Wichmann v Dormway Pty Ltd

[2019] QCA 31

SUPREME COURT OF QUEENSLAND

CITATION:

Wichmann v Dormway Pty Ltd [2019] QCA 31

PARTIES:

RAELENE MICHELLE WICHMANN
(appellant)
v
DORMWAY PTY LTD AS TRUSTEE FOR THE DORMWAY UNIT TRUST
ACN 010 359 001
(respondent)

FILE NOS:

Appeal No 9918 of 2018
SC No 5930 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – [2018] QSC 277 (Atkinson J)

DELIVERED ON:

26 February 2019

DELIVERED AT:

Brisbane

HEARING DATE:

12 February 2019

JUDGES:

Sofronoff P and Gotterson and Morrison JJA

ORDERS:

Appeal dismissed with costs.

CATCHWORDS:

DEEDS – DEED OF RELEASE – GENERAL WORDS OF RELEASE – where the appellant was employed by the respondent – where the appellant’s employment was terminated after she misappropriated the respondent’s monies for personal use – where, as part of the termination of employment, the parties entered into a deed that released the appellant from claims in civil proceedings – where the respondent was unaware of the extent of the appellant’s misappropriation at the time the deed was entered into – where the respondent was successful in an application to recover the full sum of monies misappropriated by the appellant during her employment – whether the terms of the deed released the appellant from the proceedings brought by the respondent

Cloutte v Storey [1911] 1 Ch 18, cited
Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112; [1954] HCA 23, considered
Karam v ANZ Banking Group Ltd [2001] NSWSC 709, cited

COUNSEL:

P Hackett for the appellant
D D Keane for the respondent

SOLICITORS:

Go To Court Lawyers for the appellant
Lander & Rogers Lawyers for the respondent

1. SOFRONOFF P:  This is an appeal against an order for summary judgment.

2. The appellant had been employed by the respondent as an office manager.  In that role, she had been responsible for managing the respondent’s accounts.  This enabled her to falsify the accounts in order to divert some of the respondent’s money into her own bank account.  Initially, the respondent discovered that the appellant had misappropriated $2,809.42.  Having discovered this, the respondent decided to terminate the appellant’s employment despite the appellant’s offer to repay the money.  The respondent’s evidence was that the necessary trust had gone.

3. As a result, on about 30 April 2018, the parties executed a deed that contained the terms of the appellant’s departure.  These included payments to the appellant by way of redundancy payments and a reimbursement to the respondent of the sum of $2,809.42.  The balance of payments was in favour of the appellant.  The deed contained mutual releases.  Relevantly, the deed contained the following recital and the following term:

   “In recital E:

   The parties have agreed to settle all matters effective from the 30 April 2018, relating to the employment and the cessation of the employment of WICHMANN, and any matters arising therefrom, save as to any statutory rights concerning superannuation or worker’s compensation, or the subsequent enforcement by either party of the terms of this deed;…