CNW Pty Ltd v Solar Batteries & Pumps Pty Ltd & Anor [2020] QDC 209

DISTRICT COURT OF QUEENSLAND CITATION: CNW Pty Ltd v Solar Batteries & Pumps Pty Ltd & Anor [2020] QDC 209 PARTIES: CNW PTY LTD ACN 009 669 836 (plaintiff) v SOLAR BATTERIES & PUMPS PTY LTD ACN 612 757 632 (first defendant) and JEFFREY MAURICE BLAKE (second defendant) FILE NO/S: BD 4003 of 2019 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court of Queensland DELIVERED ON: 3 September 2020 DELIVERED AT: Brisbane HEARING DATE: 27 August 2020 JUDGE: Loury QC DCJ ORDER: 1. The first defendant pay the plaintiff $326,978.37 plus interest in the amount of $17,690.11. 2. The plaintiff’s application for summary judgment against the second defendant be dismissed. 3. I will hear the parties as to costs. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY JUDGMENT – SUMMARY JUDGMENT FOR PLAINTIFF – where the plaintiff applies for summary judgment against the first and second defendants – whether the first and second defendants have no real prospect of successfully defending all or part of the plaintiff’s claim – whether there is no need for a trial of the claim or part of the claim PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY JUDGMENT – ADMISSIONS – -- 1 of 5 -- 2 where the plaintiff applies for summary judgment against the first and second defendants – whether the first defendant has made an admission entitling the plaintiff to summary judgment Civil Proceedings Act 2011 Uniform Civil Procedure Rules1999 rr 190, 292 Agar v Hyde (2000) 201 CLR 552 Bolton Properties Pty Ltd v JK Investments (Australia) Pty Ltd [2009] 2 Qd R 202 Linddales Pty Ltd v Macri Constructions Pty Ltd [2005] QSC 136 Neilsens Concrete Pty Ltd v Heath & Ors [2013] QDC 164 Sharp v AME Products Pty Ltd [2015] QDC 42 Paradise Constructors Pty Ltd v Lofts Quarries Pty Ltd [2003] VSC 370 Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 Qld Pork Pty Ltd v Lott [2003] QCA 271 COUNSEL: NH Boyce, solicitor, for the plaintiff DW Worrell for the first and second defendants SOLICITORS: Results Legal for the applicant Donnie Harris Law for the first and second defendants [1] The plaintiff sells electrical supplies. It supplied goods and services to the first defendant on credit rendering a number of invoices. Despite demand for payment of the invoices, an amount of $326,978.37 has not been paid and remains outstanding. The first defendant admits such. The first defendant also admits that a credit application was executed by the second defendant in his capacity as director of the first defendant however denies that the agreement for the supply of goods was subject to the terms and conditions alleged to be contained in the credit application. The first defendant alleges that it was misled into entering into the credit agreement by the plaintiff. [2] The second defendant is the director of the first defendant. He admits that he signed a document described as a “Deed of Guarantee” but denies that he is liable under it. [3] By claim filed 8 November 2019 the plaintiff seeks (1) $326 978.37 as money due and payable by the defendants to the plaintiff pursuant to a contract and guarantee; (2) interest from 31 July 2019; and (3) indemnity costs. The plaintiff has applied for summary judgment in its favour against both defendants. [4] In respect of the first defendant, summary judgment is sought pursuant to either rule 190 or rule 292 of the Uniform Civil Procedure Rules 1999. [5] Rule 190 allows for judgment to be given where an admission is made by a party such that it entitles the other party to judgment. That is so irrespective of whether there remains other questions to be decided in the proceeding. [6] Rule 292 requires my consideration of two questions: (1) whether the first and second defendants have no real prospect of successfully defending all or a part of the -- 2 of 5 -- 3 plaintiff’s claim; and (2) whether there is no need for a trial of the claim or part of the claim. [7] The first defendant disputes the terms of the credit agreement however admits that the goods and services were supplied, that demand has been made for payment of those invoices and that an amount of $326,978.37 remains outstanding. Upon those admissions the plaintiff is entitled to judgement against the first defendant irrespective of any dispute as to the terms of the credit agreement. [8] The plaintiff seeks interest on the monies owing by the first defendant in accordance with the terms of the credit agreement and costs. The first defendant pleads that any agreement was oral and that it was not bound by the terms and conditions and/or that it was misled and deceived as to the effect of the credit application. There is therefore a factual dispute with respect to that part of the claim (dealing with interest). However, at the hearing of this matter, the legal representative for the plaintiff confirmed that it was only seeking interest in accordance with the Civil Proceedings Act 2011. [9] Pursuant to rule 190(2) I give judgment for the plaintiff against the first defendant in the amount of $326,978.37 together with interest in the amount of $17,690.11. Interest has been calculated from 31 July 2019 when the claim arose until delivery of judgment on 3 September 2020 at the default rate of four percent. [10] In respect of the second defendant, the plaintiff applies for summary judgment pursuant to rule 292. Whether the second defendant has no real prospect of successfully defending all or part of the plaintiff’s claim requires the court to assess whether there is a realistic, as opposed to fanciful, prospect of success.1 There must be a high degree of certainty about the ultimate outcome of the proceedings before summary judgment should be given.2 [11] As to the second question, whether there is no need for a trial of the claim, that requires the court to exercise great care and proceed with caution having regard to the seriousness of a decision to summarily terminate a proceeding and deny a party the opportunity to take advantage of the usual interlocutory processes and present its case at trial.3 [12] The plaintiff pleads that the operative term of the guarantee contains no ambiguities. It reads: “The Guarantor shall guarantee and be fully liable to CNW not only as guarantor but also as principal debtor for the due and prompt payment by the Applicant when payment of same falls due in accordance with the terms of the Agreement for all goods and services which CNW has provided and may in the future provide at the Applicant’s request.” [13] The second defendant argues that the term “Applicant” is not defined. The recital of the Deed of Guarantee reads: 1 Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232; Bolton Properties Pty Ltd v JK Investments (Australia) Pty Ltd [2009] 2 Qd R 202. 2 Agar v Hyde (2000) 201 CLR 552 at [57]. 3 Bolton Property Pty Ltd v JK Investments (Australia) Pty Ltd [2009] 2 Qd R 202 per Daubney J. -- 3 of 5 -- 4 “Whereas: CNW has agreed to provide a credit facility to the person or company whose name is set out as the Applicant in the attached New Account Application and Agreement (“the Agreement”) on the terms set out in that Agreement provided that the Guarantor guarantees the performance of such terms by the Applicant and indemnifies CNW for all moneys owing under the Agreement and in respect of any other loss or damage which CNW may sustain should any term or warranty of the Agreement be breached by the Applicant.” [14] The Applicant, who is alleged by the plaintiff to be the first defendant, is not named in the Deed of Guarantee. Further the second defendant argues that there was no “New Account Application” or “Agreement” attached to the Deed of Guarantee. [15] The Deed of Guarantee was sent to the first defendant by email. It formed pages two and three of a three page document. The first page is a document titled “Credit Application No 27177”. It does not refer to an Applicant and does not refer to an Agreement. It contains contact details for the second defendant in a section headed “Primary Contact Details”. It also sets out in a section headed “Credit Details” that the amount requested is “0” and the terms of credit are “cash sale”. The document otherwise contains the details of the first defendant in a section headed “Organisation Details”. The section headed “Payment Billing Details” contains no details. Under a section headed “Consent to Process Application” it states “I authorize CNW to verify the information provided on this form as to my credit and trade history”. It is signed by the second respondent and dated 30 October 2017. [16] At the conclusion of the document it states “For current terms and conditions please visit http://www.cnw.com.au/terms-conditions”. [17] The plaintiff pleads that the credit agreement between itself and the first defendant consisted of the credit application and the terms which are incorporated by reference. Whilst “the Applicant” is not identified, it is argued that nonetheless it is readily ascertainable. [18] The second defendant argues that the document titled “Credit Application No 27177” does not evidence the Agreement as referred to in the Deed of Guarantee. Further, he argues that the terms and conditions as referred to in that document have not been proven in the evidence before me. Counsel points to the terms and conditions which have been exhibited to the affidavit of Ms Jane Hay, the Manager of Accounts Receivable/Credit of the plaintiff. In her affidavit sworn 10 July 2020 Ms Hay has exhibited what she deposes to be the “Terms and Conditions of Sale” as they appear on the plaintiff’s website. She deposes that those terms and conditions have not changed since December 2014. In her affidavit sworn 26 August 2020 she exhibited the plaintiff’s terms and conditions as they appeared on the website in July 2017. The two documents are identical. [19] The second defendant argues however, that the documents exhibited are not indicated as having come from the website “http://www.cnw.com.au/terms-conditions” but rather from “https://shop.cnw.com.au/cnw/en/AUD/termConditions” and https://web.archive.org/web/20170711150926/https://shop.cnw.com.au/cnw/en/AU D/termsConditions” respectively. He argues the plaintiff has failed to prove the terms -- 4 of 5 -- 5 and conditions as referred to in the Credit Application No 27177, are the terms and conditions as agreed between the parties. [20] The second defendant also argues that the internal emails between employees of the plaintiff company suggest that there was a $10,000 credit limit imposed as part of the conditions. The plaintiff however argues that there is no such term in the credit agreement and such a term would be inconsistent with the express terms of the credit agreement which contemplate that the credit limit may be exceeded. The Deed of Guarantee, it argues, is only limited by the goods and services which the plaintiff has provided. It relies upon the decisions of Linddales Pty Ltd v Macri Constructions Pty Ltd4; Neilsens Concrete Pty Ltd v Heath & Ors5; Sharp v AME Products Pty Ltd6; and Paradise Constructors Pty Ltd v Lofts Quarries Pty Ltd7. In my view, the Deed of Guarantee does not limit the liability of the second defendant to $10 000. Its only limit is to the value of the goods and services provided by the plaintiff. [21] The second defendant has denied that the terms and conditions relied upon by the plaintiff formed part of the agreement between the first defendant and the plaintiff; that the agreement between the plaintiff and first defendant was in fact oral; and/or that the second defendant was misled and deceived as to the effect of the credit application. [22] There is a factual dispute as to what the terms of the credit agreement were. In addition, issue has been taken with respect to the proof of the terms and conditions. The legal burden of proof is on the applicant in these proceedings to satisfy the court of the matters set out in rule 292. Only when evidence discharging that burden has been led does the evidentiary onus shift to the second defendant, the overall burden of proof remaining on the applicant.8 [23] I am not satisfied that the plaintiff has discharged its burden of proving that there is no real prospect of the second defendant successfully defending the claim and that there is no need for a trial. There is a contest between the plaintiff and second defendant as to the terms of the credit agreement and the construction of the guarantee. Accordingly I refuse to exercise my discretion to grant summary judgment in favour of the plaintiff against the second defendant. [24] I will hear the parties as to costs. 4 [2005] QSC 136. 5 [2013] QDC 164. 6 [2015] QDC 42. 7 [2003] VSC 370. 8 Qld Pork Pty Ltd v Lott [2003] QCA 271 at [41]. -- 5 of 5 --