Coast 2 Coast Earthmoving Pty Ltd v Andersen [2011] QDC 166

DISTRICT COURT OF QUEENSLAND CITATION: Coast 2 Coast Earthmoving Pty Ltd v Andersen [2011] QDC 166 PARTIES: Coast 2 Coast Earthmoving Pty Ltd ACN 100 358 889 AND Graham Albert Andersen FILE NO/S: D312/08 PROCEEDING: Trial ORIGINATING COURT: District Court, Southport DELIVERED ON: 18 August 2011 DELIVERED AT: Southport HEARING DATE: 18 August 2011 JUDGE: Newton DCJ ORDER: i. Graham Albert Andersen pay Coast 2 Coast Earthmoving Pty Ltd the sum of $90,865.97 for services and equipment provided by Coast 2 Coast Earthmoving Pty Ltd to Diamond Residential Development Pty Ltd from on or about 26 April 2007 to on or about 13 August 2007; ii. Graham Albert Andersen pay Coast 2 Coast Earthmoving Pty Ltd $6,510.65 for legal costs paid by Coast 2 Coast Earthmoving Pty Ltd in relation to its attempts to recover monies due and owing from Diamond Residential Development Pty Ltd; iii. Graham Albert Andersen pay Coast 2 Coast Earthmoving Pty Ltd the sum of $55,269.98 for interest pursuant to the guarantee up to and including 18 August 2011; iv. Graham Albert Andersen pay Coast 2 Coast Earthmoving Pty Ltd the costs of and incidental to this proceeding on an indemnity basis. COUNSEL: Mr C Wilson for the plaintiff No appearance by or on behalf of the defendant SOLICITORS: Reichman Lawyers for the plaintiff No appearance by or on behalf of the defendant [1] Coast 2 Coast Earthmoving Pty Ltd sues Graham Andersen for monies due and owing pursuant to a guarantee. -- 1 of 4 -- 2 [2] It is admitted on the pleadings that: (a) Coast 2 Coast is a duly incorporated company; (b) Graham Andersen was a director of Diamond Residential Development Pty Ltd until at least 1 November 2007; (c) Graham Andersen signed the guarantee on or about 6 March 2007 guaranteeing the debts of a debtor that is not identified in the guarantee because the place for the debtor‟s name to be inserted in the form has been left blank; and (d) Diamond is in liquidation. [3] The evidence before me establishes that Diamond applied to Coast 2 Coast for the supply of services on credit. The application1 is dated 6 March 2007 and was signed by Graham Andersen in his capacity as a director of Diamond. At about the same time as he signed the credit application, Graham Andersen also signed the guarantee as a guarantor and not in his capacity as a director or other office holder of Diamond. The credit application and the guarantee were submitted to Coast 2 Coast at the same time. [4] Coast 2 Coast approved Diamond‟s credit application by letter dated 22 March 2007.2 Coast 2 Coast supplied services to Diamond under the credit facility and issued tax invoices to Diamond with respect to those services. The supply of services on credit is established by job dockets, delivery dockets and tax invoices which have been placed into evidence3 as forming part of the business records of Coast 2 Coast made in the course of and for the purposes of Coast 2 Coast‟s business.4 The tax invoices comprise demands upon Diamond for payment of indebtedness incurred.5 The invoices, job dockets and delivery dockets are, in my view, receivable in evidence as proof of the result of business transactions and matters recorded in the documents.6 The authenticity of the company records of Coast 2 Coast is not in issue. [5] In his amended defence,7 Graham Andersen denies that the guarantee gave rise to any liability on his part because it was delivered with a material part (namely the identity of the debtor) left blank and is therefore void for uncertainty. However, in my view, it cannot be doubted that the parties intended to make a contract notwithstanding the failure to identify the debtor. This Court should strive to give effect to the parties‟ intention.8 I accept that where a commercial transaction is implemented by several documents (in this case the credit application and the guarantee), all of the documents may be read together for the purpose of ascertaining their proper construction and legal effect. This is so where the documents are executed contemporaneously or within a short period as in this case.9 1 Exhibit 2. 2 Exhibit 6. 3 Exhibit 5. 4 See section 92(1)(b) of the Evidence Act 1977 (Qld). 5 See Re Action Waste Collections Pty Ltd (in liq); Crawford v O’Brien [1981] VR 691 (Tadgell J) at 701. 6 See sections 84 and 92 of the Evidence Act 1977 (Qld). 7 15 December 2009 at paragraphs [2] and [7]. 8 Upper Hunter Country District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429 at 437 per Barwick CJ. 9 Smith v Chadwick (1882) 20 Ch D 27 at 62 (Jessel MR) and, on appeal, (1884) 9 App Cas 187. -- 2 of 4 -- 3 [6] In my view, it may be inferred from the material placed into evidence that the guarantee was included among the documents by which Diamond applied for credit. I accept that the debtor whose obligations were being guaranteed was Diamond. I note that no other company but Diamond is identified on the first page of the credit application as customer or applicant. In Osborne v Drive Park Pty Ltd (trading as Austral Meat)10 the appellant filled out most of a credit application but left blank the space for the company‟s name in relation to the directors‟ guarantee. White J found that the absence of entries in the spaces for name and address of the company customer did not make the guarantee so incomplete as to be unenforceable. The identity of the customer whose obligations were being guaranteed was able to be inferred from the fact that the contract of guarantee was included on the first page of the document by which the application for credit was made and that no other company, as customer, had been identified on the first page of the credit application. The inference was so strong that White J considered that any other conclusion would be highly artificial. In Bydand Holdings Pty Ltd v Pineland Property Holdings Pty Ltd11 a director of a purchaser provided a guarantee for the purchaser‟s obligations and the name of the purchaser under the contract was left blank in the guarantee. Hammerschlag J distinguished difficulty of interpretation from absence of meaning in the context of deeds or contracts under hand. As long as the instrument is capable of meaning, the question is one of construction. The Court ascertains the intention of the parties and applies it.12 The intention of the parties in that case, was said to be that “Purchaser” in the guarantee means the purchaser under the contract. No other rational possibility existed and the guarantee was found to be effective as a deed.13 [7] Coast 2 Coast claims against Graham Andersen pursuant to the guarantee the sum of $90,865.97 for services and equipment provided to Diamond together with $55,269.98 for interest and a further sum of $6,510.65 in respect of legal costs (excluding the costs of this action). The company secretary of Coast 2 Coast, Ross Hildebrand, gave evidence that these amounts were due and owing by Diamond as covered by the guarantee dated 6 March 2007. His statement of 18 August 2011 was admitted into evidence14 and Schedule A to the statement sets out the relevant invoice numbers, invoice dates and amounts together with the due date in respect of each entry and the calculation of interest based on the number of days the amount has remained outstanding. I accept the accuracy of this document and further accept that the document should be received as prima facie evidence of the facts stated.15 In this case there has been no rebuttal of the prima facie position disclosed by the contents of Schedule A to Mr Hildebrand‟s statement. The statement therefore stands as proof on the balance of probabilities of the amount of the debt.16 I am satisfied that Coast 2 Coast has proved the quantum of its claim by the contents of exhibit 4. It may be noted that Graham Andersen has not adduced any evidence rebutting the prima facie position established by exhibit 4 and the accuracy of the quantum of the invoices for supply of services is placed in issue only by way of non-admission. No positive case has been pleaded in this regard. 10 [2004] SASC 261. 11 [2009] NSWSC 1159. 12 See paragraph [74]. 13 Paragraph [78]. 14 Exhibit 4. 15 See section 57 of the Property Law Act 1974 (Qld). 16 Julong Pty Ltd v Fenn [2002] QCA 529 at [52]. -- 3 of 4 -- 4 [8] Coast 2 Coast is entitled to indemnity costs in respect of this proceeding by operation of clause 2 of the guarantee.17 [9] I make the following orders: i. Graham Albert Andersen pay Coast 2 Coast Earthmoving Pty Ltd the sum of $90,865.97 for services and equipment provided by Coast 2 Coast Earthmoving Pty Ltd to Diamond Residential Development Pty Ltd from on or about 26 April 2007 to on or about 13 August 2007; ii. Graham Albert Andersen pay Coast 2 Coast Earthmoving Pty Ltd $6,510.65 for legal costs paid by Coast 2 Coast Earthmoving Pty Ltd in relation to its attempts to recover monies due and owing from Diamond Residential Development Pty Ltd; iii. Graham Albert Andersen pay Coast 2 Coast Earthmoving Pty Ltd the sum of $55,269.98 for interest pursuant to the guarantee up to and including 18 August 2011; iv. Graham Albert Andersen pay Coast 2 Coast Earthmoving Pty Ltd the costs of and incidental to this proceeding on an indemnity basis. 17 Clause 2 provides: „To pay interest on all amounts owing by the Debtor to you from time to time at the rate of fifteen per centum (15%) per annum from the date the debt or debts arose and to pay to you upon demand all costs, charges and expenses, legal or otherwise, which you shall pay, incur, sustain or be put to in connection with the account of the Debtor or to give effect to the terms of this guarantee notwithstanding that we as Guarantor shall not have notice of any neglect or omission on the part of the Debtor to pay for such goods or services.‟ -- 4 of 4 --