Breen & Anor v Orenshaw [2013] QDC 241

DISTRICT COURT OF QUEENSLAND CITATION: Breen & Anor v Orenshaw [2013] QDC 241 PARTIES: James R Breen & Mandy L Breen Plaintiffs/Respondents And Wayne Francis Orenshaw Defendant/Applicant FILE NO: D114 of 2011 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court at Mackay DELIVERED ON: 23 September 2013 DELIVERED AT: Townsville HEARING DATE: 30 August 2013 JUDGE: Durward SC DCJ ORDERS: 1 Application for summary judgment granted. 2 Parties to be heard as to costs orders. CATCHWORDS: PRACTICE & PROCEDURE – PLEADINGS – proceeding for debt – plaintiff previously sued company – plaintiff participated fully as creditor in liquidation – no payment – now sues defendant in person – whether binding and irrevocable election made to pursue company PRACTICE & PROCEDURE – CONTRACT – whether defendant the contracting party – whether defendant an agent for undisclosed principal – relevance of plaintiffs‟ subsequent acquisition of knowledge of company as contracting party and delivery of invoices to, statutory notice upon and proceedings to recover debt from company PRACTICE & PROCEDURE – UCPR – APPLICATION FOR SUMMARY JUDGMENT BY DEFENDANT – whether proceeding pleads a cause of action – whether need for trial – whether plaintiff has no real prospect of succeeding in claim – no relevant factual dispute – whether legal issue can be resolved on application without need for trial LEGISLATION: Uniform Civil Procedure Rules 1999 rr 5, 293. -- 1 of 17 -- 2 CASES APPLIED: CASES CONSIDERED: Scarf v Jardine (1882) 7 App Cas 345; Sargent v ASL Developments Ltd (1974) 131 CLR 634; 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. Craine v Colonial Mutual Fire Insurance Co Ltd (1920) 28 CLR 305; Hill v Colquhoun & Nicholls Pty Ltd (unreported BC 8111050, NSWSC 06 August 1981; Maynegrain Pty Ltd v Compafina Bank [1982] 2 NSW LR 141; United Australia Ltd v Barclays Bank Ltd [1941] AC 1;Figliomeni v Steel Supplies (Aust) Pty Ltd & Anor (BC8491006 unreported SCWA, No 152 of 1984); Simon v O‟Gorman (1979) 27 ALR 619; AutoCaps Australia Pty Ltd v Deposit Investment Company Ltd (Receiver Appointed) (BC 8901590 unreported, NSWSC 16 October 1989); Clarkson, Booker Ltd v Andjel [1964] 3 All ER 260. COUNSEL: G Thomae for the defendant/applicant S McLennan for the plaintiffs/respondents SOLICITORS: Mills Oakley Lawyers for the defendant/applicant Bill Cooper & Associates for the plaintiffs/respondents [1] This is an application by the defendant: 1. for summary judgment pursuant to r 293 Uniform Civil Procedure Rules 1999 (“UCPR”); or in the alternative, 2. to strike out the plaintiff‟s claim and/or the statement of claim in their entirety. The dispute [2] The plaintiffs operated a business that supplied and erected scaffolding for building works. [3] The defendant had traded as a sole trader using the name Whitsunday Pole Homes. At a point in time in 2006, he incorporated a company called Whitsunday Pole Homes Pty Ltd (“the company”) and then traded through the company. He entered into a contract, through the company, for a development project – „Northpoint Villas‟ - to build fourteen residential villas at Hamilton Island. He then engaged the plaintiff as a sub-contactor to supply scaffolding services as part of that contract. The plaintiff had previously done work, for the defendant, prior to the incorporation of the company. -- 2 of 17 -- 3 [4] The dispute is whether the company was an undisclosed principal; and whether or not the plaintiffs had made an irrevocable election to pursue the company for payment, rather than the defendant personally. Background [5] The plaintiff Mr Breen maintains that in some point in 2007 and during the course of the services he was providing pursuant to the sub-contract, he became aware that he was dealing with the company. He had been requested to send the invoices to the company rather than to the defendant in his personal capacity. He sent fourteen invoices addressed to the company. The invoices were not paid and the plaintiff through his lawyers sent letters of demand to the company, asserting that there was a contract between the plaintiffs and the company. [6] The company subsequently went into liquidation and the plaintiffs became a creditor and filed a proof of debt which was accepted by the liquidator. Mr Breen was appointed to the management committee of the liquidation as a creditor. [7] In the course of the liquidation and after he had proved his debt and participated in the liquidation process, the plaintiffs reissued the fourteen invoices to the defendant personally, seeking payment of them. Those invoices were the same invoices that were used in the proof of debt in the company. [8] The Liquidator has since applied for the company to be de-registered and wound up. Issues [9] 1. Was the company an undisclosed principal? 2. Had the plaintiffs exercised an election to seek payment from the company? 3. If the plaintiffs had exercised that election, was it a binding and irrevocable election? 4. Is this a case for summary judgment for the defendant? Material Chronology [10] The following are, in summary, the material events:  Prior to 12 January 2006, the defendant acted personally as a builder, trading as Whitsunday Pole Homes.  12 January 2006 the company, „Whitsunday Pole Homes Pty Ltd‟ was incorporated, the defendant being the sole director and shareholder. -- 3 of 17 -- 4  10 August 2006 to 25 August 2009, the company had its own builder‟s licence number.  10 August 2006 to 31 July 2009, the company traded as a building and construction business, using the trading name “Whitsunday Pole Homes”.  31 July 2009, Liquidator appointed.  30 July 2013 Liquidation ceased.  02 August 2013, deregistration of the company requested. The Pleadings: Material Parts [11] The Amended Statement of Claim asserts that the contract was made with the defendant (as a sole trader) or alternatively with the defendant in the capacity of agent (director) for the company, the company having been an undisclosed principal. The claim was for a debt due and owing by the defendant to the plaintiff; or restitution and/or unjust enrichment and/or quantum merit. [12] The Amended Defence asserts that the defendant was not acting as an agent for the company, but as sole director of the company, at the time that the plaintiffs‟ services were engaged. It asserts that the plaintiffs knew of the existence of the company but in any event the claim, whether the defendant acted as agent or as a director, could only be made against the company. [13] The Amended Reply denies any knowledge of the existence of the company at the time the contract was made. Affidavit Material [14] Mr Breen deposed, in a recent affidavit on behalf of the plaintiffs, that prior to the subject contract the plaintiffs had provided services to the defendant, but were not aware of the existence of the company. Mr Breen deposed that he provided a quotation in February 2007 to the defendant and that it was accepted in the same month by him. [15] The defendant Mr Orenshaw, in a recent affidavit, deposed that the quotation received from the plaintiffs was not accepted, but that the company on 07 March 2007 requested the plaintiffs to provide scaffolding services. He also deposed that between 12 January 2006 and 30 June 2006 notices were sent to all contractors and to service providers previously engaged by him personally, advising that the business was now a company. Whilst he does not produce a copy a notice sent to the plaintiffs, he believes one was sent and exhibited to his affidavit is a copy of such a notice sent to another contractor in that time period. Mr Orenshaw deposed that between 10 August 2006 and 31 July 2009, the company also engaged the plaintiffs to provide scaffolding services to -- 4 of 17 -- 5 other building projects that the company was undertaking on Hamilton Island at the material time. [16] It is not controversial that between about 08 March 2007 and 27 November 2007 – perhaps as late as May 2008 – the plaintiffs provided scaffolding services to the company in respect of the specific building project on Hamilton Island. [17] Mr Breen in his affidavit deposed that the plaintiffs became aware “subsequent to the execution of the contract” that the defendant had incorporated the company, that is in the latter half of 2007 through a conversation Mr Breen said he had “with the defendant in which he told me to issue the invoices to the company by stating „can you just add to the bills, Pty Ltd‟ or words to that effect.” [18] He deposed that the plaintiffs endeavoured to recover the invoiced amounts from the company, participated in the liquidation of the company and did not receive any payment”. Following the liquidation, “the (plaintiffs have) opted to pursue the defendant due to the fact that at the time of the formation of the contract, the defendant at no time disclosed he was acting as agent or director” of the company. Mr Breen does not otherwise depose as to the conduct that is relevant to any irrevocable election, the critical issue in this matter. The clear implication in his affidavit is that the proceedings the plaintiffs instituted against the defendant, is a direct consequence of their failure to secure payment of the debts from the company, in the liquidation process. The Liquidation of the company [19] The plaintiffs had issued fourteen invoices to the company (one dated 18 February 2008 and thirteen dated 22 December 2008) which related to each of fourteen villas in respect of which scaffolding services were provided. Those invoices were addressed to „Whitsunday Pole Homes Pty Ltd‟. They totalled $260,425.47. Each of the invoices detailed the nature of the services provided. [20] There had been payments made by the company to the plaintiffs in the period 2007/2008, upon invoices rendered which related to other work being performed by the plaintiffs for the company on Hamilton Island. [21] When the fourteen invoices were received, Mr Orenshaw deposes that the amounts were in dispute because of a lack of particularity and because they were delivered late in time and after he had been paid, through the contract with Hamilton Island Enterprises, a much lesser sum in respect of scaffolding services in respect of the construction of the villas. [22] On 09 January 2009, the plaintiffs‟ former lawyers sent a letter of demand addressed to the company. On 28 January 2009, the company‟s lawyers sent a letter (incorrectly bearing the year date 2008) to the plaintiffs‟ former lawyers seeking a justification of the claim. On 24 February 2009, the plaintiffs‟ lawyers wrote to the former lawyers for the company, -- 5 of 17 -- 6 referring to an “apparent insolvency” of the company and foreshadowing the making of a statutory demand on the company. On 12 March 2009 the company‟s lawyers sent a letter to the plaintiffs‟ former lawyers offering to resolve the dispute between the parties. On 11 August 2009 a proof of debt was lodged by the plaintiffs against the company. The plaintiff became a member of the liquidator‟s committee of inspection on 11 August 2009. He actively participated in the liquidation process through the meetings held by the liquidator and made several requests of the liquidator for information and specific action with respect to the company, its director or accountant. [23] On or about 29 June 2011 (or 05 July 2011), invoices were reissued to the defendant in his personal capacity. These invoices were the same as those which previously had been sent to the company and which had become the matter of dispute. They related to the same services provided by the plaintiffs to the company. Submissions [24] Mr Thomae for the defendant submitted that the plaintiff by lodging its proof of debt with the liquidator of the company and participating as a creditor in the liquidation has made an election to recover its debt from the company alone. He submitted that the defendant as sole director and shareholder of the company was able to exercise all the powers of the company and that there was no basis to assert that there was any joint liability as between him and the company. Even if the plaintiff did not know of the existence of the company when the contract for provision of the services was first entered into, the plaintiffs certainly knew at a later time and invoiced the company as a consequence of acquiring that knowledge. [25] Mr Thomae was critical of the manner in which the amended statement of claim of the plaintiffs asserted the chronology of events with the effect that, on his submission, the pleading was inconsistent with the facts as deposed by the plaintiffs in their affidavits. Even if the defendant was faced with an allegation that he acted as agent for the company, the amended statement of claim does not demonstrate how the defendant might be personally liable for the payment of the debts. [26] He relied primarily on the authority of Scarf v Jardine (1882) 7 App Cas 345. That case is cited in a number of subsequent authorities, some of which were referred to in the course of the hearing of the application. [27] Mr McLennan for the plaintiffs submitted that the defendant was acting as an agent of the company. However, the basis for that assertion is not articulated in the material and the submission does not take into account the acquisition of knowledge by the plaintiffs of the existence of the company and their decision to invoice the company and seek payment from it. [28] However, the plaintiffs‟ substantive submission was about the issue of election. Mr McLennan submitted that the lodging of a proof of debt did -- 6 of 17 -- 7 not constitute an unequivocal election. He submitted that it was not equivalent to commencing litigation and suing a party through to judgment. He submitted that a summary determination should only be made in the clearest of cases and that there were in this case questions of fact that should be determined at trial. Discussion: Liability 1 Undisclosed principal [29] If the defendant was the agent for an undisclosed principal then prima facie their liability is several (rather than joint). In Maynegrain Pty Ltd v Compafina Bank [1982] 2 NSW LR 141, Hope JA wrote at pages 149- 150: “A person may sue or be sued upon a contract although the other party to the contract did not know that the person with whom he was contracting was acting as an agent, if in fact that person was acting as an agent for an undisclosed principal, unless the terms of the contract are inconsistent with the known person being an agent. Either principal or agent may sue or be sued … the rights and obligations of principal and agent are not joint, but, subject to the superior right of the principal, alternative.” [30] The undisclosed principal issue is of little consequence in the circumstances of this case, even if there is a dispute on the facts about when and how the plaintiff‟s acquired knowledge of the existence of the company. 2 Election [31] The undisputed fact is that they the plaintiffs‟ did acquire that knowledge, invoiced the company and thereafter sought payment from the company of the debt due and owing to them on the invoices, through statutory demand, proof of the debt in the liquidation and active participation in the liquidation process, until the liquidation ceased, with no payment of the debt forthcoming. [32] The Undisclosed principal issue is now subsumed in the critical issue of whether the plaintiff‟s elected to pursue the company for payment rather than the defendant personally and whether that election was binding and irrevocable, such that the plaintiff‟s now have no right at law to pursue the defendant personally to recover the debt, which is what this proceeding is about. [33] The factual circumstances in Scarf v Jardine were that a firm constituted by two partners was dissolved, one partner (Mr Scarf) retiring and the other one (Mr Rogers) continuing the business with a new partner (Mr Beech) in the same partnership name - W H Rogers & Co - in what in fact constituted a new firm. -- 7 of 17 -- 8 [34] The plaintiff had been a customer of the partnership as it was previously constituted and delivered goods to the firm after the change of partners, but without notice of that fact. He subsequently received notice and sued the new firm for the price of the goods. When the new firm became bankrupt he proved the debt against the estate of the partners. He subsequently brought an action to recover the debt against the retired partner. [35] The House of Lords held that the plaintiff might have chosen to sue the retired partner or the members of the new firm, but could not sue all three of them and that, having elected to sue the new firm and prove the debt, he could not afterwards opt to sue the retired partner. [36] Lord Selbourne LC wrote at page 350: “There was therefore in this case undoubtedly a case of circumstances which would have entitled the plaintiff, if he had thought fit, to hold Mr Scarf liable, the credit being given to him and to Rogers, there being no knowledge on the part of the plaintiff of the dissolution of partnership; no knowledge of any revocation of the agency at the time when these goods were delivered. On the other hand, if you look not to the estoppel but to the fact, the plaintiff was entitled to hold the persons who actually gave the order and received the goods, and were interested in the profit and loss of the firm which ordered them, liable to him; those persons being not Scarf, Rogers, and Beech, or Scarf and Rogers, but Rogers and Beech alone. Now it appears to me that the real question … is this, whether in that state of circumstances there was a concurrent joint liability of the three persons, Scarf, Rogers, and Beech …; or whether the plaintiff had a right to make his choice whether he would sue those who were liable by estoppel, or sue those who were liable on the facts.” [37] His Lordship continued as follows, writing (at page 351): “It seems to me therefore that the plaintiff was necessarily put to his election. He might hold either Rogers and Scarf, or Rogers and Beech, liable: he could not hold Rogers, Scarf and Beech all liable together”; and “….the question is which I originally stated, namely whether it is possible, after choosing to hold those who actually gave the order and received the goods liable, and proceeding against them as debtors in such a way as to amount to a distinct election to take their liability, to retract and to fall back upon the liability which, on a -- 8 of 17 -- 9 different principle, might have been asserted against the other two, that is to say against Scarf and Rogers, to the exclusion of Beech. I think that the plaintiff was bound by his election …”; and “Then did the plaintiff do that which was, and ought to be held as, an election of liability? I think that he did, with full knowledge of all the facts from the 25th February. He not only carried on the correspondence to which I have referred – which might have been entirely consistent with his reserving his right to elect; he not only received the cheque – upon which I am disposed to make the observation that taking it would not have been a conclusive election, but he brought his action against Rogers and Beech; and not only did he bring his action, but when the action was stopped by the liquidation he carried in his proof, swearing that they were justly and truly indebted to him for the goods as sold and delivered by him to them. Rogers and Beech were in point of fact the debtors, and he had the benefit of that which really (without going into any technical distinctions) for this purpose appears to me to be sufficient ground of judgment.” [38] Lord Blackburn wrote (at page 359): “It seems to me that he had his choice between the two: he has his choice whether he would hold Rogers and Beech liable as in fact they were, or Rogers and Scarf liable as he had supposed they were, though Scarf was not liable in fact; but he could not hold both sets of persons liable. And then comes the question which ought to have been decided … whether the plaintiff had before the 30th September, the date at which he for the first time made a claim against Scarf, made a final determination of the election by which he had to choose which of the two sets of parties he would hold liable”; and (at page 361) “Was there before the 30th September, which was the date when the plaintiff first came upon Scarf, an unequivocal election to take Beech as his debtor? I do not think that at first there was”; and (at page 362) His Lordship continued: “But then the plaintiff goes on and issues a writ against Rogers & Beech – he sues Beech. I am unable to conceive -- 9 of 17 -- 10 a more unequivocal act; he has thereby adopted Beech as his debtor at that time.” [39] Lord Bramwell wrote (at page 364): “… when the truth was known to the plaintiff, I do not think that he was bound to elect at any particular time; but I am satisfied that when he did he elect he was bound, and that after seeking to enforce his remedy, or indeed enforcing his rights, against one pair, that is to say Rogers and Beech, he had not the right to maintain another action against Scarf separately.” [40] The election does not need to be communicated, although in this case that seems to me to have occurred, at least by the delivery of invoices for payment by the plaintiffs addressed to the company. Nor is it necessary for the other party to move to his detriment: Hill v Colquhoun & Nicholls Pty Ltd (unreported BC 8111050, NSWSC 06 August 1981). [41] In Hill v Colquhoun & Nicholls Pty Ltd a plaintiff sued two defendants (being uncertain as to the proper defendant) for the price of goods. The issue is whether the plaintiff was, by seeking to obtain judgment against the second defendant, estopped from further pursuing his claim against the first defendant, not in the customary sense but rather in terms of an unequivocal election. Yeldham J wrote (at page 7): “…I do not think that it can be accepted that in the case of two persons alternatively liable, a conclusive election to adopt the liability of one to the exclusion of the other can always be inferred from the issue of a writ against one person alone, and certainly no such inference can be drawn where it is issued against both. But the signing of judgment against one of the defendants will be conclusive evidence in such circumstances of an election not to proceed against the other.” [42] In Simon v O‟Gorman (1979) 27 ALR 619 the subject action had been commenced against two individuals and at that time a judgment already existed against the principal, a company, founded on the same facts. Lockhart J (at page 638) wrote: “For the doctrine of election to operate, there must be some element of knowledge on the part of the „elector‟ and words or conduct sufficient to constitute the making of an election as between the two inconsistent rights which he possesses: See Craine v Colonial Mutual Fire Insurance Co Ltd (1920) 28 CLR 305 at 326; United Australia Ltd v Barclays Bank Ltd [1941] AC 1, at 30 and per Lord Atkin at 31.” -- 10 of 17 -- 11 [43] The principles relating to the doctrine of election are expounded by Stephen J in Sargent v ASL Developments Ltd (1974) 131 CLR 634, at 641-648. “It is not by mere delay that it is said that the right of rescission was lost but rather by conduct evincing an intention to keep the contracts on foot at a time when the alternative, but inconsistent, right of rescission had become available. The vendors having two inconsistent rights were, it is said, bound to elect as between them and having elected to treat the contracts as subsisting they were thereafter bound by their election and thus forfeited their right of rescission. The doctrine of election as between two inconsistent legal rights is well established but certain of its features are not without their obscurities. The doctrine only applies if the rights are inconsistent, the one with the other and it is this concurrent existence of inconsistent sets of rights which explains the doctrine; because they are inconsistent, neither one may be enjoyed without the extinction of the other and that extinction confers upon the elector the benefit of enjoying the other, a benefit denied to him so long as both remained in existence” (page 641). “For the doctrine to operate there must be both an element of knowledge on the part of the elector and words or conduct sufficient to amount to the making of an election as between the two inconsistent rights which he possesses (Craine v Colonial Mutual Fire Insurance Co Ltd …; United Australia Ltd v Barclays Bank Ltd …)” “The nature of the knowledge which an elector must possess is a matter upon which the authorities are somewhat at variance. An elector must at least know of the facts which give rise to those legal rights, as between which an election must be made; without that knowledge the doctrine of election would not be available to make irrevocable his choice of one particular right, although in appropriate circumstances an estoppel may still arise which produces that very consequence and this without any such requirement of knowledge on the part of the party who is estopped. The extent of knowledge of relevant facts necessary for the doctrine of election to apply has been described as „full knowledge of the material facts‟ (his Honour referred to authority) … a knowledge of circumstances such as will provide information from which the decisive fact giving rise to the legal right is „a clear if not a necessary inference‟ was held to be sufficient” (page 642). -- 11 of 17 -- 12 “The extent of knowledge will no doubt usually give rise to little difficulty; it is when the nature of the requisite knowledge is an issue, whether knowledge of the facts giving rise to the legal rights suffices or whether, on the contrary, there must also be knowledge of the right of election as between two available, inconsistent legal rights, that contrariety exists. Some authorities, such as Scarf v Jardine, omit all discussion of the nature of that acquisite knowledge. Others speak simply of knowledge of the facts from which the legal rights arise … some expressly deny the need for knowledge of legal rights, knowledge of the facts alone sufficing …” (page 643). [44] His Honour continued as follows, at page 646 and 647 respectively: “For an election there need be no actual, subjective intention to elect (Scarf v Jardine .. ), an election is the effect which the law attributes to conduct justifiable only if such an election had been made …”; and “… an election “knowingly made, cannot be withdrawn even though it has not been acted upon by another to his prejudice” and this because “Estoppel depends upon what a party causes his adversary to do.” Waiver by election depends upon what the party himself intends to do, and has done‟.” [45] In Clarkson, Booker Ltd v Andjel [1964] 3 All ER 260, the Court considered that: “in order to constitute an election which will bar the present proceedings against the defendant the decision to sue [the company] must, in the first place, be shown to have been taken with full knowledge of all the relevant facts”. [46] The determination of whether an election was a “truly unequivocal act” involves an examination of the context of the election and all the relevant circumstances (Clarkson, at page 266). The Court found that the plaintiffs, by mere institution of proceedings against the company, made such an unequivocal election as to debar them from taking the present proceedings against the defendant (page 267). Willmer LJ distinguished the circumstances of this case from that in Scarf v Jardine and other cases, where “they did not, for instance … seek to prove in the liquidation.” [47] In AutoCaps Australia Pty Ltd v Deposit Investment Company Ltd (Receiver Appointed) (BC 8901590 unreported, NSWSC 16 October 1989), the plaintiff sought an order on an interlocutory application that the defendant be restrained from commencing any proceedings for the winding up of the plaintiff. The defendant had advanced money, in a -- 12 of 17 -- 13 somewhat loose transaction, to a company AutoCaps (Securities) Pty Ltd, a wholly owned subsidiary of the plaintiff. The defendant‟s position may have been that the plaintiff was an undisclosed principal, although there was no evidence to support that theory. The plaintiff‟s position was that the defendant had elected to proceed against the subsidiary company and was no longer permitted to make the same claim for the same debt against a different alleged debtor, on the principle that where there can be only one debtor and not joint debtors, the judgment against one person said to be the debtor prevents action against the other” (at page 6). Cohen J did not finally determine the issue, but indicated that the plaintiff had an arguable case. He did not determine that the appointment of a provisional liquidator is an unequivocal act to the same extent as would a judgment. [48] With respect to Mr McLennan‟s submission that the issue of election involved a question of fact which was for determination at trial, he had referred to Clarkson, Booker Ltd v Andjel (supra) and observations by Willmer LJ at p 263 in support of that proposition. However, I do not think that in the circumstances of this case there is anything said by the Lord Justice upon which reliance can be placed to assert „that questions of fact are matters for trial‟. The latter statement, per se, is undoubtedly correct. However, there is no question of fact in this case which either falls to be resolved in a trial; and there are no relevant or non-speculative other factual matters that could reasonably or rationally be advanced which might be said to require the determination of the legal issue of election or not, on a trial. Certainly, no other factual matters had been advanced that are relevant to that issue, upon the hearing of this application. [49] Mr McLennan also relied on the judgment in Figliomeni v Steel Supplies (Aust) Pty Ltd & Anor (BC8491006 unreported SCWA, No 152 of 1984). I do not think that this authority assists the plaintiffs. The appeal in that matter was not concerned with the factual circumstance upon which the plaintiffs appeared to rely, namely that the respondent received a payment from a liquidation of a company, the payment being received after the determination of an interlocutory application brought by the appellant, in the course of a proceeding initially commenced by the respondent personally against the applicant (appellant) as agent for an undisclosed principal, in which it was asserted that the respondent had elected to recover the debt from the company. The Court of Appeal refused the appellant‟s application to amend its pleading to allege an estoppel arising from the payment from the liquidator. The appellant‟s evidence about the issue of election had not been accepted in the hearing of the application at first instance. [50] The circumstances are quite different in this case. In Figliomeni there were factual matters for determination at trial. That is not the case here. The application in this case is brought in quite different circumstances and in the context of undisputed factual allegations in respect of the issue which is for determination: that is, election, upon which a determination of that legal issue can and ought properly be made without the need for a trial. -- 13 of 17 -- 14 [51] Mr McLennan had submitted that a summary determination of a proceeding should only be made in the clearest of cases. In his written outline, he wrote that: “It is accepted that where an agent enters into a contract in such terms that he is personally liable, and the contracting party, upon discovering who the real principal is, elects to rely exclusively on the liability of the principal, he is irrevocably bound by his election.” [52] I agree with that submission. This is a case where the undisputed factual circumstances point to one rational conclusion only, namely that the plaintiffs by electing to pursue the company, after they acquired the knowledge that it was the company that had contracted with them, and by delivering invoices to the company, receiving other payments for other works paid by the company, making a statutory demand for payment upon the company, proving the debt in the liquidation, joining the liquidation as a member of the liquidators committee and advancing the plaintiffs‟ interests in the course of the liquidation and maintaining the pursuit to the very end when the liquidation ceased and no payment was forthcoming, were bound by that election. [53] As I have observed elsewhere, the election to pursue the company exclusively could only otherwise be demonstrated to the same extent by there being a judgment entered against the company in litigation. I see no difference from a practical or a legal point of view, in the circumstances of this case. Conclusion: the first three issues 1. Was the company an undisclosed principal? [54] As I have observed, this issue has become subsumed in the critical issue that follows in Issues 2 and 3. Even if there is a factual dispute per se about this, and I am not sure that there is, it matters not because the plaintiffs acquired knowledge of the existence of the principal, the company, and acted upon that knowledge. It is the quality of that act that is the gravamen of the dispute and the critical issue in the application brought by the defendant. 2. Had the plaintiffs exercised an election to seek payment from the company? [55] I have no doubt that they did so elect to seek payment of the debt from the company. 3. If the plaintiffs had exercised that election, was it a binding and irrevocable election? [56] Yes. The plaintiffs pursued the company to the very end. They actively participated in the liquidation and proved the debt in the liquidation. They desisted and then commenced proceedings against the defendant, suing for the same debt that they had sought payment for against the company, -- 14 of 17 -- 15 only when the liquidation ceased and they had received no payment of the debt from the Liquidator. I cannot conceive of a more unequivocal factual circumstance upon which the question of whether there was an election can be posed and answered in the affirmative. It is, in the circumstances of this case, binding and irrevocable and the equivalent of obtaining judgment in a proceeding to recover a debt. Summary judgment [57] Rule 293 UCPR provides as follows: “r 293 Summary judgment for defendant (1) A defendant may, at any time after filing a notice of intention to defend, apply to the court under this part for judgment against the plaintiff. (2) If the court is satisfied - (a) the plaintiff has no real prospect of succeeding on 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 defendant against the plaintiff for all or the part of the plaintiff‟s claim and may make any other order the court considers appropriate.” [58] The law about summary judgment, whether sought by a plaintiff or by a defendant, is now well settled by authority. The same test in an application by a plaintiff for summary judgment against a defendant applies to an application by a defendant for summary judgment against a plaintiff. [59] The relevant principle (as it applies to a defendant‟s application) is stated in Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 at [17] and [44]: whether the plaintiff has no real prospect of succeeding on all or a part of the plaintiff‟s claim; and there is no need for a trial of the claim or the part of the claim. [60] In Bolton Properties Pty Ltd v JK Investments (Australia) Pty Ltd (2009) 2 Qd R 202, Chesterman JA wrote, at [24]: “In practical terms I suspect the rule means that summary judgment should not be given where the fact upon which the parties‟ respective rights depend are disputed, or where the respondent to the application for summary judgment adduces evidence as to the existence of fact which, if proved, would establish a defence or a right to relief. In other words, it is only where all the facts are known and/or are established beyond controversy that the -- 15 of 17 -- 16 court should embark upon determining whether to give summary judgment. Where relevant facts are controverted, or where it appears that facts may exist which would affect a right of action or defence, there should be a trial to determine the facts.” [61] Holmes JA wrote of the “finer shades of meaning” in the difference of view from his Honour that her Honour held about the test, but wrote at [1] that: “… a claim (or defence) which has „no real prospect of succeeding‟ … implies, to me at least, a conclusion reached after a hard-headed assessment, rejecting spurious arguments…” [62] Is there in this case a realistic, as opposed to a fanciful, prospect of the plaintiffs succeeding on all or a part of their claim, in the circumstances such as I have described? There is no need for a trial in this proceeding. The discreet legal issue about a binding election by the plaintiffs to pursue the company for payment is able to be determined on this application. I do not consider that the issue is in this case a difficult question of law that would require a trial in the proceedings. There is nothing by way of relevant or otherwise admissible evidence; that is factual matters, that could be led at a trial that would be material in that legal determination. I am satisfied that the defendant has shown on this application that there is no need for a trial of the proceeding and has discharged the burden of proof that he carries on the application. The philosophy of the UCPR. [63] The defendant has relied, in an holistic sense, on the overriding philosophy of the UCPR as expressed in r 5, which provides as follows: “r 5 Philosophy – Overriding obligations of parties and courts (1) the purpose of these rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense. (2) Accordingly, these rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality in facilitating the purpose of these rules. (3) In a proceeding in a court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way.” [64] Much has been written about the intent of the mantra underpinning the rules. Suffice to say that in this case an order for summary judgment for the defendant facilitates the just and expeditious resolution of the real issue in the proceeding. -- 16 of 17 -- 17 Conclusion: the fourth issue 4. Is this a case for summary judgment for the defendant/applicant? [65] Yes. The plaintiffs‟ claim cannot succeed, for the reasons expressed in the judgment. Disposition [66] The defendant‟s application for summary judgment on the whole of the plaintiffs‟ claim should be granted. [67] Having determined that the primary application should be granted, I do not need to consider the second part of the application that sought to strike out the plaintiffs pleading. Costs [68] The defendant, having succeeded on the application, should have his costs of and incidental to the application. However, since the proceeding is now determined I will hear the parties further as to the costs of the proceeding and the whether any costs order, without intimating any particular view, should be on the standard basis or otherwise. Orders 1. Application for summary judgment granted. 2. Parties to be heard as to costs orders. -- 17 of 17 --