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[2023] QDC 22
plaintiff. Application allowed. The defendant was ordered to pay the plaintiff the purchase price of $425,000 and interest of $43,445.02. The plaintiff undertook to deliver the vehicle upon payment of that...
The court decided that the auction terms required the buyer to pay by a fixed date even if the car had not yet been collected. Because collection was only allowed after payment, the court considered payment to be due independently of delivery. It therefore allowed the seller to obtain judgment for the price under the statutory provision it relied on, as well as contractual interest. The seller’s undertaking meant the car was to be handed over when the judgment debt was paid.
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1,889 words · generated 02/10/2026
Jonata Investments Pty Ltd owned a 2017 Holden HSV GTSR W557. Lloyd’s Auctioneers offered it for sale through an online auction on 25 September 2021. A bid of $425,000 was registered in Cindy Mikhael’s name. It was the highest and final bid for the vehicle ([4]–[6]). The judgment’s footnote records that the defendant pleaded that her spouse participated in the auction under her authority ([fn 1]).
2 cited instruments linked from this judgment.
The defendant did not pay the $425,000 price ([7]). Jonata sued, claiming the price under s 50(2) of the Sale of Goods Act 1896 (Qld), or alternatively specific performance or damages, together with interest ([8]). After no notice of intention to defend or defence was filed within the required period, default judgment was entered for $448,241.97, comprising the price, interest and costs ([9]). That judgment was later set aside, and a defence was filed ([10]).
The 2023 application was not a further default judgment application. Jonata sought summary judgment under r 292 of the Uniform Civil Procedure Rules 1999 (Qld) ([1], [18]). An important change since the earlier set-aside application was that, for the 2023 application, the defendant accepted that the auction was subject to the Auction Conditions and accepted the pleaded facts ([16]–[17]). The court was therefore deciding the legal effect of the agreed terms on the accepted facts, rather than resolving a factual contest about whether those terms applied.
The order allowed the application. The defendant was ordered to pay $425,000 and interest of $43,445.02. The plaintiff undertook to deliver the vehicle upon payment of the judgment debt. Costs and any further orders were left for a later hearing ([order], [40]).
The court applied the two requirements in UCPR r 292(2): the defendant must have no real prospect of successfully defending the claim or part of it, and there must be no need for a trial of that claim or part ([18], [26]). The judgment also recalled that summary judgment is generally appropriate only in a clear case with a high degree of certainty about the outcome ([20], [27]).
The court treated the issue as one of contractual construction and statutory application to agreed facts. It considered the issue neither complex nor difficult and observed that, if it could confidently decide that the defendant’s proposed construction had no real prospect of success, a trial would not be needed to reach that conclusion ([27]). It then concluded that the case met that standard ([28]).
The substantive question concerned s 50(2) of the Sale of Goods Act. That provision allows a seller to maintain an action for the price where the price is payable on a day certain irrespective of delivery and the buyer wrongfully neglects or refuses to pay ([22]). The judgment explains that the ordinary position is that delivery and payment obligations are concurrent unless the parties agree otherwise. It also describes s 50 as creating exceptions to the general remedy of damages, with s 50(2) applying to a price payable on a fixed day regardless of delivery ([29]).
The court read the General Terms and Auction Conditions together. General Terms cl 3(f) required a successful bidder to pay the final bid price within the time specified for the auction and lot (23, [30]). The Auction Conditions set a payment deadline of 4.30 pm on Wednesday 29 September 2021 ([24]). They also stated that collection could not occur until full cleared funds had been received. General Terms cl 4.3(a) provided that goods could not be removed until they had been paid for (23, [24], [30]).
From those provisions, the court concluded that the contract fixed a payment deadline and made payment due regardless of whether delivery or collection had occurred. Collection was prohibited before payment, but that did not make payment conditional on collection. Instead, the contract contemplated payment first, followed by collection ([30]–[31], [38]). The court held that the contract did not need to reproduce the exact statutory words “irrespective of delivery”; that effect could be found by construing the contractual terms ([36]).
The defendant argued that the terms did not expressly separate payment from delivery, including because cl 4.3(a) used the word “and” in saying lots must be “paid for and removed” by the specified time ([37]). The court rejected that reading. It treated the express payment deadline and the restriction on collection as showing that payment was not dependent on delivery ([38]).
The judgment did not purport to change the general law. Its contribution is an application of the existing statutory and procedural rules to this auction contract. Before the decision, s 50(2) already provided a route to an action for the price where the contractual conditions were met ([22], [29]). The court’s conclusion was that these particular terms met them.
For summary judgment, the judgment relied on the text of r 292(2), alongside authorities describing the need for a clear case and a high degree of certainty ([18]–[20], [27]). It treated settled facts and a legal question as suitable for summary determination where the court could confidently resolve the construction question ([27]).
For the “day certain” requirement, the court contrasted this contract with Consolidated Rutile Ltd v China Weal Pty Ltd [1998] QSC 170. There, as described in this judgment, the payment date depended on whether and when an invoice was issued, so the date was uncertain. Here, the Auction Conditions specified a date and time in advance ([33]). The judgment also distinguished Ledger v Cleveland Nominees Pty Ltd [2001] WASCA 269, where payment was stipulated on the footing that delivery would take place before payment. In Jonata, collection could not take place until after payment ([34]).
The court also relied on Colley v Overseas Exporters and Shell-Mex Ltd v Elton Cop Dyeing Co Ltd for the proposition that a special contractual bargain may make the price payable before delivery or at a specified time irrespective of delivery ([32]). Those authorities were used to support the construction reached on the actual terms, not to establish that every auction payment deadline automatically satisfies s 50(2).
The practical point established by the judgment is consequently narrow: a fixed auction payment deadline, read with terms that prohibit collection until payment, can amount to a price payable on a day certain irrespective of delivery. The outcome depended on the combined effect of these contract terms and the admitted facts.
At [28], the judge said: “The defendant has no real prospect of defending the plaintiff’s claim and there is no need for a trial of the claim.” In plain English, the court considered the legal argument sufficiently clear to decide the price claim without a trial.
At [30], the judgment identifies the contractual anchors: General Terms cl 3(f) required payment within the time specified for the auction, and the Auction Conditions set the deadline at 4.30 pm on 29 September 2021. The same paragraph notes that collection was barred until cleared payment. The point is that the contract did not leave the payment date open or dependent on when collection happened.
At [31], the judge concluded that payment was required by the specified deadline “regardless of delivery”. This is the central application of s 50(2): the buyer’s obligation to pay was not postponed until the vehicle was handed over.
At [36], the court rejected the argument that the contract had to use the exact words in the statute. In plain English, the legal effect of the contract could be determined from its terms as a whole, even without a verbatim statutory formula.
At [38], the judge explained the relationship between payment and collection. Collection being conditional on prior payment did not make payment dependent on collection. The judgment treated the arrangement as payment first, collection afterwards.
The judgment is most directly relevant to a sale of goods where the contractual documents fix a payment date or deadline in advance, and the buyer’s obligation to pay is not conditional on delivery taking place by that date. It is particularly relevant where the terms also make collection or removal conditional on payment, because the court treated that sequencing as consistent with payment being due regardless of delivery ([30]–[31], [38]).
The procedural aspect is relevant where the material facts and contract terms are admitted, leaving a construction issue that can be resolved without a trial. This case does not say that every disputed contractual interpretation can be decided summarily. The court emphasised the clear-case threshold and reached its conclusion in the setting of admitted facts and accepted auction conditions ([16]–[18], [27]–[28]).
Conversely, the judgment identifies distinctions that may matter. A payment date dependent on a future decision or event, such as whether and when an invoice is issued, may not be a “day certain” on the reasoning discussed at [33]. Nor does the decision equate a contract in which delivery is to precede payment with one in which payment is required before collection ([34]). The precise words and operation of the contract remain important.
The supplied judgment contains no decisions issued after 9 March 2023 that consider or apply Jonata Investments Pty Ltd v Mikhael [2023] QDC 22. It therefore does not provide a basis for describing later judicial treatment, such as whether the reasoning has been followed, distinguished or criticised.
The cases discussed in the judgment are earlier authorities, not later treatment of this decision. They include authorities on summary judgment, such as Deputy Commissioner of Taxation v Salcedo and Westpac Banking Corporation v Hughes ([20], [27]), and authorities concerning the statutory action for the price and contractual payment dates, including Colley, Shell-Mex, Consolidated Rutile and Ledger ([32]–[34]). The 2022 decision in the same dispute, Jonata Investments Pty Ltd v Mikhael [2022] QDC 229, is procedural background. The 2023 judge explained that the defendant’s position had changed because she now accepted the Auction Conditions and the relevant facts ([35]).
The decision addresses the terms of this auction contract and the accepted facts before the court. It does not determine how s 50(2) would apply to differently worded auction conditions, a contract with a payment date contingent on later events, or circumstances in which payment and delivery are expressly concurrent. Those issues would turn on the particular contract and facts; the judgment’s discussion of Consolidated Rutile and Ledger illustrates relevant distinctions ([33]–[34]).
The decision also does not decide the broader claim alternatives originally pleaded for specific performance or damages. The operative orders required payment of the price and interest, with delivery of the vehicle upon payment ([8], [order]). Nor did the judgment finally determine costs; it stated that the parties would be heard about further orders, including costs ([40]).
The judgment records interest at 7.08% as agreed and gives the ordered interest figure as $43,445.02. It also records a different figure, $40,624.11, as the amount calculated as at the hearing date ([39]–[40]). The supplied reasons say that the final figure was provided by the plaintiff in an email on 9 March 2023 ([fn 25]), but they do not explain the calculation in further detail.
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PRACTICE AND PROCEDURE - JUDGMENTS AND ORDERS - APPLICATION FOR SUMMARY JUDGMENT - Whether the Court should exercise its discretion - construction of s50(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.
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
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] QCA 227; [2005] 2 Qd R 232
Rich v CGU Insurance Ltd [2005] HCA 16; (2005) 79 ALJR 856
Westpac Banking Corporation v Hughes [2011] QCA 42; [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 [1961] UKHL 5; [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] HCA 15; (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
[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.
[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.
[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.
[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").
[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.
[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.
[7] The defendant did not subsequently make payment of the amount of $425,000 for the purchase of the vehicle.
[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:
(a) That the defendant pay the purchase price of $425,000 pursuant to s50(2) of the Sale of Goods Act 1896 (Qld); > > (a) For specific performance of the contract; > > (b) For the payment of damages for breach of contract, and
(a) (the terms of) the contract; > > (b) Section 58 Civil Proceedings Act 2011 _(_Qld).
[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).
[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
[11] As detailed above, Wooldridge KC DCJ allowed the defendant's application to set aside default judgment in the sum of $448,241.97.
[12] In setting aside default judgment her Honour determined:
(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]
(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).
[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 s50(2) of the Sale of Goods Act applies).
[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]:
"[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):
[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.
[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)."
[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.
[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.
[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]
[18] The application for summary judgment is brought pursuant to rule 292 of the UCPR.
(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 part of the plaintiff's claim and make any other order the court considers appropriate."
[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:
"[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."
[34] Rule 292 of the UCPR is expressed in clear and plain language. It requires no judicial gloss to understand its meaning.
[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.
[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.
[37] Where facts are settled and the respective rights of parties turn upon questions of law, r292 of the UCPR would require the Court to give judgment even if it involves difficult questions of law (footnotes omitted)."
[20] In Deputy Commissioner of Taxation v Salcedo [2005] QCA 227; [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).""
[21] Section 3 of the Sale of Goods Act provides that "delivery" means voluntary transfer of possession from one person to another".
[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]
[23] The General Terms of the Auction included:[7]
(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. > > (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. > > (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. > > (d) When you place a maximum bid, higher than the next bid increment your offer is for the Maximum bid amount. > > (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. > > (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. > > (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."
b. Within part 4, "THE AUCTION PROCESS":
(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.
(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.
(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]
[24] The Auction Conditions included:[8]
*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 classic@lloydsauctions.com.au for arrangements.
*Cryptocurrencies - please email classic@lloydsauctions.com.au 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)
Please contact Lloyds classic@lloydsauctions.com.au 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.
Please ensure you contact classic@lloydsauctions.com.au to book in a day and time for the collection to occur.
[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.
[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".
[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]
[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 s50(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 s50(2) was satisfied here namely that the defendant refused to pay such price).
[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 s50(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]
[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...".
[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.
[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."
[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 s50(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.
[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.
[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 s50(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 s50(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.
[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 s50(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.
[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 s3 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]
"delivery or, in this case, collection is tied to payment, it doesn't come within section 50(2)."[23]
[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.
[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]
[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.
[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.
[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.
[9] Westpac Banking Corporation v Hughes [2011] QCA 42; [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 [1961] UKHL 5; [1962] AC 413, 437.
[15] Cf In the matter of Carbon Polymers Limited [2013] NSWSC 376 at [21].
[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] HCA 15; (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).
Jonata Investments Pty Ltd
Mikhael [2023] QDC 22
(2005) 79 ALJR 856
(2000) 201 CLR 552
(1951) 82 CLR 621
Application allowed. The defendant was ordered to pay the plaintiff the purchase price of $425,000 and interest of $43,445.02. The plaintiff undertook to deliver the vehicle upon payment of that judgment debt. Further orders, including costs, were reserved.