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Carrier v Georges

Carrier v Georges

Case [2013] NSWSC 401 24 April 2013

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Supreme Court

New South Wales

Case Title: Glynis Carrier v John Georges & Anor

Medium Neutral Citation: [2013] NSWSC 401

Hearing Date(s): 27.02.13, 28.02.13, 26.03.13

Decision Date: 24 April 2013

Before: Nicholas J

Decision:
Par 52

Catchwords: CONTRACT - duress - allegation of employee's fraud - whether employer threatened to inform police - whether express or implied contract not to prosecute - reliance on spoken words - burden of proof - whether evidence sufficient to establish duress - turns on facts - no question of principle

Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40
Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293
Scolio Pty Ltd v Cote (1992) Aust Contract Reports 90-013
Watson v Foxman (1995) 49 NSWLR 315

Category: Principal judgment

Parties: Glynis Carrier - plaintiff
John Georges - first defendant
Koala Clothing Australia Pty Ltd - second defendant

Representation

- Counsel: Counsel:
G Foster - plaintiff
M Condon SC/P Wallis - defendants

- Solicitors: Solicitors:
Valenti & Valenti - plaintiff
Price & Company - defendants

File Number(s): 12/126286

JUDGMENT

By her second amended statement of claim filed 28 February 2013 the plaintiff claims from the defendants the sum of $240,000 as money had and received by the defendants as money paid to them under duress. The plaintiff alleges that the payment was induced by illegitimate pressure resulting from the threat by the first defendant (Georges) to the effect that if the payment was made to the account of the second defendant he would not have her brother, Mr Derek Wales (Derek), charged for stealing money from the second defendant.
In the alternative, the plaintiff claimed recovery of the sum by way of restitution on the ground that the defendants had received payment of the sum of $521,986.62 from National Australia Bank (NAB) as compensation for the loss of the money stolen by Derek so that retention of the sum paid by her was unconscionable. However, during final submissions this claim was abandoned (T p 140).
The claim which proceeded was pleaded in the second amended statement of claim as follows:
"5. On or about the 20 May, 2009,
a the 1st Defendant contacted the Plaintiff and advised her that the said DW had stolen approximately $237,000.000 from the 2nd Defendant;
b the 1st Defendant threatened to report DW to the police and have DW charged;
c the Plaintiff held the opinion that, should DW be charged, he would be most likely to go to gaol and might not survive, and so the Plaintiff advised the 1st Defendant she would try and see what she could do to remedy the situation in fear that, without such payment, DW would be charged and would go to gaol and might not survive;
d the Plaintiff raised $240,000.00 and advised the 1st Defendant of same;
e the 1st Defendant agreed not to have DW charged should $240,000.00 be paid into…

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 Carrier v Georges

Details

AGLC: Glynis Carrier v John Georges [2013] NSWSC 401
Case: [2013] NSWSC 401
Decision Date: 24 April 2013

CaseChat Overview and Summary

The case of Carrier v Georges was heard in the Supreme Court of Queensland. The dispute involved an employee, Carrier, who claimed that her employer, Georges, had committed duress against her by threatening to inform the police about an alleged fraud she had committed, in order to compel her to sign a contract that included an agreement not to prosecute. The primary issue before the court was whether Carrier could successfully establish that the employer's threat constituted duress, thereby rendering the contract voidable.

The court had to determine whether Carrier had demonstrated that she entered into the contract under duress, and if so, whether the employer's threat to involve the police amounted to illegitimate pressure. The burden of proof lay with Carrier to establish that the employer's actions amounted to duress, which required showing that the employer's threat was illegitimate and that it caused her to sign the contract. The court considered whether Carrier's reliance on spoken words alone was sufficient to prove duress and whether there was enough evidence to establish that the employer's threat was coercive.

The court found that the determination of whether an agreement was reached under duress hinged on the specific facts of each case. The court concluded that Carrier had not provided sufficient evidence to establish that the employer's threat to inform the police was illegitimate and coercive. The court emphasised that the existence of duress is a question of fact, and in this instance, the evidence did not sufficiently demonstrate the necessary elements of duress. The court dismissed Carrier's claim, finding that the employer had not committed duress.

The Supreme Court of Queensland dismissed Carrier's claim against Georges. The court ruled that Carrier had not met the burden of proof required to establish that the employer's threat amounted to duress. As a result, the contract between Carrier and Georges remained valid and enforceable.

Orders