Power v Schembri - [2017] QDC 269

DISTRICT COURT OF QUEENSLAND

CITATION:

Power & Another v Schembri & Another [2017] QDC 269

PARTIES:

PAUL DAVID POWER
(first plaintiff/first respondent)

and

PDP GROUP (QLD) PTY LTD
(second plaintiff/second respondent)

v

PAUL ALEXANDER SCHEMBRI
(first defendant)

and

BETTERGROW PTY LTD
(second defendant/applicant)

FILE NO.:

131 of 17

DIVISION:

Civil

PROCEEDING:

Application

DELIVERED ON:

14 November 2017

DELIVERED AT:

Brisbane

HEARING DATE:

28 September 2017

JUDGE:

Rosengren DCJ

ORDER:

1.   The plaintiffs’ claim against the second defendant is dismissed.

2.   The plaintiffs pay the second defendant’s costs of the proceeding.

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – PROPER CONSTRUCTION OF SETTLEMENT DEED – where the plaintiffs alleged that the second defendant is jointly and severally liable for the first defendant’s breaches pursuant to the settlement deed – whether it was the intention of the parties that the settlement deed provide for joint and several liability of the second defendant

SUMMARY JUDGEMENT FOR DEFENDANT – r 293 – where the second defendant applied for summary judgement against the whole of the plaintiffs’ claim – where the plaintiffs’ claim against the second defendant was based entirely on the allegation that the second defendant is jointly and severally liable for the first defendant’s breaches pursuant to the settlement deed - whether there exists a real prospect of success

Legislation

Uniform Civil Procedure Rules 1999 (Qld), r 292, r 293, r 678, r 680, r 681, r 686(a), r 702(1)
Civil Proceedings Act 2011 (Qld), s 15

Cases

Lombard Australia Ltd v NRMA Insurance Ltd [1968] 3 NSWR 346, cited
Waterways Authority of New South Wales v Coal & Allied (Operations) Pty Limited [2007] NSWCA 276, cited
Wilkie v Gordian Runoff Ltd (2005) 221 CLR 52, cited
Australian Broadcasting Commission v Australasian Performing Right Assn Ltd (1973) 129 CLR 99, cited
McCann v Switzerland Insurance Australia Ltd (2000) 176 ALR 711, cited
Valgas Pty Ltd v Connell (1994) 120 FLR 345, cited
Gray v Morris [2004] 2 Qd R 118, cited
Queensland University of Technology v Project Constructions (Aust) Pty Ltd (in liq) [2003] 1 Qd R 259, cited
Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232, cited
Agar v Hyde (2000) 201 CLR 552, cited
Chidgey v Wellner & Anor [2006] QDC 400, cited

COUNSEL:
JD Byrnes for the second defendant
GJ Radcliff for the plaintiffs

SOLICITORS:
Thomson Geer Lawyers for the second defendant
Legend Legal Group for the plaintiffs

[1]      By proceedings commenced on 16 May 2017, the plaintiffs allege the first defendant breached its obligations under a settlement deed. They seek to recover damages against the first defendant for breach of contract or alternatively, an account of profits.   The plaintiffs allege, as against the second defendant, that it is jointly and severally liable for the first defendant’s breaches of the settlement deed.   No other basis for liability is alleged against the second defendant.

[2] On 11 September 2017, the second defendant filed an application seeking summary judgment on the whole…

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 Power v Schembri

Details

AGLC: Power v Schembri [2017] QDC 269
Case: [2017] QDC 269
Decision Date: 14 November 2017

CaseChat Overview and Summary

Power and another v Schembri and another involved a dispute over the interpretation of a settlement deed and the liability of the defendants. The plaintiffs alleged that the second defendant was jointly and severally liable for the first defendant’s breaches under the settlement deed. The matter was heard in the Federal Circuit and Family Court of Australia.

The central legal issue the court had to determine was whether the settlement deed intended to impose joint and several liability on the second defendant for the first defendant’s breaches. The plaintiffs argued that the deed explicitly included such liability, while the second defendant contended that the wording did not support this interpretation.

The court found in favour of the second defendant, granting summary judgement under rule 293. It held that there was no real prospect of success for the plaintiffs' claim against the second defendant, as the settlement deed did not clearly or unequivocally impose joint and several liability on the second defendant. Consequently, the court dismissed the plaintiffs' claim against the second defendant and ordered the plaintiffs to pay the second defendant’s costs of the proceeding.

Orders

Orders of the court

1. The plaintiffs’ claim against the second defendant is dismissed.

2. The plaintiffs pay the second defendant’s costs of the proceeding.

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.

CITATION:	Power & Another v Schembri & Another [2017] QDC 269
PARTIES:	PAUL DAVID POWER (first plaintiff/first respondent) and PDP GROUP (QLD) PTY LTD (second plaintiff/second respondent) v PAUL ALEXANDER SCHEMBRI (first defendant) and BETTERGROW PTY LTD (second defendant/applicant)
FILE NO.:	131 of 17
DIVISION:	Civil
PROCEEDING:	Application
DELIVERED ON:	14 November 2017
DELIVERED AT:	Brisbane
HEARING DATE:	28 September 2017
JUDGE:	Rosengren DCJ
ORDER:	1. The plaintiffs’ claim against the second defendant is dismissed. 2. The plaintiffs pay the second defendant’s costs of the proceeding.
CATCHWORDS:	CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – PROPER CONSTRUCTION OF SETTLEMENT DEED – where the plaintiffs alleged that the second defendant is jointly and severally liable for the first defendant’s breaches pursuant to the settlement deed – whether it was the intention of the parties that the settlement deed provide for joint and several liability of the second defendant SUMMARY JUDGEMENT FOR DEFENDANT – r 293 – where the second defendant applied for summary judgement against the whole of the plaintiffs’ claim – where the plaintiffs’ claim against the second defendant was based entirely on the allegation that the second defendant is jointly and severally liable for the first defendant’s breaches pursuant to the settlement deed - whether there exists a real prospect of success Legislation Uniform Civil Procedure Rules 1999 (Qld), r 292, r 293, r 678, r 680, r 681, r 686(a), r 702(1) Civil Proceedings Act 2011 (Qld), s 15 Cases Lombard Australia Ltd v NRMA Insurance Ltd [1968] 3 NSWR 346, cited Waterways Authority of New South Wales v Coal & Allied (Operations) Pty Limited [2007] NSWCA 276, cited Wilkie v Gordian Runoff Ltd (2005) 221 CLR 52, cited Australian Broadcasting Commission v Australasian Performing Right Assn Ltd (1973) 129 CLR 99, cited McCann v Switzerland Insurance Australia Ltd (2000) 176 ALR 711, cited Valgas Pty Ltd v Connell (1994) 120 FLR 345, cited Gray v Morris [2004] 2 Qd R 118, cited Queensland University of Technology v Project Constructions (Aust) Pty Ltd (in liq) [2003] 1 Qd R 259, cited Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232, cited Agar v Hyde (2000) 201 CLR 552, cited Chidgey v Wellner & Anor [2006] QDC 400, cited
COUNSEL:	JD Byrnes for the second defendant GJ Radcliff for the plaintiffs
SOLICITORS:	Thomson Geer Lawyers for the second defendant Legend Legal Group for the plaintiffs