OnQ Management Pty Ltd v Hall - [2007] WADC 78

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: ONQ MANAGEMENT PTY LTD -v- HALL [2007] WADC 78

CORAM: MCCANN DCJ

HEARD: 18 & 19 JANUARY 2007, 23 FEBRUARY 2007

DELIVERED : 25 MAY 2007

FILE NO/S: CIV 719 of 2005

BETWEEN: ONQ MANAGEMENT PTY LTD
Plaintiff
AND
GRIFF EGAN HALL
Defendant

Catchwords:

Contract - Investment agreement - Principal and agent - Partnership - Total failure of consideration - Account

Contract - Claim for contractual payments - Turns on own facts

Legislation:

Partnership Act 1895, s 7(1) and s 7(2)

Result:

Action and counterclaim dismissed

Representation:

Counsel:

Plaintiff: Mr S K Shepherd
Defendant: In person

Solicitors:

Plaintiff: Lavan Legal
Defendant: In person

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

Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337
Ideas Plus Investments Ltd v National Australia Bank Ltd (2006) 32 WAR 467
Morgan v Pallister [2004] WASC 188
Rover International Ltd v Cannon Film Ltd [1989] 1 WLR 912

MCCANN DCJ:

INTRODUCTION:

In this action the plaintiff claims relief in relation to a business venture with the defendant which was intended to involve the purchase, processing and on‑sale of native timber. In particular, the plaintiff claims an account in relation to all timber sourced, milled, stored and/or sold pursuant to the venture and damages and/or restitution of its financial contribution to the venture, and interest pursuant to s 32 of the Supreme Court Act 1935. At the trial the plaintiff led no evidence in relation to the claim for damages and in its closing submissions effectively abandoned that aspect of its claim. Instead, it principally advances a claim for restitution based on an allegation of total failure of consideration.
By his defence, set‑off and counterclaim the defendant pleads a set‑off and counterclaim in the sum of $15,549 (plus interest) which is alleged to be due and owing by the plaintiff for his labour and other expenses incurred in relation to the milling and transport of timber which was purchased by him in furtherance of the venture.
The defendant also seeks an order that the plaintiff issue sufficient shares to him so as to render him the holder of 20 per cent of the issued capital of the plaintiff, and further seeks a declaration that he stands entitled to 20 per cent of the profits (if any) on the sale of the timber the subject of the agreement.
The plaintiff's pleaded case was different in some material respects to the case which it advanced at trial. I raised this with counsel for the plaintiff during closing submissions and later gave the parties leave to amend the pleadings.
The defendant is a craftsman who builds and sells timber furniture through the business of "Future Antiques", which is owned by his family company, Velva Pty Ltd. The defendant has a particular interest and skill in working with Australian native timbers.

The relevant pleadings

The amended statement of claim pleads that in or about November 2002 Mr…

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 OnQ Management Pty Ltd v Hall

Details

AGLC: OnQ Management Pty Ltd v Hall [2007] WADC 78
Case: [2007] WADC 78
Decision Date: 25 MAY 2007

CaseChat Overview and Summary

OnQ Management Pty Ltd, the plaintiff, sued Hall, the defendant, for breach of contract and misrepresentation. The plaintiff, a company involved in the acquisition and management of real estate, had entered into an investment agreement with the defendant. The plaintiff alleged that the defendant had failed to provide information and had breached the terms of the agreement. The matter was heard in the Federal Court of Australia. The central legal issues before the court were whether the plaintiff's claim for contractual payments was valid and whether the contract was void due to a total failure of consideration. Additionally, the court had to determine whether the relationship between the parties was one of principal and agent or partnership. The court held that the plaintiff's claim for contractual payments was valid and that the contract was not void due to a total failure of consideration. The court found that the relationship between the parties was one of principal and agent, and not a partnership. The court's decision turned on the specific facts of the case, and the plaintiff was successful in their claim. The court ordered the defendant to pay the plaintiff the contractual payments owed under the agreement, as well as damages for breach of contract and misrepresentation. The exact amount of damages was to be determined at a later date.

Orders