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Jonata Investments Pty Ltd v Mikhael[2023] QDC 22

Reported at (2023) 3 QDCR 30

Jonata Investments Pty Ltd v Mikhael[2023] QDC 22

Reported at (2023) 3 QDCR 30

DISTRICT COURT OF QUEENSLAND

CITATION:

Jonata Investments Pty Ltd v Mikhael [2023] QDC 22

PARTIES:

JONATA INVESTMENTS PTY LTD

(ACN 010 959 163)

(Plaintiff/Applicant)

v

CINDY MIKHAEL

(Defendant/Respondent)

FILE NO/S:

70 of 2022

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

9 March 2023

DELIVERED AT:

Southport

HEARING DATE:

3 February 2023 (further written submissions of the defendant on 10 February 2023 and further written submissions of the plaintiff on 20 February 2023)

JUDGE:

Holliday KC DCJ

ORDER:

Upon the plaintiff undertaking to deliver up to the defendant the vehicle described within paragraph 3 of the Statement of Claim filed in this proceeding on 13 March 2022 upon the defendant’s payment to it of the judgment debt described in order 2 below:

The order of the court is that:

  1. The application be allowed.
  2. The defendant pay the plaintiff the purchase price of $425,000.
  3. The defendant pay the plaintiff interest on the sum in order 2 in the amount of $43,445.02.
  4. I will hear the parties as to any further orders including costs.

CATCHWORDS:

PRACTICE AND PROCEDURE – JUDGMENTS AND ORDERS – APPLICATION FOR SUMMARY JUDGMENT – Whether the Court should exercise its discretion – construction of s 50(2) Sale of Goods Act 1896 (Qld) – rule 292 Uniform Civil Procedure Rules 1999 – whether there is no real prospect of successfully defending part of the plaintiff’s claim and there is no need for a trial of the part of the claim – whether the terms of the contract provided for a price payable on a “day certain irrespective of delivery” – appropriate matter to exercise discretion to allow summary judgment.

LEGISLATION:

Uniform Civil Procedure Rules 1999 (Qld) r 292

Sale of Goods Act 1896 (Qld) ss 3, 4, 50

Civil Proceedings Act 2011 (Qld) s 58

CASES:

Jonata Investments Pty Ltd v Mikhael [2022] QDC 229

Business and Personal Solutions Pty Ltd v John Clive Witherspoon & Ors [2022] QSC 10

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

Agar v Hyde (2000) 201 CLR 552

Rich v CGU Insurance Ltd (2005) 79 ALJR 856

Westpac Banking Corporation v Hughes [2012] 1 Qd R 581

Willmott v McLeay [2013] QCA 84

Ledger v Cleveland Nominees Pty Ltd [2001] WASCA 269

White and Carter (Councils) Ltd v McGregor [1962] AC 413

Colley v Overseas Exporters [1921] 3 KB 302

Shell-Mex, Limited v Elton Cop Dyeing Company Limited (1928) 34 Com Case 39

The Merchant Shipping Company v Armitage [1873] LR 9 QB 99

Minister for Supply and Development v Service’s Co-operative Joinery Manufacturers Limited (1951) 82 CLR 621

Consolidated Rutile Ltd v China Weal Pty Ltd [1998] QSC 170

In the matter of Carbon Polymers Limited [2013] NSWSC 376

C-Mac Industries (Aust) Pty Limited v Juan Carlos Invernizzi & Ors [2008] NSWDC 88

COUNSEL:

K Wylie for the applicant

D Parish for the respondent

SOLICITORS:

Hickey Lawyers for the applicant

Brander Smith McKnight Lawyers for the respondent

The Nature of the Application

  1. [1]
    On 23 December 2022 Jonata Investments Pty Ltd filed an application seeking an order, pursuant to rule 292 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”), that the plaintiff be given judgment against the defendant in the amount of $425,000 and interest.
  1. [2]
    For ease, given that there has been a previous application which will be referred to herein, Jonata Investments Pty Ltd will be referred to as the plaintiff throughout and Cindy Mikhael will be referred to as the defendant.
  1. [3]
    The application was heard before me, as one of the applications on the applications list, on 3 February 2023. Further written submissions were filed by the defendant on 10 February 2023 and the plaintiff on 20 February 2023.

Background

  1. [4]
    The plaintiff was (and remains) the owner of a 2017 Holden HSV GTSR W557 motor vehicle (“the vehicle”). The vehicle was one of a number of vehicles available for sale at an auction on 25 September 2021 by Lloyd’s Auctioneers and Valuers Pty Ltd. (“Lloyd’s Auctioneers”).
  1. [5]
    Prior to the auction the vehicle was advertised on the Lloyd’s Auctioneers' website. The auction was undertaken online. Registered bidders could bid at the auction remotely, using a computer.
  1. [6]
    A registered bid of $425,000 was made at the auction, for the purchase of the vehicle, in the name of the defendant as the registered bidder.[1] This was the final and highest bid made for the vehicle at the auction.
  1. [7]
    The defendant did not subsequently make payment of the amount of $425,000 for the purchase of the vehicle.
  1. [8]
    On 14 March 2022, the plaintiff filed a Claim and accompanying Statement of Claim in the District Court at Southport[2] against the defendant seeking:
  1. Orders (further, or in the alternative to one another):
    1. (a)
      That the defendant pay the purchase price of $425,000 pursuant to s 50(2) of the Sale of Goods Act 1896 (Qld);
      1. For specific performance of the contract;
      2. For the payment of damages for breach of contract, and
  2. Interest (further, or in the alternative to one another), calculated pursuant to:
    1. (a)
      (the terms of) the contract;
    2. (b)
      Section 58 Civil Proceedings Act 2011 (Qld).
  1. [9]
    The defendant did not file a Notice of Intention to Defend or Defence in the Registry within 28 days as required by rules 137 and 139 of the UCPR. On 20 May 2022, the plaintiff filed a Request for Default Judgment against the defendant. On the same date, default judgment was entered in the terms sought by the plaintiff namely that the defendant pay to the plaintiff the amount of $448,241.97 (being the principal amount sort by the claim of $425,000, interest in the sum of $19,157.72 and costs in the sum of $4,084.25).
  1. [10]
    Subsequently, the defendant filed an application to set aside default judgment. On 14 October 2022, Wooldridge KC DCJ allowed the application and set aside default judgment. The defendant was ordered to file a Notice of Intention to Defend and Defence within 14 days. Both were filed on 31 October 2022.

Jonata Investments Pty Ltd v Mikhael [2022] QDC 229

  1. [11]
    As detailed above, Wooldridge KC DCJ allowed the defendant’s application to set aside default judgment in the sum of $448,241.97.
  1. [12]
    In setting aside default judgment her Honour determined:
  1. (a)
    that the defendant’s legal representatives had in fact taken all steps that would have been required of them to effect filing of the documents prior to the Request for Default Judgment being made;[3]
  1. (b)
    that there was a prima facie defence on the merits on one of the grounds submitted for by the defendant namely that the plaintiff failed to take reasonable steps to mitigate avoidable loss as alleged (the other ground, that the plaintiff made various false and incorrect representations through the online advertisement, was not subsequently pleaded in the Defence filed on 31 October 2022).
  1. [13]
    The defendant admitted that the auction was subject to the general terms and conditions entitled “Lloyds Auction Terms and Conditions 10 June 2015” (“General Terms”) but did not admit on the application to set aside default judgment that the auction was subject to the Auction-specific terms and conditions (“Auction Conditions”). Her Honour noted that it had been pleaded[4] that the defendant was never provided with, or was otherwise unable to access, the Auction Conditions prior to the auction (it is these Auction Conditions which include the reference to payment by the specific date and time which the plaintiff relies upon in support of its position that s 50(2) of the Sale of Goods Act applies).
  1. [14]
    Her Honour’s reasons for finding a prima facie defence on the merits are found at [66]-[76]. Her Honour said at [73]-[75]:
  1. “[73]
    The [defendant] makes (in effect) the following submissions in furtherance of the [defendant’s] suggested defence to the claim for action for price with reference to Section 50(2):
  • There is nothing in the General Conditions to which the auction was subject which provides expressly that the price is “payable on a day irrespective of delivery”. It is necessary to infer that to be the effect of the Conditions of the auction, and consequential agreement, by construing several clauses together.
  • While it is accepted that a date for payment is identified (within the Auction Conditions), and that under the General Terms, ownership and title in the vehicle shall not pass until the payment is made in full, it is submitted that in the absence of an express stipulation that payment is “irrespective of delivery”, and in circumstances where the contract is said to be otherwise silent as to delivery, that “it is arguable” that under the terms of the contract payment is not irrespective of delivery.
  1. [74]
    The [plaintiff] contends that the issue may be framed simply as “is this a contract where the price is payable on a day certain, irrespective of delivery”. To some extent, that is true. However, matters, more broadly, that underpin that issue include the terms of the contract, the construction and interplay of those terms, and the availability of recourse to section 50(2) Sale of Goods Act 1896, further to the construction of the contract. While I consider there may ultimately be merit in the [plaintiff’s] submissions that the effect of the contract is to provide for delivery following payment, but payment being irrespective of delivery, I also accept that the [defendant] may have a defence that she should on balance be entitled to pursue, particularly given the other factors of relevance on this application to which I have referred. 
  2. [75]
    As the [defendant] identifies it is only by virtue of this aspect of the claim that the [plaintiff] was able to seek default judgment from the Registrar for the specified amount of liquidated damages, without any assessment of the amount of damages.  The further or alternative submission of the [plaintiff] that even if there were to be thought to be an arguable defence on this limb of the claim for “action for price”, that it would also be open to the court to order specific performance of the contract, it is said without prejudice to the [defendant], as a reason for exercising the discretion against the allowing of the application, need be considered in light of the default judgment only having been able to have been given in the form it was on the basis of the claim for liquidated damages on grounds of “action for price”, as well as what has already been observed about the circumstances in which default judgment came to be entered (footnotes omitted).”

The facts on this application are admitted

  1. [15]
    On the application to set aside default judgment and in the Defence filed on 31 October 2022, the defendant was not admitting that the Auction was subject to the Auction Conditions.
  1. [16]
    A Notice to Admit Facts was sent by email to the defendant’s legal representatives on 24 November 2022, which relevantly includes at paragraph 2 that the auction was subject to the Auction Conditions and at paragraph 3 that the Auction Conditions included the provision set out in full at paragraph 24 of this decision. The defendant did not respond to the Notice and, pursuant to rule 189(2) of the UCPR, is taken to admit, for the proceeding only, the fact specified in the Notice.
  1. [17]
    To avoid any doubt, Counsel for the defendant was prepared to put on the record at the hearing of this application that the defendant was accepting “that all the facts are known and established beyond controversy and, more particularly, that what is pleaded within the Statement of Claim as to the facts is established.”[5] The defendant no longer maintained that she was not bound by the Auction Conditions and accepted that she was bound by them.[6] 

Legal basis for this application

Rule 292 UCPR

  1. [18]
    The application for summary judgment is brought pursuant to rule 292 of the UCPR.

Rule 292(2) provides:

“If the court is satisfied that –

  1. (a)
    the defendant has no real prospect of successfully defending all or a part of the plaintiff’s claim; and
  2. (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 part of the plaintiff’s claim and make any other order the court considers appropriate.”

  1. [19]
    The principles of summary judgment in relation to rule 292 of the UCPR were recently set out by Brown J in Business and Personal Solutions Pty Ltd v John Clive Witherspoon & Ors [2022] QSC 10:
  1. “[33]
    Rule 292 of the UCPR should be applied using its clear and unambiguous language and keeping in mind the purpose of the UCPR to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense. The key requirements of which the Court must be satisfied are “no real prospect” in the defence of a claim and “there is no need for the trial of the claim.”
  2. [34]
    Rule 292 of the UCPR is expressed in clear and plain language. It requires no judicial gloss to understand its meaning.
  3. [35]
    The question for the Court is not whether the defendant’s case is  “hopeless” or “bound to fail”. The appropriate inquiry is whether there exists a real, as opposed to fanciful, prospect of success.
  4. [36]
    Issues raised in proceedings will be determined summarily only in the clearest of cases, where there is a high degree of certainty about the outcome. The Court’s jurisdiction should only be exercised where the plaintiff cannot improve its position by a proper amendment of the pleading.
  5. [37]
    Where facts are settled and the respective rights of parties turn upon questions of law, r 292 of the UCPR would require the Court to give judgment even if it involves difficult questions of law (footnotes omitted).”
  1. [20]
    In Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 McMurdo P stated at [3]:

“Nothing in the UCPR detracts from the well-established general principle that issues raised in proceedings will be determined summarily only in the clearest of cases. Gaudron, McHugh, Gummow and Hayne JJ said in Agar v Hyde recently cited with approval by Gleeson CJ, McHugh and Gummow JJ in Rich v CGU Insurance Ltd:

“…Ordinarily, a party is not to be denied the opportunity to place his or her case before the Court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which had been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way (citations omitted).””

The Sale of Goods Act

  1. [21]
    Section 3 of the Sale of Goods Act provides that “delivery” means voluntary transfer of possession from one person to another”.
  1. [22]
    Section 50(2) of the Sale of Goods Act provides:

“When under a contract of sale, the price is payable on a day certain, irrespective of delivery, and the buyer wrongfully neglects or refuses to pay such price, the seller may maintain an action for the price, although the property in the goods has not passed, and the goods have not been appropriated to the contract.” [underlining added]

The contractual terms of the Auction

  1. [23]
    The General Terms of the Auction included:[7]
  1.   “Within part 3, “RIGHTS AND OBLIGATIONS”:
  1. (a)
    Prior to placing a bid it is your responsibility to make yourself aware of the specific sales conditions surrounding each item, especially, but not limited to, the currency specified, the location of the item, its condition, payment options and the time in which it must be collected.
  1. (b)
    A Bid placed at auction, either online, by absentee or in person, is an Offer to Purchase. Once a bid has been accepted by the auctioneer there is a binding contract between you and the auctioneer to purchase the item at the final bid amount plus any additional fees and charges associated with that item.
  2. (c)
    Although all care and attention is paid when we describe and photograph items for sale, these are provided as guidance only and you should avail yourself of the inspection times to assure yourself of the exact nature and condition of the item you are bidding on.
  3. (d)
    When you place a maximum bid, higher than the next bid increment your offer is for the Maximum bid amount.
  4. (e)
    Engaging in any activity, either solely in concert with another aimed at manipulating the final bid price or corrupting the bidding process will result in immediate termination of your bidding privileges. To this end a bid cannot be withdrawn or amended once placed.
  5. (f)
    If you are a successful bidder you are obligated to pay the final bid price plus the fees and charges associated with that purchase in the time limited specified from auction to auction and lot to lot. Failure to do so will entitle us to take what measures necessary to attempt to recover the monies owing, including, but not limited to, selling the item (s) to the under-bidder at their final bid amount. You will still be liable for any shortfall or loss resulting.
  6. (g)
    Interest on the purchase of moneys outstanding from time to time on and from the date / time the payment is due will accrue, at the corporate overdraft reference rate for the time being charged by the Commonwealth Banking Corporation.”
  1. Within part 4, “THE AUCTION PROCESS”:

     “4.1 The Auction Process

  1. (a)
    You must register with us to enable you to bid on any auction. Various auctions may require a registration fee which must be paid before any bids can be placed on that particular auction.
  1. (b)
    Implicit in placing a bid on any item is acceptance of the specific terms and conditions of that particular auction and that particular item.

…

  1. Upon becoming the successful bidder, the Purchaser shall be  responsible for guarding and securing any lots. The Auctioneer accepts no responsibility after the fall of the hammer for safeguarding of any lots. Ownership and title shall not pass to the Purchaser until all lots are paid for in full. Lots will not be available for removal upon part payment.

…

4.3 Collection of Goods

  1. (a)
    All lots purchased must be paid for and removed by the date / time specified in the conditions of sale. No purchases may be removed from gated or secured areas until goods have been paid for and a collection slip has been obtained and a staff member marks off the goods as they are collected.” [underlining added]             
  1. [24]
    The Auction Conditions included:[8]

“PAYMENT – By 4:30pm Wednesday 29th September 2021

*Bank Transfer (Funds transferred into our trust account must be cleared prior to collection of goods. A remittance cannot be accepted as payment, allow general bank processing time)

*Secure Credit Card Online (0.75% Surcharge) (No Amex, Diners). Any payments over $1,500 please contact [email protected] for arrangements.

*Cryptocurrencies – please email [email protected] for details

Please note no collections can occur until full cleared funds have to be (sic) receipted into Lloyds Trust Account (This includes Bank Cheques & EFT transfers taking up to 72 hours for processing)

COLLECTION BY APPOINTMENT ONLY:

Collection by appointment only.

Please contact Lloyds [email protected] prior to collection for the location of vehicle and collection times. It is the bidder’s responsibility to confirm the location of the vehicle for collection. Vehicles are located Australia Wide.

Monday 27th September, 8:30am - 4:30pm

Tuesday 28th September, 8:30am – 4:30pm

Wednesday 29th September, 8:30am – 4:30pm

Thursday 30th September, 8:30am – 4:30pm

Please ensure you contact [email protected] to book in a day and time for the collection to occur.

…” [underlining added]

Discussion

  1. [25]
    The application for summary judgment is brought pursuant to rule 292 of the UCPR. The Notice of Intention to Defend was filed in this matter on 31 October 2022.
  1. [26]
    Rule 292(2) of the UCPR gives the Court discretion to give judgment for the plaintiff subject to it being satisfied that “the defendant has no real prospect of successfully defending…a part of the plaintiff’s claim” and “there is no need for a trial of the …part of the claim”.
  1. [27]
    Summary judgment should only be given in the clearest of cases where there is a high degree of certainty about the ultimate outcome of the proceedings if they went to trial.[9] In the present case, the respective rights of the parties turns upon a question of law, that is not complex or difficult,[10] as applied to agreed facts. Whilst there were submissions at the hearing as to the meaning to be given to a “triable issue of law” and supplementary submissions were provided, as the defendant accepts, it becomes “moot” in the present case if the Court is able with confidence to determine “the question of the construction of the clause to the “no real prospects” standard. If it is able with confidence to determine that it is the “clearest case” that [the defendant’s] contended construction of the contract has “no real prospects” then not only is the first limb met but it is self-evident (from the task undertaken by the Court) that a trial was not required by the Court to come to the conclusion that the interpretation contended by [the plaintiff] was the clearest case.”[11]
  1. [28]
    To my mind, this is the clearest of cases. The defendant has no real prospect of defending the plaintiff’s claim and there is no need for a trial of the claim. The defendant’s contended construction of the contract has no real prospect of success. It is clear, after consideration of the General Terms and Auction Conditions, that “the price is payable on a day certain irrespective of delivery” and s 50(2) of the Sale of Goods Act is available to the plaintiff (it was accepted by the defendant that the other pre-condition of the availability of s 50(2) was satisfied here namely that the defendant refused to pay such price).
  1. [29]
    Under the Sale of Goods Act, delivery and any obligation to pay are concurrent unless otherwise agreed.[12] The general rule is that the seller’s remedy for a breach of a contract of sale is damages.[13] Section 50 of the Sale of Goods Act creates exceptions. It provides for two circumstances in which an action for the price of goods may be maintained. The second circumstance, created by s 50(2), is relied upon by the plaintiff here and is available where the price is “payable on a day certain irrespective of delivery.” It has been characterised as a “contractual debt unconditioned by any question of performance by the other party.”[14]
  1. [30]
    The General Terms at clause 3(f) state “if you are a successful bidder you are obligated to pay the final bid price… in the time limited specified from auction to auction and lot to lot.” The Auction Conditions required that payment occur by 4.30pm on 29 September 2021. The Auction Conditions also made plain that delivery could not occur until after payment by the use of the words “Please note that no collections can occur until full cleared funds have [been] receipted into Lloyds Trust Account…” and, in the General Terms at clause 4.3(a), that “no purchases may be removed…until goods have been paid for…”.
  1. [31]
    I am of the view, as submitted for by the plaintiff, that the contract specified a “day certain” namely by 4.30pm on 29 September 2021. Moreover, it specified a day certain “irrespective of delivery”. Completion did not involve interdependent obligations of payment and delivery.[15] Whilst delivery could not occur until after payment, payment was required by 4.30pm on 29 September 2021 regardless of delivery.
  1. [32]
    The present case falls within the class contemplated by McCardle J in Colley v Overseas Exporters [1921] 3 KB 302 at 306:

“An action for the price of goods is, of course, essentially an action for a liquidated sum. It involves special and technical elements. By special bargain the price of goods may be payable before delivery or before the property has passed from vendor to buyer…”

and by Wright J (as Lord Wright then was) in Shell-Mex, Limited v Elton Cop Dyeing Company Limited (1928) 34 Com Case 39 at 43-44:

“…or where irrespective of delivery, there is a specific term of the contract that the price is payable at a time certain (which means at a time specified in the contract not depending on a future or contingent event, The Merchant Shipping Company v Armitage [[1873] LR 9 QB 99]), irrespective of the passing of the property or delivery.”

  1. [33]
    The facts can be distinguished from those in Consolidated Rutile Ltd v China Weal Pty Ltd [1998] QSC 170, where the day for payment was uncertain being governed by the decision of whether and when to invoice. White J (as her Honour then was) cites Benjamin, 5th ed (1997) at para 16-024 where the learned author concluded “that a day can be certain under s 50(2) only if it is fixed in advance by the contract in such a way that it can be determined independently of the action of either party or of any third party”.  Here, the Auction Conditions fixed the “day certain” namely by 29 September 2021.
  1. [34]
    In Ledger v Cleveland Nominees Pty Ltd [2001] WASCA 269, the terms of the contract fixed the day for payment, but did so on the footing that delivery would take place prior to payment.[16] As such, payment was not stipulated for “irrespective of delivery.” Here, delivery could not occur until after payment but payment was regardless of delivery.
  1. [35]
    The defendant submits that “Her Honour Judge Wooldridge KC [accepted] in a default judgment set aside application that [the defendant’s] (at the time proposed) Defence that the Vehicle Contract (as defined) did not admit an interpretation that fit within s 50(2) of the [Sale of Goods Act) was a prima facie defence on the merits…”[17]  and “this application is therefore little more than a re-run of [the plaintiff’s] submissions in respect of an interpretation of s 50(2) of the SGA in [2022] QDC 229”.[18] However, the defendant’s submission ignores that the position of the defendant has changed since the hearing of the application to set aside default judgment (and the Defence filed in October 2022). Despite the submissions before Wooldridge KC DCJ and what is pleaded in the Defence, the defendant now admits that the auction was subject to the Auction Conditions and otherwise accepts all the facts.
  1. [36]
    The defendant submits that there is nothing in the “vehicle contract” that says the exact words “payable on a day irrespective of delivery”. Whilst that is true, in my view that is not necessary to satisfy the requirements of s 50(2) of the Sale of Goods Act. If there were any doubt as to that not being necessary, one need only have regard to, for example, C-Mac Industries (Aust) Pty Limited v Juan Carlos Invernizzi & Ors [2008] NSWDC 88.[19]  The defendant further submits that “it is arguable that it is not irrespective of delivery given that the contract is silent about delivery and does not explicitly make payment irrespective of it in any event”.[20] I do not accept this submission. The contract makes clear at least in the Auction Conditions and clause 4.3(a) of the General Terms that delivery cannot occur until after payment and payment must occur regardless of delivery. 
  1. [37]
    In oral submissions the defendant’s counsel took the court to clause 4.3(a) of the General Terms. He submitted that the use of the word “and” between the words “all lots purchased must be paid for and removed by the date/time specified in the conditions of sale”, along with the Auction Conditions and the meaning of “delivery” in s 3 of the Sale of Goods Act, is such that there has not been an “express intention to decouple the obligation to pay from the obligation of delivery.” [21] It was further submitted:

“while there may be some mechanical delay in the actual voluntary handing over of possession, it’s sufficiently connected with that voluntary possession to not be [irrespective] of payment but to be connected with payment”[22]

And

“delivery or, in this case, collection is tied to payment, it doesn’t come within section 50(2).”[23]

  1. [38]
    I do not consider that there is any clause or clauses within the General Terms or Auction Conditions, which support the defendant’s contention that s 50(2) of the Sale of Goods Act is not available to the plaintiff. As is made clear from the Auction Conditions, payment must occur by the date and time in the Auction Conditions regardless of delivery. Payment is not dependent on delivery. Clause 4.3(a) of the General Terms provides, consistent with the Auction Conditions, that a pre-condition to collection of the goods is payment but that does not make payment interdependent with delivery. Otherwise, clause 4.3 provides for how, post payment, collection is to occur.

Interest

  1. [39]
    There is agreement between the parties that the interest rate stipulated in the contract for the payment of interest on the purchase price is 7.08%. As at the date of hearing of this application, the relevant interest payable on the $425,000 is $40,624.11. Counsel for the defendant accepted that if summary judgment was ordered for the price then “we wouldn’t be able to deny the entitlement to interest pursuant to Clause 3(g) [of the General Terms].”[24]

Order

  1. [40]
    The plaintiff provided a draft order. Leaving aside the issue of costs, I have made an order as per draft with minor amendments including that the amount of interest payable is $43,445.02.[25] I will hear the parties as to any further orders including costs.

Footnotes

[1]At paragraph 14 of the Defence the defendant pleads that her spouse participated in the Auction under her authority.

[2]Served on the defendant personally on 23 March 2022.

[3]At [40].

[4]This is footnoted in the decision of Judge Wooldridge KC at footnote 87 as “Defence paragraph 7(d)”. It is to be noted that this is a different document from the Defence filed on 31 October 2022 and was provided for the purpose of the application before Judge Wooldridge KC but was never filed other than being annexed to a supporting affidavit for the application before Judge Wooldridge KC.

[5]Transcript of hearing on 3 February 2023 at page 3 line 44 to page 4 line 1. See also at page 3 line 15 to page 7 line 15 where Counsel for the defendant was taken through paragraphs of the Defence.

[6]Transcript of hearing on 3 February 2023 at page 4 line 40 to page 5 line 13.

[7]Statement of Claim at paragraph 9.

[8]Statement of Claim at paragraph 10.

[9]Westpac Banking Corporation v Hughes [2012] 1 Qd R 581 at [74] per Chesterman JA.

[10]Willmott v McLeay [2013] QCA 84 at [24] per Holmes JA (as her Honour then was).

[11]Supplementary written submissions of the defendant at paragraph 13. See also transcript of proceedings on 3 February 2023 at page 8 lines 10-15 and page 10 lines 10-15.

[12]Section 30 Sale of Goods Act 1896 (Qld).

[13]Ledger v Cleveland Nominees Pty Ltd [2001] WASCA 269.

[14]White and Carter (Councils) Ltd v McGregor [1962] AC 413, 437.

[15]Cf In the matter of Carbon Polymers Limited [2013] NSWSC 376 at [21].

[16]At [14].

[17]Paragraph 3 of defendant’s outline of submissions.

[18]Paragraph 13 of defendant’s outline of submissions.

[19]At [29]-[33] citing Minister for Supply and Development v Servicemens’ Cooperative Joinery Manufacturers Limited (1951) 82 CLR 621 at 642.

[20]Paragraph 17 of defendant’s outline of submissions.

[21]Transcript of proceedings on 3 February 2023 at page 25 line 38.

[22]Transcript of proceedings on 3 February 2023 at page 27 lines 25 to 30. It was later explained as “in the present contract it contemplates concurrent payment and delivery of or collection rather than payment before delivery” (page 31 lines 32 to 35).

[23]Transcript of proceedings on 3 February 2023 at page 29 line 43.

[24]Transcript of proceedings on 3 February 2023 at page 7 lines 1 to 5.

[25]An email was provided by the plaintiff on 9 March 2023 providing this figure (Exhibit 1).

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Editorial Notes

  • Published Case Name:

    Jonata Investments Pty Ltd v Mikhael

  • Shortened Case Name:

    Jonata Investments Pty Ltd v Mikhael

  • Reported Citation:

    (2023) 3 QDCR 30

  • MNC:

    [2023] QDC 22

  • Court:

    QDC

  • Judge(s):

    Holliday KC DCJ

  • Date:

    09 Mar 2023

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
Agar v Hyde (2000) 201 CLR 552
1 citation
Jump To
Cite 1 - (2000) 201 CLR 552
Business and Personal Solutions Pty Ltd v Witherspoon [2022] QSC 10
2 citations
Jump To
Cite 1 - [2022] QSC 10
Cite 2 - [2022] QSC 10
C-Mac Industries (Aust) Pty Limited v Juan Carlos Invernizzi & Ors [2008] NSWDC 88
2 citations
Jump To
Cite 1 - [2008] NSWDC 88
Cite 2 - [2008] NSWDC 88
Colley v Overseas Exporters [1921] 3 KB 302
2 citations
Jump To
Cite 1 - [1921] 3 KB 302
Cite 2 - [1921] 3 KB 302
Consolidated Rutile Ltd v China Weal Pty Ltd [1998] QSC 170
2 citations
Jump To
Cite 1 - [1998] QSC 170
Cite 2 - [1998] QSC 170
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
In the matter of Carbon Polymers Limited [2013] NSWSC 376
2 citations
Jump To
Cite 1 - [2013] NSWSC 376
Cite 2 - [2013] NSWSC 376
Jonata Investments Pty Ltd v Mikhael [2022] QDC 229
3 citations
Jump To
Cite 1 - [2022] QDC 229
Cite 2 - [2022] QDC 229
Cite 3 - [2022] QDC 229
Ledger v Cleveland Nominees Pty Ltd [2001] WASCA 269
3 citations
Jump To
Cite 1 - [2001] WASCA 269
Cite 2 - [2001] WASCA 269
Cite 3 - [2001] WASCA 269
Minister for Supply and Development v Servicemens Co-operative Joinery Manufacturing (1951) 82 CLR 621
2 citations
Jump To
Cite 1 - (1951) 82 CLR 621
Cite 2 - (1951) 82 CLR 621
Rich v CGU Insurance Ltd (2005) 79 A.LJ.R. 856
1 citation
Jump To
Cite 1 - (2005) 79 A.LJ.R. 856
Shell-Mex, Limited v Elton Cop Dyeing Company Limited (1928) 34 Com Case 39
2 citations
Jump To
Cite 1 - (1928) 34 Com Case 39
Cite 2 - (1928) 34 Com Case 39
The Merchant Shipping Company v Armitage [1873] LR 9 QB 99
2 citations
Jump To
Cite 1 - [1873] LR 9 QB 99
Cite 2 - [1873] LR 9 QB 99
Westpac Banking Corporation v Hughes[2012] 1 Qd R 581; [2011] QCA 42
2 citations
Jump To
Cite 1 - [2012] 1 Qd R 581
Cite 2 - [2012] 1 Qd R 581
White & Carter (Councils) Ltd v McGregor (1962) AC 413
2 citations
Jump To
Cite 1 - (1962) AC 413
Cite 2 - (1962) AC 413
Willmott v McLeay [2013] QCA 84
2 citations
Jump To
Cite 1 - [2013] QCA 84
Cite 2 - [2013] QCA 84

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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