Metroll (Queensland) Pty Ltd v Aaron Murray
[2011] QDC 23
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- Unreported Judgment
- Metroll (Queensland) Pty Ltd v Aaron Murray[2011] QDC 23
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Metroll (Queensland) Pty Ltd v Aaron Murray[2011] QDC 23
Metroll (Queensland) Pty Ltd v Aaron Murray[2011] QDC 23
DISTRICT COURT OF QUEENSLAND
CITATION: | Metroll (Queensland) Pty Ltd v Aaron Murray t/a Murray Metal Roofing [2011] QDC 23 |
PARTIES: | Metroll (Queensland) Pty Ltd (ABN 170 100 353 66) Plaintiff (Applicant) v Aaron Murray t/a Murray Metal Roofing Defendant (Respondent) |
FILE NO/S: | 2954/2009 |
DIVISION: | Civil |
PROCEEDING: | Application for Summary Judgment |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 10 March 2011 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 15 July 2010 |
JUDGE: | Tutt DCJ |
ORDER: |
|
CATCHWORDS: | APPLICATION FOR SUMMARY JUDGMENT – r 292 Uniform Civil Procedure Rules 1999 – claim by plaintiff for monies owed pursuant to a credit agreement – where demand made for payment of monies – whether defendant has “no real prospect of successfully defending the plaintiff’s claim” – whether need for trial. Uniform Civil Procedures Rules 1999 r 292 |
COUNSEL: | L Burrow for the Applicant |
SOLICITORS: | Winchester Young & Maddern for the Plaintiff D Castle of Forbes Dowling Lawyers for the Defendant |
Introduction:
- [1]This is an application by the plaintiff for summary judgment to be entered against the defendant pursuant to r 292 of the Uniform Civil Procedure Rules 1999 (“UCPR”).
Background Facts:
- [2]The plaintiff conducts the business of manufacturing, selling and delivery of metal products.
- [3]The defendant conducts the business of the supply and installation of roofing products.
- [4]On or about the 10th of September 2008 the plaintiff and the defendant entered into a credit agreement (“the agreement”) when the plaintiff approved a Credit Account Application by the defendant for extended credit to purchase metal products from the plaintiff.[1]
- [5]Relevant “terms and conditions” of the agreement are set out in paragraph 5 of the Statement of Claim and among other things, the plaintiff pleads further in the Statement of Claim:[2]
“The defendant was provided credit between September 2008 and 17 June 2009”;
The plaintiff subsequently supplied the defendant with “goods and services” for which the defendant “failed to pay….. in breach of the terms and conditions” of the agreement;[3]and
The defendant owes the amount claimed of $162,748.71 plus interest under the agreement.
- [6]After an application for Default Judgment was refused on the basis of inadequacy of service, the defendant filed an Entry of Appearance and Defence to the plaintiff’s Statement of Claim on 25 March 2010.
- [7]The Defence purports to make “non-admissions” to the claim and impliedly seeks further and better particulars and/or discovery of the plaintiff’s Claim before it can plead further to the document.
- [8]The “further particulars and/or discovery of documents” of the plaintiff was subsequently addressed by the plaintiff’s solicitors to which no formal response was received. The current application before the court was then filed on 23 June 2010.
Plaintiff’s Submissions:
- [9]The plaintiff essentially submits the following:
The Defence filed fails to plead any substantial issues to the plaintiff’s claim;
The plaintiff has fully addressed and/or answered any queries raised by the defendant to which no response has been made; and
The plaintiff is entitled to summary judgment as on the material filed it has shown that the defendant “has no real prospect of successfully defending… the plaintiff’s claim.”
Defendant’s Submissions:
- [10]The defendant’s submissions include the following:
That “there may be triable issues of fact” to be decided;[4]
That it concedes that “we’ve been tardy in filing any Amended Defence”
That the plaintiff has not discharged its onus under r 292 of the UCPR.
The Law:
- [11]Rule 292 of the UCPR provides as follows:
“(1)A plaintiff may, at any time after a defendant files a notice of intention to defend, apply to the court under this part for judgment against the defendant.
- (2)If the court is satisfied that—
- (a)the defendant has no real prospect of successfully defending all or a part of the plaintiff’s claim; and
- (b)there is no need for a trial of the claim or the part of the claim;
the court may give judgment for the plaintiff against the defendant for all or the part of the plaintiff’s claim and may make any other order the court considers appropriate.”
- [12]The test to be applied when considering whether summary judgment should be entered for either a plaintiff or defendant in a proceeding under rr 292 and 293 of the UCPR has been the subject of consideration by our Court of Appeal inn a number of matters in recent years including: Deputy Commissioner of Taxation v Salcedo [2005] QCA 227 (“Salcedo”); and more recently – Bolton Properties P/L v J K Investments (Australia) P/L [2009] QCA 135 (“Bolton”).
- [13]As stated by Williams JA in Salcedo at paragraph [11] with whom McMurdo P and Atkinson J agreed:
“… Rule 292 and r 293 brought about significant changes in the law and procedure relating to summary judgment. The wording of r 292 and r 293 is clearly based on the drafting used in Part 24 of the Civil Procedure Rules (UK) which came into force in the United Kingdom in 1999. In Swain v Hillman [2001] 1 All ER 91 the Court of Appeal had to consider r 24.2, the equivalent of r 292. Lord Woolf MR said at 92:
"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."
Later, again speaking of the rule, he said at 94:
"It saves expense; it achieves expedition; it avoids the court's resources being used up on cases where this serves no purpose, and I would add, generally, that it is in the interests of justice. If a claimant has a case which is bound to fail, then it is in the claimant's interests to know as soon as possible that that is the position. Likewise, if a claim is bound to succeed, a claimant should know that as soon as possible."
In his reasons at 95, Pill LJ accepted that the term "real" was used in contradistinction to "fanciful". The third member of the court, Judge LJ, whilst recognising that summary judgment was a "serious step", went on to say at 96:
"This is simple language, not susceptible to much elaboration, even forensically. If there is a real prospect of success, the discretion to give summary judgment does not arise merely because the court concludes that success is improbable." …”
- [14]It is unnecessary for me to repeat what Williams JA said further in paragraphs [12] to [17] inclusive of his judgment but it is suffice to say that those paragraphs provide a succinct summary of the “test” to be applied by a judicial officer when considering an application for summary judgment under the UCPR. Further to this the comments of Atkinson J at paragraphs [42] and [45] are also apposite.
- [15]
Plaintiff’s Onus:
- [16]As this is the plaintiff’s application the burden of satisfying the court of the matters referred to in UCPR 292(2)(a) and (b) rests with the plaintiff “but once a prima facie case has been made out entitling the applicant to judgment then an evidentiary onus shifts to the respondent” but the overall onus of proof remains with the plaintiff.[7]
Findings:
- [17]On a consideration of the material filed and the submissions made I make the following findings in this application:
- (a)I am satisfied that the plaintiff has discharged its onus of proof under r 292(2)(a) and (b) of the UCPR that:
“the defendant has no real prospect of successfully defending all … of the plaintiff’s claim”; and
“there is no need for a trial of the claim” for the following reasons:
i.The plaintiff has adequately pleaded its claim in the Amended Statement of Claim filed 15 April 2010 after a number of issues, more of form than substance, were raised by the defendant in its Defence to the plaintiff’s original Statement of Claim;
ii.The defendant failed to respond to the plaintiff’s claim by filing any amended Defence to the plaintiff’s Amended Statement of Claim even after the plaintiff’s current application was filed nor (more relevantly) did the defendant file any material in the application before the Court to support its “bald” submissions that ‘there may exist triable issues of fact” in respect of the plaintiff’s claim or that “there may yet need to be a trial of all or part of the plaintiff’s claim”.[8] The defendant therefore has failed to discharge its “evidentiary onus” referred to in Qld Pork Pty Ltd v Lott above.
- (b)I am therefore satisfied that the plaintiff is entitled to summary judgment for the amount claimed of $162,748.71 plus interest calculated to 15 July 2010 in accordance with the schedule marked “Exhibit L” in the sum of $17,819.67 together with the appropriate adjustment of interest to the date of delivery of this judgment and costs.
Orders:
- Judgment for the plaintiff for the sum of $16,2748.71 for claim; $17,819.67 for interest calculated to 15 July 2010 plus a further sum for interest calculated at the rate claimed from 15 July 2010 to the date of this judgment;
- The defendant to pay the plaintiff’s costs of and incidental to this application to be agreed or assessed on the standard basis;
- Either party have liberty to apply.
Footnotes
[1]Paragraph [4] of Plaintiff’s Amended Statement of Claim (“the statement of claim”) filed 15 April 2010. (The plaintiff’s original Claim and Statement of Claim was filed on 14 October 2009 and remains substantially unchanged by the amending pleading other than in very formal particulars).
[2]Paragraphs [6], [7] and [8] thereof.
[3]Ibid at paragraphs [7] & [8].
[4]Hearing transcript page 11 line 68.
[5] Including Bernstrom v National Australia Bank Ltd [2003] 1 Qd R 469, Queensland University of Technology v Project Constructions (Aust) Pty Ltd (in liq) [2003] 1 Qd R 259 and Rich v CGU Insurance Ltd (2005) 79 ALJR 859.
[6]See judgments of Holmes JA and Daubney J at paragraphs [2], [67] & [74] respectively, both of whom also reiterated what was said by Holmes JA in Queensland University of Technology v Project Constructions (Aust) Pty Ltd (in liq) [2003] 1 Qd R 259.
[7]Qld Pork Pty Ltd v Lott [2003] QCA 271 at para 41 (Jones J).
[8]Paragraphs [14] & [15] of the defendant’s written submissions and oral submissions at hearing.