Gullco International Pty Ltd v Brisbane Parcel Deliveries Pty Ltd
[2003] QDC 341
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- Unreported Judgment
- Gullco International Pty Ltd v Brisbane Parcel Deliveries Pty Ltd[2003] QDC 341
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Gullco International Pty Ltd v Brisbane Parcel Deliveries Pty Ltd[2003] QDC 341
Gullco International Pty Ltd v Brisbane Parcel Deliveries Pty Ltd[2003] QDC 341
DISTRICT COURT OF QUEENSLAND
CITATION: | Gullco International Pty Ltd v Brisbane Parcel Deliveries Pty Ltd [2003] QDC 341 |
PARTIES: | GULLCO INTERNATIONAL PTY LTD ACN 091 577 767 Plaintiff v BRISBANE PARCEL DELIVERIES PTY LTD ACN 009 946 981 trading as BRISBANE INDUSTRIAL AGENCIES Defendant |
FILE NO/S: | BD1451 of 2003 |
DIVISION: | Civil |
PROCEEDING: | Application by plaintiff for summary judgment |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 9 October 2003 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 21 August 2003 |
JUDGE: | O'Sullivan DCJ |
ORDER: | The plaintiff’s application for summary judgment on its claim and the defendant’s counterclaim dismissed. Costs of the application reserved. |
CATCHWORDS: | Summary judgment – goods sold and delivered – Rules 292 and 293 – UCPR – prospects of defending – need for sworn evidence by defendant. |
COUNSEL: | A. Skoien for plaintiff. N. Ferrett for defendant. |
SOLICITORS: | O'Shea Corser & Wadley for the plaintiff |
- [1]The plaintiff claims the sum of $57,126.16 for moneys due and owing for goods sold and delivered to the defendant.
- [2]This is an application for summary judgment by the plaintiff pursuant to Rule 292 of the Uniform Civil Procedure Rules and for summary judgment for the plaintiff on the defendant’s counterclaim pursuant to Rule 293 of the Uniform Civil Procedure Rules.
- [3]The plaintiff must satisfy the Court that the defendant has no real prospect of defending all or a part of the plaintiff’s claim and there is no need for a trial of the claim or part of the claim.
- [4]In Foodco Management Pty Ltd and Diaz Keinert Pty Ltd v Go My Travel Pty Ltd [2001] QSC 291 Wilson J adopted the test from Swain v Hillman and Another [2001] 1 All ER 91:
“The words ‘no real prospect of succeeding’ do not need any amplification, they speak for themselves. The word ‘real’ distinguishes fanciful 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.”
- [5]In McPhee v Zarb and Others [2002] QSC 4 Wilson J, said at paragraph 27:
“When a plaintiff seeks summary judgment on a claim, the Court must determine whether the defendant has any real prospect of defending the claim in whole or in part … [Rules 292 and 293] are not simply a reformulation of the test which applied to a plaintiff’s application for summary judgment under the former Supreme Court Rules - namely, whether the defendant has raised a triable issue. The new tests… call for a more robust approach by the Court, consistent with the overriding purpose of the UCPR which is to – ‘facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense’. The Court should give summary judgment if the prospects of defending the claim… are so slim as to be fanciful.”
- [6]This test was adopted by Mullins J in National Australia Bank Limited v Hart [2002] QSC 51.
- [7]In National Australia Bank Limited v Troiani and Another [2002] QCA 196 the Court of Appeal of Queensland said that the purpose of Rule 292 and Rule 293 is to enable summary disposition whenever that course appears appropriate.
- [8]In Khatri and Peldan v Wilson [2002] QSC 239 White J said, at paragraph 5:
“The Rules [Uniform Civil Procedure Rules] are to be applied with the objective of avoiding undue delay, expense, and technicality and facilitating the purpose of the rules. If, however, the court is satisfied that there are circumstances that ought to be investigated then summary judgment should be refused.”
- [9]In Woodco Services Pty Ltd v John Holland Pty Ltd and Ports Corporation of Queensland [2002] QSC 264, Dutney J was not persuaded that the first defendant’s chances of defending the claim are were so slim as to be fanciful. He gave leave to the first defendant to serve a request for particulars of the plaintiff, and to file a defence.
- [10]In Bernstrom v National Australia Bank Limited [2003] 1 Qd R 469, Jones J said at paragraph 36, in considering Rule 293(2):
“This new rule results, not only in a change in terms, but also reflects a change in the philosophy from that embodied in the former rules and in the propositions identified in Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99.”
Jones J held that the Court of Appeal decision in Swain v Hillman and Another (supra) should be adopted as setting the proper test for applications pursuant to Rules 292 and 293 of the Uniform Civil Procedure Rules. He held that there was not placed before the learned hearing judge any evidence to support the existence of an agreement in the terms set out in paragraph 1 of the appellant’s Statement of Claim.
- [11]Counsel for the defendant submitted that the power to give summary judgment ought to be used sparingly, and referred to a comment by Atkinson J in Chen v Australian & New Zealand Banking Group Ltd and Another [2001] QSC 43:
“The jurisdiction to enter summary judgment in favour of the defendant because the Statement of Claim does not disclose a cause of action should of course be exercised sparingly: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129. The jurisdiction to dismiss the plaintiff’s action should only be exercised where the plaintiff cannot improve its position by a proper amendment of the pleading.”
- [12]Counsel for the defendant also referred to the comment by Holmes J in the Court of Appeal of Queensland decision in Queensland University of Technology v Project Constructions (Aust) Pty Ltd (In Liquidation) [2003] 1 Qd R 259:
“Great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case.”
Holmes J cited Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) (supra) at 130.
- [13]The essential difference between the submissions of Counsel is the extent to which the defendant can rely on allegations in the Further Amended Defence and Counterclaim, and the extent to which the defendant must provide evidence in the form of sworn evidence.
- [14]Counsel for the defendant cited McGill DCJ SC in Al Ghadeer Pty Ltd and Ors (District Court of Queensland No. 1747 of 1999, 28 July 1999, unreported):
“There is no particular requirement in the rule [Rule 292] as to what a defendant needs to do in order to prevent a Court from being satisfied of any or all of those three matters.” [(a), (b), and (c)) in subrule 2].
- [15]Counsel for the defendant also referred to the decision in Kingsley v Williams and Another (District Court of Queensland No 71 of 1999, 23 August 1999, unreported) where Forde J said, at paragraph 16:
“Apart from the formal matters raised by way of contributory negligence, there are factual issues from which one may draw inferences which show, to my mind, that a proper defence has been raised which would require further exploration at trial. An affidavit deposing to such facts is unnecessary given the nature of this particular case. Unlike the former procedure for summary judgment, there is no onus upon the defendants to show cause by affidavit: O 18 r 2 of the former Supreme Court Rules.”
- [16]Counsel for the plaintiff referred to the fact that Rule 153 of the former District Court Rules referred to the defendant showing “by affidavit or otherwise a good defence to the action on the merits.”
- [17]Counsel for the plaintiff cited various passages in Bernstrom (supra), and in particular references to the need for evidence, including the comment of Jones J which I have quoted above, and the comment by McMurdo P at 470.
- [18]I consider that it is necessary for the defendant’s material to show prospects of success by sworn evidence, as distinct from allegations in pleadings. I agree with Counsel for the plaintiff that the defendant cannot simply rely on assertions in the Further Amended Defence and Counterclaim to defeat summary judgment. I note that the defendant does not rely on the allegations in the pleading – it has filed affidavit material to oppose summary judgment.
- [19]I consider that it is necessary for the plaintiff to show that the prospects of success of the defence are so slim as to be fanciful. I have accordingly perused the affidavit material with this test in mind.
- [20]In his further written submissions, Counsel for the plaintiff submitted that the defendant’s evidence at its highest claims only a challenge to $4.36 of the plaintiff’s claim, and/or an unliquidated and unquantified set-off or counterclaim in relation to some problems with two items of equipment.
- [21]I consider that the affidavit material filed by the defendant discloses express and implied representations by the plaintiff to the defendant concerning sole distributorship, after sales service, merchantable quality, and fitness for purpose.
- [22]The affidavit material does not specifically swear to the defendant’s reliance on the representations; nor does it specifically swear to loss flowing from the representations.
- [23]The defendant’s affidavit material does not specifically link the alleged representations concerning merchantable quality, fitness for purpose and after sales service, with the cost to the defendant of Mr Brann’s time and the defendant’s consequent loss of profit. The extent of the defendant’s set-off and counterclaim has not been particularised or sworn.
- [24]Counsel for the plaintiff also submitted that the loss and damage pleaded by the defendant is not loss and damage recognised at law, and that the defendant does not particularise how the loss and damage arose: for example, would the technical advice offered by Mr Brann had been offered in any event, quite independently of any representations by the plaintiff or any problems with the merchantable quality or fitness for purpose?
- [25]Counsel for the plaintiff submitted the defendant has not provided evidence of the causative link between the representations alleged by the defendant, and the loss and damage of the defendant.
- [26]Counsel for the plaintiff submitted that the affidavit material of the defendant does not disclose that the plaintiff represented that the contract between the parties included a warranty. He submitted that paragraphs 24(b) (vi) (vi) in the affidavit of Mr Rayner are insufficient. I consider that this relies on an overly strict reading of those paragraphs of Mr Rayner’s affidavit. However, I agree with Counsel for the plaintiff that the affidavit material does not specifically swear that the representations about warranty induced the defendant to enter into the contracts.
- [27]It is not clear from the affidavit material whether the defendant is in a position to make restitution in integrum, and is therefore entitled to rescind. Counsel for the plaintiff submitted that the defendant is not entitled to rescind, and refers to the written notation on invoices to the effect that goods must be returned within 30 days. Mr Rayner swears in his affidavit: “I do not believe that the statement on the invoice was a term of the contract between BIA and Goldco. The terms of the contract were governed by the statement made by Mr Couper in or around March 2002 and as were discussed above [in his affidavit].” It is true, as Counsel for the plaintiff submitted, this falls short of swearing to specific conversations which lead to variations of the terms of the contract.
- [28]The defendant may be able at trial to provide evidence to establish that the problems experienced in respect of one (or perhaps two) machines prove that the other (and perhaps all the) machines provided by the plaintiff were similarly deficient, and thus the conclusion that they were also provided by the plaintiff in breach of its express and implied representations to the defendant. If the defendant were able to do this, (and I do not consider this prospect to be fanciful) then it would have a defence by way of set-off to the whole of the plaintiff’s claim and not just a partial defence for small amounts relating to accounting errors and interest.
- [29]The affidavit material filed by the defendant does not specifically swear to all the issues raised in the Further Amended Defence and Counterclaim. However, I do not consider this is required. The defendant has provided sufficient affidavit material to persuade me that its prospects of success are not so slim as to be fanciful. The plaintiff has accordingly not persuaded me that there is no real prospect of defending the claim, and there is no need for a trial of the action.
- [30]I refuse the plaintiff’s application for summary judgment on its claim and the defendant’s counterclaim.
- [31]I reserve the costs of the application.