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- Unreported Judgment
Martin & Martin Pty Ltd v A V Jennings Limited QDC 102
DISTRICT COURT OF QUEENSLAND
Martin & Martin Pty Ltd v A V Jennings Limited & Ors  QDC 102
MARTIN & MARTIN PTY LTD ACN 010 944 288
A V JENNINGS LIMITED ACN 004 327 771
A V JENNINGS PROPERTIES LIMITED ACN 004 601 503
2665 of 2018
District Court, Brisbane
24 May 2019
24 May 2019 (Ex tempore)
1. The defendants’ application is dismissed.
2. The plaintiff’s application is allowed.
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT – where the plaintiff seeks relief for quantum meruit – where the defendants allege that there is a valid contract – whether there is a need for a trial of the claim
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – where an application was brought for strikeout of the plaintiff’s Claim – whether order should be made
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – MEDIATION – where the plaintiff applied for an order referring the proceeding to mediation – where the defendants submitted that the outcome of the defendants’ application would determine the plaintiff’s application
Uniform Civil Procedure Rules 1999 r 171, r 293
Bolton Properties Propriety Limited v JK Investments Australia  QCA 135;  2 Qd R 202, cited
Coldham-Fussell and Others v Commissioner of Taxation  QCA 45, cited
Fancourt v Mercantile Credits Limited  154 CLR 87, cited
Hung v Hung  QCA 87, cited
Swain v Hillman  1 All ER 91, cited
Mr Michael Lawrence for the plaintiff
Mr Richard Chesterman for the defendants
Creagh Weightman Lawyers for the plaintiff
HWL Ebsworth for the defendants
- There are two applications before the Court. The first is an application by the plaintiff to refer this proceeding to mediation. The second is an application by the defendants for summary judgment on the plaintiff’s claim or, alternatively, for the claim to be struck out. The defendants submit that the outcome of the defendants’ application will, effectively, determine the plaintiff’s application. It is therefore appropriate to firstly deal with the defendants’ application for summary judgment. The plaintiff, in its pleaded claim, seeks relief against the first defendant or, alternatively, the second or third defendants for quantum meruit. Each claim is separate. The liability of each defendant is said to be individual, not joint. Other than costs and interest, no other relief is sought against any of the defendants.
- The defendants submit a claim in restitution for quantum meruit is fundamentally inconsistent with a claim under contract. They say they should succeed on their application for summary judgment or strike out of the whole of the proceedings for three reasons. First, the plaintiff sues in restitution when there was an effective contract governing the provision of its services. Second, the plaintiff has not sued the parties to that contract and, therefore, the defendants to this claim are the wrong defendants. Third, even in the absence of the first and second reasons, the plaintiff does not adequately plead or particularise the benefits which the named defendants received from the services provided by the plaintiffs.
- Under r 293 of the Uniform Civil Procedure Rules 1999:
“(1) A defendant may, at any time after filing a notice of intention to defend, apply to the Court under this part for judgment against a plaintiff.
- (3)If the court is satisfied –
(a) the plaintiff has no real prospect of succeeding on 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 defendant against the plaintiff for all or the part of the plaintiff’s claim and may make any other order the court considers appropriate.”
- The meaning of “no real prospect” was explained by Lord Woolf MR in Swain v Hillman  1 All ER 91, in terms approved by the Court of Appeal, in Deputy Commissioner of Taxation v Salcedo  2 Qd R 232, at 11:
“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.”
- That formulation remains authoritative: Shaw v Deputy Commissioner of Taxation  QCA 275, at 31. The test under the Uniform Civil Procedure Rules 1999 is not to be equated with a test that the proceedings are “bound to fail”, but it cannot be forgotten that the Court must be satisfied that there is no need for a trial of the claim: Bolton Properties Propriety Limited v JK Investments Australia  QCA 135;  2 Qd R 202, at 206, paragraph 1. Summary judgment ought not be granted unless it is clear that there is no real question to be tried: Hung v Hung  QCA 87, at paragraph 23, citing Fancourt v Mercantile Credits Limited  154 CLR 87 at 99. Both limbs of r 293 must be satisfied. The second limb of r 293, namely, that there is no need for a trial, is intended to ensure that the rule does not dispense with the need for a trial where there are issues which should be investigated at the trial: Swain v Hillman  1 All ER 91 at 95 per Lord Woolf MR, cited with approval in Coldham-Fussell and Others v Commissioner of Taxation  QCA 45 at 100 per Justice of Appeal White.
- The defendants submit that this an appropriate case for summary dismissal, because:
- (a)the Plaintiff’s claim is properly one under a contract, not for restitution for unjust enrichment;
- (b)the Plaintiff’s claim is being brought against two entities and an individual who are not parties to the contract;
- (c)the Plaintiff has not been able, despite being given a fair opportunity, to precisely identify what benefits the Defendants received from the services provided to the joint venture (with which the Defendants had no involvement); and
- (d)in particular, the Plaintiff has not identified how Marks, the third defendant, has been enriched by the provision of services to the joint venture such that he could be personally liable.
- The defendants submit that, accordingly, the plaintiff’s claim has no real prospects of succeeding against the defendants and that there is no need for a trial, because there are no disputed facts which it would be necessary to have a trial in order to determine. The defendants’ position is reliant on the existence of a contract. The defendants do not plead that a contract exists. Rather, they submit:
“On further analysis though it seems that the claim is really one based on a contract called a “Consultancy Agreement.””
- Mr Chesterman took me to a document that he says is the “consultancy agreement”. The parties to that document are the plaintiff and an entity called Cusack Lane Development Joint Venture, which I will refer to as “joint venture”. The joint venture is pleaded in the statement of claim as being the registered business name of AV Jennings SPV Number 20 Proprietary Limited and FW Estates Proprietary Limited as trustee for the FEW discretionary trust.
- The defendants are not alleged to be parties to the consultancy agreement. The defendants submit that the plaintiff’s claim clearly appears to be based on the consultancy agreement. In support, it points to the fact that the plaintiff’s claim relying on quantification is based entirely on invoices issued by the plaintiff to the joint venture and not the defendants.
- I do not accept that the claim is one based on contract. At paragraph 24(b), the claim clearly states that it is a claim by way of quantum meruit. The claim does not assert the existence of a contract. It is clearly brought on the basis that it is a claim by way of quantum meruit. The defence does not plead that the plaintiff is not entitled to the relief that it seeks on the basis of the existence of a contract.
- At paragraph 22(b) of the Defence, the defendants deny that the Plaintiff is entitled to be paid for the services rendered, because:
“…(b) on the plaintiff’s own pleaded case:
(i) if and to the extent a contract was entered into between it and anyone, it was entered into with AV Jennings SPV No 20 Pty Ltd and FW Estates Pty Ltd as Trustee of the FEW Discretionary Trust as partners in partnership called the Cusack Lane Development Joint Venture Contract between it and
(ii) the invoices for such services were not issued to any of the Defendants, but to Cusack Lane Development Joint Venture;”
- I was not taken to any evidence of a signed consultancy agreement, however, the defendants submit there is no need for a trial. They say it is clear from the parties’ conduct, assessed objectively, that a contract was formed between Cusack Lane Development Joint Venture and the plaintiff. Mr Chesterman has taken me to evidence from which he submits I would infer the existence of a contract, in particular by inferring that Cusack Lane Development Joint Venture accepted the written contract, being the consultancy agreement to which he had taken me.
- He relied on a number of indicia to demonstrate assent to that contract. They included:
- (a)extensive negotiations indicating an intention to be bound;
- (b)as pleaded by the plaintiff, the provision of services by the plaintiff and the plaintiff’s dealings with people referred to in clause 32 of the unsigned consultancy agreement;
- (c)evidence of compliance with terms of the unsigned consultancy agreement;
- (d)evidence of correspondence purporting to end their relationship by way of formal notice as contemplated in the consultancy agreement;
- (e)correspondence which the defendants submit demonstrates that the plaintiff accepts there was a contract in the form of the consultancy agreement (because the correspondence uses terminology from the unsigned consultancy agreement);
- (f)invoices made out to Cusack Lane Development Joint Venture, including invoices that contain descriptions stating “Build in accordance with clause 26 of annexure C, Schedule of Rates – hourly rate applied, $250”. That terminology is consistent with the unsigned consultancy agreement;
- (g)correspondence sent in August of 2017 that is said to expressly reserve rights under the consultancy agreement.
- Mr Chesterman submits that when that evidence is assessed on an objective basis, the Court would infer that the contract reduced to writing and signed by the plaintiff was accepted by the joint venture parties and adhered to by the parties to the joint venture thereby evidencing acceptance of the written contract and demonstrating that the plaintiff has pleaded the wrong cause of action and sued the wrong entities.
- The defendants submit that the plaintiff does not plead any allegation that the contract did not take effect. The plaintiff, however, does not plead that there is a contract. It expressly disavows the existence of a contract in its submissions today and in its Reply. At paragraph 27 of the Reply, the plaintiff denies there was a contract between the plaintiff and A V Jennings SPV 20 Pty Ltd and FW Estates Pty Ltd because the allegations are untrue.
- In its outline, the plaintiff accepts that its claimed cause of action is not grounded in contract, but in quantum meruit. It says the application is being brought on that basis because there is no written contract signed by all parties. As such, I am not persuaded that there is no need for a trial of the proceedings. There is a material fact that is disputed, namely, the existence of a contract, which the defendants say would preclude the plaintiffs from obtaining the relief they seek. That Mr Chesterman has taken me to matters from which he says the Court should infer the acceptance of the written contract does not persuade me that the existence of a contract is not an issue that should be investigated at the trial.
- I am not satisfied that the plaintiff should be denied the opportunity to place its case before the Court in the ordinary way and after taking advantage of the usual interlocutory processes. The absence of a signature on the consultancy agreement, in itself, is enough to introduce a level of uncertainty about the ultimate outcome as to cause me to not be satisfied that a trial ought be dispensed with. In the alternative, the defendants apply to have the entire claim struck out. Rule 171 of the Uniform Civil Procedure Rules 1999 provides that if a pleading or part of a pleading discloses no reasonable cause of action, the Court may strike out all or part of the pleading, and order the cost of the application to be paid by a party calculated on the indemnity basis.
- There are other bases upon which pleadings can be struck out, but Mr Chesterman confirmed that r 171(a) was the basis relied on for strike out of the entire claim. He also fairly acknowledged that the application before the Court today is not one for strike out of part of the claim, such that to the extent that the outline deals with strike out of part of a claim it is unnecessary for me to deal with it. For the reasons provided already, I am not satisfied that the pleading discloses no reasonable cause of action. I should say that the defendants’ reasons justifying the strike out of the entire claim are the same reasons relied on in the application for summary judgment.
- For those reasons, the defendants’ application is dismissed.
- As I noted earlier, the defendants submit that its application will effectively determine the plaintiff’s application. My inquiries of Mr Chesterman confirmed that this submission was intended to convey that there is then no opposition to the plaintiff’s application that the proceeding be referred to mediation. The plaintiff’s application is allowed.
- Published Case Name:
Martin & Martin Pty Ltd v A V Jennings Limited & Ors
- Shortened Case Name:
Martin & Martin Pty Ltd v A V Jennings Limited
 QDC 102
24 May 2019