DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application for summary judgment pursuant to r 292 of the Uniform Civil Procedure Rules for part of the applicant/plaintiff’s claim namely the delivery of the dog, the subject of part of the claim.

2. [2]
   The plaintiff is a dog breeder who breeds St Bernards. The defendants are involved in the showing of St Bernards. By agreement, dated the 23/7/99, the defendants took possession from the plaintiff of a female St Bernard dog which was ear tattooed DRT 71 and named Ruby.

3. [3]
   The agreement [ exhibit A to the affidavit of the plaintiff] is described as a partnership agreement whereby the defendants would take possession of the dog and instead of paying for the dog, they agreed to care for the dog and pay all ongoing expenses for the animal including caring for and showing the dog. Ruby was registered in the names of both the plaintiff and the defendant in compliance with the rules of the Canine Control Council which requires under Rule 41[d]

“Where the Breeder wishes to register a puppy with the Breeders name as part owner, an Agreement signed by the purchaser of the puppy is to be attached to the application to register the litter.”

4. [4]
   The agreement made provision for the dog to be mated:

“2.The breeder will determine if the above bitch is to be bred with and she is to be hipscored/elbowgraded prior to mating. Further, the breeder is to approve any stud dog to be used over her and any litters from this bitch will be bred under the Draycan prefix. All costs associated with the breeding of this bitch and the subsequent outcome will be split equally between the breeder and caretaker.”

5. [5]
   In relation to the breeding of the dog, the parties vary in their interpretation of the agreement and it seems that this was the origin of the present dispute between the parties.

6. [6]
   Matters came to a head when the defendants sent an e-mail message on 22 March 2002 implying that they had a right to approve any dog to be used in the breeding of the dog, Ruby. By letter dated 1 August 2002 the defendants, having engaged solicitors, indicated that they wished to terminate the agreement and assume full ownership of Ruby. They demanded as follows:

7. [7]
   The plaintiff replied to this letter on 7 August 2002 demanding that the dog be returned to her care within 14 days or legal action to instigate recovery would follow. On 17 December 2002 the defendant’s lawyers replied claiming that there was no breach of contract, that the defendants were ready, willing and able to continue with the agreement and that if the plaintiff persisted with her claims they would seek a declaration that she was not entitled to recover possession of the dog. The plaintiff subsequently commenced proceedings in this court.

8. [8]
   Where a party brings an application for summary judgment it must be shown that this is a claim where there is no real prospect of successfully defending the claim and that there is no need for a trial of the claim in relation to liability. As r 292 establishes that the court may give judgment for all or part of the claim. The court has previously discussed the meaning of the phrase “no real prospects of success”. In Khatri and anor v  Wilson (2003) QCA 188, the court endorsed the definition of Lord Wolfe in Swain v Hillman (2001) 1 All ER 91 at 92:

“the words ‘no real prospects 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.”

9. [9]
   In Gray v Morris [2004] QCA 5, Chesterman J discussed whether the new  rules, [and particularly rule 293] required a different approach to applications for summary judgement [at 11]:

“For my part I do not consider that the new rules require any robust assessment of the outcome of litigation in advance of the trial. The reasons which lie behind the caution expressed by the High Court and the Privy Council are still valid. A plaintiff who claims to have a cause of action should not be prevented from prosecuting his claim unless it be obvious that he cannot succeed.  Likewise, a defendant who resists a claim should not suffer judgment unless it be clear that neither the facts nor the law will assist him. The new rules, just as the old, are concerned with depriving a litigant of participation in the process which the law has always regarded as being the appropriate means of determining rights. The deprivation should only occur in a clear case, as the High Court said.”

10. [10]
    The plaintiff seeks summary judgment for possession of the dog on the basis that:

1. On the true meaning of the written agreement between the parties the dog remains the sole property of the plaintiff while the defendants are bailees.

2. On the undisputed facts on the pleadings the bailment has come to an end.

3. The wording of the agreement is unambiguous and it is not necessary and not permissible to look at any extraneous facts in aid of its interpretation

4. Even if it is permissible to look at extraneous facts or surrounding circumstances there are none pleaded that give the agreement any meaning that disentitles the plaintiff to immediate possession of the dog.

5. The court should not shrink from deciding questions of law on a summary judgment application.  Even a difficult question of law should not deter a court from deciding a question on a summary judgment application:  See Sunbird Plaza Pty Ltd v Boheto Pty Ltd (1983) Qd R 248 at 255.

11. [11]
    The case for the applicant /plaintiff depends on whether the case can be properly said to be in detinue and bailment and whether the relationship between the parties can only be described as bailor/bailee . The plaintiff says that the use of the word “partnership” in the agreement does not introduce any ambiguity into the contract because a partnership can only be determined if it was in fact a commercial arrangement. The word “partnership” is defined in the Partnership Act as the relation which subsists between persons carrying on a business in common with a view to profit.   There is no mutual benefit to be gained from the respondents as showing the dog and the breeding of the dog is not a profit making business but rather one which is used to advance the breed. There is no suggestion in the agreement, the plaintiff claims, that ownership is meant to pass to the defendants.  The agreement specifically states that if there is a breach the ownership reverts to the plaintiffs.  It is said that the bailment is terminated upon an act repugnant to the terms of the bailment and once the bailment is terminated there is an immediate right to maintain an action in detinue.

12. [12]
    The defendants say that there are a number of mixed questions of law and fact which need to be decided. The argument is that there is some sort of legal relationship between the parties whether it be a partnership, contractual relationship or a trust. There has been an agreement, valuable consideration has passed and the written agreement contemplates a sharing of expenses and revenue. It is submitted that there should be a determination as to whether there is a partnership or a contractual relationship or a constructive trust and these are all questions which need to be tried.

13. [13]
    Section 6 of the Partnership Act expresses rules for determining the existence of partnerships including the receipt by a person of a share of the profits of a business as prima facie evidence of partnership. Despite the plaintiff’s submissions to the contrary in my view the agreement arguably contemplates a shared ownership of the dog. Clause 1 of the agreement states expressly that instead of immediate consideration in terms of payment that the defendants will be responsible for the ongoing and potentially substantial expenses associated with rearing and showing the animal. Arguably this implies a shared beneficial interest in the dog. The contemplation of joint ownership may also be supported by the fact that the dog is registered in the names of both parties in accordance with the rules of the Canine Control Council which talks of the breeder registering as part owner.

14. [14]
    It is pleaded by the defence that the plaintiff is a professional breeder of St Bernard dogs and that the attainment of “grand champion” by the dog will enhance the plaintiff’s prospect of selling her kennel’s puppies at a good price. The prospect of puppies from a “grand champion” is also a desirable matter. The dog, it is pleaded, is the first “grand champion” St Bernard in Queensland. The suggestion that there is a business element to the breeding of the dog is supported to some extent by the email of the 22^nd March 2002 wherein there is a discussion of the subject of the profitability and desirability of mating the dog with other particular dogs of the same breed.

15. [15]
    If the matters pleaded in the defence are proved at trial, it would be open to the jury to conclude that the parties were carrying on a business in common [namely the showing and breeding of the dog] with a view to profit [s 5, Partnership Act]. The business may not have been immediately profitable because the dog had to be raised and shown successfully, however it is clear that clause 2 of the agreement contemplates a sharing of expenses and profit upon the successful breeding of the dog and subsequent sale of the puppies. The fact that this did not eventuate does not weaken the force of  the argument.

16. [16]
    Finally the fact that clause 3 of the agreement contemplates that the dog will be returned to the plaintiff upon the dog being rehoused strengthens the plaintiff’s argument that the relationship is simply one of bailor/bailee but it does not completely defeat the alternative argument that a partnership exists.

17. [17]
    In my view on the face of the agreement is not clear and unambiguous. There does appear an arguable defence and some questions to be tried on liability in this action. In accordance with the principles outlined in Gray v Morris [ supra] the application should be dismissed.

ORDER

The plaintiff’s application for summary judgement is dismissed.  Subject to any further submissions, the plaintiff is ordered to pay the defendant’s costs of and incidental to the application to be assessed.