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  4. Tremco Pty Ltd v Kadoe Pty Ltd - [2015] QDC 40

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Tremco Pty Ltd v Kadoe Pty Ltd[2015] QDC 40

Tremco Pty Ltd v Kadoe Pty Ltd[2015] QDC 40

DISTRICT COURT OF QUEENSLAND

CITATION:

Tremco P/L v Kadoe P/L trading as Kadoe Commercial Coatings [2015] QDC 40

PARTIES:

TREMCO PTY LTD (ACN000024064)

(plaintiff)

v

KADOE PTY LTD, TRADING AS KADOE COMMERCIAL COATINGS (ACN&135978504)

(defendant)

FILE NO/S:

2152/11

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

27 February 2015

DELIVERED AT:

Beenleigh

HEARING DATE:

16 & 17 February 2015

JUDGE:

Andrews SC DCJ

ORDER:

Judgment for the plaintiff against the defendant in the sum of $191,124.88 inclusive of interest to the date of judgment

That the defendant pay the plaintiff’s costs on a standard basis.

CATCHWORDS:

CONTRACTS – SALE OF GOODS – whether goods were ordered – whether goods were delivered – whether credits were properly applied in the seller’s accounts

COUNSEL:

van der Beld, for the plaintiff

SOLICITORS:

Mills Oakley Lawyers for the plaintiff

Issues

  1. [1]
    The plaintiff’s claim is for $146,210.28 and for interest for monies due and owing for goods allegedly sold and delivered to the defendant. The issues are whether goods for which payment is demanded were not ordered, not delivered, not picked up, already paid for, returned or donated. For certain items there was issue about whether, if delivery was proved, the defendant was entitled to credits and whether they were properly brought to account.

Facts

  1. [2]
    The plaintiff is in the business of distributing and selling concrete waterproofing and polishing products. The defendant is in the business of applying such products.
  1. [3]
    In about October 2009 the plaintiff entered into a contract with the defendant for the supply of its products.
  1. [4]
    The plaintiff provided waterproofing products to the defendant between about October 2009 and about December 2010, and the defendant used those waterproofing products at various jobsites.
  1. [5]
    In mid-2009 Mr Colin Hooper began work with the plaintiff as its warehouse manager and sales representative.  He was responsible for the day to day running of the plaintiff’s warehouse.  He would ensure that purchase orders were accepted, that offers for cash sales were accepted, that orders were processed, that deliveries were sent from the warehouse and that stock was maintained.  He recalled when the defendant became a new client of the plaintiff and remembered that a sales representative of the plaintiff, Mr Brosier, introduced the defendant as a client.  The defendant applied to the plaintiff for permission to operate a credit account to the extent of $3,000. The plaintiff supplied product to the defendant to values well in excess of the credit limit.
  1. [6]
    Mr Wayne Thomson is the sole director and is the secretary of the defendant. Mr Thomson was one of the defendant’s four “applicators” at material times when the plaintiff supplied product to the defendant. Mrs Thomson is the wife of Wayne Thomson. Mrs Thomson was described by Mr Thomson[1] as “the only person who has the knowledge of this matter to be able to bring this matter before the Court… on behalf of the defendant”.  Mrs Thomson had Mr Thomson’s authority to represent the defendant in the trial and had leave to appear.  Mrs Thomson was the defendant’s only witness. 
  1. [7]
    Mrs Thomson recalled that while Mr Brosier was a sales representative for the plaintiff the defendant placed orders for the plaintiff’s product with Mr Brosier. Mr Brosier stopped acting as a sales representative early in 2010 and from the date he stopped acting, two things changed. Before Mr Brosier’s departure, Mrs Thomson’s opinion was that there were no difficulties with the defendant’s account with the plaintiff. The first thing which changed was that issues arose about the state of the defendants account. It was not explained what the state of the account was during Mr Brosier’s time.
  1. [8]
    The second thing that changed after Mr Brosier left was the method of ordering. The defendant would place orders either by telephone or by having someone call at the plaintiff’s warehouse. The plaintiff had two employees at the warehouse. The first was Mr Hooper and the second was Daniel, who no longer works for the plaintiff. Mr Hooper remembers that initially the only person making contact with the warehouse for telephone orders was Mr Thomson. After a time, Mr Hooper also received telephone orders for the defendant from a person he described as Carolyn Thomson. Mr Hooper and Mrs Thomson never met. Mr Thomson and Mrs Thomson were each persons who placed telephone orders with the plaintiff.
  1. [9]
    Orders were also placed for the defendant by persons arriving in person at the warehouse. Mr Thomson and others would attend the warehouse for the defendant though not Mrs Thomson, so far as Mr Hooper is aware. Mrs Thomson did not attend the warehouse.
  1. [10]
    On the occasions when the defendant’s servants or agents attended at the warehouse to pick up an order the defendant obviated the need for a courier or a transport company to be used by the plaintiff.
  1. [11]
    If the defendant ordered goods from the plaintiff to be picked up at the plaintiff’s warehouse by the defendant it could place the order remotely, for example by telephone or facsimile, or it could order the goods at the warehouse. If the defendant’s agent was in such a hurry that there was no time to wait for a picking slip to be filled in there was a shorter process. The plaintiff’s employees would at least write down a manual docket which they would ask the defendant’s agent to sign. The defendant’s agent would take away the product. The plaintiff’s employees would invoice the defendant subsequently.
  1. [12]
    If the defendant’s agent telephoned the warehouse and there was more time, the plaintiff’s employees would enter the data relating to the defendant’s order into the plaintiff’s computer system and print a picking slip. The defendant’s agent would be required to sign the picking slip. The picking slip was treated by the plaintiff as an authority to draw the stock out of the system and allocate it to the defendant. Then the plaintiff would either post or email an invoice to the defendant. Examples of the invoice in evidence show that it was called a sales order/invoice.
  1. [13]
    If goods were to be delivered at the request of the defendant they would be delivered either to a jobsite nominated by the defendant or to the Thompsons’ residence at Pelican Waters. The proper process at the plaintiff’s warehouse was to enter an address for delivery onto the picking slip to indicate the destination to which a courier or transport company should take the product. If it was a small delivery such as a couple of cartons, the plaintiff would use a small courier such as Fastway Couriers (“Fastway”).  For larger quantities the plaintiff would use the transport business, Javelin. 
  1. [14]
    There is limited documentary evidence of the defendant’s receiving the plaintiff’s product if it was delivered away from the plaintiff’s warehouse.
  1. [15]
    The system for creating paperwork to evidence orders, sales and deliveries between the plaintiff and the defendant left gaps, most importantly at the stage of delivery to an address away from the plaintiff’s warehouse.
  1. [16]
    The defendant, for its part, kept no record of orders that it made to the plaintiff, of pickups that it made from the plaintiff’s warehouse, of deliveries that it received from the plaintiff by couriers, by a transport company, of deliveries that it signed for or deliveries that were left without being signed for. It puts the plaintiff to proof of delivery, as the defendant is at liberty to do. The plaintiff must prove delivery, and every other matter upon which it bears the onus of proof, on the balance of probabilities.
  1. [17]
    The plaintiff’s paperwork generally created evidence that an order was received and attributed to the defendant, that goods were appropriated to that order and identified the address to which the goods were sent and the project for which the goods were to be used by the defendant. The identification of the project was a matter in the defendant’s interest because certain projects resulted in a reduction in the price. The plaintiff would also keep a record of either the courier business or the transport business which took the product for delivery to the defendant. If the defendant supplied the plaintiff with a record of the project and that project was one for which the plaintiff offered a greater discount than the usual 25% it gave to the defendant, then I infer the plaintiff would record it on the picking slip or manual docket. As invoices were created after the manual docket or picking slip I infer that the project for which the goods were to be used would be copied onto the invoice to show that the appropriate discount had been made.
  1. [18]
    A matter of significant concern for Mrs Thomson was the absence of documents proving delivery of some goods. The defendant kept none. A feature of the plaintiff’s records was an absence of receipts from the defendant on those occasions when goods were delivered by a courier or transport company. If the couriers and the transport company used by the plaintiff obtained receipts from the defendant, they did not supply those receipts to the plaintiff.
  1. [19]
    The defendant’s efforts to obtain records of delivery from the couriers and a transport company used by the plaintiff yielded very little. The little documentation that it did reveal troubled Mrs Thomson. There were instances where a signature appeared as if acknowledging receipt by the defendant and Mrs Thomson does not recognise the signature. There was an instance when Mrs Thomson’s name appeared beside a signature which was hers. Apart from the comfort which proof of receipt would generally provide, there were particular occasions where invoices or sales records disclosed by the plaintiff contained anomalies which called into question whether goods were delivered to the defendant. One sales order[2] showed that the goods were to be delivered to Albion but referred to the project for which the defendant required the goods as “Regis”.[3]  Mrs Thomson explained that Albion and the site of the Regis project were at different places.  None of the defendant’s four applicators were called to advise whether there was a sensible explanation.  Another sales order[4] showed a delivery address being the Thomsons’ home at Pelican Waters but referred to a project “Bister Estate”.  That estate is not a site upon which the defendant worked.  Mrs Thomson was not in a position to give evidence that the item was not delivered to her residence and no witness for the defendant gave evidence that it was not ordered, delivered and used.  Part of the point of calling this evidence was for the defendant to demonstrate that if there had been a comprehensive bundle of evidence showing that the defendant received goods the defendant would more easily have been satisfied that it owed some of the money claimed by the plaintiff. 
  1. [20]
    Fastway was often used by the plaintiff. It is not a disputed issue.
  1. [21]
    Mrs Thomson attempted to obtain records from Fastway. She did this by seeking third party disclosure. She gave evidence to the effect that Fastway asserted that it had no records relating to the plaintiff. I accept the explanation suggested by the plaintiff’s witnesses. The system by which the plaintiff supplied its goods to Fastway for delivery to the defendant resulted in little documentation. The system required no order to Fastway either paper, electronic or oral. Fastway did not maintain an account with the plaintiff or vice versa. Fastway would routinely call uninvited twice daily at the plaintiff’s warehouse in anticipation of goods for delivery. The plaintiff would routinely purchase from Fastway books of vouchers of different colours in much the same way as one buys books of postage stamps. A different colour denoted a different general geographic area into which the goods were to be delivered such as Gold Coast, Brisbane Metropolitan or Sunshine Coast. Any coloured voucher could be separated by the plaintiff into two parts when there were goods to be taken by Fastway for delivery. One part of a coloured voucher would be fixed onto the goods. A delivery address would be written onto that part. That part would have a tracking number in several places. The other part would be retained by the plaintiff and would have the same tracking number. Ordinarily, deliveries would be made by Fastway within a day or two. By checking online the plaintiff could determine where Fastway claimed the goods were. Fastway’s practice was to take goods bearing a coloured voucher to Fastway’s depot. There various goods were separated depending upon the colour of the voucher attached to them. A lime green voucher would denote that the goods were destined to be delivered to a particular area. Once a load of goods bearing vouchers of identical colour was assembled, Fastway would take that load for delivery within the geographic area to which that colour related. Fastway would ordinarily require a signature from the recipient of the goods upon delivery unless Fastway had been given by the plaintiff an ATL, more properly called an authority to leave. An authority to leave was an authority from the plaintiff to leave the goods at the delivery address without first requiring a receipt from the entity to whom the goods were to be delivered. Fastway did not forward proof of delivery to the plaintiff.
  1. [22]
    The couriers and transport company would generally request a receipt when delivering goods. One exception would be if there had been a specific authority given to the transport company to deliver without requiring a receipt. Another would be if the transport company delivered notwithstanding that they had neither a receipt or an authority to deliver without a receipt. The plaintiff expected that if it had requested evidence of a receipt from the transport company or courier that it would have been provided. There was evidence from the plaintiff that receipts were held by the couriers and transport company for no longer than six months. The only relevant transport company named was “Javelin”. The evidence was that it went out of business.
  1. [23]
    The plaintiff used a transport business, Javelin for larger deliveries. Javelin was called if product required a pallet or a “skid” for delivery. Javelin did not routinely call at the warehouse.  If Javelin was used, someone at the plaintiff’s warehouse would telephone to request that Javelin pick up goods from the warehouse.  Javelin delivered the plaintiff’s product to the Sunshine Coast, the Gold Coast and the metropolitan area and to the Thomsons’ home at Pelican Waters.
  1. [24]
    With respect to Javelin, the paper trail was different from the trail left by using Fastway. There was one similarity. If Javelin successfully delivered the plaintiff’s product, Javelin would not forward any record of successful delivery to the plaintiff.
  1. [25]
    Javelin did not use the system of books of vouchers used by Fastway. Javelin’s driver would have a triplicate consignment note. The driver would scribble on the consignment note his initial or the driver’s personal driver identification number. The driver would tear off one copy and provide it to the plaintiff and would keep the other copies. The plaintiff would place the copy of the consignment note with its own picking slip.
  1. [26]
    Mr and Mrs Thomson resided at Pelican Waters at all material times. The defendant regularly requested deliveries of product to the Thomsons’ home. The defendant would often have four adults at the residence who were capable of receiving deliveries. They were Mr and Mrs Thomson and two female employees of the defendant. Mrs Thomson had responsibilities for school age children which sometimes took her away from the house. Mr Thomson, being an applicator for the defendant, was often away from the house. There was no evidence from the two female employees about how often they were absent from the house or whether they placed telephone orders for deliveries to the house or accepted deliveries without signing, or whether their signatures appeared on some receipts. Mrs Thomson gave evidence that when she was absent she expected that the two females would always have been there and available to sign for deliveries if Mr Thomson was not. Their hours were 7.30am to 5.00pm. In spite of Mrs Thomson’s belief, there is inconsistent and uncontested evidence that there were some occasions when the plaintiff was specifically authorised to make deliveries to the Pelican Waters address without requiring the transport company to obtain a signature as evidence of delivery.
  1. [27]
    During the cross-examination of Mr Hooper by Mrs Thomson it emerged that there was a potential factual dispute about the number of times Mrs Thomson placed orders with Mr Hooper authorising a delivery to Pelican Waters residence without a person accepting delivery and without the transport company obtaining a signature from the defendant. It was Mr Hooper’s recollection that from an early time in the history of the plaintiff’s dealings with the defendant, the person placing the order for the defendant would advise that there would be no-one present to receive the delivery; that this occurred for deliveries to jobsites generally and for the deliveries to Pelican Waters. There was no suggestion to Mr Hooper that this was false and I accept that evidence. For the deliveries to the Pelican Waters address that were allegedly authorised to be made without a signature, Mr Hooper gave evidence that those orders were mainly placed by “Carolyn”. That can only have meant Mrs Thomson. Mr Hooper, in cross-examination, said that 80 to 90 per cent of the Pelican Waters orders were placed by Mrs Thomson. Mrs Thomson put the question, “What if I said to you I never spoke to you and never gave you an order, because that was not my role in the company?” Mr Hooper said that would be incorrect.  In the end, the defendant did not give contradictory evidence. Mrs Thomson did not give evidence to the effect that she placed no orders for the company for deliveries to Pelican Waters or that she did not place a large portion of the orders.  She gave evidence that orders were usually placed by her husband. It is not necessary to determine which of the two witnesses was more correct. The difference between their evidence on this issue is probably explained by frailty of memory. Whether I preferred one witness or the other on this issue it would not affect my finding on the more crucial issue. The more crucial issue is whether the documentary evidence is reliable. Whether Mrs Thomson placed a few or most orders by telephone does not cause me to reject the reliability of the information contained in the documents created by the plaintiff’s employees at the plaintiff’s warehouse.
  1. [28]
    The defendant by Wayne Thomson gave instructions at the time of placing its order with the plaintiff for the plaintiff to authorise deliveries to other job sites of the defendant without obtaining a signature upon delivery to the site.[5]
  1. [29]
    One sales invoice[6] showed the Pelican Waters delivery address but in a place headed “Customer Order No.” was inserted the word “Creekwood”.  Mrs Thomson recalls that the defendant never had a job to do at Creekwood.  That reasonably aroused the suspicion of Mrs Thomson.  However, when asked whether the defendant had checked to determine whether the product described in the sales invoice as having been delivered was product which would have been used by the defendant at the relevant date on 16 August 2010 if it had been delivered to the Thomsons’ home, Mrs Thomson said that “it would have been Wayne and the guy - the applicators that we used at the time” who checked the products to see whether or not they used them at that time.  I am not satisfied that any relevant person employed by the defendant has considered whether the products in the sales invoice were received by the defendant.  The address for shipping was unequivocally the Thompsons’ home and the word “Creekwood” should not have had any effect on the place to which the goods were delivered. 
  1. [30]
    Another sales invoice[7] aroused Mrs Thomson’s suspicions. It recorded an order from the defendant, Mrs Thomson’s home as the address to which the shipper was supposed to make delivery.  It suggested the defendant’s customer was Ozz Homes. It had no date.  Mrs Thomson gave evidence that all product which had been used for the customer Ozz Homes had been the subject of other invoices and that the product appearing on this particular sales order was product that she concluded was not used by the defendant in doing work for Ozz Homes.  That leaves one possibility that it was delivered to the defendant’s address but used elsewhere.  Mrs Thomson did not address that possibility.  The basis of Mrs Thomson’s belief that the product could not have been used for Ozz Homes was explained by her as research done by others that she checked.  The defendant is obliged at the end of every job to provide a form 16 to self-certify its own work and to verify what product was used on the site.  Mrs Thomson’s evidence is that the girls in the office did the searches that suggested this product was not used for the Ozz Homes customer and that she checked their work.  No supporting documents were provided. Evidence of the contents of the documents relied upon was inadmissible. It was also unpersuasive. I am not persuaded that the product shown in the sales order was not used for the customer Ozz Homes.  Whether it was used for that customer or not, I am satisfied that the defendant’s name and the Thomsons’ delivery address on the sales order are a sufficient basis to conclude that the plaintiff, on the defendant’s instructions, instructed the shipper to deliver the product to the defendant at the Thompsons’ home.
  1. [31]
    Mrs Thomson produced another sales order[8] which aroused her concern. It failed to show the entity to whom goods were delivered, the quantity or product description of goods or a delivery address.  It was otherwise blank except that it had a courier’s name, Stuart Sinclair, a signature and date.  Its relevance was to show that some paperwork generated by the plaintiff was unhelpful.  There was no evidence from the defendant that the plaintiff claimed payment for any goods related to that invoice or that if the plaintiff had done so that the goods had not been delivered. 
  1. [32]
    Another document tendered by Mrs Thomson appears to be a copy of a delivery receipt supplied to the part-time courier Stuart Sinclair.[9]  Mrs Thomson’s concern was that the signature which appears to have been made by the person receiving the goods is not a signature she recognises.  The signature appears to begin with an “S”.  Mrs Thomson knows of no employee of the defendant at the relevant time whose first name began with an “S”.  The product was a kind used by the defendant.  The delivery address on the document was an address appropriate for delivery to the defendant.  The project name on the document was a project name appropriate for the defendant.  The fact that a person who signed to indicate receipt of the goods at Albion has not been identified by Mrs Thomson explains her concern.  Nevertheless, I am satisfied that the document is evidence that the plaintiff instructed Mr Sinclair to deliver 24 units of seam tape to the defendant at Albion for the project Rive and that it did so because it was requested to do so by the defendant. 
  1. [33]
    A series of three documents was tendered[10] by Mrs Thomson because two of the documents, the plaintiff’s picking slips, carried the name “Gamelin” with the number “70977”.  The third document was the plaintiff’s sales invoice, left blank except for the number 70977.  Mrs Thomson’s evidence was that the documents suggested that the goods appearing in one of the two picking slips will have been picked up.  Both picking slips suggested that goods had been picked up from the plaintiff’s warehouse.  One of the picking slips had no goods described in it.  Both picking slips referred to another number: QSPS353215.  Such goods as were described in one picking slip were goods of a kind which the defendant would use.  Mrs Thomson explained that the defendant did no work in Gamelin Street.  She implied, without submitting as much, that the three documents raised a suspicion that someone had paid for goods at the plaintiff’s warehouse, the plaintiff had rightly or wrongly claimed that the goods were sold to the defendant and the goods may not have been used at any of the defendant’s worksites.  I make no findings as to whether Mrs Thomson’s suspicions were well founded.  The more important fact is that the plaintiff has no claim in respect of sales order/invoice 70977 or in respect of QSPS535215 or QSPS615191.  Those are all the relevant numbers appearing on the three documents.  The plaintiff makes no claim on them.  The goods were paid for.  The peculiarity of the inclusion of the name “Gamelin” in the documents does not raise any plausible doubt in respect of the plaintiff’s claim for payment relating to different sales. 
  1. [34]
    Mrs Thomson tendered a copy of a document she obtained from Fastway.[11]  The curiosity about this document was that it appeared to suggest either that two parcels had the same tracking number given to them by Fastway or that one parcel was picked up twice.  Another curiosity was an unidentified handwritten initial on the document. That initial was at a place where the person receiving the parcel on behalf of the defendant was to sign. Mrs Thomson recognised that it was not her initial though the inference form Fastway’s document is that Fastway was asserting that Mrs Thomson received the delivery.  The defendant does not suggest that the document relates to any item for which the plaintiff makes a claim and does not suggest that the parcel was not received by the defendant. The curiosity does not cause me to doubt the plaintiff’s documents.
  1. [35]
    Between March and May 2011 Mrs Thomson met John Medland, a sales manager for Queensland for the plaintiff. The discussed some of Mrs Thompson’s concerns about lack of proof of deliveries and credits. Mr Medland advised Mrs Thomson that the defendant was one of many in the same situation and that the plaintiff would work through it with the defendant. I am not persuaded by this conversation that Mr Medland meant to concede that there were inaccuracies in the plaintiff’s statements of account.
  1. [36]
    Mrs Thomson requested that the plaintiff apply certain credits to its account with the defendant. She made that request in December 2010 and in about February of 2011. The plaintiff did not respond to those requests to Mrs Thomson’s satisfaction until a response on 10 May 2011. The plaintiff either gave or promised some credits but did not give all that Mrs Thomson requested.
  1. [37]
    Mrs Thomson had another concern about the plaintiff’s charging for goods which she suspects were not delivered. It concerns the project Rive. The project was to commence at about the start of August 2010. Wet weather continued for months. It meant the defendant could not use product at the rate at which it had anticipated. Floods in January 2011 made the problem worse. The plaintiff suggested in cross-examination of Mrs Thomson that the defendant had ordered $116,128.66 worth of the plaintiff’s product attributing it to the Rive project. Mrs Thomson did not know whether that was the figure that could be deduced from the plaintiff’s documents. On 17 November 2010 Mrs Thomson wrote to the plaintiff that the bulk of the product on the defendant’s account at that time was for Rive. Mrs Thomson was concerned that the defendant had done less work on Rive than it had anticipated and that the plaintiff’s records attributing product to Rive were attributing too much product to Rive in the circumstances of continuous wet weather. I bear in mind that it is the defendant which advises the plaintiff what project the product will be used on. If there were orders placed by the defendant and if project Rive was nominated by one party it was by the defendant. Mrs Thomson is not an applicator. The defendant failed to call its applicators. Mrs Thomson next argued that it was not physically possible for $116,000 to have been used on the Rive project. That opinion evidence would ordinarily be admissible only if it was given by an expert. Mrs Thomson did not work on site. Mrs Thomson’s opinion would require an analysis of documents to determine the amount of product attributable to that project, evidence from the applicators that they did not use it on that project and evidence that they did not use it elsewhere or retain it for future use on other projects. I am not persuaded by Mrs Thomson’s suspicion that the goods were not ordered by the defendant or delivered to it.
  1. [38]
    I am not persuaded by Mrs Thomson’s concern about so much product being attributable to Rive that I should doubt the correctness of the plaintiff’s documents which tend to establish that goods were ordered by the defendant and either picked up by the defendant or provided to a courier or transport company with instructions to deliver them to the defendant.
  1. [39]
    It is the case that there were occasions when product was delivered to the Pelican Waters address and no signature was obtained from any person at that address. Mrs Thomson does not recall any occasion when she found product at that address in a place which suggested it had been delivered and left outside. She did not ask any of the other relevant employees for the defendant whether they had found product and taken it indoors. None of them were called. I am satisfied that, with one class of exception, product delivered to Pelican Waters and not signed for was accepted by the defendant when the defendant’s employees found it at that address. That exceptional class is any product which the defendant expected to receive but which the defendant failed to receive.
  1. [40]
    If ever the defendant made an order for product and has discovered that it was not delivered the defendant successfully obtained credit for the amount.[12]
  1. [41]
    It follows that if ever goods were delivered either to Pelican Waters or to some other address at the request of the defendant and were left without any person on the defendant’s behalf being there to sign for the goods, the goods were probably received by the defendant shortly thereafter and if not, the defendant alerted the plaintiff and received a credit I am satisfied that in those cases where goods were delivered to an address in accordance with the defendant’s instructions that they were received by the defendant or a credit was allowed.
  1. [42]
    Mrs Thomson argued that there was a period when the plaintiff could have obtained proofs of delivery from the couriers and the transport company which the plaintiff used to deliver goods to the defendant. That is correct. It does not cause me to doubt the other documents which the plaintiff retained. They tend to prove that orders were received by the plaintiff from the defendant for product and that the plaintiff allocated product from its stores to the order and supplied it to couriers for delivery to the defendant.
  1. [43]
    Mrs Thomson argued that if there were occasions when defendant did not order goods from the plaintiff and if the plaintiff falsely recorded that the defendant had ordered goods and if the plaintiff then either kept the goods or dispatched them to an entity which was not the defendant, then the defendant would not have known about it and would not know to complain. That may be true. The defendant does not plead a case of fraud and did not suggest these possibilities to the plaintiff’s witnesses as occurring, whether deliberately or by mistake. There has been no instance identified which persuades me that this has happened on any occasion.
  1. [44]
    Mrs Thomson argued on the basis of the rhetorical question: “where the original credit approval was for $3,000, how could the account go up to $140,000?” Poor oversight by the plaintiff of the defendant’s account occurred. It is not a defence to the plaintiff’s claim that the plaintiff continued to supply more goods on credit than was in the plaintiff’s best interests. Another way to explain that is to say that a defendant is not relieved of the obligation to pay for goods just because the plaintiff extended more credit than it intended.
  1. [45]
    Mrs Thomson argued that there was insufficient evidence that goods were ordered by the defendant. Mrs Thomson recalls ordering very few times and that Mr Thomson ordered much more often. The defendant did not call Wayne Thomson or any of the other persons who may have ordered goods on its behalf to say that they did not order the goods. I am not persuaded by the argument to doubt the prima facie inferences from the plaintiff’s documents.
  1. [46]
    For those particular documents which caused Mrs Thomson to be suspicious about whether delivery occurred, the defendant did not call any relevant employee to deny that a particular delivery had occurred or to give evidence that it was unlikely to have been delivered.
  1. [47]
    Mrs Thomson argued that where the plaintiff’s documents suggested that the courier, Sinclair, had been used, it was possible that no goods left the warehouse or that Sinclair failed to deliver them. Mr Sinclair was a friend of the plaintiff’s former employee, Daniel. Sinclair and Daniel were not called by either party. Mrs Thomson’s suspicion about dishonesty occurring on occasions when deliveries were attributed to Sinclair was not put to Mr Hooper. Fraud was not alleged in pleadings or to witnesses. The defendant did not call Sinclair. I am not satisfied that there is any force in this argument.
  1. [48]
    Mrs Hooper argued that credits were agreed by the plaintiff as appropriate but not properly credited to the defendant. Mrs Thomson explained that the credits were allowed by the plaintiff as a deduction from the defendant’s indebtedness but were not attributed to the correct invoices. The amounts to be credited were reduced from the plaintiff’s statements of account to the defendant.
  1. [49]
    On that assumption the plaintiff’s inattention to the detail of attributing credits to appropriate invoices has not been shown to impeach its claim to repayment of the balance of the account. If the balance has been reduced properly to account for the credits this feature of the plaintiff’s accounts creates no defence to its claim for payment.
  1. [50]
    Delivery charges of $15 for deliveries in the Brisbane metropolitan area became an issue.  The defendant alleged by its first further amended defence of the defendant (defence) paragraph 3(f) a term of the contract about a delivery fee to the Brisbane metropolitan area.  The allegation was of a term to the effect that only orders totalling less than $150 would be subject to a $15 delivery charge.  No evidence was given for the defendant to support this allegation.  Mr Hooper gave evidence for the plaintiff that all deliveries were free to the Brisbane metropolitan area but were subject to a $15 fuel surcharge.  His version was not challenged.  I accept his evidence. 
  1. [51]
    The plaintiff pleaded that the standard prices to be charged to defendant were subject to the following discount structure.[13] It was denied by the defendant.[14] The structure was: 25% discount for all goods ordered for all job sites other than Yeronga and Albion; 32% discount for all goods ordered for the Yeronga site; 30% or 32% discount (depending on products) for all goods ordered for the Albion site.
  1. [52]
    Exhibits 6, 7 and 8 comprise three standard price lists. The defendant was provided with the each of the standard pricelists dated 2 April 2009, 1 July 2010 and 2010. Mrs Wilson gave unchallenged evidence to the effect that the defendant was charged in accordance with the lists. I accept that. It was not suggested that the prices charged for product were too high.
  1. [53]
    Mr Hooper has given oral evidence that Exhibit 2 comprises the source documents relating to transactions between the plaintiff and the defendant, such as order dockets, picking slips, and invoices and so on.
  1. [54]
    Mr Hooper also gave oral evidence, unchallenged, to the effect that:
  1. all goods despatched and invoiced were ordered by the defendant;
  2. the defendant did not at any time raise any issue about goods not being received;
  3. the defendant did not any time raise any issues in relation to deliveries to Pelican Waters;
  4. goods that were collected by the defendant were usually signed for on either the order or picking slip;
  5. transport companies doing the deliveries could only produce proofs of delivery for a period of up to 6 months after the goods were collected from the plaintiff’s warehouse;
  6. all orders entered into the computer system came about as a result of orders placed by the defendant;
  7. at no time were invoices issued to the defendant for goods that had not in fact been ordered.
  1. [55]
    I accept that evidence.
  1. [56]
    Mrs Wilson gave oral evidence, unchallenged, to the effect that:
  1. between about March 2010 and December 2010, the defendant did not at any time raise any issues in relation to orders not being delivered or the defendant being invoiced for goods that had not been ordered;
  2. a drum of Diamond Hard was provided to the defendant as a partial donation and the defendant was charged a reduced price of $700.00 plus GST.
  1. [57]
    I accept that evidence.
  1. [58]
    Mr Boslem gave oral evidence to the effect that:
  1. from about November 2010 he had a number of discussions with the defendant in relation to the outstanding account;
  2. between about 17 November 2010 and 17 June 2010 various email correspondence passed between him and the defendant in relation to the outstanding account (refer Exhibits 9, 10, 11, 12, 13, and 14);
  3. a payment arrangement was agreed to whereby the defendant had until 30 June 2011 to pay the whole of the amount owing;
  4. the defendant failed to pay;
  5. all necessary credits had been raised and applied to the account;
  6. in accordance with the Statement of Account as at 16 June 2011, the defendant was indebted to the plaintiff in the amount of $146,410.28 ( Exhibit 15);
  7. the amount of $146,410.28 remains outstanding;
  8. there is no reason that the defendant should not pay the amount claimed.
  1. [59]
    I accept that evidence.
  1. [60]
    The defendant gave no evidence to support its pleaded set off.
  1. [61]
    I am satisfied on the balance of probabilities that the defendant is indebted to the plaintiff in the sum of $146,410.28. It is appropriate that the plaintiff have interest. The defendant did not argue against interest or costs when asked to consider the hypothesis that the plaintiff would be successful. The plaintiff seeks interest according to the interest calculator, from 17/6/2011 to 27/2/2015. That interest is $44,914.60. That amount is appropriate. I bear in mind that the sum was accumulating from 2010 and the plaintiff’s claim for interest does not seek interest for the period before 17/6/2011.

Footnotes

[1]Exhibit 1.

[2]Exhibit 29.

[3]Exhibit 29.

[4]Exhibit 33.

[5]T1-22 L12

[6]Exhibit 31.

[7]Exhibit 35.

[8]Exhibit 36.

[9]Exhibit 37

[10]Exhibit 39.

[11]Exhibit 40.

[12]T2-38.

[13]See paragraph 3A(b) of the SoC, paragraph 2(g)(vi) of the defence, and paragraph 1BA(f) of the Reply.

[14]See paragraph 3A(b) of the SoC, paragraph 2(g)(vi) of the defence, and paragraph 1BA(f) of the Reply.

Close

Editorial Notes

  • Published Case Name:

    Tremco P/L v Kadoe P/L trading as Kadoe Commercial Coatings

  • Shortened Case Name:

    Tremco Pty Ltd v Kadoe Pty Ltd

  • MNC:

    [2015] QDC 40

  • Court:

    QDC

  • Judge(s):

    Andrews DCJ

  • Date:

    27 Feb 2015

Appeal Status

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

Cases Cited

No judgments cited by this judgment.

Cases Citing

Case NameFull CitationFrequency
Thomson v Tremco Pty Ltd [2019] QCA 18 3 citations
Tremco Pty Ltd v Thomson [2018] QDC 1013 citations
Tremco Pty Ltd v Thomson [2018] QDC 1372 citations
1

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