Mitchell v Pacific Dawn Pty Ltd

[2007] QCA 74

SUPREME COURT OF QUEENSLAND

CITATION:

Mitchell v Pacific Dawn P/L [2007] QCA 74

PARTIES:

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

FILE NO/S:

Appeal No 7816 of 2006
SC No 3872 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

16 March 2007

DELIVERED AT:

Brisbane

HEARING DATE:

15 February 2007

JUDGES:

de Jersey CJ, Keane JA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal dismissed
2. Plaintiff to pay the defendant's costs of the appeal, to be assessed on the standard basis

CATCHWORDS:

PROCEDURE - SUPREME COURT PROCEDURE - QUEENSLAND - PROCEDURE UNDER RULES OF COURT - PLEADING - GENERALLY - where plaintiff's pleadings alleged duress, illegitimate pressure and unconscionable conduct arising out of the same facts - whether references to illegitimate pressure and unconscionable conduct should be struck out

ESTOPPEL - FORMER ADJUDICATION AND MATTERS OF RECORD OR QUASI RECORD - FORMER ADJUDICATION - JUDGMENT INTER PARTES - ISSUE ESTOPPEL - RESPECTING WHAT MATTERS DECISION CONCLUSIVE - where parties compromised contract - where plaintiff alleged contract was varied prior to compromise - whether judgment as to compromise of contract created issue estoppel in relation to alleged prior variation 

ACCC v CG Berbatis Holdings Pty Ltd (2003) 214 CLR 51, applied
Brewer v Brewer (1953) 88 CLR 1, applied

Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315, applied

COUNSEL:

D R Cooper SC for the appellant
A M Daubney SC, with P D Tucker, for the respondent

SOLICITORS:

MacDonnells Law for the appellant
Hogan and Company Lawyers for the respondent

1. de JERSEY CJ:  I have had the advantage of reading the reasons for judgment of Keane JA.  I agree with the orders proposed by His Honour, and with his reasons.

1. KEANE JA:  On 2 September 1999, the plaintiff entered into a contract with the defendant whereby the plaintiff agreed to construct a building on the defendant's land at Toowong.  The parties fell into dispute; and, in 2001, the plaintiff commenced proceedings for damages totalling something of the order of $300,000. 

1. Orders were made for the separate determination of questions relating to whether the parties had, on 22 December 2000, compromised their rights under the contract, and, if so, whether the compromise was unenforceable because it was made by reason of the application of duress by the defendant.  At first instance, each of these questions was determined in the affirmative by Ambrose J.[1]  There was an appeal from these determinations.  The Court of Appeal upheld the first of the determinations by Ambrose J, but set aside the second and ordered that that question be determined by another judge of the Supreme Court.[2]  The Court of Appeal's order was made on 28 November 2003.  That question has yet to be determined.

   [1]Mitchell v Pacific Dawn Pty Ltd [2003] QSC 086.

   [2]Mitchell v…