Mitchell v Pacific Dawn Pty Ltd

Case [2011] QCA 98

SUPREME COURT OF QUEENSLAND

CITATION:

Mitchell v Pacific Dawn Pty Ltd [2011] QCA 98

PARTIES:

BRUCE JOSEPH MITCHELL
(appellant)
v
PACIFIC DAWN PTY LTD
ACN 070 358 280
(respondent)

FILE NO/S:

Appeal No 8241 of 2010
SC No 3872 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

13 May 2011

DELIVERED AT:

Brisbane

HEARING DATE:

21 February 2011

JUDGES:

Fraser and Chesterman JJA and Ann Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    Appeal dismissed with costs to be assessed on the standard basis;

2.    The parties are directed to exchange and lodge written submissions by 23 May 2011 upon the question whether the Court should order that the proceedings in the trial division be transferred to the Magistrates Court.

CATCHWORDS:

EQUITY – GENERAL PRINCIPLES – UNCONSCIONABILITY, UNCONSCIONABLE DEALINGS AND OTHER FORMS OF EQUITABLE FRAUD – where the appellant and respondent entered into a lump sum contract for building works with a “guaranteed upper limit cost” – where disputes arose under the contract in relation to liquidated damages for delay, variations to the contract, and progress payment claims – where the parties entered into a settlement agreement to resolve these disputes – where the appellant sought to avoid the settlement agreement on the basis that he had entered into it as a result of coercion, economic duress or unconscionable conduct – where the trial judge held that the settlement agreement was enforceable – where the appellant argued that the trial judge erred in finding that the settlement agreement was a compromise of legitimate contending claims, that the respondent did not threaten to breach the contract and that the respondent had or believed it had a potential claim for liquidated damages – whether the trial judge erred in finding that the settlement agreement was enforceable

Supreme Court of Queensland Act 1991 (Qld), s 75

Blomley v Ryan (1956) 99 CLR 362; [1956] HCA 81, cited
Bridgewater v Leahy (1998) 194 CLR 457; [1998] HCA 66, cited
Carillion Construction Ltd v Felix (UK) Ltd [2001] BLR 1, cited
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 337; [1983] HCA 14, cited
Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40, cited
DSND Subsea Ltd v Petroleum Geo Services ASA [2000] BLR 530, cited
Louth v Diprose (1992) 175 CLR 621; [1992] HCA 61, cited
Mitchell v Pacific Dawn Pty Ltd [2003] QSC 86, cited
Mitchell v Pacific Dawn Pty Ltd [2003] QCA 526, cited
Mitchell v Pacific Dawn Pty Ltd [2010] QSC 243, affirmed
Yara Nipro Pty Ltd v Interfert Australia Pty Ltd[2010] QCA 164, cited

COUNSEL:

L D Bowden for the appellant
R Bain QC, with P Tucker, for the respondent

SOLICITORS:

Shand Taylor Lawyers for the appellant
Australian Law Group for the respondent

[1]      FRASER JA: In September 1999…

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AGLC
Mitchell v Pacific Dawn Pty Ltd [2011] QCA 98
Case
[2011] QCA 98
Decision Date

CaseChat Overview and Summary

Mitchell and Pacific Dawn Pty Ltd were engaged in a building contract dispute. The contract contained a guaranteed upper limit cost, but disputes arose over liquidated damages, variations, and progress payments. To resolve these disputes, the parties entered into a settlement agreement, which Mitchell sought to avoid on the basis of coercion, economic duress, and unconscionable conduct. The trial judge found the settlement agreement enforceable, rejecting Mitchell's claims that the respondent threatened to breach the contract and that it had a potential claim for liquidated damages.

The legal issues before the court were whether the trial judge erred in finding the settlement agreement enforceable, in determining that it was a compromise of legitimate claims, and in concluding that the respondent did not threaten to breach the contract or had a potential liquidated damages claim. The court considered whether the settlement agreement was the product of unconscionable conduct or if it was a compromise of legitimate claims. The court also examined whether the respondent threatened to breach the contract and whether it had a potential liquidated damages claim.

The court found that the settlement agreement was a genuine compromise of legitimate claims and was not the result of unconscionable conduct. The respondent did not threaten to breach the contract and did not have a potential liquidated damages claim. The court found no error in the trial judge's decision and dismissed the appeal. The court ordered that the parties exchange and lodge written submissions on whether the proceedings in the trial division should be transferred to the Magistrates Court.

The orders of the court were that the appeal be dismissed with costs to be assessed on the standard basis. The parties were directed to exchange and lodge written submissions by 23 May 2011 on whether the Court should order that the proceedings in the trial division be transferred to the Magistrates Court.

Orders

Orders of the court

1. Appeal dismissed with costs to be assessed on the standard basis;

2. The parties are directed to exchange and lodge written submissions by 23 May 2011 upon the question whether the Court should order that the proceedings in the trial division be transferred to the Magistrates Court.

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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