//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2003] QCA 271
respondent. Appeal dismissed with costs. The summary judgment for the respondent in the sum of $74,130.17 remained in place.
Queensland Pork obtained summary judgment for money it said remained owing for pig supplies. After buying the meat business, Ms Lott made payments to Queensland Pork. The invoices and payment amounts formed a pattern consistent with the former owner's practice of paying several invoices through one or more payments. The Court considered that pattern strong evidence that the payments were intended to pay the former company's invoices. Ms Lott's denial did not explain the pattern sufficiently to show a genuine issue for trial. The Court also held that the District Court judge could correct the original judgment amount because it resulted from a mistaken understanding about an alleged agreement and had not been formally entered. The appeal was dismissed with costs.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,291 words · generated 02/10/2026
No linked legislation citations have been extracted yet.
Queensland Pork Pty Ltd supplied pigs to a meat business known as Lott’s Meats. Before 27 July 2001, that business was operated by Lott Enterprises Pty Ltd. On that date, Colleen Lott, as trustee of the Colleen Lott Family Trust, acquired the business. It continued operating from the same premises, with the same telephone number and business name, and continued receiving pig supplies from Queensland Pork. The judgment records that the company went into liquidation on 6 August 2001 at [6], but gives 7 August 2001 at [22(a)]. The judgment does not explain the one-day discrepancy.
The parties’ dispute concerned payments Ms Lott made after acquiring the business. Queensland Pork said those payments were applied to invoices for pigs supplied to Lott Enterprises before the acquisition. Ms Lott said that the payments were for her business’s own purchases and that she had not authorised their application to the former company’s debts. She swore that payments were made frequently, and not for any particular invoices ([6], [23]-[25]).
Queensland Pork sought summary judgment under UCPR r 292. The District Court judge initially gave judgment for $59,861.93 on 21 November 2002. That figure reflected a mistaken belief that the parties had agreed on the amount. When told that no such agreement existed, the judge reconsidered the matter and gave judgment for $74,130.17 on 12 December 2002 ([13]-[17]). Ms Lott challenged both the summary judgment and the judge’s power to alter the first judgment.
The Court of Appeal dismissed the appeal with costs. McMurdo P agreed with Cullinane J’s reasons ([1], [9]). Jones J also agreed with the proposed orders and added observations about the evidentiary onus ([40]-[48]).
The Court dealt with two main questions: whether the summary judgment was justified, and whether the District Court judge could correct the first judgment amount.
On the correction question, Cullinane J considered the slip rule in UCPR r 388, the power in r 667(2)(d), and the court’s inherent power. The first judgment was based on a misunderstanding that the parties had agreed on the amount. The judge intended to enter judgment for the amount supported by the evidence, after taking account of credits and offsets, but initially used the wrong figure because of that misunderstanding ([14]-[20]). Cullinane J considered this capable of falling within r 388(1)(b), which refers to a mistake or error resulting from an accidental slip or omission. He also considered r 667(2)(d) applicable because the first order did not reflect the judge’s intention when made ([19]). The first judgment had not been formally taken out, and the Court referred to the inherent power discussed in Autodesk Inc v Dyason [No 2] ([20]). McMurdo P similarly said the judge was entitled to correct the reasons and order before formal entry under the rules and the court’s inherent power ([2]).
On summary judgment, the central evidence was a table matching invoices to payments. The former business had commonly made payments covering part or all of multiple invoices ([27]). Cullinane J noted that the amounts paid did not simply mirror individual invoices, but their pattern was consistent with the earlier practice of paying batches of invoices. In particular, some payments were round sums, while the remaining amounts corresponded to smaller amounts owing on invoices ([28]). The total apportionments generally matched the invoices, subject to the treatment described in the judgment ([28]).
That evidence mattered because the business continued in the same form after the acquisition, and continued to receive pig supplies from Queensland Pork. The Court considered the business context, including the practical importance of maintaining supply, alongside the invoice and payment pattern ([31]). It found a strong inference that Ms Lott intended payments to satisfy the identified invoices. Cullinane J described the inference as “unavoidable” in the absence of another explanation ([30]). McMurdo P likewise found the inference from the payments and invoices irresistible ([8]).
The Court did not treat Ms Lott’s affidavit as sufficient to raise a real issue for trial. Her statement that she had not authorised Queensland Pork to apply payments to the former company’s invoices put the existence of express authority in issue. But, as Cullinane J explained, Queensland Pork did not rely on express authority. Its case rested on the inference from the payment pattern about Ms Lott’s intention ([32]-[34]). The affidavit did not explain that pattern or identify facts capable of rebutting the inference. Jones J similarly characterised the material as a bare denial, without evidence about Ms Lott’s knowledge and intention that could challenge the inference ([47]).
The judgment applied the summary judgment provisions in the Queensland Uniform Civil Procedure Rules 1999. It described r 292 as requiring the applicant to establish its entitlement to judgment and to show that the opposing party had no real prospect of successfully defending the claim, with no need for a trial ([3], [21]). Cullinane J referred to r 293 and to Bernstrom v National Australia Bank Limited, which adopted Lord Woolf’s explanation in Swain v Hillman of the “no real prospect” test ([35]-[36]). The quoted explanation distinguishes a realistic prospect from a fanciful one and links summary disposal to avoiding expense and unnecessary use of court resources.
The Court’s evidentiary discussion is important to understanding how that test operated in this case. Jones J said the applicant bears the initial onus of proving the claim and persuading the court that there is no real prospect of the other party succeeding. A respondent may sometimes show that this onus has not been discharged without filing evidence. But once a prima facie case for judgment has been made out, an evidentiary onus may shift to the respondent ([41]). This was not framed as a reversal of the applicant’s ultimate obligation. Jones J referred to the evidential burden as a “provisional burden”, drawing on the passage from Cross on Evidence reproduced at [46].
The case also illustrates the distinction between identifying whether a trial is needed and conducting a trial in summary judgment proceedings. Jones J said the hearing judge had to decide whether the proven circumstances permitted the inference that the payments were intended to match the invoices, and whether the appellant had identified an issue requiring trial ([45]). That inquiry was not to become a “mini trial”, a concern associated in the judgment with Swain v Hillman and Three Rivers District Council v Bank of England No 3 ([45]).
On correction of judgments, the Court applied existing procedural powers rather than announcing a new rule. It found that the mistaken amount could be corrected before formal entry under the rules and inherent power, relying on Autodesk ([2], [19]-[20]). The judgment does not set out a broader account of how those powers operate in other circumstances. Its conclusion was tied to the judge’s misunderstanding about an agreement on the amount and the fact that the first judgment had not been taken out.
At [30], Cullinane J said: “Viewed as a whole the pattern of invoices and payments revealed by the table gives rise to a strong and, in the absence of any other explanation, unavoidable inference that the payments were intended to satisfy those invoices.” In plain English, the court looked at the overall pattern rather than treating each payment in isolation. The relationship between dates, amounts and invoice balances made it likely that the payments were directed to the identified invoices, unless evidence explained the pattern differently.
At [34], Cullinane J said the table required “some specific explanation or response” to show that a real issue arose. In plain English, once Queensland Pork had produced detailed evidence supporting its account, a general denial did not answer the particular evidence. The required response concerned the factual pattern, not merely the legal proposition that no express authority had been given.
At [41], Jones J explained that after a prima facie case was made out, “an evidentiary onus shifts to the respondent.” This means the party resisting summary judgment may need to point to evidence that makes a trial necessary. It does not mean that the applicant’s initial burden disappears. Jones J expressly stated that the applicant had the onus to prove the claim and persuade the court that there was no real prospect of the opposing party succeeding.
At [45], Jones J emphasised that the hearing should not become a “mini trial”. The court’s task was to assess whether the evidence identified a need for a trial at all, not to conduct the full trial process in the summary application. That distinction explains why the judgment focused on whether Ms Lott’s evidence actually answered the payment pattern.
At [19], Cullinane J said r 667(2)(d) permitted setting aside an order that did not reflect the court’s intention when it was made. In plain English, the rule could address a formal judgment that failed to record the decision the judge meant to make. Here, the Court treated the first amount as arising from a mistaken understanding of the parties’ position, rather than as the judge’s intended final assessment of the amount due.
The decision is most directly relevant where a party seeks summary judgment and supports its claim with a detailed documentary pattern, while the opposing party provides a general denial without answering that pattern. Here, the relevant materials included invoices issued to the former operator, payments made after a business transfer, and evidence about how the business historically paid accounts ([22]-[30], [42]-[47]).
The case also involved continuity in the commercial relationship. The business retained its premises, telephone number and trading name after the transfer, and continued to receive the same type of supply from the claimant ([6], [22(d)]). The Court considered those circumstances alongside the payment evidence, including the commercial significance of maintaining supply ([31]). The decision should therefore be read in its factual setting: the inference did not arise from a payment amount alone, but from the combined pattern and surrounding business dealings.
A further relevant feature was that the appellant’s defence depended on where payments had been allocated. She said the payments should have been credited to her own indebtedness, rather than to the former company’s invoices ([23]-[25]). The respondent’s table mapped the payments to those invoices, and the appellant did not provide a specific factual explanation for the correspondence. The judgment indicates that where a claimant establishes a prima facie case through such material, a response that does not engage with the central evidence may fail to identify a real issue for trial.
The correction aspect applies to a different kind of fact pattern: a judge has pronounced judgment, then discovers before formal entry that the amount or terms rested on a misunderstanding, and the proposed correction is said to reflect the judge’s actual intention. This Court relied on the specific circumstances that the judge believed the amount had been agreed, later reconsidered it, and had not yet had the first judgment formally taken out ([14]-[20]). The judgment does not establish that every later change to a judgment is permitted.
The supplied judgment does not describe any later decisions applying, distinguishing or criticising Qld Pork P/L v Lott. It therefore does not provide a basis to state how later courts have treated this decision.
The judgment itself identifies earlier authorities and explains their use. It says that Bernstrom v National Australia Bank Limited adopted Lord Woolf’s explanation in Swain v Hillman of the purpose and scope of the summary judgment rule ([35]-[36]). Jones J referred to Swain and Three Rivers District Council v Bank of England No 3 in explaining why the summary judgment hearing should not become a mini-trial ([45]). On correcting a judgment before formal entry, McMurdo P and Cullinane J relied on Autodesk Inc v Dyason [No 2] ([2], [20]). Those are relationships stated in this judgment, not evidence of later treatment of Qld Pork itself.
The judgment does not identify what evidence might have been sufficient to rebut the inference in a different case. It says that a specific explanation or response was required in these circumstances, but does not set a general evidentiary checklist. The adequacy of a response would depend on what the claimant’s documents show and what facts are available to explain them.
The judgment also does not decide a pleaded restitution claim. Cullinane J recorded that the appellant advanced an argument that she could recover payments applied to the former company’s invoices, but said the claim was not pleaded and there was no basis for it on the material before the Court ([37]). The Court therefore did not resolve the merits of a properly pleaded restitution claim on a developed evidentiary record.
Nor does the decision exhaustively define the boundaries of UCPR rr 388 and 667(2)(d), or the inherent power to correct a judgment. Its conclusions concern a mistaken belief about an agreement on quantum, a later reconsideration before formal entry, and a corrected amount that the primary judge considered supported by the evidence ([14]-[20]). The judgment does not determine how those powers would apply after formal entry, where the original judgment reflected a deliberate decision, or where the proposed change was disputed on different grounds.
Finally, the Court did not resolve the one-day inconsistency in the stated liquidation date. Cullinane J’s summary gives 7 August 2001, while McMurdo P’s factual account gives 6 August 2001 ([6], [22(a)]). The discrepancy did not affect the Court’s reasoning about the payments or the summary judgment application.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Qld Pork P/L v Lott [2003] QCA 271
PARTIES: QLD PORK PTY LTD ABN 62 257 371 610 / (plaintiff/respondent) / v / COLLEEN THERESE LOTT / (defendant/appellant)
FILE NO/S: Appeal No 204 of 2003 / DC No 15 of 2002
DIVISION: Court of Appeal
PROCEEDING: Miscellaneous Application - Civil
ORIGINATING COURT: District Court at Bowen
DELIVERED ON: 4 July 2003
DELIVERED AT: Brisbane
HEARING DATE: 29 May 2003
JUDGES: McMurdo P, Cullinane and Jones JJ / Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER: Appeal dismissed with costs
CATCHWORDS: PROCEDURE – COURTS AND JUDGES GENERALLY – where summary judgment was given against the defendant – whether the defendant had no real prospect of defending claim for summary judgment – whether there was need for a trial / PROCEDURE – COURTS AND JUDGES GENERALLY –where the primary judge had altered the original judgment – whether he was empowered to do so under the slip rule (Rule 388) or the power conferred by Rule 667(2) or in the court’s inherent jurisdiction / Uniform Civil Procedure Rules 1999 (Qld), Rules 292, 293, 295, 388, 667(2)(d) / District Court Act 1967 (Qld), s 69(1) / Autodesk Inc & Anor v Dyason & Ors [No 2] (1993) 176 CLR 300, followed / Bernstrom v National Australia Bank Limited [2002] QCA 231; Appeal No 9031 of 2001, 28 June 2002, followed / Swain v Hillman [2001] 1 All ER 91, considered / Three Rivers District Council v Bank of England No 3 (2001) 2 All ER 513, considered
COUNSEL: R A Quirk for the appellant / W Sofronoff QC for the respondent
SOLICITORS: Lee Turnbull & Co for the appellant / Ruddy, Tomlins & Baxter for the respondent
McMURDO P: I agree with Cullinane J that the appeal should be dismissed for the reasons he gives.
The learned primary judge's original reasons for judgment were based on the mistaken belief that the parties had agreed on the quantum of the dispute. When this mistake was brought to His Honour's attention and before the formal order was taken out, His Honour heard further submissions and corrected his reasons for judgment and order. He was entitled to do so under the powers arising from UCPR rr 388 and 667(2)(d)1 and the court's inherent power2 to recall a judgment before its formal entry where the interests of justice so require: Autodesk Inc v Dyason [No 2].3
Under UCPR r 292, the respondent was entitled to its judgment below if it satisfied the court that it was so entitled to judgment and that the appellant had no real prospect of successfully defending all or part of the claim and there was no need for a trial of the claim or part of the claim. It is necessary to review the material before the primary judge to determine these matters.
The issue was whether the appellant's payments to the respondent were made against purchases since she bought the business or whether she intended her payments to first meet the company's debt to the respondent. If the latter, and the criteria of UCPR r 292 were met, the respondent was entitled to summary judgment.
Lott’s Meats (“the business") was a business conducted for some time by Lott Enterprises Pty Ltd ("the company") in the course of which the company purchased pigs from the respondent and set off the costs of cartage and killing the pigs against its indebtedness to the respondent. The respondent's material established that it was common practice for the company to make a single payment to the respondent for part or all of a number of invoices.
On 27 July 2001, the appellant, as trustee for the Colleen Lott Family Trust, purchased the business from the company, which went into liquidation on 6 August 2001. The business continued to trade as Lott’s Meats at the same premises and with the same telephone number, to be supplied with and invoiced for pigs by the respondent and to offset the costs of cartage and killing against its indebtedness to the respondent. The appellant swore that, in order to maintain the trading account with the respondent, she agreed to maintain a running account within the terms stated on the respondent's invoices; payments were made as often as possible, sometimes twice a day and usually at least thrice each week and not in respect of any particular invoices; at no time did she authorise the respondent to apply payments made on behalf of her business towards outstanding invoices owing by the company in liquidation.
(a)The company Lott Enterprises Pty Ltd conducted a business which the appellant as trustee of the Colleen Lott Family Trust acquired on 27 July 2001. The company went into liquidation on 7 August 2001.
(b)The respondent supplied pigs to Lott Enterprises Pty Ltd and then to the appellant as trustee. There were off sets to the cost of the pigs because of certain services carried out.
(c)The appellant was neither a director nor a shareholder of Lott Enterprises Pty Ltd.
(d)The business conducted by the appellant was conducted from the same address, and with the same telephone number as that conducted by Lott Enterprises Pty Ltd, using the same business name.
(e)Some invoices were forwarded by the respondent to Lott Enterprises Pty Ltd after the date of the acquisition of the business. The appellant sent invoices after this date in the name of the company to the respondent claiming credits in relation to services. There are two of these but they are said by her to have been issued in error.
(f)Thereafter invoices were issued by the appellant in the name of Lott’s Meats (which was the name that the company had traded under).
(g)The monies the subject of the respondent’s claim equal monies which the respondent applied to invoices which had been forwarded to the company and which relate to the supply of pigs prior to the acquisition of the business by the appellant.
The appellant says that she cannot say whether the invoices or the payments deposed to by the respondent are correct. She does not deny making such payments. All of the relevant payments were made after the date that the appellant commenced the business and it is the appellant’s case that they ought to have been applied to her indebtedness and in consequence there is no indebtedness in the sum claimed by the respondent.
In an affidavit sworn on the 29 August 2002, the appellant deposes:
“At no time was any authority given by or on my behalf, to enable Queensland Pork Pty Ltd or its Directors to apply payments made by or on behalf of the Trust for or towards outstanding Invoices issued by Lott Enterprises Pty Ltd (In Liquidation).”
The respondent says that an examination of the invoices to the company and the payments which it says were made by the appellant clearly reveal an intention that those monies be applied in payment of those invoices.
The point which the respondent makes is best illustrated by setting out of details of the invoices and payments concerned.
Invoice Date Payment Date Payment Amount Invoices paid/ / In part paid Apportionment Invoice No. Invoice Amount
05/07/01 07/08/01 $ 6,177.53 687 $ 2,177.53 687 $ 2,177.53
09/07/01 Part 699 $ 4,000.00 699 $ 9,348.12
10/08/01 $ 19,583.67 Part 699 $ 5,348.12
12/7/01 Part 702 $ 14,235.55 702 $18,235.55
16/08/01 $ 10,039.52 Part 702 $ 4,000.00
12/7/2001 703 $ 2,039.52 703 $ 2,039.52
Part 705 $ 4,000.00 705 $10,267.42
16/07/01 20/08/01 $ 21,474.81 Part 705 $ 6,267.42
16/07/01 708 $ 314.62 708 $ 314.62
19/07/01 Part 718 $ 14,892.77 718 $19,892.77
23/08/01 $ 8,083.01 Part 718 $ 5,000.00
19/07/01 719 $ 1,083.01 719 $ 1,083.01
Part 733 $ 2,000.00 733 $ 9,486.72
23/07/01 24/08/01 $ 11,072.79 / * Part 733 $ 7,486.72
26/07/01 739 $ 1,586.08 739 $ 1,586.08
26/07/01 Part 738 $ 2,000.00 738 $21,292.27
27/08/01 $ 10,292.27 Part 738 $ 10,292.27
29/08/01 $ 7,000.00 Part 738 $ 7,000.00
30/08/01 $ 24,274.53 Part 738 $ 2,000.00
The respondent deposes that it was common practice for the company to make a payment which covered part or the whole of a number of invoices.
The table reveals what appears to be a clear link between the payments and the invoices. The payments in each case are made at an interval of about a month or so after the invoice in each case. A number of payments are of some thousands of dollars in round figures which, on the respondent’s case, represents either payment of the balance then owing under an invoice or a part payment under an invoice. In all other cases the amounts paid equate precisely with the small figures (hundreds, tens, single dollars and cents) in an invoice or the combined total of the small figures in two or more invoices. (There is one instance of a difference of one cent - at*) The total payments as apportioned across the invoices in the table equate precisely with the total of those invoices except in the case of the last cheque of $24,274.53 where a balance is apportioned to three further invoices (which appear at page 66 of the record) after the satisfaction of the balance of invoice 738. The respondent acknowledges that the balance of that cheque was to be applied in discharge of the appellant’s indebtedness under those three invoices.
The appellant deposes to the purchases made by her from the respondent and these appear at pages 45-47 inclusive of the record. There is no equation between the cheques which appear in the table (and in particular the small numbers of those cheques) and the amounts due in respect of those purchases particularly those during or following the period when the payments were being made as appear in the table.
Viewed as a whole the pattern of invoices and payments revealed by the table gives rise to a strong and, in the absence of any other explanation, unavoidable inference that the payments were intended to satisfy those invoices.
The payments have to be viewed in the light of the ongoing dealings in pigs after the appellant’s acquisition of the business, the use by the appellant of the same address and telephone number and business name in the conduct of the business and what might be regarded as the obvious commercial significance in ensuring that nothing should jeopardise the ongoing supply of pigs.
In these circumstances the contents of paragraph 10 of the appellant’s affidavit (set out in paragraph 24 above) are, in my view, insufficient to discharge the evidentiary onus cast upon her by what is shown in the table.
It can be accepted that the affidavit puts in issue the existence of any express oral or written authority but such authority is not relied upon by the respondent.
Insofar as the contents of this paragraph are relied upon in relation to the plain inference which the payments give rise to (that is an inferred intention that the payments should be applied to discharge the invoices set out in the table), the contents of paragraph 24 amount to no more than assertion or argument. In my view the contents of the table require some specific explanation or response so as to discharge the evidentiary onus which the table casts upon the appellant to demonstrate that a real issue arises. In its absence the court was justified in concluding that the appellant had no real prospect of successfully defending the claim and that there is no need for a trial of the issue.
“It is important that a Judge in appropriate cases should make use of the powers contained in part 24. In doing so he or she gives effect to the overriding objectives contained in part 1. It saves expense; and achieves expedition; it avoids the court’s resources being used up on cases where this serves no purpose, and I would add, generally, that it is in the interests of justice. If a claimant has a case which is bound to fail, then it is in the claimant’s interests to know as soon as possible that that is the position. Likewise if a claimant is bound to succeed a claimant should know that as soon as possible.”
“Under R 24.2 the court now has a very salutary power, both to be exercised in a claimant’s favour or, where appropriate in a defendant’s favour. It enables the court to dispose summarily of both claims or defences which have no real prospect of being successful. The words ‘no real prospect of succeeding’ do not need any amplification, they speak for themselves. The word ‘real’ distinguishes prospects of success or … they direct the court to the need to see whether there is a ‘realistic’ as opposed to a ‘fanciful’ prospect of success.”
The appellant advanced an argument that, even if the payments were intended to be applied to the company’s invoices, there would be a right in the appellant to recover these moneys by way of restitution. Such a claim was not pleaded and in my view there is no basis for it.
Whilst His Honour’s reasons are not extensively stated, in my view the conclusion reached by him that the respondent was entitled to summary judgment was justified on the evidence before him.
I would dismiss the appeal.
JONES J: I agree with the orders proposed by Cullinane J for the reasons he sets out. I wish only to add some observations of my own about the evidentiary onus which fell upon the appellant in resisting the application for summary judgment.
In this type of proceeding, as with an application under the former rules, the onus is on the applicant to prove the claim and to persuade the Court that there is no real prospect of the opposite party succeeding. In some circumstances a respondent to the application may be able to convince the Court that the onus has not been discharged without filing any evidence at all. But once a prima facie case has been made out entitling the applicant to judgment then an evidentiary onus shifts to the respondent. Rule 295 of UCPR especially provides that evidence may be given on information and belief, thus facilitating the discharge of that evidentiary onus.
In this case the respondent consistently with its allegation in the Statement of Claim adduced evidence of invoices presented to the appellant and of the payments made by the defendant. The respondent adduced evidence of the account paying practice of the business when it was owned by Lott Enterprises Pty Ltd (as Trustee) and when it was owned by the appellant. That practice was for the business owner to make payments to reduce the total indebtedness that may have arisen over the non-payment of particular invoices. Some such payments were for rounded off amounts. A subsequent payment would typically be for a specific amount which would satisfy the outstanding debt on a particular invoice or set of invoices. In other words, two or three payments matched the precise amount of a particular set of invoices. An inference that the payments were intended to match those invoices was inescapable.
The Statement of Claim identified the relationship between the payments and the invoices. The affidavits filed in support of the application for summary judgment did likewise and additionally made adjustments for any errors in bookkeeping entries or for unattributed credits. The Amended Defence simply failed to address this issue. The Amended Defence and the affidavits filed on behalf of the appellant identified in a global way invoices sent to and payments made by the business when under the control of the appellant. This showed a discrepancy in favour of the appellant. The appellant asserted that the discrepancy arose because some payments were, without her knowledge and without her authority, applied to the business debts of the previous owner to whom the invoices were addressed. She claimed she was entitled to be reimbursed for those misappropriations.
“…If the tribunal of fact believes the proponent’s witnesses, the requisite inference may be drawn in the proponent’s favour, and the chances of this happening will generally be increased by the opponent’s failure to adduce evidence. Nevertheless, it is quite possible that the tribunal of fact will not draw the requisite inference, even if the opponent does not adduce any evidence. The opponent merely runs a risk of losing the issue if the opponent remains silent, and, in such a case, when it is said that the burden of proof has shifted from the proponent to the opponent, all that is meant is that the latter should adduce some evidence as a matter of common prudence. The evidential burden of disproving the case made by the proponent on the issue in question is sometimes described as ‘a provisional burden’”.
In the appellant’s affidavit there was no explanation given or any facts identified which may have rebutted the inference that the payment could only have been made with the knowledge and acceptance of the invoices which related to the former business. In short, the appellant apart from a bare denial, failed to adduce any evidence relating to the issue of her knowledge and intention which could challenge the inference which the learned hearing judge obviously drew. Thus, in my view, his Honour was entitled to come to the decision that there was no real prospect of the appellant succeeding in her defence.
The appeal should be dismissed with costs.
For the purposes of the UCPR, "order" includes a judgment, direction, decision or determination of a court, whether final or otherwise (UCPR Sch 4 – Dictionary). ↩
See s 69(1) District Court Act 1967 (Qld). ↩
(1993) 176 CLR 300. ↩
(1993) 176 CLR 300. ↩
[2002] QCA 231. ↩
[2001] 1 All ER 91. ↩
[2001] 1 All ER 91. ↩
[2001] 2 All ER 513. ↩
Qld Pork P/L
Lott [2003] QCA 271
(1993) 176 CLR 300
Appeal dismissed with costs. The summary judgment for the respondent in the sum of $74,130.17 remained in place.
During the first few days after the appellant purchased the business, invoices from both the appellant and the respondent were sent or issued in the company's name. The appellant swore that this occurred in error.
The table set out in Cullinane J's judgment demonstrates that the amounts paid by the appellant to the respondent, whilst not mirroring the amounts in the respondent's invoices, bear a striking resemblance to them and appear consistent with the company's earlier practice of a single payment covering all or part of a number of invoices. Despite the appellant's assertions to the contrary, the irresistible inference from the payments and invoices is that the appellant, when making those payments to the respondent, was referring to the company invoices and was continuing the method of payment previously adopted by the company. In the absence of any competing explanation, the clear inference is that the appellant intended to make these payments against the company's debt to the respondent to ensure the continued supply of pigs for her business. It follows that the respondent was entitled to judgment and on the material before the primary judge there was nothing to suggest the appellant had any real prospect of successfully defending all or part of the claim or that there was a need for a trial.
The appeal should be dismissed.
CULLINANE J: In this matter the appellant appeals against two judgments of the District Court. An order has been made granting an extension of time within which to appeal against the first of these which was delivered on 21 November 2002. Leave has been given to amend notices of appeal in each case.
Each judgment relates to the same matter and is, except as to the amount of the judgment, in the same terms.
The respondent applied for summary judgment pursuant to Rule 292 of the UCPR against the appellant in her capacity as trustee of a trust (Colleen Lott Family Trust) in respect of pigs supplied by the respondent which it claims had not been paid for.
The learned District Court Judge, having decided to grant the judgment, gave judgment in the respondent’s favour on 21 November 2002 in the sum of $59,861.93.
It is not clear where His Honour obtained this figure from but it is clear that it was based upon a mistaken belief that the parties had agreed that in the event of the applicant succeeding, and after taking into account certain monies which were to be offset against the price of the pigs sold and a payment which had not been allowed for in the schedule to the pleading, the judgment amount should be $59,861.93.
Having been made aware that there was no such agreement, His Honour considered the matter again on 12 December 2002 and gave judgment for the respondent in the sum of $74,130.17.
His Honour was clearly satisfied that the respondent’s claim against the appellant had been established. The only challenge was raised in relation to the extent of a credit to be allowed. His Honour accepted the respondent’s evidence and on this basis arrived at the judgment figure.
The effect then of what His Honour did was to correct the earlier judgment he had given by giving judgment for the figure that he was satisfied the respondent was entitled to on the evidence before him.
The appellant contends that His Honour had no power to alter the original judgment, the matter not falling within any of the powers of the court to correct the judgment whether under the slip rule(Rule 388) or the power conferred by Rule 667(2) or in the court’s inherent jurisdiction.
It is said that His Honour’s first judgment was the result of a deliberate decision and not inadvertence. Given that His Honour’s judgment was based upon a plain misunderstanding of what the position was, I think this meets the language of the slip rule found in Rule 388(1)(b), namely “mistake or error (which) resulted from an accidental slip or omission”. Furthermore I think that the contention of senior counsel for the respondent that the matter falls within Rule 667(2)(d) is also correct. This permits a court to set aside an order if the order does not reflect the court’s intention at the time the order was made. Here it seems clear that His Honour at all times intended that judgment would be entered for the respondent in the sum for which the respondent had made out an entitlement after taking into account the credit and off-sets to which I have referred and was under the mistaken belief that the parties had agreed upon what that entitlement was and for reasons which cannot be now known arrived at the figure for which judgment was first pronounced.
I also think that in these circumstances the court would have an inherent power to correct the judgment. See Autodesk Inc v Dyason [No 2]4. The first judgment had not been taken out before His Honour dealt with the matter again*.*
The issue before the learned District Court Judge was whether the respondent was entitled to summary judgment in the sum of $74,130.17. Whilst a number of grounds of appeal were raised, ultimately they are to the effect that such a conclusion was not open to the learned District Court Judge.
The facts which the material either established as common ground or which should be taken to exist for the purposes of an application of this kind can be summarised as follows:
In Bernstrom v National Australia Bank Limited5 this Court adopted what was said by Lord Wolff in Swain v Hillman6 as to the rationale and scope of Rule 293. That case was concerned with the English equivalent of the rule. At p 94 His Lordship said:
Thus there was a conflict between the inference that the appellant knew and intended the payments to be made and the appellant’s sworn assertion that they were not so intended.
The resolution of the issue arising on the application for summary judgment was for the learned hearing judge to determine, firstly, whether the circumstances, as proved to his satisfaction, permitted the inference to be drawn that the payments were intended, thereby establishing a prima facie case for the respondent; secondly, whether there was any evidence by which the appellant had identified an issue requiring a trial. This process was not to engage in a “mini trial” which Lord Woolf warned against in Swain v Hillman7 as did Lord Hope in Three Rivers District Council v Bank of England No 38. It was to determine what was the evidence by which there can be identified a need to have a trial at all. Rules 292 and 293 of UCPR, by their very terms, are more focused on the evidence by which the substantial issues will be determined than perhaps was the case under the preceding rules of court.
Here the appellant had to address the remarkable coincidence of the amounts of the payments and amounts claimed in the invoices which, in the absence of some explanation, led to the irresistible inference that the payments were made in respect of those particular invoices. The concept is referred to in Cross on Evidence (Australian ed) as the shifting of the evidential burden. At para [7210] the following appears:-