and was founded by Mr Golenkov’s mother, Irina Golenkova. The business of Hong Kong Richie is that it supplies equipment to the mining, oil and gas industries. It is to be recalled that from approximately October 2017, Mr Golenkov commenced a “romantic” relationship with a woman half his age. The romantic relationship progressed to an engagement on 24 December 2019 with the engagement ending approximately a year later in November 2020, but with (it seems) Mr Golenkov being unprepared to accept that the relationship then ceased.
All pretence of a relationship or indeed friendship appears to have disappeared on 2 March 2022 when Ms Bond refused to return Mr Golenkov’s engagement ring. Whilst they were in a relationship, Ms Bond and Mr Golenkov had set up a joint bank account with ING Bank. In the period between 18 March 2019 and 8 November 2021, Mr Golenkov deposited $140,484.47 into that joint bank account and in that period, Ms Bond transferred over $120,000 of those funds into one of her own ING Bank accounts.
Without expressly pleading it, Curragh seeks an inference that the payments were somewhat related to some type of work being undertaken by Ms Bond.
There were 43 payments in total, ranging from as little as $141.86 up to $10,000. Paragraph 52 of Curragh’s Statement of Claim accurately alleges the payments were not in a uniform amount, not made in regular intervals, and often involved sums which were not rounded figures. Ms Bond is able to explain some of the amounts not in round figures with respect to reimbursements that were made for monies she had expended on behalf of Mr Golenkov. An example of this is the payment on 8 October 2019 of $211.92 which Ms Bond recalls was a payment into the joint account for souvenir items that she had purchased for him from Australia. There are several amounts Ms Bond cannot recall as to what the amounts related to. It seems to me that many of the rounded amounts appear to be simply examples of what Ms Bond deposed to, that is, sums provided regularly by Mr Golenkov to Ms Bond for financial support.
The provision of some $140,000 in a period of 2 years and 7 months from a male to his partner may, to some, seem so excessive it may raise an inference that the payment is not out of natural love and affection but rather a payment made in some other context. Senior counsel from either side were reluctant to make submissions upon the issue. All that is known is that in the period of 2 years and 7 months, Mr Golenkov provided Ms Bond, his then partner and fiancée, with a little over $140,000.
Ms Bond was cross-examined on several of the exhibits to her affidavit of 14 November 2022 including Exhibit CAB19, being a series of text messages
One text recorded “Don’t rush babes well [sic] see them again too, if you have to come back to Australia again after you go to Hangzhou it’ll be a waste…”. It was suggested that the reference to Hangzhou, an industrial area in China, referred to Ms Bond taking a trip to some type of business activity in Hangzhou. Ms Bond denied this and said that Mr Golenkov’s parents owned a business facility in Hangzhou and that was the reason that she was travelling to Hangzhou, that is, to meet her partner’s parents.
The text messages are quite telling with many references of affection exchanged between Ms Bond and Mr Golenkov. In the text message of 14 July 2019,[6] Mr Golenkov said, inter alia, “Let me know if I can help out financially… I’ve put 2.5k into the joint account sorry I can’t be there to help in person chicken” to which it would appear Ms Bond replied “It’s ok chicken xx thanks for the money, I’ll give it to mum. ♥♥ We know you would want to be here with us if you could.”
[6]Affidavit of C A Bond, filed 14 November 2022, exhibit CAB-26.
In texts on 7 October 2019,[7] there are numerous expressions of affection. Other references in texts of 8 October 2019 with Mr Golenkov stating “Transferred moneys for the watch too babes thanks sooo mucccch.”[8]
[7]Affidavit of C A Bond, filed 14 November 2022, exhibit CAB 19.
[8]Affidavit of C A Bond, filed 14 November 2022, exhibit CAB 33.
There are also references to car shopping.
In the texts of 30 August 2019,[9] Ms Bond enquires of Mr Golenkov “Mum and Nat are looking at hotels for KISS in November. They are very concerned about money. Should we just pay and book it for them?” to which Mr Golenkov says “Yeah let’s do that… Yeah I think we should absolute shout them hotel” to which Ms Bond replies “Looking at around 2 thousand for us. Very nice places tho…”.
[9]Affidavit of C A Bond, filed 14 November 2022, exhibit CAB 35.
On 6 September 2019,[10] apart from the multiple expressions of affection, Mr Golenkov texts “Hopefully your 10k will cheer you up a little tomorrow hehe oh and plus remaining expenses too.”.
[10]Affidavit of C A Bond, filed 14 November 2022, exhibit CAB-41.
It was suggested to Ms Bond this was some type of business payment. Ms Bond swore it was not and that Mr Golenkov was paying her monies plus offering to reimburse her expenses. As pointed out by senior counsel for Curragh and accepted by Ms Bond, on earnings of approximately $50,000 per annum, Ms Bond could not afford overseas holidays. Ms Bond was financially dependent upon Mr Golenkov. This, however, was not a secret.
Exhibit CAB 44[11] is the report of Dr Gamboa, orthopaedic surgeon, dated 27 April 2020. On page 7 of that report, Dr Gamboa has recorded Ms Bond confirming that her previous long-term partner had provided financial support to her.
[11]Affidavit of C A Bond, filed 14 November 2022.
In summary, I accept Ms Bond’s evidence that each of the payments from Mr Golenkov to the joint account and then subsequently from the joint account to Ms Bond’s account were in the nature of a private transfer of funds or expenditure not related to any work being undertaken by Ms Bond. In short, what has been comprehensively demonstrated is that Mr Golenkov was extremely financially generous to Ms Bond.
In Attorney-General (NSW) v Peters (1924) 34 CLR 146 at 150, Isaacs ACJ said:
“The appellant, seeking the equitable interposition of the Court to destroy a contract on the ground of misrepresentation and, if necessary, of fraud, has the burden of making out a satisfactory case. That, in view of the specific allegations made, involves proof of (1) the representations charged, (2) their untruth, (3) reliance by the Government on the truth of the representations, and (4), if necessary, the fraud of the respondent.”
At paragraph 53 of Curragh’s Statement of Claim, it alleges six misrepresentations. The first is that the plaintiff had not undertaken any new employment. The representation is plain from the Notice of Claim, the Statement of Claim, the Statement of Loss and Damage and the schedule of damages. The representation is, however, true and therefore is not actionable.
The second misrepresentation alleged is that the plaintiff was not engaged in any business activities. There is no representation the Notice of Claim that Ms Bond has not engaged in any business activities. Pursuant to s 275(2) of the WCRA the claimant must give a Notice of Claim in an approved form and under s 275(3) a Notice of Claim must contain the particulars prescribed under regulation.
Section 123 of the Workers’ Compensation and Rehabilitation Regulation 2014 (Qld) (the Regulation) provides:
123 Particulars if claim for diminished income earning capacity
If the claimant claims damages for diminished income earning capacity, a notice of claim must include the following particulars of the claimant’s employment for the 3 year period immediately before the event, and the period since the event—
(a)the name and address of each of the claimant’s employers;
(b)the period of employment by each employer;
(c)the capacity in which the claimant was employed by each employer;
(d)the claimant’s gross and net (after tax) earnings for each period of employment;
(e)the periods during which the claimant was receiving payments from Centrelink on behalf of the department in which the Social Security Act 1991 (Cwlth) is administered;
(f)the periods during which the claimant received no income, and the reasons why the claimant was not receiving any income.
Section 125 of the Regulation provides:
125 Particulars of mitigation
A notice of claim must include all steps taken by the worker or claimant to mitigate their loss.
Curragh points to questions and answers 49 and 50 in Ms Bond’s Notice of Claim which provides as follows:
49. Provide particulars of all steps, other than rehabilitation, taken by the worker to mitigate the loss including but not limited to search for work including listing all applications for employment made by the worker, consulting employment agency, re-training any reasons why these steps were unsuccessful etc.
The Claimant has been participating with all that has been required of her during the course of her statutory claim. The Claimant attempted to return to work during the course of the statutory claim which did not continue. The Employer terminated the Claimant on medical grounds on 3 July 2020. The Claimant is presently entirely incapacitated for work.
50. Are you currently undertaking any paid or unpaid work with any employer or on a self-employed basis? If yes, please ensure all relevant details including name and address of income source (e.g. employer), any current period of employment/receipt of payment, capacity in which employed (include self-employment or benefit details) and gross and net (after tax) earnings for this period of employment are outlined in Section 3 – Income statement by worker.
No.”
As may be observed, the plaintiff has not at any stage in her Notice of Claim said she was not engaged in any business activity. The WCRA, the Regulation, and approved form do not require such a statement. Furthermore, I find as a fact Ms Bond was not engaged in business activities. Purchasing business clothes for her partner is not, in my view, a business activity. Bondys Blades Pty Ltd did not conduct any business activity other than an attempt to set up a business which was unsuccessful and Ms Bond’s involvement was limited to an undocumented informal loan to her mother.
As to the third alleged misrepresentation, on behalf of Curragh it is argued that r 547(3)(b)(iii) UCPR has been breached. Rule 547(3)(b)(iii) requires details of the amount the plaintiff claims for loss of income to the date of statement and (iv) details of any disability resulting in loss of earning capacity and of the amount the plaintiff claims for economic loss and (v) if the plaintiff is self-employed, additional details substantiating the plaintiff’s claim for economic loss.
Rule 547(3)(b) UCPR does not require disclosure of engagement in business activities unless it is employment and there is income derived, or some form of self-employment. Ms Bond was neither employed nor self-employed. There is nothing in the Statement of Loss and Damage by which Ms Bond has represented that she was not engaged in any business activity.
The third and fourth alleged misrepresentations are that Ms Bond was not the owner of the business and was not financially involved in any other business. Ms Bond has not, in the Notice of Claim, Statement of Claim, Statement of Loss and Damage or schedule of damages, represented that she was not the owner of the business or that she was not financially involved in any other business.
The furthest that Ms Bond went in a business sense was to become the shareholder of Bondys Blades Pty Ltd, which did not trade. The company was the owner of that start-up which did not become a business. It is plain that Ms Bond was financially involved in an attempt to set up a business, namely that she lent her mother some money to commence the hairdressing business. The WCRA, the Regulation, the Notice of Claim, the Statement of Loss and Damage, and the UCPR do not require claimant or plaintiff to represent they are “not financially involved in another business”.
It is to be recalled that Ms Bond lent her mother money for the purpose of starting up the hairdressing business, however, the potential return was to be repaid the monies lent. This is in no way a step to mitigate a loss as required by the answer to question 49 of the Notice of Claim nor the earning of any nett income from self-employment as required by r 547(3)(b)(v) UCPR.
The fifth misrepresentation pled by Curragh is that Ms Bond did not have any additional income save for that received from Curragh or WorkCover Queensland. It is plain that representation was made, however, it is also plain that that is true as Ms Bond did not have any other income.
The sixth misrepresentation alleged by Curragh is that Ms Bond “Had and will sustain past and future economic loss as set out in the Statement of Loss and Damage and the damages schedule.” There are several difficulties with the allegation that the amount set out as past and future economic loss in the Statement of Loss and Damage and schedule of damages are representations made by the plaintiff.
Rule 547 UCPR requires that a Statement of Loss and Damage set out amounts “claimed”. Rule 549 UCPR requires that a Statement of Loss and Damage must be accurate when served. Reading rr 547 and 549 UCPR together results in a conclusion that what is required in a Statement of Loss and Damage is an accurate claim.
The so-called schedule of damages is also entitled “heads of claim”. In her Statement of Loss and Damage of 17 June 2021, the plaintiff claimed damages in the amount of $1,742,907.19. In her schedule of damages of 12 May 2022, the plaintiff claimed a slightly lesser amount of $1,663,431.93. In both the Statement of Loss and Damage and the schedule of damages, the total of economic loss exceeded the settlement sum of $1.2 million. As plaintiffs have no more access to a crystal ball than do trial judges, a claim for future economic loss can never be a representation of fact. I therefore conclude that Ms Bond did not represent that she will sustain future economic loss as set out in the Statement of Loss and Damage and schedule of damages. Ms Bond did represent that she had suffered a past loss of income, however that was accurate.
Although Curragh pleaded at paragraph 54 that it did rely upon the representations, there is no evidence Curragh did in fact rely upon those representations, if they had been made.
Curragh’s application to set aside the compromise is dismissed.
Curragh, by its senior counsel, properly conceded that if its application were to be dismissed then Ms Bond ought to succeed in her application. The parties are to confer and if possible reach agreement on the form of the orders to be made including the position with respect to interest and costs and failing agreement the matter is listed for further hearing on the form of the orders including interest and costs on 15 December 2022.
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