Redchip Constructions Pty Ltd v Ourari - [2023] QCAT 110

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Redchip Constructions Pty Ltd v Ourari [2023] QCAT 110

PARTIES:

REDCHIP CONSTRUCTIONS PTY LTD

(applicant)

v

ANNE OURARI

(respondent)

APPLICATION NO/S:

BDL141-20

MATTER TYPE:

Building matters

DELIVERED ON:

24 March 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

1.     The answer to the preliminary question is as follows: Upon the proper construction, the Deed of Settlement and Release dated 16 December 2020 does not operate to extinguish the rights of the parties in respect of the current proceeding.

2.     Redchip Constructions Pty Ltd must file in the Tribunal two (2) copies and give Anne Ourari one (1) copy of:

(a)     Redchip Constructions Pty Ltd’s statement of evidence, which must be signed, dated and page numbered;

(b)     The signed, dated and page numbered statement from each witness to give evidence for Redchip Constructions Pty Ltd at the hearing including any experts; and

(c)     Any documents referred to in a statement of evidence which must be identified, explained and attached to the appropriate witness statement, by 4:00pm on 5 May 2023.

3.     Anne Ourari must file in the Tribunal two (2) copies and give Redchip Constructions Pty Ltd one (1) copy of:

(a)     Anne Ourari’s statement of evidence, which must be signed, dated and page numbered;

(b)     The signed, dated and page numbered statement from each witness to give evidence for Anne Ourari at the hearing including any experts; and

(c)     Any documents referred to in a statement of evidence which must be identified, explained and attached to the appropriate witness statement, by 4:00pm on 16 June 2023.

4.     Redchip Constructions Pty Ltd must file in the Tribunal two (2) copies and give Anne Ourari one (1) copy of any statements of evidence in reply, by 4:00pm on 30 June 2023.

5.     Anne Ourari must file in the Tribunal two (2) copies and give Redchip Constructions Pty Ltd one (1) copy of any statements of evidence in reply, limited to the counter-application, by 4:00pm on 14 July 2023.

6.     The matter is listed for a Compulsory Conference in Brisbane on a date and time to be advised but not before 14 July 2023.

7.     The parties must attend the Compulsory Conference in person.

CATCHWORDS:

CONTRACTS – CONSTRUCTION AND INTERPRETATION OF DOCUMENTS – INTERPRETATION OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS – whether parties compromised their rights in respect of the claims the subject of the proceeding as a result of entering into a deed of settlement and release – whether terms of the deed entered into by parties operated as immediate discharge of claims and counterclaims of parties in proceedings then pending – requirement to construe deed so as to give it the meaning intended by the parties –intention is to be determined objectively by reference to what a reasonable person would think – deed required to be read as a whole – intention of parties expressed in deed that proceeding would remain on foot until such time as parties…

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 Redchip Constructions Pty Ltd v Ourari

Details

AGLC: Redchip Constructions Pty Ltd v Ourari [2023] QCAT 110
Case: [2023] QCAT 110
Decision Date

CaseChat Overview and Summary

In the case of Redchip Constructions Pty Ltd v Ourari, the dispute revolves around the interpretation of a Deed of Settlement and Release dated 16 December 2020. The matter was before the court to determine whether this deed effectively extinguished the rights of the parties in the ongoing proceeding. Redchip Constructions Pty Ltd sought to argue that the deed constituted a final settlement, while Ourari contended that the deed did not operate to extinguish the rights of the parties in respect of the current proceeding. The court was tasked with interpreting the deed and determining its effect on the existing proceeding.

The primary legal issue the court had to decide was the proper construction of the Deed of Settlement and Release. Specifically, the court needed to ascertain whether the deed amounted to an accord and satisfaction, which would extinguish all claims between the parties, or whether it was merely an accord conditional on the performance of certain obligations. The court had to consider the language of the deed, the context in which it was executed, and the intentions of the parties as objectively determined. The court also needed to examine whether the deed was an accord executory, which is unenforceable until performance, or an accord and conditional satisfaction, where the compromise does not discharge the existing cause of action until performance.

The court concluded that the Deed of Settlement and Release did not operate to extinguish the rights of the parties in the current proceeding. The court's reasoning was based on the construction of the deed as a whole, particularly clauses 3.10, 3.11, and 3.12, which indicated that the proceeding was to remain active until certain conditions were met. Clause 4.1, which referred to the execution of the deed as an immediate and absolute bar to any claim, was interpreted in the context of these other provisions. The court held that the parties intended the deed to be an accord and conditional satisfaction, meaning it did not discharge any existing claims until the specified conditions were fulfilled. The court ordered the proceeding to continue in the Tribunal for the determination of the application and counter-application, with directions for the parties to file statements of evidence and proceed to a compulsory conference.

The court's decision ensures that the rights of the parties are preserved until the terms of the Deed of Settlement and Release are fully performed, allowing the proceeding to continue as necessary.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The proceeding should continue in the Tribunal to enable the application and the counter-application to be determined. Conclusion The answer to the preliminary question is as follows: Upon the proper construction, the Deed of Settlement and Release dated 16 December 2020 does not operate to extinguish the rights of the parties in respect of the current proceeding. I will make directions for the parties to file statements of evidence and for the matter to proceed to a compulsory conference.

Ratio Decidendi

Legal Principle Established

There is also a third category of agreement – an accord and conditional satisfaction. This category was explained by Phillips JA in Osborn v McDermott:Thus, there are three possibilities, not two. First, there is the mere accord executory which, on the authorities, does not constitute a contract and which is altogether unenforceable, giving rise to no new rights and obligations pending performance and under which, when there is performance (but only when there is performance), the plaintiff's existing cause of action is discharged. Secondly, at the other end of the scale is the accord and satisfaction, under which there is an immediate and enforceable agreement once the compromise is agreed upon, the parties agreeing that the plaintiff takes in satisfaction of his existing claim against the defendant the new promise by the defendant in substitution for any existing obligation. Somewhere between the two, there is the accord and conditional satisfaction, which exists where the compromise amounts to an existing and enforceable agreement between the parties for performance according to its tenor but which does not operate to discharge any existing cause of action unless and until there has been performance.Where there is a mere accord executory, no suit can be maintained upon the compromise unless and until there has been performance, and then suit is ordinarily unnecessary. Upon default in performance, the plaintiff's existing cause of action continues unaffected. With accord and satisfaction, either party may sue upon the compromise, but only on the compromise and for nothing else: the original cause of action has gone. Where there is accord and conditional satisfaction, the plaintiff is bound to await performance and accept it if tendered, but if there be no performance, then the plaintiff may proceed according to general principles called into play when any agreement is repudiated: the plaintiff may either treat the agreement (the accord) as at an end and proceed on his original cause of action; or he may, at his option, sue on the compromise agreement, in place of the original cause of action.[4][4]Osborn & Anor v McDermott & Anor (n 2) 10 per Phillips JA.Consideration The focus of consideration of the effect of the deed is upon what the parties agreed to rather than the categorisation of the deed as an accord and satisfaction, an accord executory or an accord and conditional satisfaction. As with any commercial document, the deed must be construed so as to give it the meaning intended by the parties. That intention is to be determined objectively by reference to what a reasonable person would think was intended.[5][5]Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165, 178 per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ. Clause 4.1 of the deed cannot be read in isolation from the provisions of the deed as a whole. Clauses 3.10, 3.11 and 3.12 clearly contemplate agreement by the parties that the proceeding would remain on foot until such time as the works were performed by Redchip and the settlement sum paid by Ms Ourari. The reference in clause 4.1 to the execution of the deed by the parties acting as an immediate and absolute bar to any claim by either party must be construed in this context.