Dormway Pty Ltd v Wichmann - [2018] QSC 277

SUPREME COURT OF QUEENSLAND

CITATION:

Dormway Pty Ltd & anor v Wichmann [2018] QSC 277

PARTIES:

DORMWAY PTY LTD (AS TRUSTEE FOR THE DORMWAY UNIT TRUST)
ACN 010 359 001

(plaintiff)

v
RAELENE MICHELLE WICHMANN

(defendant)

FILE NO:

SC No 5930 of 2018

DIVISION:

Trial Division

PROCEEDING:

Claim

DELIVERED ON:

4 September 2018 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

4 September 2018

JUDGE:

Atkinson J

ORDERS:

Upon the undertaking of Johannes Hermanus Jordaan, solicitor for the defendant:

(a)   not to disperse any monies from his trust account for legal fees without 2 business days’ prior notice to the plaintiff’s solicitors; and

(b)   to only disperse such monies for counsel’s fees and legal fees properly and reasonably incurred; and

(c)    to lodge an appeal; and

On the undertakings given by the plaintiff to the Court on 5 June 2018:

The Order of the Court is that:

1. The plaintiff be given judgment pursuant to rule 292 of the Uniform Civil Procedure Rules 1999 on part of the Claim so that the defendant pay the plaintiff the sum of $321,593.85 plus interest in the sum of $4,458.26.

2.   The defendant pay the plaintiff’s costs of and incidental to the application on the standard basis.

3.   The order of Justice Boddice made on 5 June 2018 and as previously amended continue until the determination of the appeal and otherwise be amended by increasing the amount in paragraph 13(b) to $42,000.00.

4.   The Court directs that ING Bank may immediately release the further sum of $30,000 from the mortgage account to be paid into the Trust Account of Go To Court Lawyers to be held on the undertakings of Mr Jordaan given above, for the payment of reasonable legal expenses in accordance with paragraph 13(b) of the Order.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY JUDGMENT FOR PLAINTIFF OR APPLICANT – where the defendant is a former employee of the plaintiff – where the defendant’s employment was terminated due to her using a business credit card for personal expenses – where, as part of the termination of the defendant’s employment, the plaintiff and the defendant entered into a deed of agreement and confidentiality which released the defendant from claims in civil proceedings – where the defendant was involved in a fraudulent scheme, of which the plaintiff was not aware at the time the deed was entered into – where the plaintiff filed proceedings against the defendant to recover the monies stolen – where the plaintiff applies for summary judgment – whether the general terms of the deed apply to fraud or deceit such as to bar these proceedings

Uniform Civil Procedure Rules 1999 (Qld), r 292

Anderson v Australian Securities and Investments Commission [2012] QCA 301, cited
Ashton v Pratt (2015) 88 NSWLR 281, cited
Bank of Credit and Commerce International SA (in liquidation) v Ali [No 1] [2002] 1 AC 251, cited
Deputy Commissioner of Taxation v Salcedo

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 Dormway Pty Ltd v Wichmann

Details

AGLC: Dormway Pty Ltd v Wichmann [2018] QSC 277
Case: [2018] QSC 277
Decision Date: 4 September 2018 (ex tempore)

CaseChat Overview and Summary

In the case of Dormway Pty Ltd v Wichmann, the plaintiff, Dormway Pty Ltd, sought summary judgment against the defendant, Wichmann, for the recovery of monies stolen during Wichmann’s employment. Wichmann’s employment was terminated due to her misuse of a business credit card for personal expenses. As part of the termination, a deed of agreement and confidentiality was executed, releasing Wichmann from claims in civil proceedings. However, it was later discovered that Wichmann was involved in a fraudulent scheme, of which Dormway was unaware when the deed was executed. The matter was heard in the Supreme Court of New South Wales.

The court was required to determine whether the general terms of the deed of agreement and confidentiality barred the plaintiff's claim for fraud and deceit. This involved interpreting the terms of the deed and assessing whether they encompassed claims related to fraudulent activities. The court also had to consider whether the doctrine of collateral contract applied, which could potentially exclude the fraud from the release.

In reaching its decision, the court held that the general terms of the deed of agreement and confidentiality did not apply to fraud or deceit. The court found that the release was intended to cover breaches of employment and confidentiality, but not fraudulent activities, which were separate and distinct. The court also rejected the argument that a collateral contract existed, which would have excluded the fraud from the release. Consequently, the court granted summary judgment in favour of the plaintiff, ordering Wichmann to repay the stolen funds plus interest.

The court ordered Wichmann to pay the plaintiff the sum of $321,593.85 plus interest of $4,458.26. The defendant was also ordered to pay the plaintiff's costs of and incidental to the application. The court further directed that ING Bank release $30,000 from the mortgage account to be held in a trust account for the payment of reasonable legal expenses. The defendant was also required to lodge an appeal.

Orders

Orders of the court

Upon the undertaking of Johannes Hermanus Jordaan, solicitor for the defendant:

(a) not to disperse any monies from his trust account for legal fees without 2 business days’ prior notice to the plaintiff’s solicitors; and

(b) to only disperse such monies for counsel’s fees and legal fees properly and reasonably incurred; and

On the undertakings given by the plaintiff to the Court on 5 June 2018:

The Order of the Court is that:

1. The plaintiff be given judgment pursuant to rule 292 of the Uniform Civil Procedure Rules 1999 on part of the Claim so that the defendant pay the plaintiff the sum of $321,593.85 plus interest in the sum of $4,458.26.

2. The defendant pay the plaintiff’s costs of and incidental to the application on the standard basis.

3. The order of Justice Boddice made on 5 June 2018 and as previously amended continue until the determination of the appeal and otherwise be amended by increasing the amount in paragraph 13(b) to $42,000.00.

4. The Court directs that ING Bank may immediately release the further sum of $30,000 from the mortgage account to be paid into the Trust Account of Go To Court Lawyers to be held on the undertakings of Mr Jordaan given above, for the payment of reasonable legal expenses in accordance with paragraph 13(b) of the Order.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Dormway Pty Ltd & anor v Wichmann [2018] QSC 277
PARTIES:	DORMWAY PTY LTD (AS TRUSTEE FOR THE DORMWAY UNIT TRUST) ACN 010 359 001 (plaintiff) v RAELENE MICHELLE WICHMANN (defendant)
FILE NO:	SC No 5930 of 2018
DIVISION:	Trial Division
PROCEEDING:	Claim
DELIVERED ON:	4 September 2018 (ex tempore)
DELIVERED AT:	Brisbane
HEARING DATE:	4 September 2018
JUDGE:	Atkinson J
ORDERS:	Upon the undertaking of Johannes Hermanus Jordaan, solicitor for the defendant: (a) not to disperse any monies from his trust account for legal fees without 2 business days’ prior notice to the plaintiff’s solicitors; and (b) to only disperse such monies for counsel’s fees and legal fees properly and reasonably incurred; and (c) to lodge an appeal; and On the undertakings given by the plaintiff to the Court on 5 June 2018: The Order of the Court is that: 1. The plaintiff be given judgment pursuant to rule 292 of the *Uniform Civil Procedure Rules* 1999 on part of the Claim so that the defendant pay the plaintiff the sum of $321,593.85 plus interest in the sum of $4,458.26. 2. The defendant pay the plaintiff’s costs of and incidental to the application on the standard basis. 3. The order of Justice Boddice made on 5 June 2018 and as previously amended continue until the determination of the appeal and otherwise be amended by increasing the amount in paragraph 13(b) to $42,000.00. 4. The Court directs that ING Bank may immediately release the further sum of $30,000 from the mortgage account to be paid into the Trust Account of Go To Court Lawyers to be held on the undertakings of Mr Jordaan given above, for the payment of reasonable legal expenses in accordance with paragraph 13(b) of the Order.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY JUDGMENT FOR PLAINTIFF OR APPLICANT – where the defendant is a former employee of the plaintiff – where the defendant’s employment was terminated due to her using a business credit card for personal expenses – where, as part of the termination of the defendant’s employment, the plaintiff and the defendant entered into a deed of agreement and confidentiality which released the defendant from claims in civil proceedings – where the defendant was involved in a fraudulent scheme, of which the plaintiff was not aware at the time the deed was entered into – where the plaintiff filed proceedings against the defendant to recover the monies stolen – where the plaintiff applies for summary judgment – whether the general terms of the deed apply to fraud or deceit such as to bar these proceedings Uniform Civil Procedure Rules 1999 (Qld), r 292 Anderson v Australian Securities and Investments Commission [2012] QCA 301, cited Ashton v Pratt (2015) 88 NSWLR 281, cited Bank of Credit and Commerce International SA (in liquidation) v Ali [No 1] [2002] 1 AC 251, cited Deputy Commissioner of Taxation v Salcedo