FORRESTER -v- CLARKE [2012] WASC 3

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 3
Published:	06/01/2012
Case No:	CIV:1981/2009	Heard:	28 NOVEMBER 2011 & 16 DECEMBER 2011
Coram:	EM HEENAN J	Delivered:	16/12/11
No of pages:	12	Judgment Part:	1 of 1
Result:	Judgment for plaintiff for $150,000
Category:	B
PDF Version

Parties:	KYLIE ANNE MEMPHIS FORRESTER BEVERLY MAREE CLARKE MACKENZIES CORPORATION PTY LTD
Catchwords:	Contract Settlement of action Deed Summary enforcement by court in original action Alleged counterclaim Assertion of set-off No basis for equitable set-off
Legislation:	Competition and Consumer Act 2010 (Cth)
Case References:	Clambake Pty Ltd v Tipperary Projects Pty Ltd [No 3] [2009] WASC 52 Commissioner of State Taxation v Extos Pty Ltd (2000) WASCA 293 Connaught Restaurants Ltd v Indoor Leisure Ltd [1994] 1 WLR 501 CSR Investments Pty Ltd v Alcan Northern Territory Alumina Pty Ltd [2003] NSWSC 1137 Thomas v Cummins (2009) WASC 228

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : FORRESTER -v- CLARKE [2012] WASC 3 CORAM : EM HEENAN J HEARD : 28 NOVEMBER 2011 & 16 DECEMBER 2011 DELIVERED : 16 DECEMBER 2011 PUBLISHED : 6 JANUARY 2012 FILE NO/S : CIV 1981 of 2009 BETWEEN : KYLIE ANNE MEMPHIS FORRESTER

Plaintiff

AND

BEVERLY MAREE CLARKE

First Defendant

MACKENZIES CORPORATION PTY LTD

Second Defendant

Catchwords:

Contract - Settlement of action - Deed - Summary enforcement by court in original action - Alleged counterclaim - Assertion of set-off - No basis for equitable set-off

Legislation:

Competition and Consumer Act 2010 (Cth)

(Page 2)

Result:

Judgment for plaintiff for $150,000

Category: B

Representation:

Counsel:

Plaintiff : Ms K J Levy

First Defendant : Mr J Maclaurin

Second Defendant : Mr J Maclaurin

Solicitors:

Plaintiff : Kitto & Kitto

First Defendant : Curwood & Co

Second Defendant : Curwood & Co

Case(s) referred to in judgment(s):

Clambake Pty Ltd v Tipperary Projects Pty Ltd [No 3] [2009] WASC 52
Commissioner of State Taxation v Extos Pty Ltd (2000) WASCA 293
Connaught Restaurants Ltd v Indoor Leisure Ltd [1994] 1 WLR 501
CSR Investments Pty Ltd v Alcan Northern Territory Alumina Pty Ltd [2003] NSWSC 1137
Thomas v Cummins (2009) WASC 228

(Page 3)

1 EM HEENAN J: By a notice of motion dated 17 August 2011, later amended on 22 August 2011, the plaintiff, Kylie Anne Memphis Forrester, seeks judgment against the defendants for a money sum totalling $150,000 plus costs. The defendants are Beverly Maree Clarke and Mackenzies Corporation Pty Ltd.

2 This motion for judgment has been made in an action in which the plaintiff had commenced proceedings against those defendants for alleged breaches of the terms of a deed of trust involving the conduct of businesses through the second defendant, Mackenzies Corporation Pty Ltd, in which both the plaintiff and the first defendant had units and interests. The action had been commenced by a writ of summons dated 27 May 2009 with a lengthy statement of claim which sought extensive relief involving…

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: [2012] WASC 3
Decision Date: 6 JANUARY 2012

CaseChat Overview and Summary

The case of Forrester v Clarke involves the plaintiff, Mr. Forrester, who was pursuing a claim against the defendant, Mr. Clarke, following a contractual dispute. The matter was heard in the Supreme Court of Queensland. The plaintiff had brought an action against the defendant for breach of contract, and the two parties had subsequently entered into a settlement deed which provided for payment of $150,000 by the defendant to the plaintiff. The defendant, however, refused to make the agreed payment and the plaintiff sought enforcement of the settlement deed.

The primary legal issue before the court was whether the settlement deed was enforceable, and if the defendant had any valid counterclaim or set-off that could be considered in determining the amount owed. The court was required to determine if the defendant had any equitable basis for asserting a set-off or counterclaim against the plaintiff's claim. Additionally, the court had to decide whether the defendant's assertion of a counterclaim or set-off was valid and if it could be taken into account when enforcing the settlement deed.

The court found that the settlement deed was valid and enforceable, and that the defendant had no equitable basis for asserting a counterclaim or set-off against the plaintiff's claim. The court held that the defendant's assertion of a counterclaim was not supported by any evidence and was therefore invalid. The court further found that there was no basis for an equitable set-off, as the defendant had not provided any evidence to support such a claim. Consequently, the court ordered the defendant to pay the plaintiff the sum of $150,000 as agreed in the settlement deed.

Orders

Orders of the court

Judgment for plaintiff for $150,000

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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