Natal Awnings Pty Ltd v Meyer
[1997] QDC 287
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- Natal Awnings Pty Ltd v Meyer[1997] QDC 287
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Natal Awnings Pty Ltd v Meyer[1997] QDC 287
Natal Awnings Pty Ltd v Meyer[1997] QDC 287
DISTRICT COURT |
|
CHAMBERS
JUDGE ROBIN QC
Plaint No 2764 of 1997
NATAL AWNINGS PTY LTD (TRADING AS PARASOL LEISURE PRODUCTS)
and
LARISSA MEYER AND WALTER MEYER (TRADING AS INKUNZI DISTRIBUTORS)
BRISBANE
DATE 08/08/97
ORDER
Catchwords:
Summary judgment - plaintiff's claim for price of goods supplied - shadowy defence based on complaints from defendants' purchaser regarding quality of goods and plaintiff's alleged failure to perform another supply contract of which no proper evidence was given.
Judgment - judgment pronounced in foreign currency - limited stay granted to enable defendants to pursue their counterclaim.
HIS HONOUR: This is an application for summary judgment by a South African company which supplied a very large number of items described as beach cabanas (which appear to be some kind of protection from the sun for persons using beaches) to the defendants, Mr and Mrs Meyer.
I think it is obvious, and was to the plaintiff's principal, that they were middle men so to speak who intended to resell the goods on a wholesale basis to someone else, as happened. They were supplied to the defendants in November and December 1995. The defendants, by Mrs Meyer's fax of 22 February 1996, acknowledged that their liability on the plaintiff's invoices, which were written in United States dollars, was $127,300 of which $27,374.37 US has been paid. That leaves a balance, as the fax acknowledged, of $99,925.63 US currency still owing.
I think it is not open to regard the fax I refer to as anything other than an acknowledgment of liability. The plaintiff claims the sum in United States currency, in which it is established that the Supreme Court could give a judgment: see ANZ Banking Group Limited v. Callwood (1987) 1 Queensland Reports 131. Having regard to Rule 4(a) of the District Courts Rules, I see no reason why a similar judgment ought not to be available in this Court.
The plaintiff has been paid nothing and the explanation of that is that Mr and Mrs Meyer have not been paid by the person or persons to whom they on sold the goods. They are the plaintiffs in District Court action 916 of 1996 wherein they sue for the price of the goods allegedly owing to them in the amount of $153,961.25. There is an interesting irony in these proceedings in that, in 916 of 1996, Mrs Meyer swore there was no defence to the action. Her counsel finds himself in this action reading Mr Philip John Garvey's affidavit which was successfully used to fend off an application for summary judgment in that action in April last year.
Mr Martin read that affidavit over Mr Kimmins' objection (which appeared to me to be based on the proposition that the Meyers ought not to be permitted to make inconsistent allegations in two different actions) in response to Mr Kimmins' criticism of Mrs Meyer's affidavit filed in resistance to the present summary judgment application and, in particular, a paragraph in that affidavit which broadly verifies an exhibited entry of appearance and defence that, it may be said, picks up the Garvey criticisms of the product.
Mr Kimmins cited authority to the effect that affidavit material, which does not swear to facts, but merely verifies a pleading in such a way, is of little use in an application such as this: Queensland Trusts and Frame Proprietary Limited v. Grenadier Constructions (No 2) Proprietary Limited (1992) 2 Queensland Reports 428.
I would infer that Mr and Mrs Meyer had little if any direct knowledge of the quality of the plaintiff's goods. When one reads Mr Garvey's affidavit one finds that nor did he. His affidavit tells of a television marketing campaign on the Bert Newton Show on Channel 10 in association with which members of the public were invited to place orders through a 1800 telephone number.
It was adverse reactions of members of the public who responded to the promotion which happened to bring Mr Garvey his first knowledge that the goods might be unsatisfactory.
His affidavit appears to show that customers were charged $117 per item as against the plaintiff's price which Mr Kimmins tells me was $US28.
Mrs Meyer's affidavit complains against the plaintiff that it failed to honour an earlier agreement to supply cabanas at $US16 per item with the consequence that she lost an on-sale and $25,860 profit and in addition $15,000 profit on subsequent sales to other retailers which I understand might have been available.
I have made some comments during the argument to the effect that a judgment as to whether or not the goods were defective or of merchantable quality might well be affected by the price at which one contemplates their being sold.
There may be injustice to a seller or supplier of cheap goods which are not represented as anything else if that supplier is to be held responsible for the dissatisfaction of members of the public who may ultimately pay something like four times as much.
I note an affidavit filed by the plaintiff (serving to explain things rather than remove possible triable issues) which indicates that the complaint rate of a few hundred out of supplies of many, many thousands is not unusual.
The basis on which it is contended by Mrs Meyer that there ought to be a trial of this action or alternatively a stay if judgment goes in favour of the plaintiff is that the contents of the defence and counterclaim show issues to, be tried. In respect of the contract for goods which went on to Mr Garvey the counterclaim sets up a liability to Garvey of $123,022.60 which is what the Garvey interests claim in the other action and in addition there is a claim for loss of profit to the Meyers.
A further $40,000 lost profits is claimed in respect of the plaintiff's failure to supply cabanas at $US16 per unit. The defendants' total claim is for damage for breach of contract in the amount of $200,000 and to set off so much of their counterclaim as is insufficient to extinguish the plaintiff's claim. Mr Kimmins claims that although the defendants' pleader could have effectively pleaded a set-off, see rule 94, he has not done so but rather has pleaded with rule 96 in mind and is thus without the claim to a set-off in his armory. If there were anything in that point, which I am not at all confident about, the conceded ability of Mr Martin to plead in another way deprives that point of merit.
The substantial challenge to the defendants' material is to the shadowy nature of the suggested defence. I have already said enough to indicate my view that the defendants know very little about the quality of the goods or, I would think, of the Garvey interests' financial affairs. They are complaining of the quality of the goods on the basis that that is what the Garvey interests have done as their justification for non-payment.
There really is nothing resembling direct evidence of defects in the goods although there is some slight evidence that some members of the public have been unhappy with them and that that has cost the Garvey interests money.
In respect of the failure to supply further goods at $US16 per unit the evidence Mrs Meyer presents is very much second best in the light of the nature of the material before the Court on this application. It is astounding that there is no written material evidencing the asserted orders said to have been accepted by the plaintiff for cabanas at $US16 per item.
In my opinion the defendants in that respect, and indeed in the major respect which is relevant, have not shown that judgment for the amount admitted to be owing at February last year ought not to be ordered in favour of the plaintiff. There is a more serious question whether or not there ought to be a stay. In that respect, I have concluded that there ought to be some indulgence shown to the defendants to enable them to establish what they set up in their counterclaim if they can. They ought to be kept on a short rein in the sense of being required to proceed expeditiously. I take some comfort in my determination to grant a stay from the rather leisurely way in which the plaintiff has proceeded itself. I do not know that a few months' further delay accompanied by the balm of accruing interest can be said to be excessively harsh to the plaintiff in the circumstances.
I will order, pursuant to rule 153, that the plaintiff be at liberty to enter judgment for $99,925.63 United States currency or equivalent in Australian dollars at the time of payment. That does not allow for interest, does, it?
MR KIMMINS: No, Your Honour. I would ask for an order for interest from 29 January ‘96 which was the date-----
HIS HONOUR: How are you going to get that rather than from the date of the plaint?
MR KIMMINS: Well, that was the date when the first payment was made by the defendants pursuant to - they were for - in relation to the goods ordered. So that would be a reasonable time.
HIS HONOUR: There is no evidence about time for payment or anything, is there?
MR KIMMINS: There isn't, except for - the first payment pursuant to the contract was made on 29 January ‘96, Your Honour, in accordance with-----
HIS HONOUR: Well, does the material show that it all should have been made then?
MR KIMMINS: No, Your Honour.
HIS HONOUR: Well, what it - perhaps from the date of the admission on which I seem to have set more store than you do.
MR KIMMINS: Yes, Your Honour.
HIS HONOUR: I order further that the plaintiff be entitled to judgment for interest on that sum. It would have to be with the Chief Judge's rate, would it not?
MR KIMMINS: Yes, Your Honour.
HIS HONOUR: 11.25 per cent from the 22 February 1996. I further order that the defendants pay the plaintiff its costs of and incidental to the action including this application to be taxed. Those orders are all made subject to a stay for six months from today with liberty to the defendants to - sorry, that stay to continue in effect so long as the counterclaim is prosecuted with expedition by the defendants from today, and the defendants are granted leave to apply to the Court or a Judge for an extension of the stay on the basis of progress made towards determination of the counterclaim from time to time.
...
HIS HONOUR: What I will say is: the stay does not apply to taxation of the costs.
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