DISTRICT COURT OF QUEENSLAND
CITATION:
Responsive Hire Industries Pty Ltd v Queensland Construction & Civil Pty Ltd [2017] QDC 76
PARTIES:
RESPONSIVE HIRE INDUSTRIES PTY LTD
(applicant)v
QUEENSLAND CONSTRUCTION & CIVIL
PTY LTD
(respondent)FILE NO/S:
3465 of 2014
DIVISION:
Civil
PROCEEDING:
Application
DELIVERED ON:
9 March 2017
DELIVERED AT:
Brisbane
HEARING DATE:
9 March 2017
JUDGE:
Rackemann DCJ
ORDER:
Judgment given for the full amount owing under the deed of settlement
CATCHWORDS:
PRACTICE AND PROCEDURE – application for judgment on the basis of a settlement agreement – where claim that solicitor did not have instructions to settle – where agreement purported to permit the plaintiff to not obtain judgment for the settlement amount and continue the action for the balance – where judgment given for the amount owing under the settlement agreement
COUNSEL:
A L Raeburn for the applicant
S P Goulmy as agent for the respondent
SOLICITORS:
Connolly Suthers Solicitors for the applicant
This is an application brought pursuant to rule 658 for judgment in an amount of $41,602.21, including interest. The judgment is sought on the basis of a settlement agreement entered into between the parties. That agreement is constituted by a letter proposing such a settlement, which was sent by email on the 28th of June 2016, and was ultimately accepted in an email from the defendant’s solicitor on the 1st of July 2016. The terms of settlement were subject to the formal approval of the creditors of the plaintiff, which occurred at a meeting on the 25th of July 2016.
Pursuant to the agreement, the defendant was to pay the plaintiff $40,000 in full and final satisfaction of all matters in dispute between the parties, and upon payment of the settlement sum, the parties were to discontinue the proceeding with no order as to costs, and forever release and discharge each other. In the event that the defendant defaulted in making payment, the agreement provided that the plaintiff may apply to the Court for judgment in the unpaid portion of the settlement sum, which is what is being done now. The defendants have not paid any part of the settlement sum, and judgment is now sought for that amount.
When the matter came on for hearing, the defendant was represented by its director by leave. It was asserted from the bar table that its solicitor had acted in excess of his authority when he accepted the settlement offer on behalf of the defendant, although no affidavit material was put before the Court in that regard. The difficulty, however, is that the defendant’s solicitor had apparent and ostensible authority to enter into such a compromise. The contention the defendant might, if true, give it a basis of complaint against its former solicitor, but does not prevent the plaintiff from relying upon the agreement.
There was some suggestion, again from the bar table, without support of affidavit material, that the defendant was, in some way, pressured to enter into the settlement agreement. It was acknowledged by the director who appeared for the defendant that all communication in relation to the agreement was by the solicitors in the course of correspondence and it had advice in relation to the settlement offer from its solicitor. There does not seem to be anything which would give any prospect of establishing that the agreement could be vitiated on the grounds of duress.
A particular concern for the defendant was that the settlement agreement, in addition to giving the plaintiff the right to enter judgment for the settlement amount, purports to reserve to the plaintiff the right, then, to continue its action against the defendant in the amount claimed, less the amount of the settlement sum. That was a matter which was objected to in a letter from the defendant’s solicitor on the 30th of June 2016. Nevertheless, the same solicitors sent the email of the 1st of July, which simply accepted the offer that had been made on the 28th of June 2016, without any further discussion of the point.
It might be doubtful whether clause 7B of the settlement agreement is lawful and effectual. It might be that, having elected to sue for the settlement amount, that the underlying cause of action is extinguished, irrespective of what 7B says. That is not a matter about which I need to reach a final conclusion today. That is a matter which may be debated in the event that the plaintiff chooses to seek to continue this proceeding.
It is important, however, in the circumstances, that it be clear that the judgment which is given today is not a judgment for part of the plaintiff’s claim in its claim and statement of claim, as the application seems to suggest. Rather, it is a judgment for the full amount owing under the deed of settlement. What consequence that has for the plaintiff’s rights going forward is a matter that can be resolved at a later time if and when that becomes necessary.