Acron Pty Ltd v Couran Cove Holdings Pty Ltd [2015] QDC 20

DISTRICT COURT OF QUEENSLAND CITATION: Acron Pty Ltd v Couran Cove Holdings Pty Ltd [2015] QDC 20 PARTIES: ACRON PTY LTD ACN 100 112 427 (plaintiff) v COURAN COVE HOLDINGS PTY LTD ACN 160 528 263 (defendant) FILE NO/S: 671/14 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 10 February 2015 ex tempore DELIVERED AT: Brisbane HEARING DATE: 10 February 2015 JUDGE: Samios DCJ ORDER: 1. Dismiss the defendant’s application for summary judgment. 2. Strike out paragraph 5A of the amended statement of claim filed 07/08/2014. 3. The defendant pay the plaintiff’s costs on the summary judgment application to be assessed on the standard basis. 4. The plaintiff pay the defendant’s costs of the application to strike out paragraph 5A of the amended statement of claim to be assessed on the standard basis. CATCHWORDS: PRACTICE – APPLICATION – STRIKING OUT – STATEMENT OF CLAIM – SUMMARY JUDGMENT – where the plaintiff sues the defendant for money for work done by the plaintiff on water and sewage treatment plants allegedly owned by the defendant – where the defendant denies entering into a contract with the plaintiff – where the defendant brings an application for summary judgment against the plaintiff – where the defendant in the alternate brings an application to strike out parts of the plaintiff’s -- 1 of 7 -- 2 amended statement of claim – whether summary judgment should be given to the defendant against the plaintiff – whether parts of the plaintiff’s amended statement of claim should be struck out Legislation Uniform Civil Procedure Rules 1999 (Qld) r 171, r 293 Cases Falcke v Scottish Imperial Insurance Co (1886) 34 Ch D 234 Sunstar Fruit Proprietary Limited v Cosmo [1995] 2 Qd R 214 COUNSEL: Mr M Alexander for the plaintiff Mr M Bland for the defendant SOLICITORS: Smith Leonard and Fahey Lawyers for the plaintiff QBM Lawyers for the defendant [1] HIS HONOUR: The plaintiff sues the defendant for money the plaintiff claims the defendant owes for work done by the plaintiff at the Couran Cove Resort. The plaintiff alleges there was an agreement entered into for work to be done on the water treatment plant and the sewerage treatment plant. The defendant, Couran Cove Holdings Pty Ltd, denies that it contracted with the plaintiff for this work. [2] The plaintiff amended its statement of claim to allege that the defendant, Couran Cove Holdings Pty Ltd, was the owner of the properties or parcels of land on which the sewerage treatment plant and the water treatment plant were located. The allegation made by the plaintiff against the defendant is that the defendant received the benefit of the work. [3] The particulars given were that there was a search showing the lots owned by the defendant on South Stradbroke Island and sent to the defendant’s lawyers by the -- 2 of 7 -- 3 plaintiff’s lawyers as an attachment to an email. The defendant has brought an application pursuant to rule 293 of the UCPR1 seeking judgment for the defendant against the plaintiff. [4] In the alternative, the defendant seeks to have paragraph 5A of the amended statement of claim struck out pursuant to rule 171 of the UCPR on the grounds it discloses no reasonable cause of action. When the hearing of the application commenced, the plaintiff presented an application by which the plaintiff sought summary judgment against the defendant for the sum of $180,709.82 plus interest. However, that application was withdrawn. [5] Rule 293 provides that: A defendant may, at any time after filing a notice of intention to defend, apply to the court under this part for judgment against a plaintiff. [6] Subrule (2) of rule 293 of the UCPR provides that: If the court is satisfied – (a) the plaintiff has no real prospect of succeeding on all or 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 defendant against the plaintiff for all or the part of the plaintiff’s claim and may make any other order the court considers appropriate. [7] In addition to the correspondence passing between the solicitors, I have most of the invoices by which the plaintiff sought to be paid for the work done. From what I can see, these invoices are addressed by the plaintiff to the defendant, Couran Cove Holdings Pty Ltd. There is evidence that the plaintiff, when proposing to do this work by proposals in writing dated 24 July 2013, referred to the customer as CCH 1 Uniform Civil Procedure Rules 1999 (Qld). -- 3 of 7 -- 4 Infrastructure Pty Ltd. Mr Dowling, the sole director of the defendant, has sworn that the defendant owns various properties or parcels of land on South Stradbroke Island within the property generally known as Couran Cove Resort. He says the common property, including the land upon which the Couran Cove Resort water treatment plant and the Couran Cove Resort sewerage treatment plant are constructed, is owned by the Couran Cove Resort community body corporate. [8] He says Couran Cove Holdings Pty Ltd, the defendant, does not own the properties or parcels of land upon which the sewerage treatment plant and water treatment plant, the subject of these proceedings, are located. He swears the contents of the defence are to the best of his knowledge and belief, true and correct. That contains a denial that the defendant entered into any contract or agreement with the plaintiff. [9] Nevertheless, Mr Payne, the director of the plaintiff, has sworn an affidavit in which he has exhibited a number of documents, including invoices relating to the work he claims has not been paid by the defendant. He also confirms the truth and contents of the factual matters contained in the amended statement of claim, which, of course, alleges an agreement between the plaintiff and the defendant. [10] Regarding paragraph 5A of the amended statement of claim, which is the allegation that the defendant is the owner of the properties and, therefore, has obtained the benefit the work done by the plaintiff, he says that he understands the defendant is the owner of the property upon which the works were undertaken. In terms of any conflict, I would not accept Mr Payne’s understanding as against Mr Dowling’s sworn -- 4 of 7 -- 5 evidence that the water treatment plant and the sewerage plant are not on properties owned by the defendant. [11] The QVAS search, Mr Payne says, “suggests” the defendant is the owner of the property upon which the works were undertaken. By using the term “suggests”, I consider Mr Payne shows his lack of confidence as to what the real state of affairs is regarding ownership of that property. I can understand Mr Payne’s concern because it appears he has done the work and has not been paid. [12] Regarding the invoices, though, he exhibits correspondence through those emails which show that he was told, although not directly by the defendant, but by a group that appears to have been copying the defendant into correspondence that an invoice, which apparently was issued to CCH Infrastructure Proprietary Limited, be reissued in the name of the defendant. The author of the email says the entity it is currently in is incorrect. It seems consistent, then, when one looks at the invoices exhibited to Mr Box’s affidavit, that Mr Payne accepted that the invoices should be issued in the name of the defendant and proceeded to do so through other invoices throughout that period. [13] As I said, while the emails do not expressly say they are from Couran Cove Holdings Pty Ltd, the defendant, in my opinion, they do contain an inference that can be drawn that people within the group of companies informed Mr Payne to reissue the invoices in the name of the defendant, and he then did so. Mr Dowling’s company or himself were copied into subsequent emails where payment of the money due was being discussed and reasons given why it had not yet been paid. There was no email or -- 5 of 7 -- 6 correspondence from Mr Dowling, as far as the evidence reveals, bringing to Mr Payne’s attention that he was incorrect again. [14] Therefore, I come to the view that in all the circumstances, while it may be that the plaintiff may have to join other parties, that this is not a case for the giving of summary judgment for the defendant against the plaintiff. That is, I am not satisfied the plaintiff has no real prospects of succeeding on the plaintiff’s claim and that there is no need for a trial of the claim. When all the evidence is adduced, then I consider the court would be able to make a final determination of the party with whom the plaintiff contracted and owes the money to the plaintiff. However, as to paragraph 5A of the amended statement of claim, that is a different situation. Rule 171 of the UCPR2 provides that where there is a – where a pleading or a part of pleading discloses no cause of action, the court may strike out that part of the pleading. [15] In my opinion, the mere ownership of the land alleged is insufficient. On the contrary, here, I am satisfied, on the evidence of Mr Dowling, that the defendant does not own the land upon which the sewerage plant and the water treatment plant are situated. For that reason alone, I would strike out paragraph 5A of the amended statement of claim. [16] However, the law goes further and provides that work and labour done or money expended to benefit the property of another without more do not create any lien upon the property or any obligation to repay the expenditure. Mr Bland has helpfully referred to the cases of Falcke v Scottish Imperial Insurance Co (1886) 34 Ch D 234 at 248 and Sunstar Fruit Proprietary Limited v Cosmo [1995] 2 Qd R 214 at 224-227 2 Ibid. -- 6 of 7 -- 7 as authority in support of that proposition, which I accept. Therefore, I strike out paragraph 5A of the amended statement of claim filed on the 7th of August 2014. I dismiss the defendant’s application for summary judgment, and I will hear the parties as to the question of costs. [17] On the question of costs, I come to the view that costs should follow the event. In this respect, I order the defendant pay the plaintiff’s costs of the summary judgment application, to be assessed on the standard basis. Secondly, the plaintiff pay the defendant’s costs of the application to strike out paragraph 5A of the amended statement of claim, to be assessed on the standard basis. Thank you. [18] MR BLAND: Thank you, your Honour. [19] MR SMITH: Thank you, your Honour. -- 7 of 7 --