Captivating Concrete Solutions Pty Ltd v Moles [2008] QDC 45

1 [2008] QDC 45 DISTRICT COURT CIVIL JURISDICTION JUDGE RYRIE No 3077 of 2007 CAPTIVATING CONCRETE SOLUTIONS PTY LTD Plaintiff and MOLES Defendant BRISBANE ..DATE 10/03/2008 ORDER -- 1 of 5 -- 2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: The affidavit of service received this morning, filed by leave, of Danielle Colavitti, a law clerk, indicates that on the 3rd of March 2008 by way of service by a sealed copy of the application for summary judgment and affidavit in support of Mr Colavitti to the respondent/defendant which I accept is marked with the letter 'A', indicates that the application and the relevant documentation was sent to the last office of Schultz Toomey O'Brien solicitors for the plaintiff and that indeed, I accept what Mr Colavitti says that one of the practitioners of that firm at least to have sat Friday indicated that they were aware this application was being brought this morning. So that affidavit of service is adequate, thank you. ... HER HONOUR: In respect of Captivating Concrete Solutions and Moles, the application was for summary judgment to be granted under rule 365 in respect of the amount of $42,091.24 for failing to comply with an offer that had been agreed as between the parties. The agreement that was entered into between the parties, initially without prejudice save as to costs, was what could be described as an instalment arrangement as provided in the schedule, together with mutual releases that either party may have against each other. The terms of settlement that was ultimately agreed between the parties which is annexed to the affidavit of Ms Colavitti filed in this Court 29th February 2008 as an Exhibit ASC5 were -- 2 of 5 -- 3 ORDER 1 10 20 30 40 50 60 as follows. The main and primary reasons, that the respondent/defendant agrees to pay $59,428.83 comprising of the adjudicated amount, together with fees of barristers. In addition, that the respondent/defendant would pay a lump sum of $20,000 to Colavitti Lawyers trust account by a certain date. That the balance there remaining would, as detailed in the schedule, to be paid minimally by monthly payments of $4,000 be done on each month until the moneys had been paid and interest would be paid in accordance with that schedule in any outstanding amount of one percent per month in the amounts provided in the schedule. On the 8th of January 2008 a letter was sent from the applicant's solicitors to the respondent's solicitors advising that the respondent/defendant's instalment payment of $4,000 that was due on the 7th of January 2008 had not been received and that their client was now in breach of terms of settlement. No reply was received as at least the date the affidavit was sworn and subsequently I'm advised that that payment hasn't been made as at date of hearing today. On behalf of the respondent/defendant therefore, the respondent/defendant has failed to comply with the relevant offer of terms of settlement. Consequently, in light of the agreement which has failed between the parties and the default by the respondent defendant, I am satisfied, based on the affidavit and the materials that I have and after looking at the terms of settlement as between the parties annexed to the relevant affidavit of Mr Colavitti filed 29th of February -- 3 of 5 -- 4 ORDER 1 10 20 30 40 50 60 2008, that judgment should be granted to the applicant/plaintiff under the Uniform Civil Procedure Rules against the respondent/defendant in the sum of $42,091.24 for failing to comply with the offer and terms of settlement. An oral submission was also made, not verified by affidavit, but confirmed by Mr Colavitti, that the amount of $694.80 was a reasonable amount recoverable from his point of view on behalf of the plaintiff/applicant in respect of the application before the Court for their professional fees, including GST, the particulars of which included amongst other things, drafting and producing an affidavit and the application, drafting and producing submissions and the draft Order, attending a Court for the purpose of the application as well as perusing the document in order to make sure it was in order and general care and consideration of 20 percent. I am satisfied that that amount is a reasonable amount and the necessary amount for the purpose of having brought the application before the Court upon the terms of settlement which has failed between the parties in order that the terms might be enforced. So therefore I make the following orders: 1. That summary judgment be granted to the applicant/plaintiff under the rules of the Uniform Civil Procedure Rules against the respondent/defendant in the sum of $42,091.24 for -- 4 of 5 -- 5 ORDER 1 10 20 30 40 50 60 failing to comply with an offer and terms of settlement as agreed between the parties. 2. That the respondent/defendant pay the costs of the applicant/plaintiff's costs associated and incidental to the application in the amount of, as agreed and fixed by me, $694.80. ----- -- 5 of 5 --