Wagner Investments Pty Ltd v Kilpatrick Green Pty Ltd
[1997] QDC 32
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- Unreported Judgment
- Wagner Investments Pty Ltd v Kilpatrick Green Pty Ltd[1997] QDC 32
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Wagner Investments Pty Ltd v Kilpatrick Green Pty Ltd[1997] QDC 32
Wagner Investments Pty Ltd v Kilpatrick Green Pty Ltd[1997] QDC 32
DISTRICT COURT | No 3 of 1997 |
CIVIL JURISDICTION
JUDGE ROBERTSON
WAGNER INVESTMENTS PTY LTD
and
KILPATRICK GREEN PTY LTD
IPSWICH
DATE 11/03/97
JUDGMENT
HIS HONOUR: The plaintiff applies for liberty to sign judgment pursuant to Rule 153 of the District Court Rules. Summary judgment should not be granted unless I am fully persuaded that there is no real question to be tried, that is, no facts should be shown such as would lead to the impression that at a trial the defendant might be able to establish a defence to the plaintiff's claim. (See ANZ Banking Group v. Barry (1992) 2 QdR 12).
Pursuant to rule 153(4) the defendant bears the onus of establishing an entitlement to leave to defend. The real object of the rule is to provide a fast track to a plaintiff in a case where there is no proper judgment for a trial, and to clear the Court lists of matters that would unnecessarily occupy the time of the Courts and the parties if they proceeded through the defended list. See the comments of Mr Justice Thomas in Queensland Truss & Frame Pty Ltd v. Grenadier Constructions No. 2 Pty Ltd (1992) 2 QdR 428. The plaintiff's claim is for monies owed in the sum of $43,786.27, together with interest.
Mr Dennis Wagner, a principal of both plaintiffs has sworn an affidavit in support of the judgment summons. The defendant's project manager, Mr Tim Jelbart, has sworn an affidavit in reply. There are a number of critical facts alleged by Mr Wagner, and not disputed in the defendant's material; that is to say, (1) up until 4 June 1996, the second plaintiff had supplied quarry materials to Excelearth Contracting Pty Ltd (Excelearth) for use in the construction of the Wetalla Sewerage Treatment Project (the Project) in which Excelearth was a sub-contractor to the defendant; (2) on that day the plaintiffs suspended supply of quarry materials to the project because of Excelearth's financial difficulties; (3) on or about 5 June 1996, Mr Wagner and Mr Jelbart had a conversation as a result of which the letters being exhibits DPW 1 and DPW 2 to Mr Wagner's affidavit, were forwarded to the first plaintiff. There is a dispute as to what was said in this conversation. However, in my view, a resolution of the factual dispute is not critical to my determination of the issues raised on the judgment summons, apart from one aspect to which I will later refer; (4) on or about 5 June 1996, as a result of the receipt of those letters, the plaintiffs resumed supply of quarry materials to the project, and, up to 25 June 1996 materials to the value of $43,786.27 were supplied. (I will refer to this calculation later in my reasons); (5) invoices for these materials were delivered direct to the defendant.
The plaintiff contends that the letters constitute an agreement in terms of either paragraph 2 of the plaint or alternatively in terms of paragraphs 3 or paragraph 4. The two letters are in identical terms, except that the first is on the letterhead of the defendant addressed to the first plaintiff and signed by Mr Jelbart, and the second is on the letterhead of Excelearth addressed to the plaintiff and signed by the managing director of Excelearth, and countersigned as approved by Mr Jelbart on behalf of the defendant.
The first letter provides materially:
“Subject: Wetalla Sewerage Treatment Plant Quarry Products Supply.
With regard to supply of quarry materials to Excelearth on the above project by your company, after consultations with Excelearth, we offer the following proposal: 1. That as of 1 June 1996 any quarry materials supplied upto June 22 1996 be invoiced to Excelearth Contracting Pty Ltd as per usual order. 2. Excelearth will invoice the Wagner materials for this period, separately to Kilpatrick Green with the usual progress claim at end of June. 3. Kilpatrick Green agree to pay the Wagner content direct to Wagner Investments as per usual 35 day payment terms between Kilpatrick Green and Excelearth provided that the amount of Wagner invoices do not exceed the Excelearth progress claim for that month. We hope that this meets with your approval so that deliveries may proceed as soon as are possible. (The letter is then signed by Mr Jelbart as project manager for the defendant.)”
Deliveries did recommence on that day. Excelearth did not continue to trade after 25 June 1996, and has since been placed in liquidation. It is quite clear on the uncontested facts, that the defendant was most anxious for the supply of material to continue, because of delays that had already occurred in the project, and that the plaintiffs wished to ensure payment without having to rely only on Excelearth.
In my view, without resolving any dispute as to what was said by Mr Wagner and Mr Jelbart, that is a clear effect of the letters. The letters clearly constitute an agreement to pay the plaintiffs direct. The defendant submits that the clear intent of the letters was to ensure that the contractual obligations as between the second plaintiff and Excelearth on the one hand and the defendant and Excelearth on the other were not compromised. That may be a consequence of the way in which the letters were worded but the clear meaning of the letters as between the plaintiffs and the defendant is as I have stated.
The defendant submits that if there is an agreement, it contains conditions that have not been met. There is no evidence that Excelearth invoiced the defendant for the Wagner materials with their June progress claim, however, as I have observed, the plaintiffs invoiced the defendant direct. In my judgment, that is sufficient compliance with condition 2. It would be inconsistent with the meaning of the agreement and the intent of the parties expressed therein, to find that a failure by Excelearth to invoice the defendant for the Wagner materials, could frustrate the rights of the plaintiff to be paid direct for the materials by the defendant.
The defendant next submits that condition 3 has not been met because (a) the progress payment received in July contained no claim for the materials supplied by the plaintiffs and (b) by virtue of clause 44 of the contract between Excelearth and the defendant as the value of the progress claim is nil (because of a fundamental breach by Excelearth), and payment of the plaintiff's invoices was conditional upon the amount of the invoices not exceeding the progress claim.
As to (a), in my judgment, that is irrelevant, as the defendant admits to receiving invoices for the materials direct from the plaintiff during the relevant period. As to (b) annexure TJJ 22 is Mr Jelbart's affidavit discloses that on or about 22 July 1996 a progress claim for contract works carried out to June 26, 1996 for a total sum of $93,500.10 was received by the defendants from Excelearth. This amount clearly exceeds the amount of the plaintiffs' invoices. There is no basis, in my view, to construe the terms of the letters as meaning that payment of the plaintiff's invoices by the defendant depended on the validity of the progress claim, as determined by the defendant and Excelearth in terms of the contract between them.
For these reasons, the defendant has substantially failed to satisfy me that it has an entitlement to defend. However, it seems to me that in respect of the invoices after 22 June 1996 and before 5 June 1996 the defendant's liability to pay the plaintiff will depend on a resolution of the factual dispute as to the oral agreement or arrangements between the parties which could only be determined after a trial. Similarly, the issue may depend on a determination of the plaintiffs' claim for damages pursuant to the Trade Practices Act, which could only be determined again after a trial.
In respect of the invoices for those periods, I am satisfied that there is a triable issue and that the defendant has an entitlement to defend.
In consultation with the parties the figure calculated for the invoices outside the relevant period is $4,269, and for the purposes of these proceedings only it is agreed that the amount covered by the invoices within the terms of the agreement as I have found to exist was $39,516.95.
I order the first and second plaintiffs be at liberty to sign judgment against the defendant in that sum. And as the plaintiffs substantially succeeded, the plaintiffs should have their costs of and incidental to the application to be taxed.
I order that the defendant have liberty to defend as to the balance of the claim.
I order that the action be remitted to the Magistrates Court at Toowoomba.
I allow the plaintiff liberty to sign judgment in the principal sum that I mentioned together with interest calculated at the rate of 11.5 per cent from 1 September 1996 to today's date, 11 March 1997.
I order that the defendant pay the costs of this application to be taxed out of the costs of the action for today.