HER HONOUR: This is an application by amended notice of motion filed 22 October 2019 by the plaintiffs seeking summary judgment or, in the alternative, default judgment against the defendants in relation to a claimed contract for the purchase of a horse trailer known as a Gooseneck horse trailer.
[2]
Background
These proceedings were commenced by statement of claim filed on the 13 June 2019 by the plaintiffs, Mr and Mrs Ireland. The defendants are Mr and Mrs Burnett. The statement of claim pleads the following allegations:
1. The defendants operate a business building and selling custom-made horse floats and trailers;
2. On or about 31 October 2016, the plaintiffs and defendants entered into the following agreement:
(a) The defendants would build a '1300 x 2400 x 2200 Tandem Axel' Gooseneck horse trailer (Gooseneck) with living area and a number of specified features;
(b) The plaintiffs would pay the defendants, or payments would be made on their behalf, in the sum of $176,000 including GST as consideration for the Gooseneck;
(c) The plaintiffs would make payment, or payment would be made on their behalf, in the following instalments as required by the defendants:
(i) $70,400 for a deposit and materials;
(ii) $52,800 for 'fit out Stage 1';
(iii) $35,200 for 'fit out Stage 2';
(iv) 1$17,600 on completion;
(d) The plaintiffs would be entitled to pick up and take possession of the Gooseneck once final payment had been made and had cleared;
(e) The Gooseneck would be complete, registered for road-use with RMS and ready for pick-up by the plaintiffs within 14 weeks of the first payment having been made;
(f) The plaintiff[s] would have title to the Gooseneck when final payment had been made and had cleared.
Particulars
Terms (a)-)d) were written in a document entitled 'Quote" dated 31 October 2016. Term (e) was oral. Term (f) was implied. The specifications for the Gooseneck were set out in the quote.
It was alleged that the first payment was made by the Bank of Queensland on the defendants' behalf on 7 January 2017 ([3]) ([sic], although it appears on the evidence that the first payment was made on 17 January 2017) and that the payments referred to in [2(c)(A)-(C)] have been made by the plaintiffs or on their behalf, and that at the request of the defendants additional payments had since been made to the defendants by the plaintiffs or on their behalf (see [4]). The relevant amounts that have been paid are set out in the affidavit sworn 16 September 2019 of Mrs Prudence Jane Ireland (the second plaintiff) as being: $70,400 on 17 January 2017, $52,800 on 10 May 2017, $35,200 on 5 June 2017, $24,462.20 on 27 July 2017, $31,990 on 20 July 2018 and $22,757 in August 2017.
It is not disputed that a final payment of $17,600 was due to be paid on completion of the contract. The plaintiffs contend that the trailer was to be completed and registered within 14 weeks of the first payment.
In evidence there are the following documents: a copy of a quote dated 31 October 2016 in relation to the horse trailer; a copy of a tax invoice dated 14 December 2016 which records the amount payable as $160,000 plus GST and records that a deposit of $70,400 had been paid; a copy of a tax invoice dated 9 May 2017 for a total (inclusive of GST) of $20,462.20, being additional payments referred to as "Extras up to 9/5/17"; and there are copies of email communications in which it is said that the final payment of $17,600 would be paid on completion. There is also in evidence a copy of a tax invoice dated 10 July 2018 with a revised amount of $207,683.82 for the horse trailer plus GST and which records an amount previously having been paid of $178,862.20, that invoice being for $31,990 (being the balance less the amount to be paid on completion of $17,600). The total amount that has been paid by the plaintiffs is approximately $237,427.
There is also in evidence a copy of a request for particulars that was sent by solicitors then apparently acting for both defendants, that being by letter dated 28 August 2019. Subsequent to the provision of those particulars, the second defendant filed a defence on 17 September 2019. That defence is a denial of the claims and it is asserted in particulars to [1] of the defence that the second defendant has no legal interest in the business owned by the first defendant. No defence has been filed by the first defendant, albeit that there is a document purporting to be a defence filed by the first defendant on 17 September 2019 (but that is actually another copy of the second defendant's defence). There are also in evidence copies of text messages between the first plaintiff and the first defendant in which there is reference to obtaining or making an application to the transport authorities in Canberra or for the trailer to be registered; including a statement by the first defendant that "I will have the rest of the paperwork in this week. I will let you know when I do at the end of the week".
By letter dated 10 May 2019, lawyers for the plaintiffs issued a demand for certain things to be done, in particular for the defendants to: do all things necessary immediately to confirm that an engineer had inspected the trailer and provide copies of any and all reports and/or certificates issued by such an engineer; provide a time for inspection of the trailer; register the trailer with the appropriate authority and obtain a registration certificate allowing use of the trailer immediately upon delivery; and make the trailer available to the plaintiffs for collection. The letter stated that "[s]hould you fail to meet this demand, we are instructed that our clients intend to commence recovery proceedings without further notice to you" and that "[s]hould recovery proceedings be necessary, the costs of and incidental to the proceedings will also be claimed".
This matter came before me in the Applications List on the 22 October 2019 on the plaintiffs' motion for summary or default judgment. On that occasion the first and second defendants were represented by a solicitor. Directions were made for the filing and service of any evidence on which the defendants rely on the motion or any application by the defendants for leave to file a defence out of time to be filed by 4pm on 24 October 2019 and for such motion to be returnable at 10am on 28 October 2019 for hearing. There were also directions made in relation to the filing of brief written submissions.
The defendant has chosen to make no such application and to adduce no evidence on the current application. What was handed up in the context of submissions by counsel for the defendants were proposed consent orders that had been sent to the plaintiffs' solicitors at 5pm on Thursday, 24 October 2019 proposing by way of settlement that orders be entered by consent to the effect that within seven days of the date of the orders the first defendant will do all things necessary to complete the works on the Gooseneck trailer and to apply for the relevant engineering certificate and arrangements for delivery up and collection of the Gooseneck trailer but without any provision for registration of the Gooseneck trailer. That regime was put forward, I was told, having regard to the statutory mandate for the just, quick and cheap resolution of real issues in dispute. It was not an offer accepted by the plaintiffs in light of the fact that it did not make provision for registration of the trailer.
[3]
Determination
The principles in relation to applications for summary judgment are well-known.
Rule 13.1(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) provides:
(1) If, on application by the plaintiff in relation to the plaintiff's claim for relief or any part of the plaintiff's claim for relief:
(a) there is evidence of the facts on which the claim or part of the claim is based, and
(b) there is evidence, given by the plaintiff or by some responsible person, that, in the belief of the person giving the evidence, the defendant has no defence to the claim or part of the claim, or no defence except as to the amount of any damages claimed,
the court may give such judgment for the plaintiff, or make such order on the claim or that part of the claim, as the case requires.
I summarised some of the principles regarding summary judgment in Stojanovski v Stojanovski [2018] NSWSC 1967 as follows.
[72] A party will not be denied a hearing on the merits unless the absence of a defence is clearly demonstrated (see Ottavio v Hayvio Pty Ltd [2011] NSWSC 1125) having regard to the test stated by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) at 129 (there by reference to the plaintiff in an action) that:
… the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow [the pleadings] to stand would involve useless expense"…
[73] It is recognised that there is a heavy burden on a party seeking summary judgment (see Bendigo and Adelaide Bank Ltd v Williamson [2017] NSWSC 939 at [10]); and that a very clear case is required and the power is one that should only be sparingly used (see Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at 91; [1949] HCA 1; Webster v Lampard (1993) 177 CLR 598 at 602-603; [1993] HCA 57; Air Services Australia v Zarb [1998] NSWCA 7; Cosmos E-C Commerce Pty Ltd v Sue Bidwell & Associates Pty Ltd [2005] NSWCA 81 at [37]-[38]). However, discrete questions of statutory construction not involving findings of fact (complex or otherwise) are examples of instances where resort to the summary judgment procedure may be warranted (as, in my opinion, is the present case)... .
It is accepted by the plaintiffs that there must be a clear absence of a triable defence, that there must be no real question in dispute and that there must be a high degree of certainty about the matter and about the outcome of the proceedings (referring to General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69).
In the present case there is a defence by the second defendant and it would not be appropriate to enter judgment, summary or otherwise, against the second defendant at this stage, but there is no defence by the first defendant and the first defendant appeared to consent to orders for completion of works on the Gooseneck trailer and for the application for the relevant engineering certificate which strongly suggests that the first defendant accepts or acknowledges the liability under the contractual arrangements.
The evidence more than adequately establishes that there was an agreement in relation to the purchase of the Gooseneck trailer and I consider that there is a strong inference that the registration of the Gooseneck trailer, as required for the Gooseneck trailer to be able to be collected and driven, would be attended to by the defendants.
The first defendant has chosen to put on no evidence to the contrary and the text communications with the plaintiffs are at least consistent with there being such an obligation, and in those circumstances, in the absence of a defence and having regard to the evidence of Mrs Ireland by her affidavit sworn on 16 September 2019, I consider that the application for summary judgment against the first defendant pursuant to r 13.1 of the UCPR is well-founded.
The first defendant has resisted there being summary judgment for damages to be assessed on the basis that it is said that there is no evidence as to the damages that have been suffered; however, it is in my view abundantly clear that the requirement to build and deliver up the Gooseneck trailer was to do so at least within a reasonable time and this contract has been on foot for nearly three years without delivery up of the trailer. Therefore, I am in no doubt that there has been a breach of the contract by the failure to deliver up the trailer within a reasonable time, and whether more than nominal damages can be established as a result of that breach will have to be determined in due course.
Accordingly, I make the following orders:
1. Summary judgment be entered for the plaintiffs against the first defendant;
2. Order that the first defendant take all steps necessary specifically to perform the agreement reached in October 2017 by:
1. completing within seven days all remaining works necessary for the construction of the Gooseneck trailer and applying within that time for the requisite engineering certificate required for registration of the Gooseneck trailer with Roads and Maritime Services;
2. within seven days of receipt of the requisite engineering certificate register the Gooseneck trailer for road use by Roads and Maritime Services, such registration to be at the first defendant's cost; and
3. within one business day of registration of the Gooseneck trailer for road use deliver up or make the Gooseneck trailer available for collection by the plaintiffs (subject only to the tender by the plaintiffs of the sum of $17,600 on collection of the Gooseneck trailer);
1. Grant liberty to apply on three days' notice;
2. Stand the matter over for damages to be assessed;
3. List the matter for directions at 9am on 5 November 2019;
4. Order the first defendant to pay the plaintiffs' costs of the amended notice of motion on an indemnity basis; otherwise reserve the costs of these proceedings;
5. Order that these orders be entered forthwith.
[4]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 06 November 2019