TIC Realty Pty Ltd v Donovan Developments Pty Ltd

[2010] QDC 472

[2010] QDC 472

DISTRICT COURT

CIVIL JURISDICTION

JUDGE SAMIOS

No 2100 of 2009

TIC REALTY PTY LTD ACN 069 072 742	Plaintiff
and
DONOVAN DEVELOPMENTS PTY LTD ACN 110 711 370 & ORS	Defendants

BRISBANE

DATE 04/11/2010

JUDGMENT

HIS HONOUR:  When these proceedings were commenced the plaintiff claimed $138,573.82, being moneys owing pursuant to a written agreement for services rendered to the first defendant by the plaintiff during the period January 2008 to July 2009.

The same sum was claimed by the plaintiff from the second defendant pursuant to a written guarantee dated 25th January 2008.

The plaintiff has entered Judgment against the first defendant in default of filing a notice of intention to defend on 8 July 2010.  That was for a sum of $151,064.30, including $12,490.48 interest to the date of the Judgment.

The matter has proceeded against the second defendant, however, the plaintiff has altered its claim against the second defendant to claim $57,580.84 pursuant to the written guarantee dated 25 January 2008.

I am satisfied the plaintiff is a Company duly incorporated and capable of suing in its corporate name.  It is also admitted that the first defendant traded as Donovan Developments as trustee for Brandill Discretionary Trust.  It is also admitted that the second defendant was the sole director of the first defendant.

The plaintiff called two witnesses, firstly, Mr Godfrey.  He was, at the material time, I find a director and licensee of the plaintiff company.  He verified his signature on a copy of the appointment of Real Estate Agent which I made Exhibit 2.

Signatures also appear purporting to be those of the second defendant.  Objection was taken to my receiving this document as proof of the written guarantee.  I am satisfied the original is not available.  I am also satisfied that this copy was produced from the records of the plaintiff company and without other evidence I am satisfied the proper inference to be drawn from the document was that it was executed by the second defendant on behalf of the first defendant and on his own behalf on 25 January 2008.

The other witness called by the plaintiff was Ms Clifford, the corporate solicitor for the plaintiff company.  She has produced, from the records of the company, tax invoices related to properties at Upper Coomera which are the subject of the appointment of Real Estate Agent in writing in the PAMDA form 22A.

Those properties are referred to on front of Exhibit 2, namely, "Lots 312 Kingsford Road, 512 Kingsford Road, 542 and 545 Jet Street and 622 Cessna Street."  Exhibit 4, the collection of tax invoices, relate to lot 312, 545, 542 and 622.

Again, the inference I draw from the production of these documents from the plaintiff's records is that the underlying liability of the first defendant occurred for the relevant fees under Exhibit 2 and that the commissions claimed and described differently as referral fees in places were, nevertheless, due and owing by the first defendant at the times provided for in the appointment of real estate agent.

I also am satisfied by the default Judgment that that underlying liability was established between the plaintiff and the first defendant.

I am also satisfied that the second defendant is liable, under the terms of the written guarantee, to pay the sums referred to in Exhibit 4.  They have been conveniently collected in a A3 spreadsheet which has been made Exhibit 5.

They relate to four of the properties.  I am satisfied on Ms Clifford's evidence that these sums are owing; $14,285.21 for Lot 545, $14,725.21 for Lot 312, $14,505.21 for Lot 542 and $14, 065.21 for Lot 622.

In the course of argument I was referred to what was said to be ambiguity and uncertainty in the appointment of real estate agent and the written guarantee.  However, I find no ambiguity or uncertainty exists in the circumstances and that the second defendant is liable to the plaintiff for the sum of $57,580.84.

Therefore, there will be Judgment for the plaintiff against the second defendant for $57,580.84.  Further, I allow the plaintiff interest against the second defendant for two years at 10 per cent per annum which is the sum of $11,516.17.  The total Judgment, therefore, will be $69,097.01.

HIS HONOUR:  I will hear the parties on the questions of costs.  Mr Anderson?

MR ANDERSON:  I seek the plaintiff's costs of and incidental to the action.

HIS HONOUR:  Yes, Mr Travis.

MR TRAVIS:  Your Honour, we seek no order as for costs.  This is a mixed success case.  The matter, up until yesterday, was about a much larger claim.  The preparation for the matter has - I mean, the case has proceeded on the basis that this was a claim across five PAMDA forms, a guarantee that applied to those five PAMDA forms.  And it was only last night it appears that once counsel was brought into the matter that there was some paring back of the total claim.

The abandonment of that claim at such a late stage should be seen as an abandonment of a claim that could never have been - that should never have been brought on proper advice.  So, with respect to those claims, my client would, but for the fact that there has been some success on the part of the plaintiff, entitled to indemnity costs with respect to those matters.  So, my submission is, your Honour, that the appropriate order here is that there be no order as to costs.

HIS HONOUR:  Yes.  Even though the plaintiff reduced its claim I do not consider the defendant altered any course of action it may have otherwise have taken.  It may have reduced the issues to some extent, however, it is my view most if not all the issues remain the same.

In those circumstances I order the second defendant pay the plaintiff's costs of the action to be assessed on the standard basis.  Yes, thank you.  Adjourn the Court, thank you, Madam Bailiff.

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