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- Notable Unreported Decision
SUPREME COURT OF QUEENSLAND
Qld Pork P/L v Lott  QCA 271
QLD PORK PTY LTD ABN 62 257 371 610
COLLEEN THERESE LOTT
Appeal No 204 of 2003
DC No 15 of 2002
Court of Appeal
Miscellaneous Application - Civil
District Court at Bowen
4 July 2003
29 May 2003
McMurdo P, Cullinane and Jones JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made
Appeal dismissed with costs
PROCEDURE – COURTS AND JUDGES GENERALLY – where summary judgment was given against the defendant – whether the defendant had no real prospect of defending claim for summary judgment – whether there was need for a trial
PROCEDURE – COURTS AND JUDGES GENERALLY –where the primary judge had altered the original judgment – whether he was empowered to do so under the slip rule (Rule 388) or the power conferred by Rule 667(2) or in the court’s inherent jurisdiction
Uniform Civil Procedure Rules 1999 (Qld), Rules 292, 293, 295, 388, 667(2)(d)
District Court Act 1967 (Qld), s 69(1)
Autodesk Inc & Anor v Dyason & Ors [No 2] (1993) 176 CLR 300, followed
Bernstrom v National Australia Bank Limited  QCA 231; Appeal No 9031 of 2001, 28 June 2002, followed
Swain v Hillman  1 All ER 91, considered
Three Rivers District Council v Bank of England No 3 (2001) 2 All ER 513, considered
R A Quirk for the appellant
W Sofronoff QC for the respondent
Lee Turnbull & Co for the appellant
Ruddy, Tomlins & Baxter for the respondent
- McMURDO P: I agree with Cullinane J that the appeal should be dismissed for the reasons he gives.
- The learned primary judge's original reasons for judgment were based on the mistaken belief that the parties had agreed on the quantum of the dispute. When this mistake was brought to His Honour's attention and before the formal order was taken out, His Honour heard further submissions and corrected his reasons for judgment and order. He was entitled to do so under the powers arising from UCPR rr 388 and 667(2)(d) and the court's inherent power to recall a judgment before its formal entry where the interests of justice so require: Autodesk Inc v Dyason [No 2].
- Under UCPR r 292, the respondent was entitled to its judgment below if it satisfied the court that it was so entitled to judgment and that the appellant had no real prospect of successfully defending all or part of the claim and there was no need for a trial of the claim or part of the claim. It is necessary to review the material before the primary judge to determine these matters.
- The issue was whether the appellant's payments to the respondent were made against purchases since she bought the business or whether she intended her payments to first meet the company's debt to the respondent. If the latter, and the criteria of UCPR r 292 were met, the respondent was entitled to summary judgment.
- Lott’s Meats (“the business") was a business conducted for some time by Lott Enterprises Pty Ltd ("the company") in the course of which the company purchased pigs from the respondent and set off the costs of cartage and killing the pigs against its indebtedness to the respondent. The respondent's material established that it was common practice for the company to make a single payment to the respondent for part or all of a number of invoices.
- On 27 July 2001, the appellant, as trustee for the Colleen Lott Family Trust, purchased the business from the company, which went into liquidation on 6 August 2001. The business continued to trade as Lott’s Meats at the same premises and with the same telephone number, to be supplied with and invoiced for pigs by the respondent and to offset the costs of cartage and killing against its indebtedness to the respondent. The appellant swore that, in order to maintain the trading account with the respondent, she agreed to maintain a running account within the terms stated on the respondent's invoices; payments were made as often as possible, sometimes twice a day and usually at least thrice each week and not in respect of any particular invoices; at no time did she authorise the respondent to apply payments made on behalf of her business towards outstanding invoices owing by the company in liquidation.
- During the first few days after the appellant purchased the business, invoices from both the appellant and the respondent were sent or issued in the company's name. The appellant swore that this occurred in error.
- The table set out in Cullinane J's judgment demonstrates that the amounts paid by the appellant to the respondent, whilst not mirroring the amounts in the respondent's invoices, bear a striking resemblance to them and appear consistent with the company's earlier practice of a single payment covering all or part of a number of invoices. Despite the appellant's assertions to the contrary, the irresistible inference from the payments and invoices is that the appellant, when making those payments to the respondent, was referring to the company invoices and was continuing the method of payment previously adopted by the company. In the absence of any competing explanation, the clear inference is that the appellant intended to make these payments against the company's debt to the respondent to ensure the continued supply of pigs for her business. It follows that the respondent was entitled to judgment and on the material before the primary judge there was nothing to suggest the appellant had any real prospect of successfully defending all or part of the claim or that there was a need for a trial.
- The appeal should be dismissed.
- CULLINANE J: In this matter the appellant appeals against two judgments of the District Court. An order has been made granting an extension of time within which to appeal against the first of these which was delivered on 21 November 2002. Leave has been given to amend notices of appeal in each case.
- Each judgment relates to the same matter and is, except as to the amount of the judgment, in the same terms.
- The respondent applied for summary judgment pursuant to Rule 292 of the UCPR against the appellant in her capacity as trustee of a trust (Colleen Lott Family Trust) in respect of pigs supplied by the respondent which it claims had not been paid for.
- The learned District Court Judge, having decided to grant the judgment, gave judgment in the respondent’s favour on 21 November 2002 in the sum of $59,861.93.
- It is not clear where His Honour obtained this figure from but it is clear that it was based upon a mistaken belief that the parties had agreed that in the event of the applicant succeeding, and after taking into account certain monies which were to be offset against the price of the pigs sold and a payment which had not been allowed for in the schedule to the pleading, the judgment amount should be $59,861.93.
- Having been made aware that there was no such agreement, His Honour considered the matter again on 12 December 2002 and gave judgment for the respondent in the sum of $74,130.17.
- His Honour was clearly satisfied that the respondent’s claim against the appellant had been established. The only challenge was raised in relation to the extent of a credit to be allowed. His Honour accepted the respondent’s evidence and on this basis arrived at the judgment figure.
- The effect then of what His Honour did was to correct the earlier judgment he had given by giving judgment for the figure that he was satisfied the respondent was entitled to on the evidence before him.
- The appellant contends that His Honour had no power to alter the original judgment, the matter not falling within any of the powers of the court to correct the judgment whether under the slip rule(Rule 388) or the power conferred by Rule 667(2) or in the court’s inherent jurisdiction.
- It is said that His Honour’s first judgment was the result of a deliberate decision and not inadvertence. Given that His Honour’s judgment was based upon a plain misunderstanding of what the position was, I think this meets the language of the slip rule found in Rule 388(1)(b), namely “mistake or error (which) resulted from an accidental slip or omission”. Furthermore I think that the contention of senior counsel for the respondent that the matter falls within Rule 667(2)(d) is also correct. This permits a court to set aside an order if the order does not reflect the court’s intention at the time the order was made. Here it seems clear that His Honour at all times intended that judgment would be entered for the respondent in the sum for which the respondent had made out an entitlement after taking into account the credit and off-sets to which I have referred and was under the mistaken belief that the parties had agreed upon what that entitlement was and for reasons which cannot be now known arrived at the figure for which judgment was first pronounced.
- I also think that in these circumstances the court would have an inherent power to correct the judgment. See Autodesk Inc v Dyason [No 2]. The first judgment had not been taken out before His Honour dealt with the matter again.
- The issue before the learned District Court Judge was whether the respondent was entitled to summary judgment in the sum of $74,130.17. Whilst a number of grounds of appeal were raised, ultimately they are to the effect that such a conclusion was not open to the learned District Court Judge.
- The facts which the material either established as common ground or which should be taken to exist for the purposes of an application of this kind can be summarised as follows:
- (a)The company Lott Enterprises Pty Ltd conducted a business which the appellant as trustee of the Colleen Lott Family Trust acquired on 27 July 2001. The company went into liquidation on 7 August 2001.
- (b)The respondent supplied pigs to Lott Enterprises Pty Ltd and then to the appellant as trustee. There were off sets to the cost of the pigs because of certain services carried out.
- (c)The appellant was neither a director nor a shareholder of Lott Enterprises Pty Ltd.
- (d)The business conducted by the appellant was conducted from the same address, and with the same telephone number as that conducted by Lott Enterprises Pty Ltd, using the same business name.
- (e)Some invoices were forwarded by the respondent to Lott Enterprises Pty Ltd after the date of the acquisition of the business. The appellant sent invoices after this date in the name of the company to the respondent claiming credits in relation to services. There are two of these but they are said by her to have been issued in error.
- (f)Thereafter invoices were issued by the appellant in the name of Lott’s Meats (which was the name that the company had traded under).
- (g)The monies the subject of the respondent’s claim equal monies which the respondent applied to invoices which had been forwarded to the company and which relate to the supply of pigs prior to the acquisition of the business by the appellant.
- The appellant says that she cannot say whether the invoices or the payments deposed to by the respondent are correct. She does not deny making such payments. All of the relevant payments were made after the date that the appellant commenced the business and it is the appellant’s case that they ought to have been applied to her indebtedness and in consequence there is no indebtedness in the sum claimed by the respondent.
- In an affidavit sworn on the 29 August 2002, the appellant deposes:
“At no time was any authority given by or on my behalf, to enable Queensland Pork Pty Ltd or its Directors to apply payments made by or on behalf of the Trust for or towards outstanding Invoices issued by Lott Enterprises Pty Ltd (In Liquidation).”
- The respondent says that an examination of the invoices to the company and the payments which it says were made by the appellant clearly reveal an intention that those monies be applied in payment of those invoices.
- The point which the respondent makes is best illustrated by setting out of details of the invoices and payments concerned.
In part paid
- The respondent deposes that it was common practice for the company to make a payment which covered part or the whole of a number of invoices.
- The table reveals what appears to be a clear link between the payments and the invoices. The payments in each case are made at an interval of about a month or so after the invoice in each case. A number of payments are of some thousands of dollars in round figures which, on the respondent’s case, represents either payment of the balance then owing under an invoice or a part payment under an invoice. In all other cases the amounts paid equate precisely with the small figures (hundreds, tens, single dollars and cents) in an invoice or the combined total of the small figures in two or more invoices. (There is one instance of a difference of one cent - at*) The total payments as apportioned across the invoices in the table equate precisely with the total of those invoices except in the case of the last cheque of $24,274.53 where a balance is apportioned to three further invoices (which appear at page 66 of the record) after the satisfaction of the balance of invoice 738. The respondent acknowledges that the balance of that cheque was to be applied in discharge of the appellant’s indebtedness under those three invoices.
- The appellant deposes to the purchases made by her from the respondent and these appear at pages 45-47 inclusive of the record. There is no equation between the cheques which appear in the table (and in particular the small numbers of those cheques) and the amounts due in respect of those purchases particularly those during or following the period when the payments were being made as appear in the table.
- Viewed as a whole the pattern of invoices and payments revealed by the table gives rise to a strong and, in the absence of any other explanation, unavoidable inference that the payments were intended to satisfy those invoices.
- The payments have to be viewed in the light of the ongoing dealings in pigs after the appellant’s acquisition of the business, the use by the appellant of the same address and telephone number and business name in the conduct of the business and what might be regarded as the obvious commercial significance in ensuring that nothing should jeopardise the ongoing supply of pigs.
- In these circumstances the contents of paragraph 10 of the appellant’s affidavit (set out in paragraph 24 above) are, in my view, insufficient to discharge the evidentiary onus cast upon her by what is shown in the table.
- It can be accepted that the affidavit puts in issue the existence of any express oral or written authority but such authority is not relied upon by the respondent.
- Insofar as the contents of this paragraph are relied upon in relation to the plain inference which the payments give rise to (that is an inferred intention that the payments should be applied to discharge the invoices set out in the table), the contents of paragraph 24 amount to no more than assertion or argument. In my view the contents of the table require some specific explanation or response so as to discharge the evidentiary onus which the table casts upon the appellant to demonstrate that a real issue arises. In its absence the court was justified in concluding that the appellant had no real prospect of successfully defending the claim and that there is no need for a trial of the issue.
“It is important that a Judge in appropriate cases should make use of the powers contained in part 24. In doing so he or she gives effect to the overriding objectives contained in part 1. It saves expense; and achieves expedition; it avoids the court’s resources being used up on cases where this serves no purpose, and I would add, generally, that it is in the interests of justice. If a claimant has a case which is bound to fail, then it is in the claimant’s interests to know as soon as possible that that is the position. Likewise if a claimant is bound to succeed a claimant should know that as soon as possible.”
- And earlier at p 92:
“Under R 24.2 the court now has a very salutary power, both to be exercised in a claimant’s favour or, where appropriate in a defendant’s favour. It enables the court to dispose summarily of both claims or defences which have no real prospect of being successful. The words ‘no real prospect of succeeding’ do not need any amplification, they speak for themselves. The word ‘real’ distinguishes prospects of success or … they direct the court to the need to see whether there is a ‘realistic’ as opposed to a ‘fanciful’ prospect of success.”
- The appellant advanced an argument that, even if the payments were intended to be applied to the company’s invoices, there would be a right in the appellant to recover these moneys by way of restitution. Such a claim was not pleaded and in my view there is no basis for it.
- Whilst His Honour’s reasons are not extensively stated, in my view the conclusion reached by him that the respondent was entitled to summary judgment was justified on the evidence before him.
- I would dismiss the appeal.
- JONES J: I agree with the orders proposed by Cullinane J for the reasons he sets out. I wish only to add some observations of my own about the evidentiary onus which fell upon the appellant in resisting the application for summary judgment.
- In this type of proceeding, as with an application under the former rules, the onus is on the applicant to prove the claim and to persuade the Court that there is no real prospect of the opposite party succeeding. In some circumstances a respondent to the application may be able to convince the Court that the onus has not been discharged without filing any evidence at all. But once a prima facie case has been made out entitling the applicant to judgment then an evidentiary onus shifts to the respondent. Rule 295 of UCPR especially provides that evidence may be given on information and belief, thus facilitating the discharge of that evidentiary onus.
- In this case the respondent consistently with its allegation in the Statement of Claim adduced evidence of invoices presented to the appellant and of the payments made by the defendant. The respondent adduced evidence of the account paying practice of the business when it was owned by Lott Enterprises Pty Ltd (as Trustee) and when it was owned by the appellant. That practice was for the business owner to make payments to reduce the total indebtedness that may have arisen over the non-payment of particular invoices. Some such payments were for rounded off amounts. A subsequent payment would typically be for a specific amount which would satisfy the outstanding debt on a particular invoice or set of invoices. In other words, two or three payments matched the precise amount of a particular set of invoices. An inference that the payments were intended to match those invoices was inescapable.
- The Statement of Claim identified the relationship between the payments and the invoices. The affidavits filed in support of the application for summary judgment did likewise and additionally made adjustments for any errors in bookkeeping entries or for unattributed credits. The Amended Defence simply failed to address this issue. The Amended Defence and the affidavits filed on behalf of the appellant identified in a global way invoices sent to and payments made by the business when under the control of the appellant. This showed a discrepancy in favour of the appellant. The appellant asserted that the discrepancy arose because some payments were, without her knowledge and without her authority, applied to the business debts of the previous owner to whom the invoices were addressed. She claimed she was entitled to be reimbursed for those misappropriations.
- Thus there was a conflict between the inference that the appellant knew and intended the payments to be made and the appellant’s sworn assertion that they were not so intended.
- The resolution of the issue arising on the application for summary judgment was for the learned hearing judge to determine, firstly, whether the circumstances, as proved to his satisfaction, permitted the inference to be drawn that the payments were intended, thereby establishing a prima facie case for the respondent; secondly, whether there was any evidence by which the appellant had identified an issue requiring a trial. This process was not to engage in a “mini trial” which Lord Woolf warned against in Swain v Hillman as did Lord Hope in Three Rivers District Council v Bank of England No 3. It was to determine what was the evidence by which there can be identified a need to have a trial at all. Rules 292 and 293 of UCPR, by their very terms, are more focused on the evidence by which the substantial issues will be determined than perhaps was the case under the preceding rules of court.
- Here the appellant had to address the remarkable coincidence of the amounts of the payments and amounts claimed in the invoices which, in the absence of some explanation, led to the irresistible inference that the payments were made in respect of those particular invoices. The concept is referred to in Cross on Evidence (Australian ed) as the shifting of the evidential burden. At para  the following appears:-
“…If the tribunal of fact believes the proponent’s witnesses, the requisite inference may be drawn in the proponent’s favour, and the chances of this happening will generally be increased by the opponent’s failure to adduce evidence. Nevertheless, it is quite possible that the tribunal of fact will not draw the requisite inference, even if the opponent does not adduce any evidence. The opponent merely runs a risk of losing the issue if the opponent remains silent, and, in such a case, when it is said that the burden of proof has shifted from the proponent to the opponent, all that is meant is that the latter should adduce some evidence as a matter of common prudence. The evidential burden of disproving the case made by the proponent on the issue in question is sometimes described as ‘a provisional burden’”.
- In the appellant’s affidavit there was no explanation given or any facts identified which may have rebutted the inference that the payment could only have been made with the knowledge and acceptance of the invoices which related to the former business. In short, the appellant apart from a bare denial, failed to adduce any evidence relating to the issue of her knowledge and intention which could challenge the inference which the learned hearing judge obviously drew. Thus, in my view, his Honour was entitled to come to the decision that there was no real prospect of the appellant succeeding in her defence.
- The appeal should be dismissed with costs.
 For the purposes of the UCPR, "order" includes a judgment, direction, decision or determination of a court, whether final or otherwise (UCPR Sch 4 – Dictionary).
 See s 69(1) District Court Act 1967 (Qld).
 (1993) 176 CLR 300.
 (1993) 176 CLR 300.
  QCA 231.
  1 All ER 91.
  1 All ER 91.
  2 All ER 513.
- Published Case Name:
Queensland Pork Pty Ltd v Lott
- Shortened Case Name:
Queensland Pork Pty Ltd v Lott
 QCA 271
McMurdo P, Cullinane J, Jones J
04 Jul 2003
- White Star Case: