Flory's Homes Pty Ltd v Camperole Holdings Pty Ltd
[2018] QMC 2
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- Unreported Judgment
- Flory's Homes Pty Ltd v Camperole Holdings Pty Ltd[2018] QMC 2
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Flory's Homes Pty Ltd v Camperole Holdings Pty Ltd[2018] QMC 2
Flory's Homes Pty Ltd v Camperole Holdings Pty Ltd[2018] QMC 2
MAGISTRATES COURTS OF QUEENSLAND
CITATION: | Flory’s Homes Pty Ltd v Camperole Holdings Pty Ltd [2018] QMC 2 |
PARTIES: | Flory’s Homes Pty Ltd (Plaintiff) v Camperole Holdings Pty Ltd (Defendant) |
FILE NO/S: | Cairns Claim 355/16 |
DIVISION: | Magistrates Court |
PROCEEDING: | Application |
ORIGINATING COURT: | Cairns |
DELIVERED ON: | 5 March 2018 |
DELIVERED AT: | Cairns |
HEARING DATE: | 21 November 2017 |
MAGISTRATE: | J Pinder |
ORDER: |
|
CATCHWORDS: | PROCEDURE – RULES OF COURT – APPLICATION FOR SUMMARY JUDGMENT ON CLAIM AND COUNTER CLAIM Uniform Civil Procedure Rules 1999 (Qld) r 292 and r 293 Deputy Commissioner of Taxation v Salcedo [2005] QCA 227 Qld Building Services Authority v Orenshaw and another [2012] QSC 241 Jessup v Lawyers Private Mortgages Ltd & Ors [2006] QSC 3 LCR Mining Group Pty Ltd v Ocean Tyres Pty Ltd [2011] QCA 105 |
COUNSEL: | Mr C Taylor (for the Plaintiff) Mr M Valente (Solicitor for the Defendant) |
SOLICITORS: | Williams Graham & Carmen for the Plaintiff Preston Law for the Defendant |
Introduction
- [1]The plaintiff applies for summary judgment as against the defendant pursuant to rule 292 of the Uniform Civil Procedure Rules 1999 (the UCPR) in respect of the plaintiff’s claim against the defendant for work done and materials supplied pursuant to a subcontract agreement. The plaintiff similarly applies for summary judgement as against the defendant, but pursuant to rule 293 of the UCPR, in respect of the defendant’s counterclaim as against the plaintiff.
- [2]The defendant’s pleaded counter claim against the plaintiff has been the subject of an earlier interlocutory application where orders were made on 28 July 2017 that paragraphs 4, 5 and 6 of the defendant’s counter claim be struck out.[1]
The Parties’ Material
- [3]The plaintiff relies on the following material
- Application for summary judgements filed 12 October 2017; and,
- Affidavit of Alan Floreancig (a Director of the plaintiff company) filed 12 October 2017.
- [4]The plaintiff also relies on and formally reads in respect of this application the following:
- claim and statement of claim filed 16 December 2016;
- defence and counter claim filed 9 February 2017;
- reply and answer filed 22 February 2017; and,
- further and better particulars of defence and counter claim filed 3 August 2017.
- [5]The plaintiff’s counsel conveniently provided a comprehensive written outline of argument.
- [6]The defendant has no material to rely upon and the defendant’s solicitor did not see fit to burden the Court with a written outline of argument.
The Relevant Rules
- [7]The UCPR empowers this court to a grant summary judgement both in respect of the plaintiff’s claim against the defendant and the defendant’s counter claim.
- [8]Rule 292 provides:
- (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.
- [9]Rule 293 provides:
- (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.
- (2)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 Relevant Legal Principals
- [10]In determining applications for summary judgment (pursuant to Rule 292 and Rule 293) this court is bound by the statements of principal contained in Deputy Commissioner of Taxation v Salcedo[2] where it was held:
“Summary judgement will not be obtained as a matter of course and the Judge determining such an application is essentially called upon to determine whether the respondent to the application has established some real prospect at succeeding at a trial, if that is established then the matter must go to trial.”
- [11]At paragraph 44 of the judgment Atkinson J stated:
“In the case of an application by the Plaintiff, the court must consider if it is satisfied that:
- a)The Defendant has no real prospect of successfully defending all or part of the Plaintiff’s claim; and,
- b)There is no need for a trial of the claim or part of the claim.
If the court is satisfied of those circumstances then it has the discretion to give judgement for the Plaintiff and make any other order that it considers appropriate. Similar criteria apply to an application by a defendant pursuant to rule 293.”
- [12]Her Honour continued at paragraph 47 and further held:
“….the court must consider whether there exists a real, as opposed to fanciful, prospect of success. If there is no real prospect that a party will be successful in all or part of a claim and there is no need for a trial, then ordinarily the other party is entitled to judgement.”
- [13]The plaintiff’s outline of argument also referred the court to a decision of Henry J in Queensland Building Services Authority v Orenshaw and Anor[3]where His Honour said in respect of the relevant test:
“The words ‘no real prospect of proceeding’ mean what they say. They are to be applied in conjunction with required satisfaction that there is no need for a trial, so as to ensure before any summary intervention that there is a high degree of certainty about what the ultimate outcome of the proceeding would be if it were allowed to go to trial in the ordinary way.”
- [14]Whilst those authorities require the court to apply the rule giving the words their usual and ordinary meanings and without further amplification, their practical application to particular circumstances was considered comprehensively by Chesterman J in Jessop v Lawyers Private Mortgages Limited & Ors[4].
- [15]His Honour at paragraphs 18 and 19 of the decision considered earlier authorities and the proposition that the wording of the rule ought be given its “plain and unambiguous meaning”. His Honour adopted a convenient and practical approach to the application of the rule and held at paragraph 20:
“If summary judgement is not to work an injustice it must be limited to those cases where it can be seen that a plaintiff or defendant, as the case may be, could not succeed at a trial of the action. It is only where a trial can be seen to be pointless that judgement should be entered summarily. Whatever form of words one uses the reality must be that it will only be just to deprive a party of its right to prosecute its claim or defence at trial where it can be seen that the claim or defence cannot succeed. If it might succeed, if there is a possibility of success, it cannot be just (though it might be expeditious) to enter summary judgement.”
- [16]His Honour continued at paragraph 21:
“In practical terms I suspect the rule means (as the old rules meant) that summary judgement should not be given where the facts upon which the parties respective rights depend are disputed, or where the respondent to the application for summary judgement adduces evidence as to the existence of facts, which if proved, would establish a defence or right to relief. In other words it is only where all the facts are known and/or are established beyond controversy that the court should embark upon determining whether to give summary judgement. Where relevant facts are controverted, or where it appears that facts may exist which would effect a right of action or defence, there should be a trial to determine the facts…..”
- [17]In approaching the disposition of the present application I proceed adopting the test enunciated by Chesterman J at paragraph 23 of Jessop v Lawyers Private Mortgages Limited & Ors[5] that is I approach the plaintiff’s application on the basis that I should give judgment only if satisfied that there are uncontroverted facts proved by the material read in the application which show an entitlement in law to the relief claimed by the plaintiff, and that there is no evidence to suggest the existence of additional facts which, if proved would controvert those facts.
The Pleadings
- [18]The party’s pleadings have not been amended since the determination of the earlier interlocutory application on 28 July 2017. The defendant’s counter claim against the plaintiff subsists only to the extent that the defendant counter claims alleges “plaintiff’s breaches of the subcontract” causing the plaintiff to suffer loss and damage for:
- Estimated costs to manufacture and deliver hand rails - $15,000; and,
- Estimated costs to rectify defects in work performed due to missing and incomplete constructed components - $10,000.
- [19]The Statement of Claim of the plaintiff claims from the defendant judgment in the sum of $79,406.00. The plaintiff however now seeks a reduced sum (explained by a clarification of calculation in the outline of argument) of $78,648.22.
- [20]The pleadings confirm that from the Defendant’s perspective, in respect of the Plaintiff’s claim, little is in controversy.
- [21]Conveniently that was clarified and the issues further confined by the concessions made in the oral submissions on behalf of the defendant by Mr Valenti. At paragraph 11 of the plaintiff’s outline of argument there is conveniently set out a summary of the parties pleaded cases as defined by the pleadings. That summary was accepted by the defendant’s solicitor as accurate save that the defendant formally conceded that there had been a variation of the contract entitling the plaintiff to payment for the MPF subfloor angle bracing sections such variation increasing the contract sum by $1,633.50.[6]
- [22]The defendant’s solicitor makes a further substantial concession in respect of part of the plaintiff’s claim by conceding that the defendant’s best position is that the sum of $59,085.90 is payable by the defendant to the plaintiff.[7]
- [23]That concession by the defendant accepts the calculations contained in paragraph 14 of the plaintiff’s outline of argument. The plaintiff’s claim pursuant to the contract with added variations is admitted on the pleadings to amount to $109,085.90. The total of the defendant’s counter claim against the plaintiff (as pleaded at paragraph 2 of the counter claim) for manufacture and delivery of hand rails and rectification of defects is $25,000. After that deduction the amount payable to the plaintiff is $84,085.90. The pleadings similarly admit that the defendant has made a part payment of $25,000, which upon the defendant’s argument and concessions entitles the Plaintiff to judgement for part of the claim in the sum of $59,085.90.
The Plaintiff’s Submissions
- [24]The plaintiff’s submissions are largely contained in the outline of argument (although with some further clarification in oral submissions).
- [25]The plaintiff, noting the defendant’s concessions, properly asserts that the only controversial matters which remain for determination are in respect of:
- The cost of manufacture and delivery of hand rail (which the plaintiff accepts the defendant is entitled to deduct from the contract price); and,
- The cost of replacing two defective RHS joists.
- [26]The plaintiff relies on the affidavit of Mr Floreancig and directs the court in its submissions to his evidence in respect of the costs of replacement/rectification of those two items. Mr Floreancig’s evidence in respect of the issue concerning the hand rolls not supplied is contained in paragraphs 17 through 20 of his affidavit. He accepts that the handrails were not supplied.
- [27]His affidavit provides evidence, corroborated by the written claims for payment, that the hand rail work was valued at $5,148 and that the plaintiff has not at any time claimed payment for that work.
- [28]Paragraph 21 of Mr Floreancig’s affidavit deals with the two RHS joists which were incorrectly manufactured and supplied. Exhibit AF11 to his affidavit contains a quotation from a third party supplier confirming the cost of supply and delivery to the work site of those items at $289.68.
- [29]The plaintiff’s submission is in effect that the only two items of controversy on the pleadings namely:
- The missing hand rails;
- The replacement RHS joists can properly be quantified on the uncontroversial material before the court and the plaintiff should succeed in the applications as quantified at paragraph 13 of the outline of argument.
The Defendant’s Submissions
- [30]As noted the defendant solicitor did not provide any written outline of argument. The defendant’s solicitor’s oral submissions on the hearing of the application were surprisingly brief.
- [31]The defendant made significant concessions made in respect of:
- The accepted variation of the contract in favour of the plaintiff for the MPF sub-floor variation;
- That the plaintiff is entitled to judgement on the contract sum and variations but after deduction of the counter claim of $25,000 (that is the concession that the plaintiff is entitled to summary judgement for $59,085.90).
- [32]The defendant’s submissions can be in fact set out in their entirety. Commencing at page 24 paragraph 30 the defendant’s submissions were:
“MR VALENTE: Thank you, your Honour. Your Honour the rule 292 clearly says, and I’m sure you’re aware of it, that there’s no real prospect of a defendant successfully defending all, or part, of a Plaintiff’s claim, and so there is no need for a trial. Your Honour, the director for the applicant admits in his own material that was, in effect, a breach of the subcontract or the contract by the Plaintiff by failure to deliver two items. He tried to overcome or quantify what the defendant’s damages might be by getting third-party quote from a business also located in this region, [indistinct] with the RHS joists.
He conveniently doesn’t obtain a similar quote in relation to the major defect of the handrails which are missing. That’s the major item in contention. His credit, of course, must be questionable. He’s admitting to the breach on one hand, and then unilaterally saying, “Well, this is what I think the loss is that you’ve suffered.” That itself is a triable issue. Excuse me, your Honour. I fail to see how he can – sorry, I’ll go to the affidavit in relation to the three items in contention. The MPF subfloor variation, it appears, I have to admit from the response by Mr Camporeale, that that seems to have been an agreed variation. The handrails, it’s a ----
MR VALENTE: I’ll tender the major issue is clearly that the handrails, your Honour. The defendant has pleaded to the cost of itself constructing, with labour and materials, the cost of rectifying that defect or missing components as $15,000. The plaintiff is saying, “No, I think it’s 4680, plus GST.” Your Honour, that’s a matter for trial. How can a party dictate what the other party’s damages are. There is no evidence in Mr – in the director’s affidavit which attempts to quantify that. And even if he could, it’s a matter for trial. Similarly, with the RHS joists, although it’s a smaller matter, he sought to, in fact, have a mini-trial now what the damages are by the defendant. He admits that they had to be replaced and that he didn’t supply them, and again attempts to quantify what the defendant’s damages are. Although it’s a smaller matter, it’s a triable issue as well. If I can turn at least to the handrails, your Honour, I think Mr Taylor said that there was no allowance in the contract for handrails. The exhibit 1, AF1to the affidavit, is the quote by the plaintiff. The second last item is the galv handrails.
MR TAYLOR: Your Honour, I’d have to correct my friend. I made no such submission that it wasn’t allowed for in the ---
BENCH: It wasn’t claimed, so I understood.
MR TAYLOR: It wasn’t claimed. Correct.
MR VALENTE: Sorry. There is no monetary allowance in that quote or in the contract of the value of the handrails. The LCR Mining case was simply a case of whether components, and particularly tyres, were actually delivered or not. There’s an admission here that they weren’t delivered and he tries to quantify what the cost of the defendant was in actually getting them delivered. The defendant has pleaded that the cost was $15,000, so whether it’s 4680 or $15,000 is a matter for trial, and an application for summary judgement is not the correct forum for trying to determine that issue. So on that basis, your Honour, I think the application should be dismissed for costs.
Discussion
- [33]The plaintiff’s submissions in respect of the two areas of controversy being the two components of the defendant’s counter claim, turn effectively on two issues namely:
- That once the applicant for summary judgement has made out a prime facia case the evidentiary onus shifts to the respondent; and,
- That the respondent has no evidence before the court in respect of those two areas of controversy.
- [34]The plaintiff relies on the decision of LCR Mining Group Pty Ltd v Ocean Tyres Pty Ltd[8] where White JA noted with approval the conclusions of the primary Judge in the court below where Her Honour said at paragraph 22:
“His Honour made extensive reference to the reasons for judgements of Williams JA in Deputy Commissioner of Taxation v Salcedo on the approach to be taken to rule 292. His Honour concluded, uncontroversially, on the authority of Queensland Port Pty Ltd v Lot that once an applicant for summary judgement has made out a prime facia case the evidentiary onus shifts to a respondent.”
- [35]This court is bound by that authority. The defendant has sought in the pleadings to counter claim for the costs of replacement and rectification work of $25,000. I am satisfied that the applicant (the plaintiff) has made out a prime facia case for the relief it seeks in the application (that is summary judgment on its claim) and that thus the respondent now bears the evidentiary onus in respect of the matters raised in the counter claim.
- [36]The defendant has placed no evidence before the court at all in respect of those matters. The defendant has simply sought in its brief oral submissions to assert that by pleading the counter claim that there is, as required by the rule, a triable issue.
- [37]The plaintiff has adduced direct evidence by way of the affidavit of Mr Floreancig, which is uncontroverted by the defendant (on those two issues).
Disposition
- [38]Applying the relevant test in respect of the applications for summary judgement both on the plaintiff’s claim (rule 292) and on the defendant’s counter claim (rule 293), the plaintiff has clearly made out a prime facie case on the pleadings (together with the concessions formally made on behalf of the defendant in oral argument) and the evidence in support of the summary judgement application (the evidence of Mr Floreancig in respect of the items pleaded by way of counter claim).
- [39]The defendant has adduced no evidence in respect of those controversial matters nor adduced evidence as to the existence of other facts which, if proved, would establish a defence or a right to relief.
- [40]The defendant’s pleadings in respect of the counter claim do not on any view plead any cause of action by the defendant against the plaintiff.
- [41]The pleading purports to repeat and rely on paragraphs 2, 3, 4, 5, 7, 8, 9, 10, 11 and 12 of the defence, none of which, on any proper consideration, purport to plead a cause of action in breach of contract.
- [42]I am satisfied that, upon the evidence before the court, it is established beyond controversy, and upon the balance of probabilities, that:
- The contract sum, as varied, is $109,085.90; and,
- The plaintiff has discharged its’ obligations under the contract save for the items conceded being:
- (a)Hand rail not provided;
- (b)Replacement RHS joists.
- The defendant has made a part payment of $25,000.00;
- The defendant’s counter claim for items (a) and (b), above, fails to account for the contract sum varied and not claimed;
- The defendant has not particularised the basis for its asserted estimated costs for items (a) and (b), above, and further, provides no evidence on that issue;
- The plaintiff’s evidence, on the costs of rectification of items (a) and (b), above, ought be accepted;
- The sum payable under the contract, after allowance for part payment, is $84,085.90;
- A reasonable allowance for rectification of items (a) and (b) is $5437.68; and,
- After deducting $5437.68 from the sum payable the resultant balance owing, under the contract, is $78,648.22.
- [43]I am therefore satisfied that in respect of the plaintiff’s claim for summary judgement 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.
- [44]I therefore allow the plaintiff’s application for summary judgment both on its claim and on the defendant’s counter claim and I give judgment as follows:
- I give judgment for the plaintiff on its claim in the sum of $78,648.22.
- I give judgement for the plaintiff on the defendant’s counter claim and order the counter claim be dismissed.
- [45]I will hear further submissions from the parties in respect of costs and interest.