MAGISTRATES COURTS OF QUEENSLAND

CITATION:	Maccarone v Freedom and Happiness t/a EQ Coach ACN 147 814 168 & Ors [2025] QMC 5
	
PARTIES:	Julia Maccarone 
(Applicant)
v
Freedom and Happiness Trading as EQ Coach ACN 147 814 168
(First Defendant)
&
Peter Conna
(Second Defendant) 
& 
Jodie Conna 
(Third Defendant) 	
FILE NO/S:	M2015/21	
DIVISION:	Civil	
PROCEEDING:	Application	
ORIGINATING COURT:	Brisbane	
DELIVERED ON:	20/02/2025	
DELIVERED AT:	Brisbane 	
HEARING DATE:	19/11/2024	
MAGISTRATE:	Pinder	
ORDER:	(1)	I order that the plaintiff’s application be dismissed. 
(2)	In the event that the parties cannot agree costs I direct that the parties file written submissions to be no more than five typed A4 pages as follows: 
(a)	The defendants within 14 days; and 
(b)	The plaintiff within 28 days 	
CATCHWORDS:	COMPROMISE OR SETTLEMENT OF CLAIM – JUDGEMENT ON COMPROMISE 
Uniform Civil Procedure Rules 1999 (Qld) r 658	
CASES:	Warwick v Tankey [2004] QSC 274 
Pezzelato v AGPN Pty Ltd [2016] QDC 73 
Harvey v Phillips [1956] CLR 235
Equuscorp Pty Ltd v Glengallan [2004] 218 CLR 47 
Air Great Lakes Pty Ltd v KS Easter (Holding) Pty Ltd [1985] 2 NSWLR 309
Raffles v Wichelhaus [1864] 2 H & C 906 
Holt v Bunney [2020] SASCFC 189 	
COUNSEL:	Mr C. Jennings KC for the Plaintiff 
Mr R. McDermott for the Defendant 	
SOLICITORS:	Direct Brief Counsel for the Plaintiff 
Cronin Miller Litigation for the Defendant 	
INTRODUCTION 
[1]	In or about October of 2018 the plaintiff allegedly entered into an agreement for the first defendant to provide ‘life coaching’ services at a cost of $29,500. 
[2]	On 21 September 2021 the plaintiff commenced proceedings claiming damages (for breach of contract, or for breach of statutory guarantee, misleading and deceptive conduct or misrepresentation) in the sum of $29,500. The plaintiff has commenced the proceedings and has continued to act, in person. She has at various times retained counsel to act on a ‘direct brief’ basis. 
[3]	On 24 February 2022 the parties’ legal representatives spoke and at the end of the conversation both it appears believed the action had been compromised, although as if from a ‘Monty Python sketch’ both had a fundamentally different understanding of the resolution. 
[4]	The application before the court for determination is in effect the plaintiff seeking to enforce the compromise by applying for judgement for the amount of the alleged settlement sum. 
THE PLAINTIFF’S APPLICATION 
[5]	The plaintiff has by amended application filed 29 October 2024 applied for the following orders: 
1)	Pursuant to r 658 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) judgement or an order that the defendants pay to the plaintiff $20,000. 
2)	The defendants pay the plaintiff’s costs of this application. 
[6]	Rather peculiarly, the plaintiff has also filed a second amended application on 29 October 2024 seeking orders: 
1)	Pursuant to r 389 of the Uniform Civil Procedure Rules 1999 (Qld), the plaintiff has leave to take a step in the proceeding. 
2)	Pursuant to r 377 of the UCPR the claim in this proceeding be amended so that the first defendant is described as “Freedom and Happiness Pty Ltd ACN 147 814 168 Trading as EQ Coach ABN 68 147 814 168.” 
3)	The defendant pay the plaintiff’s costs of this application. 
[7]	The second of those two applications was resolved by the parties at the commencement of the hearing and the parties consented to orders in respect of that application in these terms. 
“The amended application filed 29 October 2024 for relief under r 389 and 377 is dismissed with no order as to costs.” 
[8]	The application for consideration remains therefore only the plaintiff’s application for judgement pursuant to r 658 for the alleged settlement sum. 
THE PARTIES’ MATERIAL 
Plaintiff’s List of Material for the Hearing on 19 November 2024 
1)	Claim and Statement of Claim filed on 11 September 2021. 
2)	Conditional Notice of Intention to Defend filed 22 October 2021. 
3)	Application filed on 1 December 2021. 
4)	Order (Magistrate Coates) on 25 February 2022. 
5)	Amended Application filed on 29 October 2024. 
6)	Amended Application filed on 29 October 2024. 
7)	Affidavit of Julia Maccarone filed on 24 February 2022. 
8)	Affidavit of Julia Maccarone filed on 19 August 2022. 
9)	Affidavit of Julia Maccarone filed on 10 September 2024. 
10)	Affidavit of Julia Maccarone filed on 13 November 2024. 
11)	Affidavit of Susan Anderson filed on 13 November 2024. 
Defendant’s List of Material to be Read
1)	Affidavit of Peter Arnold Kronberg sworn 23 September 2022. 
2)	Affidavit of Jodie Joanne Conna filed 6 November 2024. 
3)	Affidavit of Peter Arnold Kronberg filed 12 November 2024. 
[9]	Both senior counsel appearing (on a direct brief basis) for the plaintiff and counsel for the defendant helpfully provided outlines of argument as follows
Plaintiff 
-	Outline of argument 19 November 2024 
-	Outline closing argument 2 December 2024 
Defendant 
-	Outline of submissions 14 November 2024 
-	Outline of closing submissions 4 December 2024 
THE RELEVANT RULE 
[10]	Rule 658 of the Uniform Civil Procedure Rules 1999 (Qld) provides as follows: 
1)	The court may, at any stage of a proceeding, on the application of a party, make any order, including a judgement, that the nature of the case requires. 
2)	The court may make the order even if there is no claim for relief extending to the order in the originating process, statement of claim, counterclaim, or similar document. 
[11]	Senior counsel for the plaintiff did not address in his written outlines of argument the power of the court to give judgement pursuant to r 658 nor the discretion to grant that relief and what informed the exercise of that discretion. Interestingly, neither did the defendants’ counsel. 
[12]	There appears an acceptance by the defendants that r 658 is the appropriate vehicle for the plaintiff to seek a money judgement. 
[13]	The Supreme Court considered r 658 in Warwick v Tankey in similar circumstances where the applicant sought to enforce the balance of an unsatisfied compromise. There, the proceedings were commenced by originating application and sought an injunction, but Chesterman J having concluded the settlement agreement remained in force, found that r 658 “appears to confer ample power on the court to give appropriate judgement notwithstanding the form of the proceedings.” 
[14]	The same conclusion in respect of the power conferred by r 658 was reached by His Honour Judge Morzone KC DCJ in Pezzelato v AGPN Pty Ltd.
[15]	There the parties had following a mediation resolved the claim that required the defendant to pay a settlement sum to the plaintiff by instalments. The compromise was reduced to writing. The defendant defaulted on the terms of the compromise and the plaintiff brought an application in the substantive proceedings pursuant to r 658 seeking judgement. 
[16]	The circumstances of that case are similar to the present proceedings insofar as the relief sought on the application by the plaintiff is concerned. 
[17]	His Honour concluded that either pursuant to r 658 or r 190(1) the plaintiff had an entitlement to judgement for the whole of the balance of the settlement sum outstanding under the agreement.
[18]	I am satisfied that r 658 provides a broad power to give judgement for a plaintiff, in circumstances such as the present where it is alleged that an action has been compromised and the settlement sum has not been paid. 
THE ISSUE FOR DETERMINATION 
[19]	Conveniently, both outlines of argument accept that the principal issue to be resolved is whether the parties have entered into a contract (a compromise) resolving this proceeding on terms whereby the defendants pay to the plaintiff $20,000. 
[20]	In the event that issue is resolved in the affirmative, the defendants contend for an alternate position that the court would not enforce the compromise in circumstances where the acceptance of this offer was pursuant to a fundamental mistake and the defendants would suffer grave injustice if the plaintiff were allowed to rely upon the alleged compromise pursuant to the principles in Harvey v Phillips.
WAS THERE A COMPROMISE OF THE PROCEEDING ON 24 FEBRUARY 2022 
[21]	The principal issue to be resolved, whether the parties have entered into a contract (a compromise or settlement), requires the court to consider the evidence led by both the plaintiff and defendants in respect to the conversations and communications between the legal representatives for the parties. 
[22]	The plaintiff’s application is an ‘application in a proceeding’ notwithstanding that it seeks final relief by way of judgement. 
[23]	Evidence in a proceeding started by application may only be given by affidavit. The evidence in chief of each of the parties’ witnesses is by way of affidavit. 
[24]	An affidavit must be confined to the evidence the signatory for the affidavit could give if giving evidence orally. As the application is for final relief, there is no ‘admissible hearsay’ allowed in the affidavits.
THE PLAINTIFF’S EVIDENCE ON THE HEARING OF THE APPLICATION 
[25]	The plaintiff’s evidence relied on in the hearing of this application is: 
-	Evidence of the plaintiff Julia Maccarone (by her affidavits filed 28 February 2022, 19 August 2022, 10 September 2024, and 13 November 2024). 
-	Evidence of Susan Anderson (by her affidavit filed 30 November 2024). 
THE DEFENDANTS’ EVIDENCE ON THE HEARING OF THE APPLICATION 
[26]	The defendants’ evidence is: 
-	Evidence of Peter Kronberg (by his affidavits filed 23 September 2022, and 12 November 2024) 
-	Evidence of Jodie Conna (by her affidavit filed 6 November 2024). 
[27]	In respect of both of the plaintiff’s witnesses Maccarone and Anderson and both of the defendants’ witnesses Kronberg and Conna, each of the parties respectively consented to cross-examination of the witness on their affidavit.
THE WITNESSES’ EVIDENCE 
[28]	The affidavit evidence of the witnesses (the evidence in chief) especially in respect of the witness Maccarone was voluminous and ran to many hundreds of pages. 
[29]	Conveniently, counsels’ outlines and their cross-examination of the witnesses significantly confined the evidence the court was required to consider. 
[30]	The principal issue for resolution in this application – whether the parties had in fact compromised the claim on 24 February 2022, primarily involves a consideration of the evidence of the legal representatives Ms Anderson and Mr Kronberg in relation to their telephone conversations on that date. 
[31]	Each of the parties contend that there is various other evidence, to which the court can have regard, which support their respective contentions as to the findings which ought be made. 
EVIDENCE JULIA LOUISE MACCARONE 
[32]	Ms Maccarone has filed no fewer than four affidavits in the proceeding and all are sought to be relied upon. The plaintiff’s evidence (by way of affidavit) is voluminous, repetitious, and poorly drafted, consistent with the plaintiff acting on her own behalf and preparing that material herself. Ms Maccarone’s evidence concerning the alleged compromise of the claim on 24 February 2024 is contained in her affidavits as follows: 
-	Affidavit – 19 August 2022 at paragraphs 39 – 51
-	Affidavit – 10 September 2024 at paragraphs 32 – 49 (which as in virtually identical terms to the earlier deposed evidence referred to above). 
[33]	In respect of Ms Maccarone’s affidavit evidence: 
-	She had no direct conversations with the defendants’ solicitor Mr Kronberg. 
-	She had discussions with Ms Anderson (counsel acting for her on direct brief) where alleged details of those conversations were related to her. 
-	She sent an email at 11:17am on 24 February 2022 to Mr Kronberg setting out what she understood, as conveyed to her by Ms Anderson, was the basis on which the claim had settled.
-	She was copied in an exchange of emails as between Mr Kronberg and her counsel Ms Anderson. 
-	She instructed her counsel to consent to the defendants’ application to determine jurisdiction being dismissed.
-	She received from the court registry a copy of an order made by Magistrate Coates on 25 February 2022.
-	On 1 March 2022 she had a further conversation with her counsel Ms Anderson where again a conversation between Ms Anderson and Mr Kronberg was related to her. 
[34]	That, in its entirety, is Ms Maccarone’s evidence in respect of the conversation giving rise to the alleged compromise on 24 February 2022. She did not participate in any of the conversations which were settlement negotiations. She does not appear, as she has failed to depose to it, of providing Ms Anderson any instruction to inform those settlement negotiations and the ultimate compromise. She sent an email purporting to confirm the terms of the settlement, as it was related to her by her counsel. 
[35]	The plaintiff has sworn and filed a further affidavit on 13 November 2024. 
[36]	As with the three previous affidavits, this is replete with material irrelevant for a consideration of the principal issue to be resolved. It is contended by the defendants and was the subject of a substantial portion of Ms Maccarone’s cross-examination, that her conduct post the alleged settlement was inconsistent with a compromise having been reached on 24 February 2022. 
[37]	At paragraphs 4 – 12 she deposes to matters under the heading “Explanation for delay in progressing this proceeding.”
[38]	In respect of that evidence: 
-	She filed an application (an application in a proceeding) on 19 August 2022 – “seeking orders to enforce the terms of the settlement.” 
-	That application in fact sought relief in these terms: 
1)	The parties having agreed to resolve those proceedings on 24 February 2022 the defendants pay the plaintiff $20,000 in full and final satisfaction of the plaintiff’s claim within 14 days of this order; and 
2)	Within seven days of receipt of the funds in Order 1, the plaintiff file a notice of discontinuance of those proceedings. 
-	That application was on 23 September 2022 adjourned to the registry. 
-	She deposes to various reasons that she took no further steps in these proceedings until 19 September 2023.
-	On 19 September 2023 she applied for a judgement in default of defence (pursuant to r 283 UCPR). 
-	That application for default judgement was refused by the registrar on 26 October 2023. 
-	She again applied for default judgement in default of defence on 30 October 2023. 
-	That request for default judgement was refused by the registrar on 20 December 2023. 
[39]	The next step the plaintiff took in the proceedings was to file an application on 10 September 2024 seeking orders: 
1)	That the application filed 19 August 2022 to request that the order made by Magistrate Coates on 25 February 2024 to enforce settlement be relisted for hearing. 
2)	The parties have agreed to resolve these proceedings on 24 February 2024 that the defendants pay the plaintiff $20,000 in full and final satisfaction of the plaintiff’s claim within 14 days of this order; and 
3)	Within seven days of receipt of the funds in Order 1, the plaintiff file a notice of discontinuance in these proceedings. 
4)	The defendants pay the plaintiff’s costs of the application. 
[40]	This application was effectively amended by the application filed 29 October 2024, which is the application currently for determination. 
[41]	The plaintiff’s evidence is to the effect that after the alleged compromise on 24 February 2022, she filed an application, “seeking to enforce the settlement,” on 19 August 2022 which was adjourned to the registry. 
[42]	She then applied for a judgement by default of defence on 19 September 2023, but for the whole amount of the claim and not the alleged settlement sum. 
[43]	She again applied for a default judgement in default of defence on 30 October 2023 again for the full amount of the claim and not for the alleged settlement sum. 
[44]	The plaintiff was cross-examined on her affidavit evidence. 
[45]	In cross-examination the plaintiff’s evidence was: 
-	She brought the application to enforce the settlement in August 2022 because the defendants did not accept that there had been a settlement in February 2022.
-	She accepted she was informed that the defendants’ contended that there was no settlement on 1 March 2022.
-	She waited from 1 March 2022 to August 2022 (five months) to bring the application. 
-	She still had retained and directly briefed Ms Anderson at the time of the first application in August 2022. 
-	She gave evidence about intervening Family Law proceedings which diverted her attention from this claim for a significant period of time, which had finalised in July 2023. 
-	She was still obtaining advice from Ms Anderson her counsel in respect of this claim. “And then all the way through I was speaking with Susan saying I need to do something in relation to this current matter and so then we discussed making an application for default judgement.”
-	After obtaining advise from Ms Anderson of counsel, she decided to seek default judgement and not to enforce the settlement agreement.
-	On 15 July 2024 she served a list of documents in the proceedings. 
-	The list of documents was relevant to the substance of the dispute and some documents which referred to the agreement that was made.
-	On 10 September 2024 she filed a further application to enforce the settlement agreement after two-and-a-half years since the alleged settlement agreement occurred. 
-	She sought default judgement for the substantive claim on 23 September 2024 and in respect to a question that that was inconsistent with an understanding that the matter had settled, she replied, “I wasn’t hearing any response from the defence, I didn’t know what to do.” 
-	This proposition was put to the plaintiff:
“But you would accept that filing an application for default judgement is inconsistent with believing the matter had settled finally in February 2022.” 
-	To which she replied: 
“But they were disputing that it had settled so I just want to receive my money and tidy this matter up and I thought the best way to do that would be to file a default judgement.” 
[46]	The plaintiff Ms Maccarone was a singularly unimpressive witness. Both in her affidavit evidence (her evidence in chief) and her evidence in cross-examination she provided much extraneous and irrelevant material, was evasive and failed to provide a satisfactory explanation for both her delay and subsequent conduct post the alleged settlement. When pressed in respect of matters in her evidence that were inconsistent, she either indicated that she was relying on advice from her counsel or, “did not know what to do.” I find the plaintiff an unimpressive witness, a poor historian, and generally unreliable. 
[47]	In respect of her evidence, I find: 
-	She was not a participant in the conversations giving rise to the alleged settlement on 24 February 2022. 
-	She sent an email purportedly confirming the terms of the settlement to the defendants’ solicitors as she understood them conveyed to her by her counsel. 
-	She became aware on 1 March 2022 that the defendants’ solicitors did not accept that the claim was settled in the terms of her email and believed the settlement was on a different basis. 
-	She took no steps in respect of ‘enforcing’ the settlement from 1 March 2022 until 19 August 2022 (a period of nearly five months) when she filed her first application in the proceeding. She took no further step in respect of the alleged settlement for more than a year when she then sought a default judgement (in default of defence) on 26 October 2023. 
-	She sought default judgement for the whole of the amount claimed and not for the alleged settlement sum. 
-	She made a further application for default judgement on 30 October 2023 and again sought judgement for the whole of the claim and not for the alleged settlement sum. 
-	She took no further steps in respect of the alleged settlement for a period of a further nine months before filing an application in the proceeding on 10 September 2024, the application presently before the court although in an amended form. 
[48]	The plaintiff’s evidence was that she was continuing to receive advice from her counsel Ms Anderson throughout this period. I find that the plaintiff’s evidence does not provide an adequate explanation for significant periods of the delay between the date of the alleged compromise, and the date she became aware that the defendants disputed that the matter was settled in those terms and her taking the number of steps that she subsequently did to endeavour to ‘enforce’ that alleged compromise. 
[49]	I find that the plaintiff’s evidence in relation to her attempts to obtain a default judgement for the full amount of the claim on 19 September 2023 and 30 October 2023 are wholly inconsistent with the proposition that the claim had been settled on the terms that the plaintiff now alleges on 24 February 2022. 
EVIDENCE – SUSAN ANDERSON 
[50]	Ms Anderson’s affidavit evidence (evidence in chief) is the affidavit sworn 23 October 2024. 
[51]	Her evidence in respect of the conversation giving rise to the alleged compromise is contained in paragraphs 2 – 8 of that affidavit. 
[52]	In respect of her evidence: 
-	She says the conversation occurred on 24 February 2022.
-	She made an offer, on behalf of the plaintiff, to settle the claim in these terms: 
“I told Mr Kronberg that my client would accept $20,000 to settle the matter.”
-	Mr Kronberg responded that he held his client’s instruction to accept that offer on the basis that his clients were given 14 days to pay.
-	She then spoke to the plaintiff and sought instructions and was told the offer was acceptable.
-	She asked the plaintiff to send an email directly to Mr Kronberg to confirm the settlement and request a release and discharge. She identifies emails as between Mr Kronberg, the plaintiff, and herself which are exhibited to Ms Maccarone’s affidavit. 
-	The defendants’ solicitors prepared a consent order seeking order in terms: 
1)	The application of the first, second, and third defendants is dismissed. 
2)	No order as to costs. 
-	Both she and Mr Kronberg appeared before Magistrate Coates on 25 February 2022 when those orders were made by consent. 
[53]	In cross-examination Ms Anderson’s evidence was: 
-	In respect to the 24 February 2022 conversation, she accepted that there were calls discussing previous offers to settle and said, “yes I think there were two calls.”
-	She said (referring to her affidavit): 
“Yes, that’s what I said. But I think there were two calls where I spoke to Peter because I spoke to him and said, ‘hey you know it was an application about jurisdiction,’ so I said, ‘hey can we resolve this and we had a conversation about that and then we had another conversation where he said things to me.”
-	It was put to her the first phone call was the day before, 23 February 2022, and she responded, “I think probably, I can’t be certain of that.”
-	She accepted it was probably 23 February 2022 when she started discussing this.
-	It was put to her that she was not sure in what call, 23 February or 24 February, she discussed the settlement offer and she accepted that. 
-	She accepted that Mr Kronberg had to take instructions. 
-	It was put to her that she required to obtain instructions too, and she responded: 
“I had already. I had had a conversation with Julia where she had told me there had been offers in the past… I had a conversation with Julia where she said – I said, ‘what do you want’ and she said ‘$29,000.’ I said ‘no, but what would you take to walk away?’ And she said, ‘I wouldn’t take less than $20,000.’ So, I already had those instructions to have a conversation with him about settling the matter.”
-	She accepted that in respect of both the conversations on 23 February and 24 February she did not take a file note, acknowledging, “no, no, I wouldn’t have written anything down.”
-	In respect of her recalling the conversation on 23 or 24 February she responded, “I mean, it didn’t happen yesterday and if I had taken a file note I would remember it better.”
-	When pressed as to the absence of a record concerning the conversation in these terms:
“And there’s no record from you whether it be a file note or otherwise an email or anything recording what you recall as the settlement discussion that occurred either on the 23rd or the 24th is that right?” 
Ms Anderson responded, “The email that Julia sent was sent at my direction.”
-	She accepted that she had read Ms Maccarone’s affidavit before preparing her affidavit but did not use that affidavit to refresh her memory because she had emails to refresh her memory.
-	She accepted that it had been over two years since the discussions.
-	She accepted that to some extent her memory had faded.
-	In respect of her recollection of the conversations it was put to her: 
“– you didn’t recall that it had occurred over two conversations”
She responded, “well I think I think logically it did and I’m not sure because he would have had to seek instructions.”
-	It was put to her in respect of the critical conversation: 
“It’s possible isn’t it though that Mr Kronberg said he would like your client to pay to his client $20,000 within 14 days?” 
She responded: 
“Look, if Peter had said that to me, I would have been really surprised because he was acting for the defendant, and I was acting for the plaintiff.” 
And further: 
“So, it’s just not possible that I didn’t understand what I was saying and that what I was hearing. It is as I understand it entirely possible as Peter said that he made a mistake, but he certainly didn’t convey that to me during the conversation of the 24th.”
[54]	In re-examination Ms Anderson contended that the reason for her believing that she had a better memory was on the basis that the plaintiff was a friend of hers and she was excited at being able to resolve the matter.
[55]	The plaintiff relies on the evidence of Ms Anderson to establish that a compromise was reached in the telephone conversation on 24 February 2022. Ms Anderson and Mr Kronberg were the only parties to that conversation. 
[56]	I accept that Ms Anderson gave truthful evidence as to her recollections of the conversation with Mr Kronberg. 
[57]	Ms Anderson conceded she made no notes in respect of the conversation and therefore was completely reliant on her recollection of it. She contended that the email sent on 24 February 2022 by the plaintiff to Mr Kronberg was sent at her direction and that that corroborated her recollection. 
[58]	Whilst Ms Anderson I accept gave truthful evidence, I did not find her particularly reliable and accurate. She was not persuasive in respect of the critical terms of the conversation that she first contended occurred only on 24 February 2022 which gave rise to the compromise. 
[59]	She initially gave evidence (by affidavit) that there was only one telephone call on 24 February but readily conceded that there were two. She had no contemporaneous notes and generally her evidence about the conversations I find to be vague and unreliable. 
EVIDENCE – PETER KRONBERG 
[60]	Mr Kronberg was the solicitor acting on behalf of the defendants. 
[61]	His affidavit evidence (evidence in chief) in respect of the telephone conversations with Ms Anderson are contained in his affidavit affirmed on 23 September 2022. 
[62]	Mr Kronberg did make contemporaneous file notes of the conversation and they are exhibited to his affidavit marked as Exhibits PAK1, PAK2, and PAK3. 
[63]	His contemporaneous notes support his evidence that the conversations with Ms Anderson commenced on 23 February 2022 and then settlement discussions continued on 24 February 2022. 
[64]	In relation to the conversation allegedly giving rise to the compromise, he said, “however from the fact that it was stated that an offer was being made, I took it to mean an offer was being made to our client to pay $20,000.” 
[65]	His evidence was that he had contemporaneous file notes of both what he understood to be an offer by the plaintiff to his client to pay $20,000 and his acceptance of that offer.
[66]	He said he had a conversation on 1 March 2022 with Ms Anderson where he advised that he understood that the offer was “the other way around” and that the offer was being made not for the defendant to pay. He made a contemporaneous file note of that conversation.
[67]	Mr Kronberg was cross-examined extensively by the plaintiff’s counsel.
[68]	In respect of his evidence in cross-examination: 
-	He was asked a series of questions generally about his experience and his conduct of litigation on behalf of the defendants up to the point of the conversation giving rise to the alleged compromise. 
-	He accepted that at the time he spoke to Ms Anderson he understood the plaintiff was suing his client for $29,000 plus interest and costs.
-	It was put to him that the affidavit prepared by Mr O’Reagan was relevant to the issue of costs on the defendant’s application (challenging the jurisdiction of the court) which he accepted.
-	He accepted he incorrectly read his own handwriting referencing a contemporaneous note of a conversation with Ms Jodie Conna or Mr Peter Conna. 
-	It was put to him that his recollection of the conversation with Ms Anderson was based on his interpretation of his handwritten notes, and he responded, “no I do remember with, I remember the substance of the conversation was instructions they wanted 14 days to pay.”
-	He was taken to his handwritten notes of a conversation on 23 February 2022 at 8:56am with Ms Anderson and in respect of that note says, “the endorsement client for $20,000 all up inclusive costs was her client (the plaintiff) to pay.”
-	It was suggested to him that was equally consistent with an offer that his client pay $20,000 all up which he rejected.
-	He accepted that two-and-a-half years later he did not have a precise recollection of the telephone conversation on 23 February.
-	He accepted that his evidence with respect to those conversations was based on his notes. 
-	In respect of his affidavit affirmed 23 September 2022 he says it was based on recollection noting that only six months from the conversation had elapsed.
-	He rejected the contention that the offer from Ms Anderson was an offer that his client pay the plaintiff $20,000 responding, “that the plaintiff pay the defendants $20,000.”
-	He was cross-examined about discussions with Mr O’Reagan of his firm and with the defendants and it was put to him that those conversations were more consistent with an offer as asserted by Ms Anderson that the defendants pay the plaintiff $20,000 which he rejected. 
-	In respect of the email from Ms Maccarone to him on 24 February 2022 he said he did not read it fully and emailed Ms Anderson as he was concerned with dealing with the plaintiff directly. 
[69]	Mr Kronberg gave his evidence in a direct and straightforward manner. He made concessions of not, at the time of hearing, having a complete recollection of the conversations with Ms Anderson. He relied on his contemporaneous file notes but did have an independent recollection of the substance of the conversation. 
[70]	Mr Kronberg’s first affidavit was affirmed on 23 September 2022, some six months post the alleged conversation, and relied on those contemporaneous file notes together with his own independent recollection of the conversations closer in time. I accept that he was a truthful witness and I accept his evidence that he honestly believed that the offer to settle made by Ms Anderson was an offer by the plaintiff to pay the defendants $20,000. 
EVIDENCE – JODIE JOANNE CONNA 
[71]	The affidavit evidence (evidence in chief) of Ms Conna is the affidavit affirmed 6 November 2024. 
[72]	The plaintiff objected and portions of the affidavit were struck out as inadmissible. The relevant portions which were struck from the affidavits were contained in paragraphs 6, 8, and 15. 
[73]	Ms Conna was not a party to the conversations on 23 and 24 February 2022. She was cross-examined about costs she had paid her various lawyers in the proceedings and about negotiations both pre and post the alleged compromise. 
[74]	Ms Conna’s evidence was of little or no assistance in relation to a determination of the primary issue in dispute being the alleged compromise of the claim on 24 February 2022. 
CONSIDERATION 
[75]	The plaintiff carries both the evidentiary and persuasive onuses to establish on the balance of probabilities on the evidence that in a conversation or conversations between Ms Anderson and Mr Kronberg a compromise of the claim occurred on 24 February 2022. 
[76]	Both counsels’ outlines accept that in determining whether the parties had entered into a contract to settle the proceedings, the application of the objective theory of contract requires that the legal rights and obligations of the parties turn on what their words and conduct would reasonably be understood to convey, not upon actual beliefs or intention.
[77]	The defendants, however, contend that that rule is not of universal application and the subjective intentions of the parties are in some circumstances relevant to the question of whether the parties have contracted.
[78]	The defendants refer to a number of authorities dealing with ‘mutual mistake.’ 
[79]	The defendants rely on the statement of principle in Air Great Lakes Pty Ltd v KS Easter (Holdings) Pty Ltd that: 
“The proper view is in my opinion that the existence of a contract is a consequence which the law imposes upon or sees as a result of what the parties have said and done. Actual subjective intention to contract is a factor which the law takes into account in determining whether a contract exists, but it is not or is not always a determining factor.” 
[80]	The defendants also relied on Raffles v Wichelhaus. The defendants submit that Raffles v Wichelhaus was followed in Holt v Bunney where Nicholson J said: 
“[35] It is not surprising that Australia law schools still teach a case decided in 1864, Raffles v Wichelhaus as the leading example of an operative mutual mistake. It is one of only few if any, true examples in the cases. Once the objective theory of contract formation is applied to the parties’ dealings, the scope for an operative mutual mistake, that is, that the parties are at cross purposes about a fundamental aspect of their agreement, will be very limited indeed. 
[36] In Raffles v Wichelhaus, a purchaser agreed to buy from a vendor cotton to arrive in London “ex ‘Peerless’ from ‘Bombay.’” There were two ships named ‘Peerless’; one set sail from Bombay in December carrying the vendor’s cotton and a second set sail in October. The buyer refused delivery on the basis that he had meant to buy cotton to be delivered on the October ship. The seller sued for damages for wrongful non-acceptance and failed. In Raffles, it was not possible on the available evidence to find that the proper, reasonable, interpretation to be placed on the contractual words used was that propounded by one party or the other. 
[37] In Raffles, there was an intractable ambiguity. Usually, the evidence will permit an object construction to be arrived at on the balance of probabilities favourable to one party and notwithstanding a subjective believe to the contrary held by the unsuccessful party.” 
[81]	The plaintiff’s counsel accepts in respect to ‘mutual mistake’ if each of the parties through their representatives were at cross purposes in their negotiations, neither knowing that the other was mistaken, the common law may dictate either that there was no contract or that there was a contract, and one party was in breach if they persist with their mutual interpretation.
[82]	The evidence as to the conversation giving rise to the alleged compromise on 24 February 2022 is the evidence of Ms Anderson and Mr Kronberg. 
[83]	I prefer the evidence of Mr Kronberg noting the findings of fact made at paragraphs 47–49 and 69–70 above. I am satisfied upon a consideration of all of the evidence in respect of the conversation as the defendants’ outline contends, “the ambiguity here is manifest, each Ms Anderson and Mr Kronberg have a different recollection of the conversations which are said to comprise the alleged compromise.” 
[84]	I am not persuaded on the evidence and do not conclude that there was an agreement in the terms propounded by either the plaintiff or the defendants arising from the conversation on 24 February 2022. 
[85]	In those circumstances, having concluded that the evidence does not support that an agreement was reached, the plaintiff’s application for judgement must fail. 
DISPOSITION 
[86]	I order that the plaintiff’s application be dismissed. 
DIRECTIONS
[87]	In the event that the parties cannot agree costs I direct that the parties file written submissions to be no more than five typed A4 pages as follows: 
1)	The defendants within 14 days; and 
2)	The plaintiff within 28 days 

Magistrate JNL Pinder 
20/02/2025