Van Rowe t/a VIP Sewing v On the Path Investments Pty Ltd
[2004] QDC 560
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- Van Rowe t/a VIP Sewing v On the Path Investments Pty Ltd[2004] QDC 560
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Van Rowe t/a VIP Sewing v On the Path Investments Pty Ltd[2004] QDC 560
Van Rowe t/a VIP Sewing v On the Path Investments Pty Ltd[2004] QDC 560
[2004] QDC 560
DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBIN QC
No BD 2491 of 2003
VAN ROWE TRADING AS VIP SEWING ABN 43768 830737 | Plaintiff |
and |
|
ON THE PATH INVESTMENTS PTY LTD ABN 096 173 027 | First Defendant |
and |
|
JAMES CONSTANTINE MAVRONICHOLAS and THEODOSIA MAVRONICHOLAS | Second Defendants |
BRISBANE
DATE 23/11/2004
ORDER
CATCHWORDS: | Uniform Civil Procedure Rules r 292 r 295 r 389 r 292 did not require the plaintiff to swear an affidavit verifying the statement of claim - defendant's affidavit verifying very general assertions in defence inadequate - a party may count steps taken by an adverse party for purposes of calculating a year's delay in rule 389 - summary judgment for plaintiff for that part of the claim seeking payment of the balance purchase price of a business that had been transferred - balance of claim and counterclaim to go to trial |
HIS HONOUR: This is an application by the plaintiff for summary judgment under rule 292 of the UCPR. It relates to part only of the claim which is for $54,223.80 in aggregate. It relates to a sum of $40,000, which is the balance purchase price in respect of the sale of a business by the plaintiff to the first defendant. The second defendants provided guarantees.
The action started on the 30th of July 2003; a notice of intention to defend and defence and counterclaim, filed on 22nd of September 2003, are followed by the last pleading filed, reply and answer filed on the 3rd of August 2004.
Mr Maher, representing the defendants, tells the Court that that document, although obviously filed, has not been served on his clients. He contended that the summary judgment application, filed on 12th of November 2004, required a notice to be given under rule 389 on the basis there had been more than a year's delay but this seemed to me to be based on a misapprehension that rule 389, in respect of something a plaintiff wants to do, depends on steps taken by the plaintiff.
In my opinion, it is clear and always has been, that steps may be counted by whichever party they are taken. It is true that the summary judgment application comes late in the sense of long after the claim and statement of claim were filed. Although, in the distant past, that may have been a difficulty, it no longer is one, under rule 292. if a convincing case can be made for a summary judgment, then it ought to be granted.
Rule 295 is the only specific provision made about evidence on a summary judgment application. Unlike its predecessors, it contains no specific rules as to what ought to be proved. There is no longer, for example, the requirement that a plaintiff must depose to a belief that there is no defence to the claim or the relevant part of it.
Mr Maher was critical of the plaintiff's affidavit because, although it exhibits the statement of claim, it does not, in terms, verify it. I do not think that criticism goes anywhere. The plaintiff's affidavit exhibits the written contract of 20th of February 2002, by which the business was sold.
Further, it exhibits a bill of sale dated 29th of February 2002 and called an indenture, charging certain property. In it, the defendants are the grantor. Clause 4 provides:
"The grantor will pay to the grantee, at Brisbane or at such other places the grantee shall appoint in writing, the whole of the moneys due hereunder by the earlier of:
(1) 20 July 2002, if turnover from settlement date is $65,000 or more; or
(2) 20 September 2002."
That provision is reflected in the contract of sale in special condition 2 which provides:
"The purchase price shall be paid as follows:
(a) $40,000 on settlement of this matter;
(b) $45,000 by the earlier of:
(1) 20 July 2002 if turnover from settlement date is $65,000 or more; or
(2) 20 September 2002."
Further, the defence and counterclaim contains the following:
"7. As to the allegations contained in paragraphs 16 and 17 of the Statement of Claim, the First Defendant and the Second Defendants admit that in or about 20 July 2002 the Plaintiff had requested the payment of $45,000.00 allegedly pursuant to either the contract or the Bill of Sale but say that in respect of such request the Plaintiff was not entitled to request such payment because:
- (a)the balance outstanding at any time was $40,000.00 rather than $45,000.00; and
- (b)the terms of the contract required payment of the outstanding balance on or before 20 July 2002 if the turnover from the settlement date up until 20 July 2002 was $65,000.00 or more and the turnover had not reached that figure so the payment was not due until 20 September 2002."
The passage of time has rendered any argument that a demand or request made on 20 July 2002 was premature, 20 September 2002 having come and gone.
The defendants' affidavit sworn by the female individual defendant verifies the pleading rather than swearing to the facts. In my experience, that is highly unusual. In the former practice, it used to be said that the defendant must condescend upon particulars and swear to definite facts which show there is or may be a defence to be considered at a trial.
Here, the defence seems to me in relevant respects peculiarly devoid of allegations of fact. Rather, it is full of what appear to be conclusions, largely devoid of specific content. Thus paragraph 16 reads:
"16. Further the First Defendant and the Second Defendants say that at or before the time of the entry into the contract on or about 20 February 2002 the Plaintiff made the following representations as to the nature of the business and the terms of the sale of the business by the Plaintiff to the First Defendant:
- (a)that the trading figures and other financial data relating to the business were true and correct in every particular;
- (b)that the Plaintiff was to provide tuition for a period of four (4) weeks after settlement of the contract such tuition to be during normal business hours and at no cost to the First Defendant;
- (c)that the Plaintiff was to attend for a period of four (4) weeks after settlement of the contract during normal business hours to give assistance to the First Defendant in relation to the conduct of the business and to introduce the First Defendant and its agent or employees to the customers of the business and to the suppliers of goods and services to the business;
- (d)that the Plaintiff would use her best endeavours to retain for the First Defendant the benefit of the goodwill of the business and the willingness of the existing customers and employees to continue working for the business;
- (e)that in the event that the First Defendant required the Plaintiff to remain at the premises for a greater period than the stipulated four (4) week tuition period that the First Defendant would pay to the Plaintiff the sum of $16.50 per hour;
- (f)that the Plaintiff had a reliable gang of contract workers who worked within the business and who would remain working for the First Defendant when it purchased the business;
- (g)any cultural barrier or difficulty between the First Defendant and the workers previously engaged by the Plaintiff would not impinge upon either the profitability or the viability of the business and further that the Plaintiff would ensure that the contract workers performed in the same manner for the First Defendant as they had done for the Plaintiff in the past."
One has no idea what was alleged to have been said about trading figures and financial data. Later paragraphs include the following:
"20. Further, or in the alternative, pursuant to the Fair Trading Act (Queensland) the Plaintiff, in trade or commerce, engaged in conduct that was misleading or deceptive or was likely to mislead or deceive particulars of which are contained in paragraphs 16 to 19 above.
21. The representations made by the Plaintiff were misleading and deceptive and/or in the alternative likely to mislead or deceive insofar as:
- (a)the trading figures and financial data provided by the Plaintiff were not true and correct in every particular;
- (b)the Plaintiff did not intend to and/or in the alternative did not provide tuition for a period of four (4) weeks after settlement of the contract;
- (c)the Plaintiff did not intend to or did not attend at the business for four (4) weeks after settlement during normal business hours to give assistance to the First Defendant or to introduce the First Defendant to customers or suppliers;
- (d)the Plaintiff was not willing to remain at the First Defendant's premises for greater than the four (4) week tuition period.
22. Further in breach of the terms of the contract the Plaintiff supplied trading figures and other financial data relating to the matter which were not true and correct in every particular and which gave an exaggerated view of the worth of the business.
23. Further the Plaintiff was in breach of the contract with the First Defendant or in the alternative made misleading and deceptive representations as to the business insofar as:
- (a)she did not have a reliable gang of contract workers who would remain working with the First Defendant after settlement of the purchase of the business;
- (b)the cultural barriers between the First Defendant and the contract workers was so great that, as the Plaintiff would have known, the First Defendant could not conduct the business in the same manner as the Plaintiff and to the same degree of profitability."
Once again, there is no indication whatever what are the true figures and financial data, or any indication of the true value of the business. The defendants' affidavit effects no improvement.
It appears to me that the plaintiff is effectively proceeding on admissions in pursuing her claim for the $40,000 presently in issue.
For the purposes of Rule 292, I think there is no answer to the claim for $40,000, no prospect that need detain the Court of its being defeated. The contract for sale of the business has been completed, and the defendants remain in possession of it. What the defendants may have is a counterclaim for damages in respect of the Fair Trading Act claim which is made along with other common law claims.
The situation, I think, is the familiar one requiring the Court to consider whether the defendant resisting an application such as this has a set-off which amounts to a defence and stands in the way of a judgment, or a counterclaim which may not strictly stand in the way of a judgment but in many cases will be regarded by the Court as a reason for declining to grant judgment to the plaintiff.
My opinion is that the paucity - indeed one might almost say the complete absence - of any pertinent facts being sworn to means that there is no justification in the present circumstances for the plaintiff's being delayed.
The defendant places reliance on the Court of Appeal's decision in Gray v. Morris [2004] QCA 005, in particular at paragraph [23], where Chesterman J indicates his disagreement with the Court's earlier decision in Bernstrom v. National Australia Bank Limited [2003] 1 QdR 469 paragraph [46]. McMurdo J with the agreement of McPherson JA considers the same case and also Fancourt v. Mercantile Credits Ltd (1983) 154 CLR 87 which was a statement of high authority in relation to rules as they stood before Rules 292 and 293 came into effect.
McMurdo J said at [46] that:
"in relation to summary judgment for a plaintiff there was a change from the terms of previous rules to Rule 292 and each of Rule 292 and 293 requires a Court to be satisfied that the party against him judgment is sought as no real prospect of success and that there is no need for trial, so in that way there is a change from the words of previous rules. With respect to those who may have expressed a different view it seems to me that Rules 292 and 293 should be applied by reference to the clear and unambiguous language without a need for any paraphrase or comparison with a previous rule. But in the application of the plain words of Rules 292 and 293 and in particular the consideration of whether there is a need for trial a Court must keep in mind why the interests of justice usually require the issues to be investigated at a trial. In my view it surely remains the case as Mason, Murphy, Wilson, Dean and Dawson JJs said in Fancourt at 99 that 'The power to order summary or primary 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.' That remains a forceful and authoritative guidance and is in no way in tension with the application of these rules according to their own terms."
In this case it is plain that there are issues in the counterclaim which ought to go to trial. Indeed there are issues remaining in the claim which have to go to trial. But so far as the claim for $40,000 is concerned, I think the plaintiff's entitlement is absolutely clear.
Further I think that nothing has been shown helpful to the defendant from the point of view of staying enforcement of that judgment. I note that no application for a stay was made.
So there will be judgment for the plaintiff on the claim to the extent of $40,000 with the claim to go to trial as to the balance of it.
It seems to me also that the plaintiff is entitled to the costs of this application to be assessed.