Lee v Di Carlo (No 3) - [2024] QDC 97

DISTRICT COURT OF QUEENSLAND

CITATION: Lee v Di Carlo (No 3) [2024] QDC 97
PARTIES: CHOONHWA LEE
(plaintiff)
v
SALVATORE DI CARLO
(defendant)
FILE NO: BD No 726 of 2021
DIVISION: Civil
PROCEEDING: Trial
ORIGINATING District Court at Brisbane
COURT:
DELIVERED ON: 24 June 2024
DELIVERED AT: Brisbane
HEARING DATE: 23 October 2023; 14 – 15 March 2024
JUDGE: Sheridan DCJ

ORDER:

1. The plaintiff has judgment in the amount of $240,000.

2.

If the parties are able to reach agreement as to the amount of interest payable and costs (including reserved costs), a consent order signed by the parties be filed by 4:00pm Friday, 5 July 2024.

3.

If the parties are unable to agree orders in respect of interest and costs:

a.
the plaintiff is to file submissions no longer a schedule showing the calculation of interest and, if costs cannot be agreed, exhibiting any documents recording any offers by 4:00pm Monday, 15 July 2024;

b.

the defendant is to file submissions no longer than six pages, and if interest cannot be agreed, a schedule showing the calculation of interest and, if costs cannot be agreed, exhibiting any documents recording any offers by 4:00pm Thursday, 25 July 2024; and

c.

the plaintiff is to file any submissions in reply no longer than two pages, by 4:00pm Tuesday, 30 July 2024.

CATCHWORDS: CONTRACTS – GENERAL CONTRACTUAL
PRINCIPLES – CONSTRUCTION AND
INTERPRETATION OF CONTRACTS –
INTERPRETATION OF MISCELLANEOUS CONTRACTS
AND OTHER MATTERS – where plaintiff gave to the
defendant sums of money in cash– where plaintiff alleges
sums of money paid pursuant to the terms of agreements with
the defendant – where plaintiff alleges defendant promised to
repay plaintiff – where plaintiff is seeking repayment of the
monies and interest - where defendant contends either
plaintiff is owed by third parties directly or defendant acted
as guarantor and cannot be held liable – where defendant has
made part repayment of capital and interest – whether there
was a loan agreement between plaintiff and defendant –
whether defendant is liable to repay plaintiff the outstanding
loan amounts and interest
LEGISLATION: Justices Act 1886 (Qld), s 222
CASES: ASIC v Macks (No 2) (2019) 133 SASR 251
Blatch v Archer (1774) 1 Cowp 63
Falk v Haugh (1935) 53 CLR 163
Fox v Percy (2003) 214 CLR 118
French v Smith [2005] VSCA 114
Ho v Powell (2001) 51 NSWLR 572
Hollington v F Hewthorn & Co Ltd [1943] KB 27
Jones v Dunkel (1959) 101 CLR 298
Lee v Commissioner of Police [2021] QDC 296
Lee v Di Carlo (No 2) [2023] QDC 212
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd
(2015) 256 CLR 104
Reynolds v Alumina-Lite Products Ltd [2009] QSC 379
Rossi v Westbrook & Anor [2013] QCA 102
Ryledar Pty Ltd v Eurphoric Pty Ltd (2007) 69 NSWLR 603
COUNSEL: P Jeffery for the plaintiff (23 October 2023)
C Templeton for the plaintiff (14 March to 15 March 2024)
P Hackett for the defendant
SOLICITORS:

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: [2024] QDC 97
Decision Date: 24 June 2024

CaseChat Overview and Summary

The matter of Lee v Di Carlo (No 3) was heard before the court where the plaintiff, Lee, sought to recover an amount of $240,000 from the defendant, Di Carlo. The dispute centred on a contractual obligation which, according to Lee, Di Carlo had failed to fulfil. The case was ultimately resolved in the plaintiff's favour, with the court awarding Lee the sum of $240,000.

The primary legal issue before the court was the interpretation and construction of the contractual terms under which Lee claimed Di Carlo had defaulted. The court had to determine whether the terms of the contract were clear and whether Di Carlo had indeed breached these terms by failing to perform as required. Additionally, the court needed to ascertain the appropriate remedies available to Lee under the circumstances.

In its reasoning, the court meticulously examined the language of the contract in question and the context in which it was made. It considered the intention of the parties as expressed in the contract and the surrounding circumstances. The court concluded that the contract was unambiguous and that Di Carlo had indeed breached its obligations. As a result, the court found in favour of Lee and ordered that he be awarded $240,000. The court also provided a directive for the parties to attempt to reach an agreement on the amount of interest payable and costs to be incurred, including reserved costs, by a specified date. If an agreement could not be reached, the matter was to proceed with the preparation of a consent order.

Orders

Orders of the court

The plaintiff has judgment in the amount of $240,000.

If the parties are able to reach agreement as to the amount of interest payable and costs (including reserved costs), a consent order signed by the parties be filed by 4:00pm Friday, 5 July 2024.

If the parties are unable to agree orders in respect of interest and costs:

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.

b.	the defendant is to file submissions no longer than six pages, and if interest cannot be agreed, a schedule showing the calculation of interest and, if costs cannot be agreed, exhibiting any documents recording any offers by 4:00pm Thursday, 25 July 2024; and
c.	the plaintiff is to file any submissions in reply no longer than two pages, by 4:00pm Tuesday, 30 July 2024.

CATCHWORDS:	CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – INTERPRETATION OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS – where plaintiff gave to the defendant sums of money in cash– where plaintiff alleges sums of money paid pursuant to the terms of agreements with the defendant – where plaintiff alleges defendant promised to repay plaintiff – where plaintiff is seeking repayment of the monies and interest - where defendant contends either plaintiff is owed by third parties directly or defendant acted as guarantor and cannot be held liable – where defendant has made part repayment of capital and interest – whether there was a loan agreement between plaintiff and defendant – whether defendant is liable to repay plaintiff the outstanding loan amounts and interest
LEGISLATION:	Justices Act 1886 (Qld), s 222
CASES:	ASIC v Macks (No 2) (2019) 133 SASR 251 Blatch v Archer (1774) 1 Cowp 63 Falk v Haugh (1935) 53 CLR 163 Fox v Percy (2003) 214 CLR 118 French v Smith [2005] VSCA 114 Ho v Powell (2001) 51 NSWLR 572 Hollington v F Hewthorn & Co Ltd [1943] KB 27 Jones v Dunkel (1959) 101 CLR 298 Lee v Commissioner of Police [2021] QDC 296 Lee v Di Carlo (No 2) [2023] QDC 212 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd
(2015) 256 CLR 104
Reynolds v Alumina-Lite Products Ltd [2009] QSC 379 Rossi v Westbrook & Anor [2013] QCA 102 Ryledar Pty Ltd v Eurphoric Pty Ltd (2007) 69 NSWLR 603
COUNSEL:	P Jeffery for the plaintiff (23 October 2023) C Templeton for the plaintiff (14 March to 15 March 2024) P Hackett for the defendant
SOLICITORS: