DISTRICT COURT OF QUEENSLAND
CITATION:
Poulus v MSG Operations Pty Ltd [2021] QDC 129
PARTIES:
PAUL HENDRICK POULUS and CHERYL ANN POULUS
(plaintiff)v
MSG OPERATIONS PTY LTD (ACN 621 094 577)
(defendant)FILE NO:
1160/20
DIVISION:
Civil
PROCEEDING:
Trial
DELIVERED ON:
29 June 2021
DELIVERED AT:
Brisbane
HEARING DATE:
18 February 2021 (with written submissions provided on 24 and 26 February and 2 March 2021)
23 June 2021 (oral submissions with further written submissions provided on 25 June and 28 June 2021)
JUDGE:
Rosengren DCJ
ORDERS:
The claim in relation to the oral agreement pleaded at paragraph 10A of the statement of claim is dismissed.1.
It is declared that:2.
the defendant has breached the lease;(a)
the word “below” in clause 4.3.3 of the lease should be read and construed as if meaning “above”;(b)
the MMR pursuant to clauses 4.2 and 4.3 of the lease the defendant has been required to pay not less than (c) for each month since the commencement of the lease in October 2017;as a monthly royalty
since February 2018:(d)
the defendant has been required to pay an additional royalty pursuant to clause 4.3.2(a), if the calculation pursuant to clause 4.2 has resulted in a figure higher than the MMR;(i)
however, if the calculation pursuant to clause 4.2 has resulted in a figure lower than the MMR, pursuant to clause 4.3.3 the defendant has been entitled to credit any such overpayment against future royalty payments where the calculation pursuant to clause 4.2 has resulted in a figure higher than the MMR.(ii)
I direct that by 4pm on 20 July 2021 the parties deliver an agreed order in relation to the quantum of the royalties and the interest to be paid by the defendant.If the parties cannot agree, the matter be listed for further directions. 3.
The parties are given leave to make further submissions as to the form of the orders.4.
I will hear the parties as to costs. 5.
CATCHWORDS:
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – OTHER MATTERS – where the defendant operates a sand mining business on the plaintiff’s land – whether pursuant to Part 4 of the lease the defendant is required to pay not less than a minimum monthly royalty each month
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – whether there is an error in clause 4.3.3 of the lease – whether the word “below” has been used erroneously rather than the word ‘above’ – whether it is a clear mistake – whether a correction is required to give effect to the intention of the parties
CONTRACTS - COLLATERAL CONTRACTS – CONSISTENCY OF COLLATERAL CONTRACT WITH MAIN CONTRACT - where plaintiff alleges a collateral contract obliging the defendant to pay the royalties for the first three months of the lease on a deferred basis - where the lease contains an entire agreement clause - whether the entire agreement clause applies to exclude a collateral contract -…
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- AGLC
- Poulus v MSG Operations Pty Ltd [2021] QDC 129
- Case
- [2021] QDC 129
- Decision Date
CaseChat Overview and Summary
The court found that MSG Operations was indeed required to pay the MMR each month, as stated in clauses 4.2 and 4.3 of the lease. The court also held that there was a drafting error in clause 4.3.3 of the lease, where the word "below" should be read as "above" to give effect to the intention of the parties. Regarding the alleged oral agreement, the court found that the entire agreement clause did not exclude the possibility of a collateral contract, but the statement made by Poulus was not promissory but rather representational. The claim in relation to the oral agreement was dismissed.
The court declared that MSG Operations had breached the lease by not paying the MMR and that the word "below" in clause 4.3.3 should be read as "above". The court also directed that by a specified date, the parties deliver an agreed order in relation to the quantum of the royalties and interest to be paid by MSG Operations. If the parties could not agree, the matter would be listed for further directions. The court also gave the parties leave to make further submissions as to the form of the orders and would hear the parties as to costs.
Orders
Orders of the court
The claim in relation to the oral agreement pleaded at paragraph 10A of the statement of claim is dismissed.1.
It is declared that:2.
the defendant has breached the lease;(a)
the word “below” in clause 4.3.3 of the lease should be read and construed as if meaning “above”;(b)
the MMR pursuant to clauses 4.2 and 4.3 of the lease the defendant has been required to pay not less than (c) for each month since the commencement of the lease in October 2017;as a monthly royalty
since February 2018:(d)
the defendant has been required to pay an additional royalty pursuant to clause 4.3.2(a), if the calculation pursuant to clause 4.2 has resulted in a figure higher than the MMR;(i)
however, if the calculation pursuant to clause 4.2 has resulted in a figure lower than the MMR, pursuant to clause 4.3.3 the defendant has been entitled to credit any such overpayment against future royalty payments where the calculation pursuant to clause 4.2 has resulted in a figure higher than the MMR.(ii)
I direct that by 4pm on 20 July 2021 the parties deliver an agreed order in relation to the quantum of the royalties and the interest to be paid by the defendant.If the parties cannot agree, the matter be listed for further directions. 3.
The parties are given leave to make further submissions as to the form of the orders.4.
I will hear the parties as to costs. 5.
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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