Ross v Cox
[2019] WASC 408
•8 NOVEMBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: ROSS -v- COX [2019] WASC 408
CORAM: TOTTLE J
HEARD: 18 OCTOBER 2019
DELIVERED : 18 OCTOBER 2019
PUBLISHED : 8 NOVEMBER 2019
FILE NO/S: CIV 2047 of 2016
BETWEEN: ANTHONY RICHARD ROSS
First Plaintiff
JACQUELINE ROSS
Second Plaintiff
ROSS CONSULTANTS PTY LIMITED
Third Plaintiff
AND
PETER COX
Defendant
Catchwords:
Practice and procedure - Motions for judgment - Where defence struck out pursuant to order of court - Where plaintiff moves for judgment - Where allegations of fact uncontested
Legislation:
Australian Consumer Law (WA), s 4, s 18, s 236
Competition and Consumer Act 2010 (Cth), Sch 2
Fair Trading Act 2010 (WA), s 19
Rules of the Supreme Court 1971 (WA), O 41 r 1
Result:
Judgment entered against first defendant
Category: B
Representation:
Counsel:
| First Plaintiff | : | S J Davis |
| Second Plaintiff | : | S J Davis |
| Third Plaintiff | : | S J Davis |
| Defendant | : | No appearance |
Solicitors:
| First Plaintiff | : | MGD Law |
| Second Plaintiff | : | MGD Law |
| Third Plaintiff | : | MGD Law |
| Defendant | : | No appearance |
Case(s) referred to in decision(s):
Australian Competition and Consumer Commission v Valve Corp (No 3) [2016] FCA 196
Oskar v Bank of New South Wales [1984] WAR 262
Paper Products Pty Ltd v Tomlinsons (Rochdale) Ltd (No 2) [1993] FCA 430; (1993) 44 FCR 485
Rock Solid Surfaces Pty Ltd v Biesse Group (Australia) Pty Ltd [2011] FCA 42
TOTTLE J:
Introduction
On 18 October 2019 I ordered that judgment be entered in favour of the first and third plaintiffs against the first defendant in respect of a number of the first and third plaintiffs' claims. One of the first plaintiff's claims was a claim for unliquidated damages and I assessed the damages in the amounts set out in these reasons. I gave brief oral reasons and said I would publish more detailed reasons. These are those reasons.
On 24 July 2019 I ordered that if the first defendant failed to provide discovery on affidavit by 30 August 2019 his defence would be struck out and the plaintiffs would have leave to apply for judgment against the first defendant.
Despite the first defendant's assurances, he did not file and serve an affidavit of discovery. The court has received no further communication from the first defendant and no documents have been filed by him.
On 12 September 2019 the plaintiffs filed a motion for judgment against the first defendant pursuant to O 41 r 1 of the Rules of the Supreme Court 1971 (WA). In so doing the plaintiffs followed the procedure outlined in Oskar v Bank of New South Wales.[1]
[1] Oskar v Bank of New South Wales [1984] WAR 262.
The parties
The first plaintiff is a former business associate of the first defendant. The first plaintiff is married to the second plaintiff. The third plaintiff is a company controlled by the first plaintiff through which he conducts a consultancy services business. When initiated this claim stood against the first defendant as well as a second and third defendant. The claims against the second and third defendants have since been discontinued but it is relevant to note that the second defendant is a company formerly controlled by the first defendant that is now in liquidation. The third defendant was formerly married to the first defendant.
Procedural background
This matter was commenced by a writ of summons dated 21 July 2016. The writ has been amended on several occasions, most recently on 10 January 2019. The statement of claim has also been amended on several occasions. The claims in respect of which judgment was sought were pleaded in the amended substituted statement of claim filed on 10 December 2019.
On 7 December 2016 the first defendant entered an appearance in this matter. He filed a defence on 19 May 2019.
On 27 March 2019 I made orders directing that each of the parties give discovery on affidavit by 17 April 2019. The first defendant failed to give discovery or to seek an extension of time from the court to do so.
On 22 May 2019 I made further orders directing the first defendant to provide discovery on oath within 14 days. The first defendant again failed to comply with that order and did not seek an extension of time from the court.
On 24 July 2019 I made the orders referred to earlier which required the first defendant to give discovery by 30 August 2019 otherwise his defence would be struck out and the plaintiff would have leave to apply for judgment against the first defendant. The first defendant resides overseas. He has represented himself throughout these proceedings, and appeared by telephone at the hearing on 24 July 2019. At the hearing he informed the court that he intended to instruct solicitors and continue defending the action which had been listed for a five day trial commencing on 4 November 2019. I listed a further directions hearing for 21 August 2019 so that the first defendant or his solicitors could provide the court with an update as to the status of the matter.
On 12 August 2019 the plaintiffs' claims against the second and third defendants were dismissed by consent.
On 19 August 2019 my associate contacted the parties to seek any proposed orders for the directions hearing listed for 21 August 2019. The first defendant did not respond to that email or attend the hearing on 21 August 2019 and the court did not receive any notice of solicitors coming on the record.
On 12 September 2019 the plaintiff filed the present motion for judgment. The application was supported by brief written submissions and a short affidavit sworn by the first plaintiff explaining that the claim against the second and third defendant had been dismissed following a settlement between those parties, the terms of which were confidential. Service of the motion on the first defendant was established by an affidavit sworn by the first plaintiff's solicitor.
The motion for judgment came on for hearing on 25 September 2019. The first defendant did not appear at the hearing and nor did he contact my associate to request to appear by telephone. At the beginning of the hearing I raised with counsel for the plaintiffs whether proof of the facts upon which the plaintiffs' claims in the amended substituted statement of claim was required. The procedural circumstance giving rise to this question being that the application for judgment was proceeding by motion which required the intervention of the court as distinct from pursuant to a rule of the court that enabled judgment to be entered by ministerial act. The hearing was adjourned briefly to enable counsel to consider the position and take instructions. On the resumption of the hearing counsel informed me that his client wished to adduce further evidence both to provide factual support for the claims and to enable the assessment of damages on the first plaintiff's unliquidated claim to proceed at the hearing of the motion. I had earlier indicated that, as the case manager familiar with the claims, I was prepared to assess the damages. The plaintiff was given leave to file and serve further affidavits and the hearing was adjourned to 16 October 2019.
Hearings on 16 and 18 October 2019
The first defendant did not attend the hearing on 16 October 2019. Service of notice of the hearing and the materials relied upon by the plaintiffs was established by affidavits sworn by the plaintiffs' solicitor. The motion proceeded to a substantive hearing on 16 October 2019. I adjourned the hearing to 18 October 2019 to enable the plaintiffs' solicitors to provide further interest calculations in respect of the interest on various claims. At the hearing on 18 October 2019 I ordered that judgment be entered in the plaintiffs' favour in the amounts stated later in these reasons.
The evidence
In support of the claims the plaintiffs rely on:
(a)affidavits sworn by the first plaintiff on 24 September 2019, 9 October 2019 (primary affidavit) and two affidavits sworn on 15 October 2019;
(b)an affidavit of Ms Jacqueline Ross sworn 9 October 2019; and
(c)an affidavit of Ms JoAnne Barbara Robinson sworn 14 October 2019.
The first plaintiff's claims
The first plaintiff's claims were as follows:
(1)a liquidated sum of $87,143.90 claimed pursuant to the terms of a loan agreement made 4 March 2014 (the loan agreement claim);[2]
[2] Plaintiffs' Amended Substituted Statement of Claim [6] - [13].
(2)a liquidated sum of $50,000 together with interest thereon in the amount of $18,917.44 claimed pursuant to the terms of an agreement dated 17 September 2013 entitled 'Residual Proceeds Agreement' (the Residual Proceeds Agreement claim);[3]
[3] Plaintiffs' Amended Substituted Statement of Claim [39] - [44].
(3)damages pursuant to s 236 of the Australian Consumer Law (WA),[4] claimed in respect of loss and damage caused by the first defendant's misleading or deceptive conduct, assessed in the amounts of:[5]
[4] By s 19 of the Fair Trading Act 2010 (WA) the text of Schedule 2 of the Competition and Consumer Act 2010 (Cth) applies as a law of this State and is referred to as the Australian Consumer Law (WA).
[5] Plaintiffs' Amended Substituted Statement of Claim [45] - [50].
(i)$345,000 together with interest thereon in the sum of $105,906.43;
(ii)$95,080.27;
(iii)$200,000.00 together with interest thereon in the sum of $72,849.39;
(iv)$40,573.24 together with interest thereon in the sum of $12,923.83;
(v)GBP8,677.80 together with interest thereon in the sum of GBP2,722.99;
(vi)USD400.00 together with interest thereon in the sum of USD141.90; and
(vii)SGD3,756.15 together with interest thereon in the sum of SGD1,326.27.
(the misleading or deceptive conduct claim)
The loan agreement claims
On or about 4 March 2014 the first plaintiff entered into a loan agreement with the first and third defendants.[6] A copy of the agreement was annexed to the first plaintiff's affidavit and I am satisfied that the copy was a true copy of the original document.[7]
[6] Affidavit of Anthony Richard Ross sworn 9 October 2019 par 7.
[7] Affidavit of Anthony Richard Ross sworn 9 October 2019, annexure ARR2.
The loan agreement recorded that the first plaintiff had advanced funds to the first and third defendants in connection with business and personal expenses and that he would continue to do so.[8] The agreement did not provide that any particular amount that was to be advanced but the maximum liability of the first and third defendants under the loan agreement was capped at $400,000.[9] The first and third defendants agreed to provide a mortgage over real property in Swanbourne owned by them as security for the loan.[10] The loan was to be repaid out of the proceeds of sale of that property.[11] No mortgage was registered over the Swanbourne property.[12] It was a term of the loan agreement that interest would be payable on the loan funds at a rate of 9% compounding annually commencing from 7 days after settlement on the sale of the Swanbourne property.[13]
[8] Affidavit of Anthony Richard Ross sworn 9 October 2019, 45.
[9] Affidavit of Anthony Richard Ross sworn 9 October 2019, 45.
[10] Affidavit of Anthony Richard Ross sworn 9 October 2019, 46.
[11] Affidavit of Anthony Richard Ross sworn 9 October 2019, 46.
[12] Affidavit of Anthony Richard Ross sworn 9 October 2019 pars 19 - 20.
[13] Affidavit of Anthony Richard Ross sworn 9 October 2019, 46.
The first plaintiff deposed that he advanced the funds under the loan agreement in response to oral requests from the first defendant.[14] He produced bank records evidencing the payments.[15] Some payments were made from accounts held in the name of the first plaintiff, others were made from accounts in the name of the second plaintiff and some payments were made from accounts held jointly by the first and second plaintiffs. [16] The second plaintiff was not a party to the loan agreement. The second plaintiff however deposed in her affidavit that in the case of funds jointly held by her with the first plaintiff and in the case of funds held in her sole name:[17]
(a)the money held in those accounts were the first plaintiff's earnings through his business;
(b)the money belonged to the first plaintiff;
(c)the second plaintiff did not contribute to those accounts and she had not been employed or earned a salary for almost thirty years; and
(d)she believed those funds were advanced by the first plaintiff under the loan agreement.
[14] Affidavit of Anthony Richard Ross sworn 9 October 2019 pars 13 - 14.
[15] Affidavit of Anthony Richard Ross sworn 9 October 2019 pars 15 - 17.
[16] Affidavit of Anthony Richard Ross sworn 9 October 2019 par 16.
[17] Affidavit of Jacqueline Ross sworn 9 October 2019 pars 6 - 7.
I am satisfied that the first plaintiff advanced funds to the first defendant in accordance with the loan agreement in excess of $400,000. The first plaintiff's pleaded claim was for $400,000 together with interest.[18] Interest began accruing on the loan funds on 29 March 2017. Following a confidential settlement between the first plaintiff and the third defendant $403,681.36 was paid to the first plaintiff in respect of his claim under the loan agreement.[19] I am satisfied that this figure represents the total of what has been repaid to the first plaintiff. The first plaintiff's claim is for the outstanding accrued and unpaid interest. On the first plaintiff's solicitors calculations[20] the amount owing in respect of unpaid interest is $87,143.90.[21] I am satisfied that the first plaintiff is entitled to judgment in that amount.
[18] Plaintiffs' Amended Substituted Statement of Claim [13].
[19] Affidavit of Anthony Richard Ross sworn 15 October 2019 par 7.
[20] Detailed calculations of interest were prepared by the plaintiffs' solicitor and filed with the court on 17 October 2019. I have relied on those calculations in preparing this judgment.
[21] I have accepted the plaintiffs' solicitor's calculations of interest in respect of this claim and all claims referred to in the remainder of these reasons.
The Residual Proceeds Agreement claim
On 17 September 2013 the first plaintiff and the first defendant entered into the Residual Proceeds Agreement.[22] The other parties to that agreement were:[23]
(a)Ms JoAnne Robinson;
(b)the first defendant in his own right and for and on behalf of Trident Australasia and associated companies; and
(c)the second plaintiff.
[22] Affidavit of Anthony Richard Ross sworn 9 October 2019, annexure ARR25.
[23] Affidavit of Anthony Richard Ross sworn 9 October 2019, 219.
A copy of the Residual Proceeds Agreement was annexed to the first plaintiff's primary affidavit. I accept that the copy provided is a true copy of the agreement. The terms of the Residual Proceeds Agreement suggest that it was not prepared with the benefit of any legal assistance. It is unnecessary to refer to the terms in any detail. The agreement recited that the first and second plaintiff and Ms Robinson had advanced funds to support claims made by a company 'Trident Australasia' and the effect of the critical terms upon which the first plaintiff relied (cl 9 read in the context of recitals F and G) was that the first defendant accepted liability to repay the funds so advanced if Trident Australasia did not do so.[24]
[24] Affidavit of Anthony Richard Ross sworn 9 October 2019, 219 - 221.
I accept the first plaintiff's evidence that on 28 June 2013 he advanced the sum of $50,000 for the benefit of Trident Australasia and that this advance formed part of the funds referred to in the Residual Proceeds Agreement as having been advanced.[25] I accept the first plaintiff's evidence that these funds were not repaid by the first defendant in breach of his contractual obligation to do so.[26]
[25] Affidavit of Anthony Richard Ross sworn 9 October 2019 par 81.
[26] Affidavit of Anthony Richard Ross sworn 9 October 2019 pars 83 - 84.
In those circumstances the first plaintiff is entitled to judgment in respect of the $50,000. On the basis of the first plaintiff's solicitors' calculations interest amounts to $18,717.44.
Misleading and deceptive conduct claim
The first plaintiff seeks to recover various heads of damage from the first defendant pursuant to s 236 of the Australian Consumer Law (WA).[27] Section 236 states:
[27] Plaintiffs' Amended Substituted Statement of Claim [45] - [50].
236. Actions for damages
(1)If:
(a)a person (the claimant) suffers loss or damage because of the conduct of another person; and
(b)the conduct contravened a provision of Chapter 2 or 3;
the claimant may recover the amount of the loss or damage by action against that other person, or against any person involved in the contravention.
(2)An action under subsection (1) may be commenced at any time within 6 years after the day on which the cause of action that relates to the conduct accrued.
The first plaintiff's case is that the first defendant engaged in misleading or deceptive conduct contrary to s 18 of the Australian Consumer Law, a provision within Chapter 2.[28] The contravening conduct is described as being comprised of a number of representations made both orally and in writing by the first defendant between August 2013 and June 2016.[29] These representations were described in the statement of claim as representations to the effect that 'the first defendant would pay what was owed or due to the plaintiffs by the first defendant or any entities associated with him'.[30]
[28] Plaintiffs' Amended Substituted Statement of Claim [48].
[29] Plaintiffs' Amended Substituted Statement of Claim [45].
[30] Plaintiffs' Amended Substituted Statement of Claim [45].
The first plaintiff's case is that the conduct of the first defendant was misleading because the representations were misleading representations with respect to future matters under s 4 of the Australian Consumer Law.[31] Section 4 states:
[31] Plaintiffs' Amended Substituted Statement of Claim [49].
4. Misleading representations with respect to future matters
(1)If:
(a)a person makes a representation with respect to any future matter (including the doing of, or the refusing to do, any act); and
(b)the person does not have reasonable grounds for making the representation;
the representation is taken, for the purposes of this Schedule, to be misleading.
(2)For the purposes of applying subsection (1) in relation to a proceeding concerning a representation made with respect to a future matter by:
(a)a party to the proceeding; or
(b)any other person;
the party or other person is taken not to have had reasonable grounds for making the representation, unless evidence is adduced to the contrary.
There was no evidence adduced to negative the proposition that no reasonable grounds existed for making the representations that the first plaintiff alleges were made.
The first plaintiff deposes that to the extent that representations were made verbally the representations were made during meetings, telephone calls and Skype conversations between the first plaintiff and the first defendant either alone or in some cases in the presence of Ms JoAnne Robinson.[32] In so far as the representations were said to be in writing they were contained in emails between the first plaintiff and the first defendant.[33] A number of these emails were annexed to the first plaintiff's primary affidavit.[34]
[32] Affidavit of Anthony Richard Ross sworn 9 October 2019 pars 90 - 97.
[33] Affidavit of Anthony Richard Ross sworn 9 October 2019 pars 97 - 99.
[34] Affidavit of Anthony Richard Ross sworn 9 October 2019, annexures ARR29 - ARR36.
On the uncontested evidence of the first plaintiff and the relevant corroborating evidence of Ms Robinson I am satisfied that the first defendant made representations to the first plaintiff to the following effect:[35]
(a)that the first defendant would, from his own funds, repay advances made by the first plaintiff to the first defendant and his related companies;
(b)that the first defendant had access to sufficient assets capable of being converted into liquid funds in order to repay advances made by the first plaintiff to the first defendant and his related companies;
(c)that the first defendant was from time to time in the process of liquidating assets or pursuing other avenues to generate funds to repay amounts advanced by the first plaintiff to the first defendant and his related companies;
(d)that the first defendant would take steps to secure advances made by the first plaintiff to the first defendant and his related companies by way of granting security over assets held by the first defendant and his related companies;
(e)that the first defendant would, from his own funds, or the funds of his related companies, pay to the third plaintiff any expenses incurred in the performance of the consultancy agreement including expenses incurred by the first plaintiff in cancelling holidays in order to perform services for the first defendant and his related companies.
[35] Affidavit of Anthony Richard Ross sworn 9 October 2019 pars 90 - 103; Affidavit of JoAnne Barbara Robinson sworn 14 October 2019 par 5.
In addition to the representations described above, I further accept that the first defendant made representations in relation to a property in the Perth suburb of Northbridge that:[36]
(a)in exchange for the payment $200,000 by the first and second plaintiff to the first defendant the first defendant would register a transfer of 50% of the interest in the property to the first and second plaintiffs;
(b)that the first defendant had the requisite authority to register or cause to be registered a transfer of the 50% interest in the property.
[36] Affidavit of Anthony Richard Ross sworn 9 October 2019 pars 67 - 76.
I am satisfied that communications of the type that I have described are capable of constituting conduct for the purposes of s 18 of the Australian Consumer Law.[37] As far the representations made were as to future matters I am satisfied on the evidence and by reference to s 4 of the Australian Consumer Law that the first defendant did not have any reasonable grounds for making those representations and that they were misleading.
[37] See eg, Paper Products Pty Ltd v Tomlinsons (Rochdale) Ltd (No 2) [1993] FCA 430; (1993) 44 FCR 485 [26]; Rock Solid Surfaces Pty Ltd v Biesse Group (Australia) Pty Ltd [2011] FCA 42 [24]; Australian Competition and Consumer Commission v Valve Corp (No 3) [2016] FCA 196 [179].
I am satisfied that each of the representations made by the first defendant was a representation made in trade or commerce for the purposes of s 18 of the Australian Consumer Law. For present purposes it is sufficient to observe that the representations were made in the context of and in relation to the business activities of the first defendant and companies associated with him.
I am satisfied that the first plaintiff relied upon the representations when he made decisions:[38]
(a)to continue to advance funds at the direction of the first defendant to support the activities of companies associated with the first defendant;
(b)to continue to provide his services as a consultant to the first defendant's businesses and to incur expenses in so doing;
(c)to pay $200,000 to the first defendant in anticipation of receiving a 50% interest in the Northbridge property.
[38] Affidavit of Anthony Richard Ross sworn 9 October 2019 par 73 - 74, 121 - 142.
I am satisfied that the first plaintiff has suffered losses as a result of his reliance on the representations. Those losses flow from the facts that he advanced money, met expenses and paid $200,000 in anticipation of receiving a 50% interest in the Northbridge property when he would not have done had the representations not be made. I am satisfied that those losses include:
(a)$345,000 advanced by the first plaintiff between December 2013 and April 2015 which has not been repaid together with interest on those advances of $105,906.43 as calculated by the first plaintiff's solicitors.[39]
(b)Interest calculated at the statutory rate on the amount of $400,000 advanced pursuant to the Loan Agreement from the date those amounts were advanced until 28 March 2017, being the date before the claim for interest on those amounts commenced under the Loan Agreement in the sum of $95,080.27.[40]
(c)The payment of $200,000 to acquire a 50% interest in the Northbridge property together with interest calculated at the statutory rate of $72,849.39.[41]
(d)The aggregate of payments made in different currencies in respect of business expenses together with interest on those payments at the statutory rate from the date of the payments:[42]
(i)$40,573.24 together with interest thereon in the sum of $12,923.83;
(ii)GBP8,677.80 together with interest thereon in the sum of GBP2,722.99;
(iii)USD400.00 together with interest thereon in the sum of USD141.90; and
(iv)SGD3,756.15 together with interest thereon in the sum of SGD1,326.27.
[39] Affidavit of Anthony Richard Ross sworn 9 October 2019 pars 15 - 18; Plaintiffs' Amended Substituted Statement of Claim [9].
[40] Affidavit of Anthony Richard Ross sworn 9 October 2019 pars 7 - 8.
[41] Affidavit of Anthony Richard Ross sworn 9 October 2019 pars 68 - 74; Plaintiffs' Amended Substituted Statement of Claim [46].
[42] Affidavit of Anthony Richard Ross sworn 9 October 2019 pars 134 - 136; Plaintiffs' Amended Substituted Statement of Claim [47].
The first plaintiff is entitled to judgment in the amounts set out above.
The third plaintiff's claims
The third plaintiff claimed sums due by the first defendant pursuant to an agreement for consultancy services commencing 1 November 2010.[43] The following sums are claimed:[44]
(a)$1,636,360.00 in respect of the provision of the first plaintiff's services together with interest thereon calculated at the annual rate of 10% in the sum of $904,715.71;
(b)$9,500.00 being fees charged for one weeks services in lieu of notice of termination together with interest thereon calculated at the annual rate of 10% in the sum of $2,308.08; and
(c)$171,000.00 being fees charged in lieu of a contractual entitlement to six weeks annual leave together with interest thereon calculated at the annual rate of 10% in the sum of $41,545.80.
[43] Affidavit of Anthony Richard Ross sworn 9 October 2019 pars 30 - 32, annexure ARR10.
[44] Plaintiffs' Amended Substituted Statement of Claim [14] - [28.3].
A copy of the documents alleged to constitute the agreement of 1 November 2010 were attached to the first plaintiff's primary affidavit.[45] I accept that the documents attached are true copies of the originals. I also accept the first plaintiff's evidence that the terms of this offer were accepted by the first defendant by his words and conduct.[46]
[45] Affidavit of Anthony Richard Ross sworn 9 October 2019, annexure ARR10.
[46] Affidavit of Anthony Richard Ross sworn 9 October 2019 pars 33 - 34.
The agreement provided that payment for the services would be made on a monthly basis upon submission of an invoice.[47] A question arose during the hearing as to who was obliged to make payment for the services provided pursuant to the consultancy agreement. The amended substituted statement of claim included three alternative pleas as to the identity of the party who had the obligation to pay for the services. This is a construction issue that fell to be determined by referring to the documents constituting the agreement. The agreement described the nature of the services as the 'provision of service in support of Peter Cox and associated group of companies'.[48] It also provided that 'Peter Cox and/or his Associated Group of Companies' indemnified the first and third plaintiffs.[49] The agreement referred to the provision by the first defendant of powers of attorney in favour of the first plaintiff to enable the first plaintiff to discharge the first defendant's responsibilities in relation to a number of companies associated with the first defendant.[50] I am satisfied that the first defendant was jointly and severally liable to pay the fees charged by the third plaintiff under the consultancy agreement.[51]
[47] Affidavit of Anthony Richard Ross sworn 9 October 2019, 91.
[48] Affidavit of Anthony Richard Ross sworn 9 October 2019, 91.
[49] Affidavit of Anthony Richard Ross sworn 9 October 2019, 90, 93.
[50] Affidavit of Anthony Richard Ross sworn 9 October 2019, 91.
[51] Professor Glanville Williams, Joint Obligations (1949), 35, § 2.
The first plaintiff deposed to the invoices rendered by the third plaintiff pursuant to the consultancy agreement.[52] I am satisfied on the basis of the first plaintiff's evidence that these invoices remain unpaid and that the third plaintiff is entitled pursuant to the consultancy agreement to recover the balance of these unpaid invoices from the first defendant. I am satisfied that there was an oral agreement that interest on the invoiced amounts would be paid at the rate of 10% per annum.[53] The first plaintiff's evidence about the making of this agreement was corroborated by Ms Robinson.[54]
[52] Affidavit of Anthony Richard Ross sworn 9 October 2019 pars 42 - 43.
[53] Affidavit of Anthony Richard Ross sworn 9 October 2019 par 58.
[54] Affidavit of JoAnne Barbara Robinson sworn 14 October 2019 par 5.
In addition, I am satisfied that the third plaintiff is entitled to recover the outstanding balance of unpaid leave entitlements and expenses that have not been reimbursed in accordance with the consultancy agreement.
The third plaintiff claimed that they should be entitled to recover approximately $12,500 in fees incurred due to cancellation of holidays. These fees arose, on the first plaintiff's evidence, which I accept, where the first plaintiff was required to cancel pre‑booked holidays and annual leave in order to perform services under the consultancy agreement.[55] I am not however satisfied that there is any term of the consultancy agreement which could give rise to any such entitlement. I do not accept that even on the unchallenged evidence the contract enlivens any entitlement to the amount claimed.
[55] Affidavit of Anthony Richard Ross sworn 9 October 2019 pars 46 - 48.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AS
Research Orderly to the Honourable Justice Tottle8 NOVEMBER 2019
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