Quality Bakers Australia Pty Ltd v Yassin Modern Bakery Pty Ltd

LEGISLATION CITED : (NSW) Uniform Civil Procedure Rules 2005, r 13.1, r 17.7

Brambles Australia Ltd t/as CHEP Australia v Tatale Pty Limited (2004) Aust Tort Reports 81-759 CASES CITED : Capital Finance Co Limited v Bray [1964] 1 WLR 323; 1 All ER 603 Hawker Noyes Equipment Pty Limited v Dueeasy Pty Limited (NSWCA, Meagher, Sheller and Cole JJA, 18 July 1996, unreported) Long Leys Co Pty Ltd v Silkdale Pty Ltd (1991) 5 BPR 11,512

PARTIES : Quality Bakers Australia Pty Ltd (plaintiff) Yassin Modern Bakery Pty Ltd (defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DUTY LIST

2186/07 Quality Bakers Australia Pty Limited v Yassin Modern Bakery Pty Limited (trading as Yassin Lebanese Bakery) JUDGMENT (ex tempore) 1 HIS HONOUR: By Statement of Claim filed on 10 April 2007 the plaintiff Quality Bakers Australia Pty Limited sues the defendant Yassin Modern Bakery Pty Limited for detention of goods, those goods being large plastic crates used by the plaintiff for the purpose of delivering the bread that it manufactures to its customers.

2 The affidavit of Anthony Daniel Bradley, sworn 12 April 2007, proves service of the Statement of Claim on the defendant. On one of the occasions on which the matter has been before the Court, namely, on 14 May 2007, there was an appearance by a solicitor on behalf of the defendant when the matter was adjourned to today, directions being made for the service of any material to be relied on by the defendant in opposition to the plaintiff's application for summary judgment. That solicitor has ceased to act for the defendant and there was no appearance when the matter was called today. The defendant has not filed an Appearance, nor any defence. In those circumstances, each of the allegations of fact in the Statement of Claim is taken to be admitted.

3 The evidence which the plaintiff has tendered plainly establishes that the defendant has possession of and uses crates bearing the markings of the plaintiff's business. Although there is an amount of hearsay material in the evidence that has been tendered, that goes essentially to the manner in which the defendant might have come into possession of those crates. As other evidence plainly satisfies me that the defendant is in possession of crates belonging to the plaintiff, and has been and is using them in the course of its business, and has received demands from the plaintiff to cease doing so and to deliver them up, it is immaterial how the defendant came into possession of the crates, and I do not take into account that hearsay material.

4 So far as the question of demand is concerned, the letter of demand - which the evidence of Mr Gray establishes would, as a matter of practice, have been given to the defendant on at least a couple of occasions prior to the commencement of these proceedings, as is, in any event, admitted pursuant to paragraph 5 of the Statement of Claim - does not demand delivery up to any specific premises of the plaintiff, but indicates that upon receipt of advice that the defendant is in possession of the plaintiff's property, the plaintiff will arrange recovery. That is a sufficient demand.

5 Moreover, the evidence establishes not only that the defendant has possession of such crates, but that it is using the crates in its business. In those circumstances, even if a demand was ineffective to the extent that it required delivery to particular premises chosen by the plaintiff, there would still be a detention of the goods, by reason of the defendant's continued use of them [see, for example, Capital Finance Co Limited v Bray [1964] 1 WLR 323; 1 All ER 603, 606-7 and Brambles Australia Ltd t/as CHEP Australia v Tatale Pty Limited (2004) Aust Tort Reports 81-759, [20], [38]].

6 It is in those circumstances that the plaintiff, by motion filed on 30 April 2007, moves for summary judgment pursuant to (NSW) Uniform Civil Procedure Rules 2005, r 13.1. Service of that Notice of Motion on 2 May 2007 is proved by the affidavit of Joseph Khoury, sworn 8 May 2007. It was in response to that motion that there was an appearance by a solicitor for the defendant when the matter came before the Court on 14 May 2007. An affidavit of service of John Wooldridge, sworn 11 May 2007, proves service of some of the affidavits in support of the motion and of notice of the matter being before the Court on 14 May 2007. As I have said, the defendant was represented when the matter was before the Court on 14 May and was adjourned to today, although it is no longer represented. In those circumstances, I am satisfied that the defendant has due notice of the hearing today.

7 Uniform Civil Procedure Rules, r 13.1, authorises the Court, on an application by the plaintiff in relation to the plaintiff's claim for relief, if there is evidence of the facts on which the claim is based and there is evidence given by the plaintiff or some responsible person that in the belief of the person giving the evidence the defendant has no defence to the claim, to give such judgment for the plaintiff or make such order on the claim as the case requires. 8 I am satisfied that there is evidence of the facts on which the claim is based. In my view, the evidence makes good the essential material facts in the cause of action pleaded in the Statement of Claim, but as I have said, in any event, there are deemed admissions of all the allegations of fact in the Statement of Claim.

9 So far as the second requirement is concerned, the plaintiff relies on an affidavit of Timothy Gow, sworn 10 May 2007, who is a solicitor employed by the plaintiff, and manages the proceedings on behalf of the plaintiff under the supervision of the plaintiff's general counsel. He deposes, "On the basis of the evidence filed on behalf of the plaintiff and of my knowledge of the proceedings and the facts surrounding the proceedings, I do not believe that the defendant has a defence". What that amounts to is a denial of an affirmative belief that the defendant has a defence. It is not an assertion of an affirmative belief that the defendant has no defence, which is what the rule requires. I do not accept that the distinction is immaterial. The whole purpose of Pt 13, r 1(b), is to require that on an application for summary judgment, the applicant give close and punctilious attention to the question of absence of a defence, and is prepared to depose and, if necessary, be cross-examined as to the belief that there is no defence. As the Court of Appeal pointed out in Hawker Noyes Equipment Pty Limited v Dueeasy Pty Limited (NSWCA, Meagher, Sheller and Cole JJA, 18 July 1996, unreported), before deposing to a belief that there is no defence, the deponent should take care to consider the precise claim pleaded and ensure that the evidence which is adduced in support of the application supports that precise claim.

10 But for other circumstances, I would not have granted summary judgment on the basis of Mr Gow's affidavit. As Mr Condon points out, there is some authority for the view that if the Court is, in fact, satisfied that there is no defence, a technical non-compliance with the rule will not necessarily justify refusal of summary judgment [Long Leys Pty Limited v Silkdale Pty Limited (1991) 5 BPR 11,512]. But I cannot be satisfied, in the absence of more, that the assertion of absence of belief in the existence of a defence is no more than a misstatement of the true requirement that there be a positive belief in the absence of a defence. To the contrary, it suggests that the deponent was not prepared to make an affidavit which accords with the requirements of the rules. 11 However, as I have said, the defendant has not filed a defence and, in those circumstances, all the allegations of fact in the Statement of Claim are taken to be admitted. Uniform Civil Procedure Rules Pt 17, r 7, authorises the Court to give any judgment or make any order to which a party is entitled where admissions have been made by the other party, whether by his or her pleadings or otherwise. Here, all material facts which found the Statement of Claim have been admitted, and quite apart from r 13.1, the Court would be authorised to give judgment by r 17.7. In those circumstances, I do not think I need to insist on strict compliance with Pt 13 r 1, being satisfied in any event that there is evidence as well as admissions of each of the material facts on which the plaintiff's claim depends.

(1) Order that the defendant be permanently restrained from by itself, its servants or agents: (a) using bread crates which are the property of the plaintiff ("the crates") for any purpose (including, without limiting the generality of the foregoing, to transport or deliver any items including bread products) other than to receive deliveries of bread products from the plaintiff; and (b) permitting any other person or entity to use crates in the possession of the defendant.

(2) Order that the defendant, by 29 May 2007, deliver up to the plaintiff or a person authorised in writing by the plaintiff for that purpose all crates that are in the defendant's possession, custody or control.

(3) Order that the defendant pay the plaintiff's costs.

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