Suter v Stockdale & Leggo (Sunshine Coast) Project Marketing Pty Ltd
[1999] QDC 120
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- Suter v Stockdale & Leggo (Sunshine Coast) Project Marketing Pty Ltd[1999] QDC 120
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Suter v Stockdale & Leggo (Sunshine Coast) Project Marketing Pty Ltd[1999] QDC 120
Suter v Stockdale & Leggo (Sunshine Coast) Project Marketing Pty Ltd[1999] QDC 120
DISTRICT COURT | Appeal No 2 of 1998 |
APPELLATE JURISDICTION
JUDGE DODDS
STEPHEN SUTER | Appellant |
and
STOCKDALE & LEGGO (SUNSHINE COAST) PROJECT MARKETING PTY LTD ACN 056476423 | Respondent |
MAROOCHYDORE
DATE 21/05/99
JUDGMENT
HIS HONOUR: This was an appeal from a decision of a Stipendiary Magistrate on the return of a judgment summons authorising the respondent to enter summary judgment for the claim plus interest and costs. There is no question but the respondent was seeking to recover a debt or liquidated demand in money payable by the appellant.
Rule 145(2) of the Magistrates Court Rules provides, “Upon the return of the judgment summons a Court may, unless the defendant by affidavit or otherwise satisfies the Court that the defendant has a good defence to the action on the merits, or discloses such facts as are sufficient to entitle the defendant to defend, make an order authorising the plaintiff to enter judgment accordingly.”
The respondent had sued the defendant for $42,805.70 it alleged was owing to it by the appellant being money it had advanced to the appellant, money owing by the appellant to it for advertising and money due to it from the appellant for his share of the cost of an employee. The pleadings disclosed the respondent was employed by the appellant as a real estate salesman from about October, 1994 and that the appellant resigned on or about 24 July, 1997.
The plaint alleged that the terms of the employment agreement between the respondent and the appellant were:
The plaintiff would advance the defendant fortnightly payments;
The defendant was to be remunerated by commission earned;
The balance of advances provided would not exceed the amount of commission payable at that time;
Any advertising costs incurred on behalf of a client in excess of the amount authorised by the client would be debited to the appellant's account pending recovery of the amount of the client;
That if the appellant ceased employment with the respondent then the outstanding balance of money advanced was to be immediately repaid to the respondent.
The respondent further alleged that it was subsequently agreed between it and the appellant that a personal assistant would be employed and the appellant's share of the cost of the assistant was to be debited to the appellant's loan account.
The appellant denied these allegations and pleaded that the terms of the employment agreement were that the respondent would pay the appellant $1,000 nett per week, plus 50 per cent of the commission earned by the appellant for the respondent. He also pleaded a counter claim which has no relevance for present purposes.
William Darby, director and manager of the respondent, swore an affidavit in support of the application for summary judgment. In that affidavit he said the appellant was employed on terms that he was to be remunerated by way of commission calculated: for auctions 30 per cent on listing and 22 per cent on selling the property; on sole agency 16 per cent on listing plus 28 to 36 per cent on selling depending on the volume of sales each month; on open listings a flat rate of six per cent. He also said that since the appellant would receive no payments until settlements had been effected, it was agreed that the respondent would advance weekly payments of $1,000 on and from 7 November 1994, later varied to be paid fortnightly, to be repaid from commission the appellant received, except that if and when the appellant ceased working as a salesman for the respondent, he would immediately repay any outstanding balance of advances at that time. He exhibited a bundle of pay advices which he said detailed advances and commission to the defendant from 7 November, 1994 to 29 June, 1997. Each advice had printed on the bottom thereof a summary of payments made to the appellant. When commission was received from a settlement the nett amount excluding tax of that commission was deducted from the outstanding balance of advances made to the appellant. He also swore to facts supporting the claim for advertising costs incurred and the cost of the personal assistant.
In his affidavit responding to the application, the appellant said that the terms of the employment agreement were as set out in his pleading with an additional term that if the appellant were to earn commission in excess of $1,000 per week, he was to receive the excess at the end of each calendar month. He said he had in earlier years worked for Darby in a real estate business in Victoria, where the terms of the agreement were; that he was to be paid a retainer which was debited against commission; if he did not perform well and the debit account increased his employment could be terminated; on termination of employment whether by resignation or otherwise any debit balance would not be claimed by the employer and no claim would be made by the appellant for commission on sales not completed at that time. He said the material employment agreement was a similar arrangement. There was never any agreement that on leaving the respondent's employment he was to repay the balance outstanding of monies advanced.
He said that on several occasions he questioned Darby about the “Balance of advance” at the bottom of pay advances, indicating to him he was not comfortable with them, because they did not reflect the agreement between he and Darby. Darby told him he should not worry about them because it was only a record for accounting purposes. As to advertising, he denied there was any agreement about advertising, as alleged. He did however admit agreeing to pay a particular amount (invoice 443) and a couple of others. As to the employment of an assistant, he said he sought to terminate his part in that employment after a couple of weeks and Darby had agreed to that.
Leave to enter summary judgment should not be granted unless the judicial officer “was fully persuaded there was no real question to be tried i.e., that there were no facts shown such as would lead to the inference that at the trial of the action (the appellant) might be able to establish a defence to the plaintiff's claim.” Barry v. Australia and New Zealand Banking Group Ltd 1992 2 QR 12 at 14 per Macrossan CJ. Once the respondent had put before the Court evidence which satisfied the Court there was no real question to be tried and that in the belief of a person who could swear positively to the facts, there was no defence to the action, the evidentiary onus shifted to the appellant to put before the Court evidence which satisfied the Court he had a good or arguable defence to the action, or which disclosed such facts as were sufficient to entitle him to defend. Ultimately though the overall burden of satisfying the Court an order authorising judgment should be made, rested on the respondent. See Derrington J at 19.
In Cloverdell Lumber Co Pty Ltd v. Abbott 1924 34 CLR 122, Isaacs at 133 said, “All a defendant has to do is to establish a state of facts that displaces the prima facie effect of the statement of the mere belief of the opponent -- that there is no defence in fact or law. Unless that statement -- as to his belief remains unimpaired and if the matter is left in doubt, it is impaired, the plaintiff has no right to the summary judgment order under order XIV -- the Court on an application under order XIV has no right to do more than ascertain whether on the materials before it it is clear the defendant has no defence whatever. With deep respect I consider it reversing the true position on this “peculiar proceeding”, when the burden is thrown on the defendant of satisfying the Court that the defence he relies on is maintainable, even prima facie -- if therefore the defendant shows such a state of facts as leads to the inference that at the trial of the action he may be able to establish a defence to the plaintiff's claim, he ought not to be debarred of all power to defeat the demand made upon him: by the very words of the order the plaintiff is not to be allowed to sign judgment merely because the defendant's affidavit does not show a complete defence.”
In Fancourt v. Mercantile Credits Ltd in 1983 154 CLR 87 at 99, the High Court held that, “The power to order summary judgment or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.”
In ordering that the respondent have leave to enter judgment for the amount of the claim plus interest and costs, the reasons given by the Stipendiary Magistrate indicate that he relied upon the pay advices referred to above. He said, “These advices clearly depict the status of balance of advance and commission adjustments. In my view the documentary supports only one version, that is the plaintiff's version. I find the defendant's explanation to be unbelievable and inherently improbable and in conflict with the documents. I am not satisfied that there is a triable issue between the parties.
The pay advices the Stipendiary Magistrate referred to each relate to a one week period. Each records under a heading, “Other Income” “Advance $1,000”. At the bottom of each advice appears, “Gross Pay to Date” “Tax Paid Year to Date” and “Net Pay Year to Date” with amounts inserted. Underneath that appears, “Balance of Advance”, with an amount inserted. As commission earned commenced to be paid to the appellant, the sum recorded against “balance of advance”, which up until the time the first commission earned was paid, reflected the total of moneys advanced to that time, began to be reduced by the amount of the commission earned in the period the pay advice related to. Thus for the week of 29/01/95, during which $339.48 commission, was recorded as paid to the appellant, the, “balance of advance” recorded was $12,660.52 being gross advances to that time of $13,000 less the commission earned. This sort of record is repeated through the pay advices as commission was earned. What is apparent from the advices over the whole period of employment is that the commission being earned was less than the weekly payments said to be advances, so that the balance continued to become larger.
The pay advices constituted evidence which supported the respondent's version of the terms of the employment agreement. The appellant swore to different terms of the agreement, and in particular, that there was never any agreement that on termination of employment the balance of advances was to be repaid by him. He said he queried the “balance of advance” notation on the bottom of the pay slips and was told it was only there for accounting purposes.
It is understandable, in the light of the documentary material put before the Stipendiary Magistrate, including the pay advices, that some scepticism may have been felt about the appellant's evidence and explanations. A key issue in the claim is about the terms of employment actually agreed to by the appellant and the respondent. Other issues are the terms of any agreement about advertising and about the continuation of employment of an assistant.
The evidence from the appellant and the respondent relating to these issues was before the Stipendiary Magistrate. However, it was in affidavit form and the proceeding was a summary proceeding. Consistently with the authority I have referred to, I think the appellant swore to sufficient facts to entitle him to defend. He should have the opportunity to cross-examine about the terms of the employment agreement and the other agreements alleged, and to give and lead evidence about them if he wished.
The appeal is allowed. The orders of the Stipendiary Magistrate are set aside.
I order the appellant have leave to defend the claim.
...
I order the costs of the application for summary Judgment before the Magistrate be costs in the cause.
I order the respondent pay the appellant's costs of the appeal to be agreed, or failing agreement, to be taxed.