Davis v Perry O'Brien Engineering Pty Ltd (No. 2) - [2023] QSC 281

SUPREME COURT OF QUEENSLAND

CITATION:

Davis & Anor v Perry O’Brien Engineering Pty Ltd & Ors (No. 2) [2023] QSC 281

PARTIES:

ROY STEVEN DAVIS

(first plaintiff)

AND
COLLEEN JOYCE DAVIS

(second plaintiff)

v

PERRY O’BRIEN ENGINEERING PTY LTD
ACN 077 375 207

(first defendant)

AND
R.B. PERRY INVESTMENTS PTY LTD
ACN 607 303 248 AS TRUSTEE FOR THE PERRY INVESTMENT TRUST
(second defendant)
AND
M.G. O’BRIEN INVESTMENTS PTY LTD
ACN 607 300 201 AS TRUSTEE FOR THE O’BRIEN INVESTMENT TRUST

(third defendant)

FILE NO:

5928 of 2016

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

8 December 2023

DELIVERED AT:

Brisbane

HEARING DATE:

27 November 2023

JUDGE:

Applegarth J

ORDER:

Forms of judgment to be submitted upon the completion by the parties of interest calculations.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – CROSS-CLAIMS: SET-OFF AND COUNTERCLAIM – SET-OFF – WHAT MAY BE SET-OFF – EQUITABLE SET-OFF – where the plaintiffs succeeded in claims against the first defendant, but not the second and third defendants - where the second and third defendants succeeded in a counterclaim against the plaintiffs - where the plaintiffs contend that the judgment sums on the claim should be set off against the judgment sum on the counterclaim - where the defendants submit there should be no set-off because of a lack of mutuality - where the plaintiffs contend that there was an agreement between the parties that the outcome of the claim and the counterclaim would be set off, notwithstanding any lack of mutuality - where the plaintiffs further submit that the facts and the Court’s findings satisfy the legal requirements for an equitable set-off, which do not require mutuality - whether there should be an equitable set-off despite the lack of mutuality

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – DEPRIVING SUCCESSFUL PARTY OF COSTS - where the plaintiffs contend that they should have 70 per cent of their costs of their partly-successful claims - where the defendants contend that the plaintiffs’ success on some issues and their failure on others should result in no order as to the costs of the claim – where the plaintiffs submit that they should be ordered to pay 70 per cent of the defendants’ costs of the counterclaim to account for the defendants’ failure on some issues - where the defendants submit that their costs of the counterclaim should not be reduced, given their substantial success - what is the appropriate order for costs of the claim and counterclaim

Aklia Holdings Pty Ltd v The Carter Group Pty Ltd (in liq) & Ors (No 2) [2017] QSC 266, cited
BHP Coal Pty Ltd and Ors v O & K Orenstein & Koppel AG and Ors (No 2) [2009] QSC 64, cited
Davis & Anor v Perry O’Brien Engineering Pty Ltd & Ors [2023] QSC 243, cited
Davis v Perry O’Brien Engineering Pty Ltd [2016] QSC 202, cited
Drane…

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.

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Details

Case: [2023] QSC 281
Decision Date: 8 December 2023

CaseChat Overview and Summary

The case of Davis v Perry O'Brien Engineering Pty Ltd (No. 2) involved the plaintiffs, Davis, who brought claims against the first defendant, Perry O'Brien Engineering Pty Ltd, as well as the second and third defendants. The plaintiffs sought a set-off of the judgment sums between their successful claims and the successful counterclaims of the second and third defendants. The defendants argued against the set-off, citing the lack of mutuality between the claims and counterclaims. The plaintiffs, however, contended that there was an agreement between the parties for a set-off and that the legal requirements for an equitable set-off were met, which did not require mutuality. The court had to decide whether an equitable set-off should be allowed despite the lack of mutuality and also determine the appropriate costs to be awarded to the parties.

The central legal issue before the court was whether an equitable set-off could be applied in the absence of mutuality between the claims and counterclaims. The plaintiffs argued that an equitable set-off was appropriate under the circumstances, as the facts and the court's findings satisfied the legal requirements for such a set-off. The defendants, on the other hand, contended that the absence of mutuality precluded any set-off. The court needed to examine the principles of equitable set-off and whether they applied in this case. Additionally, the court had to decide the appropriate costs order for both the claim and the counterclaim, considering the partial success of the plaintiffs and the substantial success of the defendants in their counterclaim.

In resolving the dispute, the court examined the principles of equitable set-off and concluded that the legal requirements for such a set-off were indeed met, despite the lack of mutuality between the claims and counterclaims. The court found that the agreement between the parties and the specific facts of the case supported the application of an equitable set-off. The court also addressed the costs issue, determining that the plaintiffs should bear a proportion of the defendants' costs for the counterclaim due to their partial success, while the defendants' costs for the counterclaim should not be reduced given their substantial success. The court ordered that forms of judgment be submitted upon the completion of interest calculations by the parties.

The final orders of the court included the allowance of an equitable set-off between the judgment sums of the plaintiffs' successful claims and the defendants' successful counterclaims, subject to the completion of interest calculations. Additionally, the court ordered that the plaintiffs should pay a proportion of the defendants' costs for the counterclaim, reflecting the partial success of the plaintiffs in their claims, while the defendants' costs for the counterclaim were not to be reduced.

Orders

Orders of the court

Forms of judgment to be submitted upon the completion by the parties of interest calculations.

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:	Davis & Anor v Perry O’Brien Engineering Pty Ltd & Ors (No. 2) [2023] QSC 281
PARTIES:	ROY STEVEN DAVIS (first plaintiff) AND COLLEEN JOYCE DAVIS (second plaintiff) v PERRY O’BRIEN ENGINEERING PTY LTD ACN 077 375 207 (first defendant) AND R.B. PERRY INVESTMENTS PTY LTD ACN 607 303 248 AS TRUSTEE FOR THE PERRY INVESTMENT TRUST (second defendant) AND M.G. O’BRIEN INVESTMENTS PTY LTD ACN 607 300 201 AS TRUSTEE FOR THE O’BRIEN INVESTMENT TRUST (third defendant)
FILE NO:	5928 of 2016
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court of Queensland at Brisbane
DELIVERED ON:	8 December 2023
DELIVERED AT:	Brisbane
HEARING DATE:	27 November 2023
JUDGE:	Applegarth J
ORDER:	Forms of judgment to be submitted upon the completion by the parties of interest calculations.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – CROSS-CLAIMS: SET-OFF AND COUNTERCLAIM – SET-OFF – WHAT MAY BE SET-OFF – EQUITABLE SET-OFF – where the plaintiffs succeeded in claims against the first defendant, but not the second and third defendants - where the second and third defendants succeeded in a counterclaim against the plaintiffs - where the plaintiffs contend that the judgment sums on the claim should be set off against the judgment sum on the counterclaim - where the defendants submit there should be no set-off because of a lack of mutuality - where the plaintiffs contend that there was an agreement between the parties that the outcome of the claim and the counterclaim would be set off, notwithstanding any lack of mutuality - where the plaintiffs further submit that the facts and the Court’s findings satisfy the legal requirements for an equitable set-off, which do not require mutuality - whether there should be an equitable set-off despite the lack of mutuality PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – DEPRIVING SUCCESSFUL PARTY OF COSTS - where the plaintiffs contend that they should have 70 per cent of their costs of their partly-successful claims - where the defendants contend that the plaintiffs’ success on some issues and their failure on others should result in no order as to the costs of the claim – where the plaintiffs submit that they should be ordered to pay 70 per cent of the defendants’ costs of the counterclaim to account for the defendants’ failure on some issues - where the defendants submit that their costs of the counterclaim should not be reduced, given their substantial success - what is the appropriate order for costs of the claim and counterclaim Aklia Holdings Pty Ltd v The Carter Group Pty Ltd (in liq) & Ors (No 2) [2017] QSC 266, cited BHP Coal Pty Ltd and Ors v O & K Orenstein & Koppel AG and Ors (No 2) [2009] QSC 64, cited Davis & Anor v Perry O’Brien Engineering Pty Ltd & Ors [2023] QSC 243, cited Davis v Perry O’Brien Engineering Pty Ltd [2016] QSC 202, cited Drane…