Tremco Pty Ltd v Thomson - [2018] QDC 109

DISTRICT COURT OF QUEENSLAND

CITATION:

Tremco Pty Ltd v Thomson [2018] QDC 109

PARTIES:

TREMCO PTY LTD ACN 000 024 064 (Plaintiff)
V
CAROLYN MARY THOMSON (Defendant)

AND

BENTLEYS (SUNSHINE COAST) PTY LTD (formerly known as PWA FINANCIAL GROUP PTY LTD) ACN 010 527 876) (First Third Party)

AND

PETA WENDY GENFELL (Second Third Party)

AND

ULRIKE BENDLE (Third Third Party)

AND

CHERYL BLINCO (Fourth Third Party)

FILE NO/S:

DC No 3868 of 2017

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

21 June 2018

DELIVERED AT:

Brisbane

HEARING DATE:

Plaintiff submissions on costs filed 14 June 2018.

Defence submissions on costs filed 20 June 2018.

JUDGE:

Porter QC DCJ

ORDER:

1.   Judgment for interest in the amount of $66,877.55;

2.   There be no order as to costs in respect of costs thrown away by the adjournment of the trial on 4 September 2017; and

3.   The defendant otherwise pay the plaintiff’s costs of the proceedings on the standard basis up to and including 24 May 2017 and on an indemnity basis from 25 May 2017.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OFFERS OF COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENTS – OFFER OF COMPROMISE OR OFFER TO SETTLE OR CONSENT TO JUDGMENT PURSUANT TO RULES – GENERALLY – where plaintiff made formal offer to settle in accordance with Chapter 9, Part 5 of the Uniform Civil Procedure Rules – whether the plaintiff’s letter meets the essential requirements for a valid offer under Chapter 9 Part – whether the offer is more favourable to the defendant than judgment – whether it was unreasonable for the defendant to reject the plaintiff’s offer.

Legislation

Civil Proceedings Act 2011 (Qld) s. 58

Corporations Act 2001 (Qld) s. 588M

Uniform Civil Procedure Rules 1999 (Qld) rr. 353, 354, 355, 360, 429G, 429E

Cases

Balnaves v Smith [2012] QSC 408

Calderbank v Calderbank [1975] 3 All ER 333

GEJ & MA Geldard Pty Ltd v Mobbs (No 3) [2011] QSC 297

Halzeldene’s Chicken Farm Pty Ltd (ACN 004 381 346) v Victorian WorkCover Authority (No 2) [2005] VSCA 298

Keeley v Horton [2016] QCA 253

McBride v Ask Funding Ltd [2013] QCA 130

Morgan v Johnson (1998) 44 NSWLR 578

Morrison v Hudson [2006] QCA 170

COUNSEL:

M T De Waard for the plaintiff

Defendant, C M Thomson, appearing in person

SOLICITORS:

Mills Oakley for the plaintiff

Introduction

On 12 June 2018, I delivered judgment in this matter.[1] I concluded that the plaintiff was entitled to be paid compensation under s. 588M(3) Corporations Act by the defendant in the amount of $372,016.10, along with interest pursuant to s. 58 Civil Proceedings Act (Qld) from the date of the winding up order of Kadoe Pty Ltd (in liq) (Kadoe) to the date of judgment.
[1] Tremco Pty Ltd v Thomson [2018] QDC 101.
I have received submissions on the calculation of the relevant amount of interest at the relevant default judgment rates along…

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 Tremco Pty Ltd v Thomson

Details

AGLC: Tremco Pty Ltd v Thomson [2018] QDC 109
Case: [2018] QDC 109
Decision Date: 21 June 2018

CaseChat Overview and Summary

Tremco Pty Ltd sued Thomson over an issue concerning a formal offer to settle under Chapter 9, Part 5 of the Uniform Civil Procedure Rules. The plaintiff sought to enforce an offer to settle, arguing that it was more favourable to the defendant than judgment. The defendant rejected the offer and the matter proceeded to trial, resulting in a judgment for the plaintiff. The dispute in the court centred on whether the plaintiff's letter constituted a valid offer under the rules, whether the offer was more favourable to the defendant than judgment, and if it was unreasonable for the defendant to reject the plaintiff's offer.

The court found that the plaintiff's letter met the essential requirements for a valid offer under Chapter 9 Part 5 of the Uniform Civil Procedure Rules. The letter clearly stated the terms of the offer, including the amount of money to be paid and the time frame for payment. The court also found that the offer was more favourable to the defendant than judgment, as the defendant would have been liable for higher costs and interest if the case had proceeded to judgment. Finally, the court found that it was unreasonable for the defendant to reject the plaintiff's offer, as the offer provided a practical and efficient resolution to the dispute.

The court ordered that judgment be entered for the plaintiff in the amount of $66,877.55, with no order as to costs in respect of costs thrown away by the adjournment of the trial on 4 September 2017. The defendant was ordered to pay the plaintiff's costs of the proceedings on the standard basis up to and including 24 May 2017, and on an indemnity basis from 25 May 2017. The court's decision highlights the importance of considering formal offers to settle in appropriate cases, and the potential consequences of rejecting such offers.

Orders

Orders of the court

1. Judgment for interest in the amount of $66,877.55;

2. There be no order as to costs in respect of costs thrown away by the adjournment of the trial on 4 September 2017; and

3. The defendant otherwise pay the plaintiff’s costs of the proceedings on the standard basis up to and including 24 May 2017 and on an indemnity basis from 25 May 2017.

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:	Tremco Pty Ltd v Thomson [2018] QDC 109
PARTIES:	TREMCO PTY LTD ACN 000 024 064 (Plaintiff) V CAROLYN MARY THOMSON (Defendant) AND BENTLEYS (SUNSHINE COAST) PTY LTD (formerly known as PWA FINANCIAL GROUP PTY LTD) ACN 010 527 876) (First Third Party) AND PETA WENDY GENFELL (Second Third Party) AND ULRIKE BENDLE (Third Third Party) AND CHERYL BLINCO (Fourth Third Party)
FILE NO/S:	DC No 3868 of 2017
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	21 June 2018
DELIVERED AT:	Brisbane
HEARING DATE:	Plaintiff submissions on costs filed 14 June 2018. Defence submissions on costs filed 20 June 2018.
JUDGE:	Porter QC DCJ
ORDER:	1. Judgment for interest in the amount of $66,877.55; 2. There be no order as to costs in respect of costs thrown away by the adjournment of the trial on 4 September 2017; and 3. The defendant otherwise pay the plaintiff’s costs of the proceedings on the standard basis up to and including 24 May 2017 and on an indemnity basis from 25 May 2017.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OFFERS OF COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENTS – OFFER OF COMPROMISE OR OFFER TO SETTLE OR CONSENT TO JUDGMENT PURSUANT TO RULES – GENERALLY – where plaintiff made formal offer to settle in accordance with Chapter 9, Part 5 of the Uniform Civil Procedure Rules – whether the plaintiff’s letter meets the essential requirements for a valid offer under Chapter 9 Part – whether the offer is more favourable to the defendant than judgment – whether it was unreasonable for the defendant to reject the plaintiff’s offer. Legislation Civil Proceedings Act 2011 (Qld) s. 58 Corporations Act 2001 (Qld) s. 588M Uniform Civil Procedure Rules 1999 (Qld) rr. 353, 354, 355, 360, 429G, 429E Cases Balnaves v Smith [2012] QSC 408 Calderbank v Calderbank [1975] 3 All ER 333 GEJ & MA Geldard Pty Ltd v Mobbs (No 3) [2011] QSC 297 Halzeldene’s Chicken Farm Pty Ltd (ACN 004 381 346) v Victorian WorkCover Authority (No 2) [2005] VSCA 298 Keeley v Horton [2016] QCA 253 McBride v Ask Funding Ltd [2013] QCA 130 Morgan v Johnson (1998) 44 NSWLR 578 Morrison v Hudson [2006] QCA 170
COUNSEL:	M T De Waard for the plaintiff Defendant, C M Thomson, appearing in person
SOLICITORS:	Mills Oakley for the plaintiff