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  4. Nightbreeze Pty Ltd v Sickle Avenue Pty Ltd - [2009] QDC 70

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Nightbreeze Pty Ltd v Sickle Avenue Pty Ltd[2009] QDC 70

Nightbreeze Pty Ltd v Sickle Avenue Pty Ltd[2009] QDC 70

DISTRICT COURT OF QUEENSLAND

CITATION:

Nightbreeze Pty Ltd v Sickle Avenue Pty Ltd & Ors [2009] QDC 70

PARTIES:

NIGHTBREEZE PTY LTD (ACN 088 007 265)

(Plaintiff)

v

SICKLE AVENUE PTY LTD (ACN 093 042 267)

(First Defendant)

And

AGB DEVELOPMENTS PTY LTD (ACN 102 461 950)

AGB NO. 4 PTY LTD (ACN 104 495 543)

AGG BRASSELL PTY LTD (ACN 122 404 880)

AGG MAUSLAND PTY LTD (ACN 106 779 186)

AGG NO. 7 PTY LTD (ACN 092 994 637)

AGG (PORT HINCHINBROOK) PTY LTD (ACN 109 048 339)

AGG PROJECT MANAGEMENT PTY LTD (ACN 122 079 234)

AGG SECURITY PTY LTD (ACN 104 495 561)

AGG TREETOPS PTY LTD (ACN 106 779 202)

AGG YAMANTO PTY LTD (ACN 122 509 193)

ATKGOR INVESTMENTS PTY LTD (ACN 094 314 404)

ATMEYGOR PTY LTD (ACN 096 750 695)

ATKINSON GORE AGRICULTURAL PTY LTD (ACN 104 827 661)

ATKINSON GORE GROUP (CHINA) PTY LTD (ACN 104 215 581)

ATKINSON GORE GROUP HOLDINGS PTY LTD (ACN 109 242 453)

ATKINSON GORE GROUP PTY LTD (ACN 089 981 288)

ATKINSON GORE (NEW YORK) PTY LTD (ACN 108 429 658)

ATKINSON GORE SECURITIES PTY LTD (ACN 122 078 853)

AURORA DEVELOPMENTS PTY LTD (ACN 091 135 330)

AUSSIE VINEYARDS (HENTY ESTATE) PTY LTD (ACN 116 119 816)

AUSSIE VINEYARDS WINERY PTY LTD (ACN 119 858 338)

BIG STATE EARTHMOVING AND EXCAVATIONS PTY LTD (ACN 103 763 864)

CHAMP CAR TEAM AUSTRALIA PTY LTD (ACN 092 994 799)

CONSOLIDATED CONSTRUCTION GROUP PTY LTD (ACN 092 435 544)

CONSOLIDATED CONSTRUCTION GROUP (NSW) PTY LTD (ACN 092 612 498)

CONSOLIDATED CONSTRUCTION GROUP (VICTORIA) PTY LTD (ACN 118 598 208)

CONSOLIDATED PROJECT HOMES (QLD) PTY LTD (ACN 116 789 005)

CFS (GOLD COAST) PTY LTD (ACN 106 912 313)

DELLPORT PTY LTD (ACN 089 883 545)

DSYER STREET DEVELOPMENTS PTY LTD (ACN 090 995 458)

FOOD DISTRIBUTORS AUSTRALIA PTY LTD (ACN 090 127 807)

GOLD FIELDS CONSOLIDATED INVESTMENTS PTY LTD (ACN 104 505 268)

LTCA PTY LTD (ACN 094 816 172)

MARINE PARADE DEVELOPMENTS PTY LTD (ACN 092 994 619)

ROMSEY STREET WAITARA PTY LTD (ACN 111 031 022)

RUFIO PTY LTD (ACN 102 223 852)

SUPERCAR SUPERCARD PTY LTD (ACN 110 597 290)

WPS MOTORSPORT PTY LTD (ACN 107 091 734)

WPS RACING PTY LTD (ACN 085 868 220)

WPS RACING MERCHANDISING PTY LTD (ACN 109 517 928)

WRIGHT PATTON SHAKESPEARE PTY LTD (ACN 079 025 942)

WRIGHT PATTON SHAKESPHEARE (MELBOURNE) PTY LTD (ACN 116 918 355)

WRIGHT PATTON SHAKESPHEARE CAPITAL LTD (ACN 098 286 241)

WRIGHT PATTON SHAKESPHEARE FINANCE PTY LTD (ACN 078 624 745)

WRIGHT PATTON SHAKESPHEARE FINANCIAL GROUP (NSW U4051910)

WRIGHT PATTON SHAKESPHEARE FINANCIAL SERVICES PTY LTD (ACN 094 796 308)

(Second Co-Defendants)

FILE NO/S:

BD4526 of 2005

DIVISION:

Civil

PROCEEDING:

Application for summary judgment

ORIGINATING COURT:

District Court Brisbane

DELIVERED ON:

31 March 2009

DELIVERED AT:

Southport

HEARING DATE:

13 March 2009, last written submissions received 19 March 2009.

JUDGE:

Kingham DCJ

ORDER:

1. The application for leave to make a second application for summary judgment is granted.

2. The application for summary judgment is dismissed.

3. The plaintiff must pay the defendants’ costs of and incidental to the applications.

4. The parties are directed to confer so as to agree upon a set of directions for the exchange of amended pleadings.  Liberty to apply for orders on 2 days notice if agreement is not reached.

CATCHWORDS:

JUDGMENT – SUMMARY JUDGMENT – second application – whether leave should be granted - whether no real prospects of defence – whether need for a trial of the issues – where application for summary judgment dismissed

Property Law Act 1974 (Qld), s 55

Uniform Civil Procedure Rules 1999 (Qld), r 292, r 294

Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232

Foodco Management Pty Ltd v Go My Travel Pty Ltd [2002] 2 Qd R 249

COUNSEL:

A Lyons for the plaintiff

L Jurth for the first defendant and the ‘A group’ of second defendants

AJH Morris QC for the ‘B group’ of second defendants

SOLICITORS:

Minter Ellison for the plaintiff

WPS Law for the first defendant and ‘Group A’ of second defendants

Q5 for the ‘Group B’ of second defendants+

  1. [1]
    Nightbreeze operates a hospice. So does HHSI, not a party to these proceedings. HHSI contracted to sell land upon which its hospice was then located to the first defendant, Sickle Avenue, a member of the Atkinson Gore group of companies. Alternative premises were under construction. In the interim HHSI could not give vacant possession without finding interim accommodation for its terminally ill patients. Nightbreeze alleged Sickle Avenue, or, alternatively Sickle Avenue and the second defendants contracted to pay Nightbreeze to accommodate HHSI’s patients. The defendants deny the contract. They assert the commitment was a donation to HHSI to enable it to deliver up vacant possession and that the proper defendant is HHSI.
  1. [2]
    Leave to bring a second application for summary judgment is required.[1]  An oral application was made for leave at the hearing on 13 March 2009.  The pleadings have been amended since the first application, relevantly, to add the claim in the alternative against the first and second defendants, and to identify additional correspondence, and a message left by Craig Gore for Ann Robilotta, as evidencing the contract.  My reading of the transcript of his Honour’s reasons is that Judge Griffin refused the first application because he was not satisfied who were the parties to and what were the terms of the alleged contract could be established without a trial.  He also considered the defendant had some real prospect of successfully defending the claim.  The amendments to the pleadings endeavoured to address both issues. I am satisfied that leave can and should be granted for a second application to be brought.  However, I am not persuaded Nightbreeze’s claim should be determined summarily.
  1. [3]
    The application for judgment was strongly contested.[2]  The court may grant summary judgment if satisfied the defendant has no real prospect of defending all or part of the claim and there is no need for a trial of the claim.[3]
  1. [4]
    The discretion should only be exercised in the clearest of cases.[4]  The test is no real prospect of success not improbability of success.[5] This directs the court to enquire whether there is a “realistic” as opposed to a “fanciful” prospect of successfully defending the claim.[6]  Nightbreeze bears the onus of establishing it is a proper case for exercising the court’s discretion.
  1. [5]
    The statement of claim pleads a case against the first defendant and, in the alternative, against the first defendant and all of the second defendants. The second defendants were added after the first application for summary judgment was dismissed. An issue then and still is who are the parties to the arrangement which Nightbreeze alleged is an enforceable contract. Correspondence relied upon to establish the contract refers to the Atkinson Gore Group. The second defendants are said to be companies in that group. The judgement defendants are those entities which Nightbreeze says were members of the group when the contract was formed.
  1. [6]
    By seeking judgment against only some of the second defendants, Nightbreeze has proceeded on a case not pleaded; that is that its contract was with Sickle Avenue and those companies identified as the judgment defendants. Accepting, for the moment, the court can enter judgment on a case not pleaded, Nightbreeze has not established a sufficient nexus to obtain judgment on a summary basis.
  1. [7]
    There is no evidence that each of the judgment defendants was held out to be a member of the Atkinson Gore Group, nor is there evidence that the author of the correspondence relied upon had authority to contract on behalf of each. Nor has Nightbreeze established that it intended to enter into a contractual relationship with each of the judgment defendants. The correspondence relied on variously refers to the “Atkinson Gore Group”; “AGG related entities”; and “our respective clients, Sickle Avenue P/L and the Hospice”. The last letter appears to be written on the letterhead of Atkinson Gore Group Pty Ltd, one of the second defendants, and signed by Mr Lumsden as General Manager of Atkinson Gore Group.
  1. [8]
    The defence raises a further issue about the parties to the arrangement, through the agency of two people involved in the negotiations. It alleges Lata Milna and Ann Robilotta were acting on behalf of HHSI, not Nightbreeze. The question of who were the parties to the contract, if indeed there is a contract, should be determined by a trial of that issue.
  1. [9]
    Further, a trial is required to determine whether there was a concluded contract. Nightbreeze alleges the contract was formed on or about 29 October 2003. Whilst it is pleaded as a contract in writing, in its submissions on this application, Nightbreeze conceded the agreement is “largely written”. The written aspect of the contract is alleged to be comprised of an exchange of correspondence which concluded on the 29th. The oral aspect was a telephone message allegedly left by Mr Gore for Ms Robilotta, a representative of Nightbreeze. At the hearing, Nightbreeze abandoned reliance on that message for the purpose of the application.
  1. [10]
    I am not satisfied the exchange of correspondence alone establishes a concluded agreement. That is amply illustrated by the letter of 29 October 2003, relied upon as acceptance of offered terms. Its terms are equivocal. Relevantly, it provides “all items contained in the letter (dated 28 October 2003) are duly noted and we are in general accord with the contents.” What “general accord” might mean is elusive. Given the context of ongoing discussions, noting items and expressing general accord does not unequivocally represent acceptance of offered terms.
  1. [11]
    At the hearing Nightbreeze relied upon acts of performance to establish the contract was formed. Again, that case has not been pleaded. Nightbreeze submitted the payment of invoices it rendered constitute performance by one or more of those jointly liable to pay them. The submission itself demonstrates Nightbreeze cannot, in a summary proceeding, establish part performance referable to all those defendants against which it now seeks judgment. Further, given the terms of the payment of invoices may well evidence something other than acceptance of the terms of the contract pleaded by Nightbreeze.
  1. [12]
    At the hearing, the defendants argued, although they have not pleaded, the alleged contract is void for uncertainty because it cannot be ascertained who are the parties to the contract, the duration of the contract and, therefore, the price to be paid pursuant to it. The issue as to the parties has already been canvassed.
  1. [13]
    As to the duration of the contract and, therefore, the amount to be paid pursuant to it, Nightbreeze pleaded a contract to pay for the accommodation of HHSI patients until alternative facilities were constructed. Judged at the time the contract was said to have been formed, its duration is arguably unascertainable. Nightbreeze relied on the defendants pleading the duration of the arrangement was to be between 18 and 26 weeks. That appears in paragraphs 3(i)(vi) and 8(b) of the Defence. It is not a plea in response to the allegation of contract. What is there pleaded is an arrangement between the first defendant and HHSI.
  1. [14]
    The correspondence refers to a number of conversations. On its face, none of the letters present as a final record of a contract. Evidence of the negotiations will be provisionally admissible to determine whether it does constitute an entire and final record of a contract. The issues raised about the enforceability of the alleged contract are best determined at trial.
  1. [15]
    Finally, in the alternative, the plaintiff relied on s 55 of the Property Law Act 1974 (Qld) to enforce a promise for the benefit of HHSI. The defendants also contest that claim.  They argued any promise made by any of the defendants was not intended to be legally binding; HHSI gave no consideration for the promise, doing only what it was already contractually obliged to do, and the promise was not accepted.  It cannot be said there are no real prospects of defending that claim. 
  1. [16]
    The plaintiff’s application for summary judgment is refused.
  1. [17]
    It is evident from the way in which the summary judgment proceedings were conducted that both parties will need to amend their pleadings to put their cases on a proper foundation for trial. The parties are directed to confer so as to agree upon a set of directions to ensure a timely exchange of amended pleadings so the issues for trial are clearly defined.
  1. [18]
    The defendants sought costs assessed on an indemnity basis. I am not persuaded this is a situation in which the court should exercise that discretion. Costs will be assessed on the standard basis.

Schedule

‘Group A’ second defendants

AGB DEVELOPMENTS PTY LTD (ACN 102 461 950)

AGB NO. 4 PTY LTD (ACN 104 495 543)

AGG MAUSLAND PTY LTD (ACN 106 779 186)

AGG NO. 7 PTY LTD (ACN 092 994 637)

AGG (PORT HINCHINBROOK) PTY LTD (ACN 109 048 339)

AGG PROJECT MANAGEMENT PTY LTD (ACN 122 079 234)

AGG SECURITY PTY LTD (ACN 104 495 561)

AGG TREETOPS PTY LTD (ACN 106 779 202)

ATKGOR INVESTMENTS PTY LTD (ACN 094 314 404)

ATMEYGOR PTY LTD (ACN 096 750 695)

ATKINSON GORE AGRICULTURAL PTY LTD (ACN 104 827 661)

ATKINSON GORE GROUP (CHINA) PTY LTD (ACN 104 215 581)

ATKINSON GORE GROUP HOLDINGS PTY LTD (ACN 109 242 453)

ATKINSON GORE GROUP PTY LTD (ACN 089 981 288)

ATKINSON GORE (NEW YORK) PTY LTD (ACN 108 429 658)

ATKINSON GORE SECURITIES PTY LTD (ACN 122 078 853)

AURORA DEVELOPMENTS PTY LTD (ACN 091 135 330)

BIG STATE EARTHMOVING AND EXCAVATIONS PTY LTD (ACN 103 763 864)

CHAMP CAR TEAM AUSTRALIA PTY LTD (ACN 092 994 799)

CONSOLIDATED CONSTRUCTION GROUP PTY LTD (ACN 092 435 544)

CONSOLIDATED CONSTRUCTION GROUP (NSW) PTY LTD (ACN 092 612 498)

CONSOLIDATED CONSTRUCTION GROUP (VICTORIA) PTY LTD (ACN 118 598 208)

CONSOLIDATED PROJECT HOMES (QLD) PTY LTD (ACN 116 789 005)

CFS (GOLD COAST) PTY LTD (ACN 106 912 313)

DELLPORT PTY LTD (ACN 089 883 545)

DSYER STREET DEVELOPMENTS PTY LTD (ACN 090 995 458)

FOOD DISTRIBUTORS AUSTRALIA PTY LTD (ACN 090 127 807)

GOLD FIELDS CONSOLIDATED INVESTMENTS PTY LTD (ACN 104 505 268)

LTCA PTY LTD (ACN 094 816 172)

MARINE PARADE DEVELOPMENTS PTY LTD (ACN 092 994 619)

ROMSEY STREET WAITARA PTY LTD (ACN 111 031 022)

RUFIO PTY LTD (ACN 102 223 852)

SUPERCAR SUPERCARD PTY LTD (ACN 110 597 290)

WPS MOTORSPORT PTY LTD (ACN 107 091 734)

WPS RACING PTY LTD (ACN 085 868 220)

WPS RACING MERCHANDISING PTY LTD (ACN 109 517 928)

‘Group B’ second defendants

AGG BRASSELL PTY LTD (ACN 122 404 880)

AGG YAMANTO PTY LTD (ACN 122 509 193)

AUSSIE VINEYARDS (HENTY ESTATE) PTY LTD (ACN 116 119 816)

AUSSIE VINEYARDS WINERY PTY LTD (ACN 119 858 338)

CFS (GOLD COAST) PTY LTD (ACN 106 912 313)

WRIGHT PATTON SHAKESPEARE PTY LTD (ACN 079 025 942)

WRIGHT PATTON SHAKESPHEARE CAPITAL LTD (ACN 098 286 241)

WRIGHT PATTON SHAKESPEARE FINANCE PTY LTD (ACN 078 624 745)

WRIGHT PATTON SHAKESPEARE FINANCIAL GROUP (NSW U4051910)

WRIGHT PATTON SHAKESPEARE FINANCIAL SERVICES PTY LTD (ACN 094 796 308)

Footnotes

★Refer to schedule for explanation of ‘A group’ and ‘B group’ of second defendants

[1]Uniform Civil Procedure Rules 1999 (Qld), r 294(2).

[2]The plaintiff raised numerous objections to affidavits filed on behalf of some of the defendants.  Two of the affidavits were filed in relation to the first application for summary judgment in February 2006.  The third was one filed on this application.  It is unnecessary for me to determine those objections as, on the state of the pleadings and the legal arguments canvassed, I am satisfied the application should be refused./span>

[3]Uniform Civil Procedure Rules 1999 (Qld), r 292.

[4]Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 at [3] per McMurdo P.

[5]Foodco Management Pty Ltd v Go My Travel Pty Ltd [2002] 2 Qd R 249 at 254

[6]Deputy Commissioner of Taxation v Salcedo at [11] to [13] per Williams JA.

Close

Editorial Notes

  • Published Case Name:

    Nightbreeze Pty Ltd v Sickle Avenue Pty Ltd & Ors

  • Shortened Case Name:

    Nightbreeze Pty Ltd v Sickle Avenue Pty Ltd

  • MNC:

    [2009] QDC 70

  • Court:

    QDC

  • Judge(s):

    Kingham DCJ

  • Date:

    31 Mar 2009

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Deputy Commissioner of Taxation v Salcedo[2005] 2 Qd R 232; [2005] QCA 227
2 citations
Jump To
Cite 1 - [2005] 2 Qd R 232
Cite 2 - [2005] 2 Qd R 232
Foodco Management P/L v Go My Travel P/L[2002] 2 Qd R 249; [2001] QSC 291
2 citations
Jump To
Cite 1 - [2002] 2 Qd R 249
Cite 2 - [2002] 2 Qd R 249
Hesz v Sotheby [1960] 1 WLR 285
1 citation
Jump To
Cite 1 - [1960] 1 WLR 285

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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