Legal Research
Cases
Mitchell v Pacific Dawn Pty Ltd

Mitchell v Pacific Dawn Pty Ltd

Case [2006] QSC 198 18 August 2006

Unconscionable Conduct

Type to search within this case.

SUPREME COURT OF QUEENSLAND

CITATION:

Mitchell v Pacific Dawn Pty Ltd [2006] QSC 198

PARTIES:

BRUCE JOSEPH MITCHELL
(plaintiff)
v
PACIFIC DAWN PTY LTD
ACN 070 358 280
(defendant)

FILE NO:

BS3872 of 2001

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

18 August 2006

DELIVERED AT:

Brisbane

HEARING DATE:

27 July 2006

JUDGE:

Chesterman J

ORDER:

1.     Paragraphs 23, 24 and 25 of the Further Further Amended Statement of Claim be struck out.

2.     Leave to the plaintiff to replead paragraphs 23, 24 and 25 of the Further Further Amended Statement of Claim.

3.     The defendant’s application for particulars of the Further Further Amended Statement of Claim is adjourned.

4.      The costs of and incidental to the defendant’s application be its costs in the cause.

5.     The plaintiff’s application is dismissed.

6.     The costs of and incidental to the plaintiff’s application are reserved.

CATCHWORDS:

EQUITY – UNDUE INFLUENCE AND DURESS – DURESS – whether economic duress and unconscionability are mutually exclusive concepts

ESTOPPEL – FORMER ADJUDICATION AND MATTERS OF RECORD OR QUASI OF RECORD – FORMER ADJUDICATION – JUDGMENT INTER PARTES – ISSUE ESTOPPEL – RESPECTING WHAT MATTERS DECISION CONCLUSIVE – MATTERS NECESSARY TO THE DECISION – previous findings by Ambrose J that an agreement between the parties was varied and made a declaration without reference to the variation – defendant’s defence denies the variation – whether findings give rise to issue estoppels against the defendant – same question – whether Ambrose J’s finding was indispensable to the declaration ultimately granted

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PLEADING – STATEMENT OF CLAIM – plaintiff’s statement of claim alleges inter alia economic duress and misrepresentation against the defendant – essentials to be pleaded – whether plaintiff’s pleading has a legal basis – whether properly pleaded

Australia & New Zealand Banking Group v Karam (2005) 64 NSWLR 149, discussed
Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd (2003) 214 CLR 51, considered
B & S Contracts & Designs Ltd v Victor Green Publications Ltd [1984] ICR 419, cited
Barton v Armstrong [1976] AC 104, cited
Blair v Curran (1939) 62 CLR 464, applied
Carl Zeiss Stiftung v Rayner & Keeler (No. 2) [1967] 1 AC 853, cited
Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40, not followed
Dimskal Shipping Co SA v International Transport Workers’ Federation [1992] 2 AC 152, cited
Hawker Pacific Pty Ltd v Helicopter Charter Pty Ltd (1991) 22 NSWLR 298
Kuligowski v Metrobus (2004) 220 CLR 363, discussed
Mitchell v Pacific Dawn Pty Ltd [2003] QSC 83, considered
North Ocean Shipping Co Ltd v Hyundai Construction Co Ltd [1979] QB 705
Ramsay v Pigram (1968) 118 CLR 271, considered
Universe Tankships Inc of Monrovia v International Transport Workers’ Federation [1983] 1 AC 366, cited

COUNSEL:

Mr D Cooper SC for the plaintiff
Mr A M Daubney…

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 Mitchell v Pacific Dawn Pty Ltd

Details

AGLC: Mitchell v Pacific Dawn Pty Ltd [2006] QSC 198
Case: [2006] QSC 198
Decision Date: 18 August 2006

CaseChat Overview and Summary

Mitchell v Pacific Dawn Pty Ltd involved the plaintiff, Mitchell, bringing an action against the defendant, Pacific Dawn Pty Ltd, over an alleged variation of an agreement and the defendant's alleged economic duress and misrepresentation. The case was heard in the Supreme Court of Queensland. Mitchell sought to amend his statement of claim to include allegations of economic duress and misrepresentation against Pacific Dawn Pty Ltd, while the defendant opposed these amendments and sought particulars of the claims.

The primary legal issues before the court were whether the findings made in a previous judgment by Ambrose J could give rise to issue estoppels against the defendant, and if the plaintiff's statement of claim was properly pleaded. The court had to determine if the previous findings by Ambrose J regarding the variation of the agreement were indispensable to the declaration ultimately granted and if the plaintiff's pleading met the legal requirements.

The court found that the previous findings by Ambrose J did not give rise to issue estoppels against the defendant. The court reasoned that the findings were not indispensable to the declaration ultimately granted and were not matters necessary to the decision. Additionally, the court determined that the plaintiff's statement of claim was not properly pleaded, as it failed to adequately plead the essentials of economic duress and misrepresentation. The court struck out the relevant paragraphs of the statement of claim and allowed the plaintiff leave to replead. The court also adjourned the defendant’s application for particulars of the statement of claim and dismissed the plaintiff’s application with costs reserved.

The court's orders included striking out specific paragraphs of the plaintiff's statement of claim, granting leave to the plaintiff to amend the statement of claim, adjourning the defendant’s application for particulars, and dismissing the plaintiff’s application with costs reserved. The costs of the defendant's application were awarded to the defendant.

Orders

Orders of the court

1. Paragraphs 23, 24 and 25 of the Further Further Amended Statement of Claim be struck out.

2. Leave to the plaintiff to replead paragraphs 23, 24 and 25 of the Further Further Amended Statement of Claim.

3. The defendant’s application for particulars of the Further Further Amended Statement of Claim is adjourned.

4. The costs of and incidental to the defendant’s application be its costs in the cause.

5. The plaintiff’s application is dismissed.

6. The costs of and incidental to the plaintiff’s application are reserved.

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.

Citations

AGLC Citation

Mitchell v Pacific Dawn Pty Ltd [2006] QSC 198

Most Recent Citation

Clarke v Cascade Pools (Qld) Pty Ltd [2010] QCAT 323

Cases citing this decision · 5 of 5 shown

Johnston v Brisbane City Council
[2019] QSC 130 Para 6

…, para 28, citing Blair v Curran [1939) 62 CLR 646 at 531-523, Kuligowski v Metrobus (2004) 220 CLR 363 at [21] and Mitchell v Pacific Dawn Pty Ltd [2006] QSC 198 at [35].…
Thorne v Kennedy
[2017] HCA 49 Para 7

…Wagner & Wagner [2009] FamCAFC 16 at [39]-[41]. [107](2005) 64 NSWLR 149 at 167 [62], 168 [66]. [108]See for example Mitchell v Pacific Dawn Pty Ltd [2006] QSC 198 at [20]-[24]; A Little Company Ltd v Peters [2007] NSWSC 833 at [44]-[45], [54]-[55]; A v N [2012] NSWSC 354 at [506]-[509], [520]; May v Brahmbhatt…
A v N
[2012] NSWSC 354

…v 3AW Broadcasting Co Pty Ltd [1985] VR 309 Mercantile Credit Co Ltd v Hamblin [1965] 2 QB 242; [1964] 3 All ER 592 Mitchell v Pacific Dawn Pty Ltd [2006] QSC 198 Musumeci v Winadell Pty Ltd (1994) 34 NSWLR 723 Murphy v Doman [2003] NSWCA 249 Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346 O'Brien v Australia…
State of Queensland v Dale and Meyers Operations Pty Ltd
[2010] QSC 361 Para 1

…Australia Pty Ltd v AMP Society [1999] FCA 718, para 8(e). See also the observations of Chesterman J as he was in Mitchell v Pacific Dawn Pty Ltd [2006] QSC 198, para 6. Indeed, the defendant indicated at an earlier time in correspondence that it was agreeable to the preliminary determination of such a question,…
Clarke v Cascade Pools (Qld) Pty Ltd
[2010] QCAT 323

…[1] [2006] QSC 198 at paragraph [25]…

View all 5 citing cases →

Cases cited in this decision · 14 of 14 shown

Australia & New Zealand Banking Group v Karam
[2005] NSWCA 344 Para 1

…Mr Daubney SC who appeared for the defendant relied on Australia & New Zealand Banking Group v Karam (2005) 64 NSWLR 149 in which the (NSW) Court of Appeal deprecated the use of the terms ‘economic duress’ and ‘illegitimate pressure’ as legal labels to be ascribed to conduct which is relied upon for the purpose of set…
Kuligowski v MetroBus
[2004] HCA 34 Para 1

…The principles of the doctrine of issue estoppel are easy to state but may be difficult to apply. The High Court in Kuligowski v Metrobus (2004) 220 CLR 363 at 373 accepted the formulation propounded by Lord Guest in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No. 2) [1967] 1 AC 853 at 935. An issue estoppel will aris…
Mitchell v Pacific Dawn Pty Ltd
[2003] QCA 526 Para 1

…October 2003 the Court of Appeal ordered that the answer to the question designated 3(b) be set aside and that the question be determined afresh: see [2003] QCA 526.…
Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd
[2003] HCA 18 Para 1

…uitable (and statutory) doctrine as described by the High Court in Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd (2003) 214 CLR 51.…
Mitchell v Pacific Dawn Pty Ltd
[2003] QSC 86 Para 1

…on for trial before Ambrose J on 19, 20, 21 August and 27 September 2002. On 4 April 2003 his Honour answered both questions in the affirmative: see [2003] QSC 86. The formal answers were:…
McChesney v Singh
[2003] QSC 83

…8 Kuligowski v Metrobus (2004) 220 CLR 363, discussed Mitchell v Pacific Dawn Pty Ltd [2003] QSC 83, considered North Ocean Shipping Co Ltd v Hyundai Construction Co Ltd [1979] QB 705 Ramsay v Pigram (1968) 118 CLR 271, considered Universe Tankships Inc of Monrovia v International Transport Workers’ Federation […
Ramsay v Pigram
[1968] HCA 34 Para 1

…It is requirement (1) which is in issue. As to that the High Court (at 379) approved the encapsulation of the law by Barwick CJ in Ramsay v Pigram (1968) 118 CLR 271 at 276. His Honour said:…
Blair v Curran
[1939] HCA 23 Para 1

…that the issue be identical in each case. This requirement is capable of expansion. The process was explained by Dixon J in Blair v Curran (1939) 62 CLR 464 at 531-3:…
[1967] 1 AC 853
[1967] 1 AC 853 Para 1

…uligowski v Metrobus (2004) 220 CLR 363 at 373 accepted the formulation propounded by Lord Guest in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No. 2) [1967] 1 AC 853 at 935. An issue estoppel will arise where: (1) the same question has been decided; (2) the judicial decision which is said to create the estoppel is…
[1976] AC 104
[1976] AC 104 Para 1

…well established by the cases: Universe Tankships Inc of Monrovia v International Transport Workers’ Federation [1983] 1 AC 366; Barton v Armstrong [1976] AC 104; Hawker Pacific Pty Ltd v Helicopter Charter Pty Ltd (1991) 22 NSWLR 298; Dimskal Shipping Co SA v International Transport Workers’ Federation [1992] 2…
Crescendo Management Pty Ltd v Westpac Banking Corporation
248 US 67 Para 1

…s always begged more questions than it pretended to answer and its use by McHugh JA in Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40 (at 46) has always been unhelpful. Pressure was said to be:…
[1983] 1 AC 366
[1983] 1 AC 366 Para 1

…d what is meant by it is reasonably well established by the cases: Universe Tankships Inc of Monrovia v International Transport Workers’ Federation [1983] 1 AC 366; Barton v Armstrong [1976] AC 104; Hawker Pacific Pty Ltd v Helicopter Charter Pty Ltd (1991) 22 NSWLR 298; Dimskal Shipping Co SA v International Tran…
[1992] 2 AC 152
[1992] 2 AC 152 Para 1

…04; Hawker Pacific Pty Ltd v Helicopter Charter Pty Ltd (1991) 22 NSWLR 298; Dimskal Shipping Co SA v International Transport Workers’ Federation [1992] 2 AC 152.…
[1979] QB 705
[1979] QB 705 Para 1

…ween the parties has been held to be unlawful and such as to amount to economic duress: see North Ocean Shipping Co Ltd v Hyundai Construction Co Ltd [1979] QB 705 and B & S Contracts & Designs Ltd v Victor Green Publications Ltd [1984] ICR 419.…

Legislation cited in this decision · 0

No legislation cited in this case.

CITATION:	Mitchell v Pacific Dawn Pty Ltd [2006] QSC 198
PARTIES:	BRUCE JOSEPH MITCHELL (plaintiff) v PACIFIC DAWN PTY LTD ACN 070 358 280 (defendant)
FILE NO:	BS3872 of 2001
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	18 August 2006
DELIVERED AT:	Brisbane
HEARING DATE:	27 July 2006
JUDGE:	Chesterman J
ORDER:	1. Paragraphs 23, 24 and 25 of the Further Further Amended Statement of Claim be struck out. 2. Leave to the plaintiff to replead paragraphs 23, 24 and 25 of the Further Further Amended Statement of Claim. 3. The defendant’s application for particulars of the Further Further Amended Statement of Claim is adjourned. 4. The costs of and incidental to the defendant’s application be its costs in the cause. 5. The plaintiff’s application is dismissed. 6. The costs of and incidental to the plaintiff’s application are reserved.
CATCHWORDS:	EQUITY – UNDUE INFLUENCE AND DURESS – DURESS – whether economic duress and unconscionability are mutually exclusive concepts ESTOPPEL – FORMER ADJUDICATION AND MATTERS OF RECORD OR QUASI OF RECORD – FORMER ADJUDICATION – JUDGMENT INTER PARTES – ISSUE ESTOPPEL – RESPECTING WHAT MATTERS DECISION CONCLUSIVE – MATTERS NECESSARY TO THE DECISION – previous findings by Ambrose J that an agreement between the parties was varied and made a declaration without reference to the variation – defendant’s defence denies the variation – whether findings give rise to issue estoppels against the defendant – same question – whether Ambrose J’s finding was indispensable to the declaration ultimately granted PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PLEADING – STATEMENT OF CLAIM – plaintiff’s statement of claim alleges inter alia economic duress and misrepresentation against the defendant – essentials to be pleaded – whether plaintiff’s pleading has a legal basis – whether properly pleaded Australia & New Zealand Banking Group v Karam (2005) 64 NSWLR 149, discussed Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd (2003) 214 CLR 51, considered B & S Contracts & Designs Ltd v Victor Green Publications Ltd [1984] ICR 419, cited Barton v Armstrong [1976] AC 104, cited Blair v Curran (1939) 62 CLR 464, applied Carl Zeiss Stiftung v Rayner & Keeler (No. 2) [1967] 1 AC 853, cited Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40, not followed Dimskal Shipping Co SA v International Transport Workers’ Federation [1992] 2 AC 152, cited Hawker Pacific Pty Ltd v Helicopter Charter Pty Ltd (1991) 22 NSWLR 298 Kuligowski v Metrobus (2004) 220 CLR 363, discussed Mitchell v Pacific Dawn Pty Ltd [2003] QSC 83, considered North Ocean Shipping Co Ltd v Hyundai Construction Co Ltd [1979] QB 705 Ramsay v Pigram (1968) 118 CLR 271, considered Universe Tankships Inc of Monrovia v International Transport Workers’ Federation [1983] 1 AC 366, cited
COUNSEL:	Mr D Cooper SC for the plaintiff Mr A M Daubney…