Christie v Finesse Decore Pty Ltd [2013] QDC 112

[3] Mr Christie's defence to the claim was as follows: paragraph 1, "I believe the plaintiff has been paid by the principal contractor in full." Paragraph 2: "The defendant has tried to contact the plaintiff numerous times since receiving the claim, and all calls are ignored." Paragraph 3: "The defendant has posted a letter to the plaintiff to seek affidavits to pursue the principal contractor in a federal court, and the plaintiff will respond. This leads me to believe further that the plaintiff has been paid by the principal." On a hearing of this appeal, there should be an examination and consideration of the evidence before the learned magistrate. In this respect, it is to be noted, though, that the learned magistrate proceeded to accept that Mr Christie's defence did not make any denials on non-admissions of the company's statement of claim. Hence, his Honour said that the allegations of facts made by the company in its pleading are deemed to be admitted by Mr Christie. In this regard, his Honour relied upon rule 166.

[4] In addition, the learned magistrate had the affidavit of Mr Jones, the solicitor for the company. In addition to other matters sworn to, Mr Jones swore that he had been informed by the manager of the company, and verily believed it to be true, that on 5 July 2012 Mr Christie made a payment of $3890 to the company in reduction of the claimed amount. Further exhibited to Mr Jones' affidavit was a letter from Mr Christie dated 13 July 2012. In it, Mr Christie states the payment of $3890.40 transferred into your client's business account on 5 July 2012 is in no way a mitigation or confirmation to your client's claim that is related to the Brisbane Adventist Secondary College, Wishart, that I am currently defending. Mr Jones also swore that on information from the manager that no payment of the amount claimed had been paid by the principal contractor to the company.

[5] Further, that the principal contractor referred to by Mr Christie was not invoiced by the company and to whom the company did not provide the goods and/or services. Mr Christie, though, swore a number of affidavits relied upon for the hearing before the learned magistrate. I have read these affidavits. They are summarised by the learned magistrate in his written reasons. I consider the learned magistrate has accurately summarised what these affidavits stand for in relation to the issues. In addition, on the hearing before me today, Mr Christie has drawn my specific attention to exhibit B, to his affidavit, sworn 31 August 2012. He says this shows that the principal contractor was seeking quotes for the work done. That was in addition to what Mr Christie had contracted to do. This additional work, I infer, is the work claimed by the company, which Mr Christie told me was painting work.

[6] The person sending the email on behalf of the Brisbane Adventist College states: "Hi, Allen (Mr Christie). Thanks for your quote. As always, it is very competitive. We do have one problem, however. We are also required to have a quote for a replacement of the asbestos with a similar material, as we are not planning on renovating in the secondary school. I was hoping you would have included this. Do you have a connection with a business that you could organise to do this work? Someone you trust to do a good job for a sensible price. We need the quote urgently." Much of what Mr Christie has sworn to, in my opinion, is argumentative rather than dealing with the facts alleged in the statement of claim. He has not addressed those facts directly. He has not, for example, addressed directly the reasons for the payment of the $7500. He has told me that is a payment that was made out of a sign of good faith, with respect to the company.

[7] The payment of $3890.40, while he sought to put that in issue in the exhibit I have mentioned earlier, he told me again that he made this payment to the company in order to help them out. The learned magistrate did recognise, and I do too, that Mr Christie denies that he entered into any contract with the company. However, under rule 292 of the Uniform Civil Procedure Rules, if the Court is satisfied that a defendant has no real prospect of successfully defending all or part of a plaintiff's claim, and there is no need for a trial of the claim or 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 may make any other order the Court considers appropriate. With regard to the exercise of discretion, in House v The King (1936) 55 CLR 499 at pages 504 and 505 the High Court said, "The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that if they had been in the position of the primary judge they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so."

[8] In the present matter, even though the evidence shows that Mr Christie denied that he entered into any contract with the company, against that is the allegation that $7500 was paid off the invoice price, which allegation has not been denied or the subject of a non-admission in the defence.

[9] Further, there was the payment on 5 July 2012 by Mr Christie to the company in the sum of $3890.40. Even though Mr Christie in his letter sought to characterise the payment as not being one as an admission or confirmation of the company's claim, he did not descend to any particularity as to the circumstances in which that payment was made, or even the previous payment of $7500 which he accepts he made. In addition, even though Mr Christie has brought to my attention the email from the Adventist Church about getting quotes, I do not think it follows from the wording of that email that Mr Christie was being the go between to make a contract between the Adventist College and the company.

[10] My examination of its terms is not consistent with Mr Christie's claim that it is evidence he was not contracting with the company. Therefore, as the learned magistrate approached the matter, he had the deemed admissions in the pleadings and the $7500 that was paid and referred to in the statement of claim, and the $3890.40 that had been paid after the defence had been filed. These factors, I consider, persuaded the learned magistrate that, despite Mr Christie's denial of having entered into any contract with the company, and despite all the other matters he had raised in his affidavits, this was a case where the proper exercise of the discretion required the entering of summary judgment.

[11] That is because the learned magistrate was satisfied that Mr Christie had no real prospect of successfully defending the claim and there was no need for a trial of the claim. My examination of the evidence before the learned magistrate, including the deemed admissions, leads me to conclude that the learned magistrate was right to give judgment for the company against Mr Christie. Therefore, I dismiss the appeal and I order the appellant to pay the respondent's costs to be assessed on the standard basis.