Browne t/a Contractor Connections v Deklight Services Pty Ltd [2010] QDC 364

1-1 DISTRICT COURT OF QUEENSLAND CITATION: Browne t/a Contractor Connections v Deklight Services Pty Ltd [2010] QDC 364 PARTIES: TEVAI BROWNE TRADING AS CONTRACTOR CONNECTIONS ABN 90 942 774 128 (Plaintiff/Applicant) V DEKLIGHT SERVICES PTY LTD ACN 125 055 272 (Defendant/Respondent) FILE NO/S: BD1162/10 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 10 September 2010 (ex tempore) DELIVERED AT: Brisbane HEARING DATE: 21 July 2010 JUDGE: Irwin DCJ ORDER: 1. Application dismissed 2. Plaintiff/applicant to the pay the defendant/respondent’s costs of and incidental to the application on the standard basis to be assessed CATCHWORDS: PROCEDURE – DISTRICT COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – SUMMARY JUDGMENT – where plaintiff/applicant sought summary judgment against the defendant/respondent for the amount of $192,539.64 and the counterclaim be struck out – whether the defendant/respondent had no real prospect of successfully defending the applicant’s claim – whether the defendant/respondent had a real prospect of succeeding in the counterclaim Uniform Civil Procedure Rules 1999 (Qld) r 149, r 150, r 157, r 166, r 171, r 190, r 292 Agar v Hyde (2000) 201 CLR 552, cited Cairns CC v Britts [2005] QCA 94, cited -- 1 of 44 -- 1-2 ORDER Deputy Commissioner of Taxation v Salcedo [2005] QCA 227, applied Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87, cited Kev Leamon Earthmovers Pty Ltd v Hammond Village Pty Ltd (1998) 19 Qld Lawyer Reports 10, cited COUNSEL: A.A. Evans for the plaintiff/applicant N.E. Ulrick for the defendant/respondent SOLICITORS: McInnes Wilson for the plaintiff/applicant Bevan Bowe & Associates for the defendant/respondent -- 2 of 44 -- 1-3 ORDER HIS HONOUR: This is an application filed in this Court on 1 July 2010 by the plaintiff/applicant (the plaintiff) that judgment be entered for her against the defendant/respondent (the defendant) pursuant to Rule 292 of the Uniform Civil Procedure Rules 1999(Qld)(the UCPR) in the sum of $192,539.64. In addition, an order is sought striking out the defendant's counterclaim. Orders about payment of interest and costs are also sought. Rule 292(1) permits a plaintiff at any time after a defendant files a Notice of Intention to Defend to apply to a Court for such an order. Under Rule 292(3) if the Court is satisfied that - (a) the defendant has no real prospects of successfully defending all or any part of the plaintiff's claim; and (b) there is no need for a trial of the claim or part of the claim, the Court may give judgment for the plaintiff against the defendant for all or part of the plaintiff's claim and may make any other order the Court considers appropriate. In Deputy Commissioner of Taxation v Salcedo [2005] QCA 227, Williams JA reviewed the relevant authorities and concluded at [17] that the Court must apply the words found in the rules. His Honour also said: "But, and this underlies all that is contained in the UCPR, ultimately the rules are there to facilitate the fair and just resolution of the matters in dispute. Summary judgment will not be obtained as a matter of course and the judge determining such an application is -- 3 of 44 -- 1-4 ORDER essentially called upon to determine whether the respondent to the application has established some real prospect of succeeding at a trial; if that is established, then the matter must go to trial." In this case, McMurdo P stated at [3] that nothing in the UCPR detracts from the well-established principle that issues raised in proceedings will be determined summarily only in the clearest cases. Atkinson J emphasised at [44] that if a Court is satisfied of the circumstances set out in Rule 292(2)(a) and (b) then the Court has a discretion to give judgment for the plaintiff. At [45] she categorised this as a residual discretion to refuse summary judgment even when the requirements of paragraphs (2)(a) and (b) are satisfied. Her Honour also said at [47]: "The Court must consider whether there exists a real, as opposed to a fanciful prospect of success. If there is no real prospect that a party will be successful in all or part of a claim, and there is no need for a trial, then ordinarily the other party is entitled to judgment." The plaintiff is and was at the relevant times an individual carrying on business as a wholesaler of electrical products. On 16 April 2010, it filed a claim in the sum for which summary judgment is sought as moneys due and owing for goods supplied and alternatively as damages for breach of contract. On 13 May 2010, the defendant filed a Notice of Intention to Defend and a defence and counterclaim. Accordingly, the plaintiff was entitled to make the present application. -- 4 of 44 -- 1-5 ORDER On 3 June 2010, a reply and answer was filed by the plaintiff. On 1 July 2010, an affidavit of David James Van Vegchel was filed. He is the domestic and business partner of the plaintiff and operates the plaintiff business as a partnership with her. Mr Evans of Counsel for the plaintiff read each of these documents for the purpose of the application. Mr Ulrick of Counsel for the defendant has relied on the affidavit of David Edward Keating filed on 20 July 2010. Mr Keating is the sole director of the defendant. As admitted by the defendant, on or about 22 February 2009, the defendant submitted an application in writing requesting the provision of goods on credit from the plaintiff. The terms and conditions of the credit application included: "Strictly 30 days from the date of invoice which the goods are purchased." As is also admitted from April 2009 to November 2009 the defendant requested the supply of goods from the plaintiff. The plaintiff also alleged in paragraphs 5 and 6 of the statement of claim that during this period, the plaintiff supplied the goods in accordance with the defendant's request and issued its tax invoices and outstanding statement in respect of the goods supplied, and received payment from the defendant in partial satisfaction of the invoices, with the consequence that as alleged in paragraph 7, the amount claimed is due and owing. The invoices are itemised in a table of particulars to paragraph 6. -- 5 of 44 -- 1-6 ORDER It is also asserted that the defendant has failed or neglected to pay this amount despite demand. The defence contains two seemingly contradictory paragraphs with reference to paragraphs 5 and 6 of the statement of claim. Paragraph 3 of the defence does not admit these paragraphs, whereas paragraph 4C states that save as aforesaid (ie, in paragraphs 4A and B) the defendant admits them. Mr Evans referred to the fact of the non-admission in paragraph 3 of the defence not being accompanied by a direct explanation of why the facts cannot be admitted as required by Rule 166(4) of the UCPR. He submits with reference to Rule 166(3) that it is untenable, the defendant claims it is unable to admit these matters as the matters pleaded in paragraphs 5 and 6 of the statement of claim refer directly to conduct involving the defendant. Therefore, it is asserted in the ordinary course this failure to comply with Rule 166(4) would result in paragraphs 5 and 6 being deemed to be admitted pursuant to Rule 166(5): Cairns CC v Britts [2005] QCA 94. However, as Mr Evans accepted during argument, paragraph 3 can be ignored when reference is made to paragraph 4C of the defence. I consider that paragraph 4C has the effect that the defendant has admitted paragraphs 5 and 6 of the statement of claim subject to what is asserted in paragraphs 4A and B of the defence. Paragraph 4A relates to tax invoices provided by the plaintiff to the defendant in relation to an electrical project undertaken by the defendant at Coles Supermarket -- 6 of 44 -- 1-7 ORDER Middle Park (the Middle Park project). Paragraph 4B relates to tax invoices provided by the plaintiff to the defendant in relation to electrical work undertaken by the defendant at Mount Tamborine (the Mount Tamborine project). Each invoice referred to was included in the plaintiff's particulars to paragraph 6 of the statement of claim. The plaintiff admits that these invoices relate to the respective projects. With reference to the Middle Park project, the defendant pleaded that in pricing its works for the project, it relied on the plaintiff's quotation of 26 August 2009 for a fixed price of $181,072.82 inclusive of GST. The defendant pleads that the tax invoices it has identified as relating to the Middle Park project do not match this quotation and that the plaintiff overcharged the defendant the sum of $31,987.98 (excluding GST) and additionally did not deliver goods as quoted. This assertion is particularised in a table which is Schedule A to the defence. When this schedule is analysed, it becomes apparent that the sum of $31,987.98 relates to the items which have been supplied to the defendant in addition to what was quoted. Where there are mere variations between the quote and the invoice prices of the goods supplied in accordance with the quote, there are some items where the invoice price is more and some where it is less. These effectively cancel themselves out. In general, the variations are in matters of cents. In relation to goods which are alleged not to have been delivered, Mr Ulrick submits that the proper inference to be drawn from Schedule A is that these are the goods -- 7 of 44 -- 1-8 ORDER particularised under the heading "Goods quoted but not invoiced". These total $1,378.22. However, Mr Keating swears in his affidavit that the plaintiff failed to deliver to the defendant goods to the value of $864.44 as shown in that schedule. This is a specific reference to only one line item of goods. Therefore, I proceed on the basis that this is the value of the goods undelivered as itemised in the schedule. It is further pleaded that five of these invoices were not provided to the defendant in a timely manner notwithstanding a request for them on 10 November 2009 and they were not received until 18 February 2010. It is pleaded that this delay resulted in the defendant being unable to process final payments with the builder for this project. It is then asserted the plaintiff acted fraudulently or recklessly in not caring whether the invoices matched the quotation provided and providing false invoices late, thereby causing significant delay to the defendant in processing true and accurate accounts for payment and resulting in significant loss to the defendant. In relation to this, the defendant also pleaded in paragraph 2 of the defence that it was an implied term of the credit application that the plaintiff's tax invoices would be true and correct, provided in a timely manner and would match the prices quoted by the plaintiff for the goods supplied. This is also relevant to the Mount Tamborine project in respect of which the defendant pleads that in pricing its work -- 8 of 44 -- 1-9 ORDER for the project it relied on the veracity of the plaintiff's quotation for a fixed price of $24,166.34 inclusive of GST. It is then asserted that the plaintiff acted fraudulently or recklessly in not caring whether the invoiced amount as detailed in one of the invoices matched the amount quoted and in respect to this invoice, the defendant was overcharged $3,813.62. It is also asserted that the defendant suffered loss in challenging the excess. I note it is not alleged that these invoices were not provided in a timely manner. For this reason, it denies that the sum claimed is due and owing by it to the plaintiff and payable to them. It also does not admit that it has failed and/or neglected to pay this amount despite demand. It pleads that the demand is excessive and: . on or about 10 November 2009 it requested invoices for the Middle Park project from the plaintiff to substantiate the claim; . on numerous occasions the defendant (through its solicitors) sought particulars from the plaintiff; and . on 18 February 2010 the plaintiff provided the inaccurate invoices which did not match the final quotation. The counterclaim repeats and relies on these aspects of the defence. In addition, it pleads the following matters in support. Before the plaintiff provided the invoices for the Middle Park project in February 2010, the plaintiff caused to be served on the defendant a creditor's demand for summary debt dated 19 January 2010 (the statutory demand) pursuant to the Corporations Act 2001 together with an affidavit by the -- 9 of 44 -- 1-10 ORDER defendant Ms Browne of 14 January 2010 which stated that the total of $198,362.06 of the debts mentioned in the statutory demand is due and payable to the debtor company. The statutory demand included an invoice which had not been referred to in a monthly statement dated 31 October 2009 which the defendant had received earlier. It also included reference to the Mount Tamborine project invoice which the defendant asserts involved the overcharge of $3,813.62. A copy of the statutory demand and supporting affidavit are exhibits to Mr Keating's affidavit. It is noted that in the schedule, while the total amount of debt claimed is $198,362.06, the amounts of the individual invoices add up to $234,972.58. This was the subject of argument before me in relation to the assertions of fraud against the plaintiff. I will return to this issue. In paragraph 8 of the counterclaim, the defendant pleads that the defendant's credit application was suspended by its main supplier of electrical components, Ideal Electrical Pty Ltd (Ideal Electrical) following the issue of the statutory demand. It is then asserted in paragraph 9 that in relation to the issue and service of the statutory demand on the defendant, the plaintiff acted fraudulently:- (a) in swearing/affirming an excessive debt which was false to the knowledge of the plaintiff; (b) in not caring whether the invoice charges match the amounts and the quotations provided by the plaintiff to the defendant; -- 10 of 44 -- 1-11 ORDER (c) in providing false invoices where charges were excessive to the knowledge of the plaintiff; and (d) in providing those invoices late. It is then pleaded that as a consequence of the matters specified in the counterclaim which includes the matters pleaded in the defence, the defendant did not process true and accurate accounts for payment with its builder and has suffered loss. This loss is particularised as follows: (a) solicitor and own client legal costs in defending the statutory demand of $9,505; (b) inability to process final payments with its builder for the Middle Park project and the Mount Tamborine project. Details of such financial loss will be provided prior to trial; and (c) the suspension of its credit application with its main supplier of electrical components, Ideal Electrical Pty Ltd. Details of such financial loss will be provided prior to trial. In relation to the first of these matters, Mr Keating's affidavit attaches a Consent to Order of Registrar of 26 February 2010 signed by the solicitors of both parties. That consent is given to the Registrar of the Supreme Court making an order that the application be dismissed and there be no order as to costs. In relation to the loss asserted due to an inability to lodge final payments in respect to the two projects, Mr Ulrick -- 11 of 44 -- 1-12 ORDER accepts that this has not yet been addressed even in Mr Keating's affidavit. However, the alleged loss flowing as a consequence of the suspension of the credit application is addressed in Mr Keating's affidavit on the basis that he was informed by the credit manager of Ideal Electrical that the plaintiff had sent or caused to be sent to Ideal Electrical a copy of the statutory demand with the purpose of damaging the defendant's business in consequence of which Ideal Electrical immediately suspended the defendant's working account for the supply of electrical equipment. I note that the defendant has not pleaded the plaintiff's action as being responsible for this. The loss and damage which the defendant claims was caused as a result is $144,387.36. This comprises extra (alternative) lighting that he had to purchase from other dealers and the need to replace this by correct lighting on other projects resulting in the cost of this lighting being thrown away. There was also the cost of $74,480 for labour to install this lighting which was wasted. In the reply and answer, the plaintiff said that: (a) all tax invoices were true and correct at the time of issue; (b) all tax invoices were provided in a timely manner; and (c) there was no obligation for the plaintiff's tax invoices to match the quotations as the credit application stated: "The prices referred to herein are recommended prices only and -- 12 of 44 -- 1-13 ORDER there is no obligation to comply with the recommendations. All prices are subject to alteration without notice." The plaintiff joins issue with the defendant's pleading on this basis. It is also denied that the $181,072.82 quotation was "final" and sets out in detail the reasons for this, including that as at the date of filing the statement of claim, the defendant had not cancelled a purchase order of 25 August 2009 in the amount of $224,000 and there were no variations or amendments to a third quotation for $233,162.94 which was forwarded to the defendant on or about 2 October 2009. It was said that this remained the position on 2 January 2010. The plaintiff denied the allegation it did not provide the invoices for the Middle Park project in a timely manner on the basis that they were delivered to the defendant on or about two days after the date of invoicing and on or about 21 December 2009. "Ross" of the defendant's office advised Mr Van Vegchel that all invoices had been received and that the defendant had been paid by the builder. It denies that the first occasion it provided the invoices was on or about 18 February 2010 and that the alleged delay in providing the invoices resulted in the defendant being unable to process the payment. It is also asserted that to the best of the plaintiff's knowledge there was never a dispute regarding the amount of the invoices and that up until 12 January 2010 Mr Keating had communicated and promised to Mr -- 13 of 44 -- 1-14 ORDER Van Vegchel on various occasions that payment of the account would be forthcoming. With reference to the Mount Tamborine project, the plaintiff does not admit that the defendant relied on the veracity of the quotation of $24,166.34 when pricing its work for the project for reasons including that a quotation is only an approximation of the prices to be charged and this is why the invoice alleged to involve an overcharge does not match the amount quoted. Therefore, the plaintiff denies that it overcharged the defendant in respect of this invoice. With respect to the counterclaim, the plaintiff admits that a monthly statement dated 31 October 2009 was faxed to the defendant on or about 10 November 2009 and the defendant sought copies of the invoices referred to in the statement on that date. This is supported by Mr Van Vegchel's affidavit which exhibits invoices, statements and picking slips including the invoices referred to in the monthly statement which were said to have been faxed to the defendant on 10 November 2009. It denies that it acted fraudulently in relation to the issue of the statutory demand. Mr Van Vegchel's affidavit attests to the history of the relationship with the defendant, including the revised quotations concerning the Middle Park project to which I have referred. He also deposes to the history of the account with the defendant and to faxing paperwork to the defendant on 10 November 2009, although his fax machine was not set up to provide a confirmation of faxes sent. The fax date stamped on -- 14 of 44 -- 1-15 ORDER the documents is in fact 10 October 2009. He also exhibits the relevant delivery dockets received from their suppliers in respect of the goods and various tax invoices and statements to the defendant in respect of the goods supplied and a reconciliation statement he prepared on or about 18 February 2010 which details the history of transactions with the defendant and calculates the amount owing as the sum claimed. In Mr Keating's affidavit, other than the matters I have already referred to, he deposes to relying on the $181,072.82 quotation which he describes as a "fixed price" quotation and asserts that the 224,000-dollar quotation was cancelled in a telephone call with Mr Van Vegchel. He also denies that there was a revised quotation of $233,162.94. He also denies receiving a verbal quotation of $246,000 as contended by Mr Van Vegchel in his affidavit. He deposes that on 10 November 2009, he received a monthly statement from the plaintiff contending that $170,807.94 was due and owing. It was dated 31 October 2009. He also deposes he did not receive any invoices from the plaintiff prior to receiving this statement. In paragraph 13 he referred to the statutory demand for $198,362.06 and asserts that he believes that the plaintiff knew this amount was incorrect and false. In paragraph 14 he says he received a monthly statement from the plaintiff on 29 January 2010 contending that $198,362.06 was due and owing to the plaintiff. He says this monthly statement was manufactured to support the plaintiff's statutory demand. Mr Ulrick made submissions along these lines in opposing this -- 15 of 44 -- 1-16 ORDER application. This is an issue to which I will return. He asserted that as a result of the plaintiff's failure to deliver goods as ordered and its failure to deliver accurate invoices, he ordered a large quantity of lighting equipment from Ideal Electrical. He then referred to the information from the credit manager from that business that the plaintiff had sent or caused to be sent to Ideal Electrical a copy of the statutory demand with the purpose of damaging the defendant's business and to the loss or damage he claimed is caused to the plaintiff. He denies that the defendant is indebted to the plaintiff for the amount claimed or any other amount. Against this background, I first consider the issue as to whether, on the basis of the pleadings, the plaintiff is entitled to a judgment in its favour subject to the set-off alleged in the counterclaim. In argument before me, Mr Evans did not seek to press that the plaintiff was entitled to judgment for the full amount of the claim. He approached the matter on the basis of what the defendant has admitted in its pleadings. On this basis, he submitted that the plaintiff is entitled to a judgment of $153,933.05. For the purposes of this application only, he proceeds on the basis that the operative quote between the parties was that of $181,072.82 in relation to the Middle Park project. Similarly, he proceeded on the basis that the operative quote for the Mount Tamborine project was $24,166.34. He refers to the fact that in paragraph 4C of the -- 16 of 44 -- 1-17 ORDER defence, the defendant admits paragraphs 5 and 6 of the statement of claim save for the matters raised in paragraphs 4A and 4B of the defence. He argues that paragraphs 4A and 4B make allegations with respect to the amounts charged in specific invoices and the timing of the provision of some of the invoices. Further allegations are made with respect to provision of quotations and purchase orders where various work was undertaken and the effect of the late provision of invoices. However, he submits that no allegation is made refuting delivery of the goods in accordance with the defendant's requests as alleged in paragraphs 5 of the statement of claim or that payments by the defendant were limited to those referred to in the table at paragraph 6. It is therefore submitted that the defendant has admitted that the goods were delivered to it by the plaintiff with only the terms on which they are delivered being in controversy. As I have previously said, Mr Ulrick submitted that the proper inference is that the defendant did not receive the $1,378.22 worth of goods under the heading "Goods Quoted but not Invoiced". Mr Ulrick also asserts that the defence and counterclaim as presently drawn do not highlight that materials have not been delivered to the defendant over and above the amount of $31,987.98 which is referred to as an overcharge but, as I have previously said, really represents an amount for goods which were delivered but not quoted for. He told me that he had instructions to this effect and these matters were set out in Mr Keating's affidavit in defence of -- 17 of 44 -- 1-18 ORDER the statutory demand. However, this affidavit is not before me and accordingly there is no evidence to support this submission. Although he accepts that the defendant's pleadings have been drawn in such a way that one can conclude that they admit delivery, he submits that I should not give effect to the pleadings. This is an extraordinary submission given there has been no attempt to amend the pleadings in the 20-day period after the application was made or at any other time. Mr Ulrick, whilst saying that there are a number of difficulties with the pleading, also told me it would be a long and involved process to amend it. In addition, the submission is contradicted by Mr Keating's own evidence which, as I have said, is to the effect that the plaintiff failed to deliver goods to the value of $864.44. As Mr Evans correctly says, this demonstrates that Mr Keating is capable of identifying what was not delivered. He refers me to Mr Van Vegchel's affidavit at paragraph 32 and Exhibit 10 to that a ffidavit which are said to be the relevant delivery dockets from suppliers in respect to the goods. Although these dockets are not clearly itemised so as to identify the goods to which they relate, I also agree with Mr Evans that if there was any strength in Mr Ulrick's submissions about the non-delivery of goods, this paragraph of Mr Van Vegchel's affidavit and the exhibit could have been responded to in Mr Keating's affidavit. In the absence of him doing so, I accept the proposition that with the exception of $864.44 worth of goods, the defendant has admitted that the goods to -- 18 of 44 -- 1-19 ORDER which the invoices in the table to paragraph 6 of the statement of claim relate were delivered to the defendant. For completeness, I address Mr Ulrick's submission that the goods in this case were not actually delivered to the defendant but to his builder in respect of these projects. He relies on paragraph 10 of the counterclaim and particularly paragraph 10(b) in support of this. This was as follows: "As a consequence of the matters specified in paragraphs 1 to 9 aforesaid, the defendant did not process true and accurate accounts for payment with its builder and has suffered financial loss. ..... (b) an inability to process final payments with its builder for the Middle Park project and the Mount Tamborine project. ..... " He submits that the inference that would be drawn from normal building practice is that the goods were delivered to the builder, although he accepts this should have been spelt out. I consider that if the goods were delivered to the defendant's builder, given Mr Keating's reference to the non-delivery of goods to the defendant in his affidavit, he would have specifically addressed this also. It may be that he did not do so because, if they were received by the builder, he accepted that the receipt was on the defendant's behalf. Proceeding from the basis of my finding that by the defendant's pleading, it is admitted that the goods referred to in the invoices itemised in the table to paragraph 6 of the -- 19 of 44 -- 1-20 ORDER statement of claim were delivered to the defendant, given that paragraphs 5 and 6 of the statement of claim are subject to paragraphs 4A and 4B of the defence in respect of invoices which are specifically referred to in those paragraphs. It follows, as Mr Evans submits, that all the goods referred to in the invoices which are not specifically referred to in those paragraphs were supplied and delivered to the defendant by the plaintiff at the defendant's request and in accordance with the terms of the credit application. These are invoices included in the plaintiff's particulars that do not relate to the Middle Park or Mount Tamborine projects. The invoices total $64,030.38. I consider that the plaintiff was at least entitled to be paid this amount related to the invoices which are not in dispute. It is submitted that on the same reasoning the defendant admits (subject to the counterclaim) that it was liable to pay the amount of the disputed invoices in accordance with the quotations. Therefore, putting aside the allegation that goods supplied in these invoices were not supplied in accordance with quotations given by the plaintiff which are the subject to Schedule A of the defence and counterclaim, the minimum amount it is submitted the defendant is liable to pay is the $181,072.82 quoted for the Middle Park project and the $24,166.34 for the Mount Tamborine project. It is accepted that this is subject to the recognition in the particulars to paragraph 6 of the statement of claim that the defendant was given a credit of $11,410.07 for some goods which were returned. There is no dispute between the parties that as set -- 20 of 44 -- 1-21 ORDER out in those particulars the defendant had previously paid $103,926.42. The total of the invoices not pertaining to either quote and the quotes for the Middle Park and the Mount Tamborine projects is $269,269.54. When the total for the credit and previous payments is deducted, as set out conveniently in Exhibit 1, which was prepared by Mr Evans, this leaves an outstanding balance of $153,933.05. In calculating this figure, as Mr Evans submitted, the total value of the goods designated in Schedule A as being quoted but not invoiced have not been included. This is because the claim is based on the invoices and if goods are not included in the invoices, they are not included in the claim, including the goods to the value of $864.44 which Mr Keating said were not received. On this basis it is submitted that on the basis of the defendant's own admissions, it remains liable to the plaintiff in the amount of $153,933.05. As Mr Evans put it, on the defendant's case, this is the highest judgment the plaintiff is entitled to. Mr Ulrick commenced his response on behalf of the defendant by submitting that on the present state of the pleading, the starting position of $181,072.84 must be read in light of Schedule A to the defence. I note that in the written submission he identified as a triable issue that there was a dispute concerning the defendant's contention that the $181,072.82 was a fixed price quotation for the Middle Park project and the plaintiff's contention that the goods were -- 21 of 44 -- 1-22 ORDER supplied on the basis of a revised quote of $233,162.94. Similarly, it was submitted that there was a triable issue in relation to the alleged $3,813.62 overcharge on the Mount Tamborine project. However, given that the plaintiff has approached this application on the basis of the $181,072.82 quote for the Middle Park project and on the basis that the alleged overcharge is not subject of a claim for the Mount Tamborine project, this gives rise to no triable issue for the purpose of the judgment sought on this application. Although Mr Ulrick concedes in argument before me that the effect of the pleadings is that the view could be taken that the delivery is admitted and the sum of $153,933.05 is owed by the defendant to the plaintiff, this is not accepted on behalf of the defendant. He supports the defendant's position on the basis of the proposition I have previously referred to, that there are materials which were not delivered. I have given my reasons for rejecting this proposition. Nonetheless, he submits there is sufficient material available to me to decline relief. He refers me to the final paragraph of Mr Keating's affidavit denying that the sum of $192,539.64 (or any other sum) as alleged by the plaintiff (or at all) is owing by the defendant to the plaintiff. He also refers to the alleged overcharging of $31,987.98 and the goods quoted but not invoiced as set out in Schedule A. He submits that Schedule A shows a glaring omission as to proper invoicing and argues that these also give rise to triable issues. -- 22 of 44 -- 1-23 ORDER However, as I have already observed, the application is brought on the basis of the quotes and excludes from the claims the alleged overcharges and the goods which were quoted but not invoiced. Accordingly, these do not give rise to triable issues for the purpose of this application. Rule 190 of the UCPR provides: "(1) if an admission is made by a party, whether in a pleading or otherwise, after the start of the proceeding, the Court may, on the application of another party, make an order to which the party applying is entitled on the admission. (2) the Court may give judgment or make another order even though other questions in the proceeding have not been decided." In respect of this aspect of the application, I agree with Mr Evans' submissions that I have referred to and conclude the effect of the defence is that on the basis of the defendant's own admission it remains liable to the plaintiff in the amount of $153,933.05 pursuant to Rule 190 and Rule 292 of the UCPR. Subject to the counterclaim, the plaintiff would be entitled to judgment in this amount. For the reasons I have given in discussing Mr Ulrick's submissions, the defendant has not established some real prospect of succeeding at trial on this issue. Before I address the effect of the counterclaim on my ultimate conclusion, I must consider the plaintiff's further argument -- 23 of 44 -- 1-24 ORDER that it is entitled to judgment not only for this amount but also for an additional sum of $31,997.98 for goods supplied and delivered that were not part of the quotation. The basis of this submission is that, as I have already accepted, not all of the disputed amounts referred to in the disputed invoices relate to the differences between the prices of goods supplied from that quoted. A number of the disputes are with respect to quantities delivered. As I have concluded, where what are generally relatively small differences between the prices of goods supplied and quoted exist they effectively cancel each other out and the sum of $31,997.98 relates to goods supplied which were not part of the quotation. This clearly emerges from an analysis of Schedule A of the defence. The submission for convenience refers to invoice number 1260 of the schedule as this is the first invoice referred to. In relation to this, it is stated that, "Nil quoted but invoiced 1." It is shown that one item was delivered which was invoiced at $2,346.84 (exclusive of GST). This amount is then described as a variation and then as the overcharge. Therefore, it relates to an item that was delivered but not included in the quotation. This is repeated on a number of other occasions throughout the schedule. Another example is invoice 1265 concerning "Misc various lighting" which is again "Nil quoted but invoiced" with the variation recorded as $9,676.43. The total of the variations or overcharges in these circumstances are $31,997.98. It is submitted that nowhere in the defence, Mr Keating's -- 24 of 44 -- 1-25 ORDER affidavit or the affidavit filed in support of the application to set aside the statutory demand has the defendant ever taken issue with it receiving and retaining the goods. I note that the second of the affidavits mentioned is not before me for the purposes of this application. Mr Evans submitted during oral argument that it can be inferred they received and kept these goods and pursuant to the credit application the defendant is liable to the plaintiff for the price of these items. Mr Ulrick's response is that in circumstances where there is no quoted price, it would be expected that the price for an item supplied and retained would be a fair and reasonable price. He also asserted that it would be expected that there would be evidence to this effect and there is no such evidence. There are two relevant terms and conditions of sale attached to the credit application made by the defendant to the plaintiff and on the basis of which these goods have been supplied. These are: "2 - Prices The prices referred to herein are recommended prices only and there is no obligation to comply with the recommendations. All prices are subject to alteration without notice. ... 5 - Exchange or Return of Goods Goods will not normally be accepted for exchange or return after seven (7) days from date of delivery. Any goods accepted for exchange must be in saleable condition. The -- 25 of 44 -- 1-26 ORDER invoice number and date of sale must be advised. Special stainless steel and aluminium products are non-returnable." Although these terms and conditions may apply to goods which have been ordered on the basis of a quote, in my view, they cannot be construed to apply to goods delivered on the basis of a unilateral decision both to do so and to select a price without an order made in response to a quote. Such a construction would be unfair to the person to whom the goods were supplied, particularly in circumstances where the person identifies an overcharge in relation to those goods. In these circumstances, I agree with Mr Ulrick that it would be expected that a fair and reasonable price would be charged for the goods supplied to the defendant and retained by it without an order made in response to a quote. As he observed, there is no evidence as to what is a fair and reasonable price for these goods. I consider this to be a triable issue which I am not in a position to determine on this application. In the absence of such evidence, I am satisfied that the defendant has established some real prospect of succeeding at trial on this issue. Therefore, I do not consider that the plaintiff is entitled to summary judgment under Rule 292 in the additional amount claimed. However, as this is an alternative submission, I proceed to determine this application on the basis that subject to the counterclaim the plaintiff would be entitled to judgment in the amount of $153,933.05. I therefore turn to address the effect of the counterclaim. -- 26 of 44 -- 1-27 ORDER Mr Evans submits that the counterclaim is embarrassing as it does not disclose any cause of action and should be struck out pursuant to Rule 171 of the UCPR. Rule 171 provides: "(1) this rule applies if a pleading or part of the pleading discloses no reasonable cause of action or defence; or. ... (2) the Court at any stage of the proceeding may strike out all or part of the pleading and order the costs of the application to be paid by a party calculated on the indemnity basis. ... " The first issue which he addresses is the claim that a copy of the statutory demand was provided to a supplier to the defendant, Ideal Electrical. As I have said, this is not expressly stated in the counterclaim. Paragraph 8 simply states that the defendant's credit application was suspended by that company following the issue of the statutory demand. It is Mr Keating's affidavit at paragraph 17 which swears to being informed by that company's credit manager and that he believes that the plaintiff sent or caused to be sent to it a copy of the demand with the purpose of damaging the defendant's business. Paragraph 18 then connects this to the immediate suspension of the defendant's working account for the supply of electrical equipment. Although I consider the information in paragraph 17 should -- 27 of 44 -- 1-28 ORDER have been included in the counterclaim, I consider that the fair and just resolution of the matter requires me to proceed on the basis of the paragraph. Mr Evans does not argue against this approach on behalf of the plaintiff. He said in oral submissions that although the claim, a copy of the statutory demand was provided to the supplier is denied by the plaintiff, he was prepared to proceed on this basis for the purpose of the application, that is, he conceded for the purpose of the application that it is open to the Court to find on the materials that it was provided to the supplier. However, he submitted that even if this was proved, it would not amount to a fraud on the plaintiff. He submits that in order to succeed on a claim of fraud, the defendant must show that the plaintiff was intentionally and knowingly deceptive, although he concedes Mr Ulrick's submission that reckless indifference to the truth could constitute a fraud. It is submitted that the matters set out in paragraphs 9(a)-(d) of the counterclaim which are said to amount to fraud, even if proved, would not be sufficient to prove the intention on the part of the plaintiff to knowingly deceive any party. He extends the submission to the plaintiff's acting with reckless indifference to the truth. He submits that this allegation is hard to understand where the defendant on its own case admits that it has at all times been indebted to the plaintiff at least in the amount of $153,933.05. He asserts that whilst there might be some argument with respect to a very small amount of the plaintiff's claim and, -- 28 of 44 -- 1-29 ORDER in fact, less than $10,000, there is no prospect of succeeding in showing that the plaintiff embarked on any intentional deception and by logical extension of showing that the plaintiff acted with reckless indifference to the truth. It is also submitted that to the extent the defendant claims any conduct on the part of the plaintiff caused its loss, this is not pleaded in an intelligible fashion nor particularised in accordance with the requirements of the UCPR. I proceed on the basis that the requirements of the UCPR relied on are Rules 149 and 150. So far as is relevant, Rule 149(1) provides: "Each pleading must- (a) be as brief as the nature of the case permits; and. (b) contain a statement of the material facts on which the party relies..." Rule 150(1) requires fraud and breach of contract to be specifically pleaded. Rule 150(2) requires that any fact from which any of the other matters mentioned in Subrule (1) is claimed to be an inference must also be specifically pleaded. In addition, Rule 157(1) requires a party to include in a pleading particulars necessary to define the issues for, and to prevent surprise at trial, enable the opposite party to plead and support a matter specifically pleaded under Rule 150. In relation to this, he submitted before me that the pleading does not go far enough. He argues that if an allegation of fraud is going to be raised in the counterclaim, it should be -- 29 of 44 -- 1-30 ORDER pleaded in the most fulsome fashion and it should plead the material facts the defendant is going to rely on to say that was done in a way that was reckless. He asserts that there is nothing in Mr Keating's affidavit as to any basis for such an allegation to be made. He also submits that it cannot be established that the plaintiff has been knowingly deceitful when there is enough on the materials to show he believed he was entitled to the $192,539.64 claimed. Mr Evans next addressed the other issue raised by the defendant in support of its counterclaim. This is an alleged failure by the plaintiff to provide invoices in a timely fashion thereby resulting in loss to the defendant. The submission relates to paragraphs 2 and 4A(vi)-(ix) of the defence which are repeated and relied upon in the counterclaim. Reference is also made to this issue in paragraphs 9(d) and 10(c) of the counterclaim. Paragraph 2 of the defence says it was an implied term of the counterclaim that the plaintiff's tax invoices would be provided to the defendant in a timely manner. In paragraph 4A(vi)-(ix) five invoices are identified which are alleged not to have been provided to the defendant in a timely manner notwithstanding the defendant's request for them on 10 November 2009 and instead were provided under cover of an affidavit of the plaintiff dated 18 February 2010. It is said that this delay has resulted in the defendant being unable to process final payments with the builder for the Middle Park project and that, "In the premises in relation to the Middle Park project the plaintiff acted fraudulently or recklessly in not caring whether the invoices matched the quotation provided and -- 30 of 44 -- 1-31 ORDER providing false invoices late, thereby causing significant delay to the defendant in processing true and accurate accounts for payment and resulting in significant financial loss to the defendant." As I have previously observed, there is no claim by the defendant that there was any delay in providing invoices for the Mount Tamborine project. In paragraph 9(d) of the counterclaim, it is alleged that in relation to the issue and service of the statutory demand on the defendant, the plaintiff acted fraudulently in providing the invoices late. In paragraph 10 the consequential financial loss the defendant alleges it suffered includes an inability to process final payments with its builder in relation to both projects. It was stated that details of this loss would be provided prior to trial. This has not yet occurred. Mr Evans submits that the allegation, the supposed failure to provide accounts in a timely manner resulted in loss to the defendant is untenable. For the purpose of this application, he is prepared to proceed on the basis that it is open to the Court to find that the plaintiff failed to provide invoices in a timely fashion. However, it is not conceded that this is an implied term of the credit acceptance application. His argument is that to the extent that the defendant seeks to rely on this, it is not pleaded in an intelligible way and he submits that matters which must be pleaded to imply such a term into a written contract are not pleaded at all. He makes -- 31 of 44 -- 1-32 ORDER the point that there is no specific reference to this in the counterclaim. However, as I have observed, paragraph 2 of the defence which pleads the implied term is repeated and relied on for the purpose of the counterclaim. However, he argues that if the defendant wishes to imply this term into the contract, a proper pleading that can be answered must be provided, including matters such as the necessity of the term and the business efficacy of the term. Against this background, although it is accepted that the defendant might be faced with some difficulties from receiving the invoices late, there should be a proper pleading as to why the term is to be implied and as to the material facts as to the result of their not being provided in a timely fashion. He submits that Mr Keating's affidavit also fails to address this in an intelligible manner. Mr Evans also submits concerning the particular loss in paragraph 10(a) based on solicitor and own client legal costs in defending the statutory demand, those costs were dealt with by the consent order that there be no order as to costs. In any event, he submits that this loss is also not properly pleaded, there being no issue about this raised in the pleading. In conclusion, he submits that the pleading is highly unsatisfactory in circumstances where it does not plead material facts necessary to substantiate the relief that it seems to seek on the basis of fraud. He argues that it makes no sense. It is observed that despite this, the defendant has -- 32 of 44 -- 1-33 ORDER not sought to amend the counterclaim. In his written submission, Mr Ulrick argues that the implied term of the contract that invoices be provided in a timely manner and would match the prices quoted is arguable on the terms of the credit application and Mr Keating's affidavit that it was important that accurate invoices be delivered properly. He refers to Mr Keating's evidence that as a result of the plaintiff's failure to deliver goods as ordered and its failure to deliver accurate invoices, the defendant ordered a large quantity of lighting equipment from Ideal Electrical. He places particular emphasis on the argument that on 20 January 2010 the plaintiff sent a false and inaccurate statutory demand. This is a reference to the demand being for a total amount of $198,362.06 whereas the amount of debt calculated from the total of the individual invoices particularised was $234,972.58. In conjunction with this, he stresses that on 29 January 2010, the plaintiff curiously sent a monthly statement for the precise amount of $198,362.06. This is the statement of 21 January 2010 which is exhibited as "DEK-4". Mr Ulrick describes this as a statement for the precise amount as appears in the statutory demand. He told me that it is the delivery of this statement that allows the inference of fraud to be drawn. He submitted orally that this gives rise to the inference that the amount due and owing is wrong to the plaintiff's knowledge. In these circumstances, he argues that this is sufficient to draw an inference that the statement was simply manufactured -- 33 of 44 -- 1-34 ORDER to support the statutory demand as Mr Keating deposes he believes to be the case and the plaintiff never truly believed the invoice amounts. As Mr Ulrick put it: "They've put them in the statutory demand and they've just come up with a figure of $198,000. They don't believe it's $230,000 and they've worked out their calculations to arrive at that figure to give that figure to give the statutory demand some support, and then wrongly abused their position by sending a copy of this to a competitor to cease the defendant's orders and in the scheme of things that's the sort of matter that should be investigated at a trial." This submission also relates to Mr Keating's evidence that the plaintiff proceeded to cause a copy of the statutory demand to be provided to Ideal Electrical. As I have noted, Mr Evans proceeds with this application on the basis that it is open to the Court to find that this happened. Mr Ulrick also relies on Mr Keating's evidence that on the basis of his knowledge and belief, this was done for the purpose of damaging the defendant's business or, as Mr Ulrick puts it, it was sent intending that Ideal Electrical would suspend the defendant's working account which it did. He submits that this conduct has caused the defendant loss and damage to the extent of $144,387.76 which is closely related to the complainant's claim and it would be inequitable to consider the plaintiff's claim without full consideration of it. He asserts that the claim in paragraph 9(d) of the counterclaim that the plaintiff acted fraudulently in providing the invoice late is based on breach of contract. He -- 34 of 44 -- 1-35 ORDER submits that part of the cause of action in the counterclaim is based on breach of contract. He also places reliance on what he refers to as "numerous errors" in the invoices which he argues is sufficient to show they are incorrect and intentionally incorrect. Although he accepts that while it may be unsatisfactory that particulars which should have been provided of this loss caused by the inability to process final payments with its builder for both projects have not been provided, he contends one can see how that sort of loss may arise. He also accepts that Mr Keating's affidavit does not fully address the importance of the invoices being delivered promptly. However, he argues that it is sufficiently addressed to indicate the nature of the case that the defendant is raising to show that moneys are not due. Nonetheless, he concedes that I am left to speculate about the loss. With reference to the particulars of the loss set out in paragraph 9(a) of the counterclaim for $9,505 being solicitor and own client legal costs in defending the statutory demand, he argues that if the statutory demand is fraudulent, then these costs have been occasioned as a result of that fraud. He submits that in these circumstances the fact the parties agreed to pay their own costs by virtue of the consent order does not change it from being a loss the defendant incurred. He reminded me of the general principle that issues raised in the pleadings will be determined summarily only in the clearest cases. It was also submitted that if there is a marginal gap in favour of the plaintiff in terms of money -- 35 of 44 -- 1-36 ORDER owed, which in this case would be the difference between $153,933.05 which I have found the plaintiff would be entitled to judgment for subject to the counterclaim and $144,387.36 which is the loss the defendant is presently able to particularise, it would be inequitable to issue a summary judgment for this amount without full consideration of the claim. In reply, Mr Evans submitted that the plaintiff's statement dated on 13 January 2010 (Exhibit DJVV-9) provides a very clear and sensible explanation to Mr Ulrick's submission that the statutory demand was delivered fraudulently. This is said to be the failure to show in the demand that the amount of $234,972.58 which is calculated by adding the individual invoice amounts is reduced to the total amount of $198,362.06 when the payments of $36,610.52 which are recorded in that statement are deducted. He submits that this amount has been left out of the statutory demand through innocent error and not as a matter of fraud even on the basis of reckless indifference. He also submits that the defendants have simply failed to address the loss flowing from the late delivery of invoices. In conclusion, he observed that although perhaps a complete redraft of the plaintiff's pleading could be done, this opportunity has not been taken. Mr Ulrick has accepted there are a number of difficulties with the defendant's pleading in its current form. I agree. In particular, I do not consider breach of contract has been specifically pleaded as required by Rule 150(1)(a). I also agree with Mr Evans that if the defendant wishes to imply the -- 36 of 44 -- 1-37 ORDER term of timely provision of the plaintiff's tax invoices into the contract, material facts should be pleaded such as the necessity of the term and the business efficacy of the term. Further, the financial loss alleged to be suffered by the defendant as the result of any such breach is not yet particularised. However, I do not consider that this issue is germane to the resolution of the present application because, although Mr Ulrick asserted that part of the cause of action in the counterclaim is breach of contract, I have come to the conclusion that as pleaded, the counterclaim alleges fraud. This is apparent from the fact that after pleading the material facts on which the defendant relies in paragraphs 1-8 of the counterclaim, including those from the defence which are repeated and relied upon, the defendant pleads in paragraph 9 that in the premises "in relation to the issue and service of the statutory demand, the plaintiff acted fraudulently." The particulars of that fraud as I have indicated include (a) in swearing/affirming an excessive debt which was false to the knowledge of the plaintiff and (d) in providing those invoices late. The pleading then claims in the following paragraph that as a consequence of the matters specified in the preceding paragraphs which include the allegation of fraud, the defendant has suffered financial loss and this financial loss was further particularised as including (c) the suspension of its credit application with its main supplier of electrical components, Ideal Electrical. This is the loss of $144,387.36 -- 37 of 44 -- 1-38 ORDER which is alleged in Mr Keating's evidence. Although I agree with Mr Evans that the material facts in support of this should have been pleaded more fulsomely, I do not consider that the counterclaim is so bad in point of pleading that it does not accord procedural fairness to the plaintiff. In particular, I do not consider it should be struck out having regard to the applicable principles about which McGill DCJ said in Kev Leamon Earthmovers Pty Ltd v Hammond Village Pty Ltd (1998) 19 Qld Lawyer Reps 10-11: "The party opposite is entitled to a proper pleading as an incident of the requirement of procedural fairness. A claim or defence which is bad in point of pleading should be struck out but on the basis that the party delivering it should be given leave to re-plead. As to the significance of striking out a pleading with leave to re-plead on the ground that it was defective in point of pleading, see Turner v Bulletin Newspaper Co Pty Ltd (1974) 131 CLR 69 at 74 per Barwick CJ; 97-98 per Jacobs J." (Other citations omitted). In my view, the defendant has sufficiently pleaded fraud for the purposes of the counterclaim and despite Mr Evans' submission about it being incomprehensible it is sufficiently clear that he has been able to identify the issues for the purpose of his submissions on this application. As such, it provides procedural fairness to the plaintiff. In my view, the counterclaim does identify a cause of action. That cause of action is fraud. -- 38 of 44 -- 1-39 ORDER Despite denying that the statutory demand was provided to Ideal Electrical and that the timely provision of invoices to the defendant was an implied term of the contract, Mr Evans has been prepared to argue the application on the basis that it is open to the Court to find on the materials that the demand was so provided to Ideal Electrical and it is also open to the Court to conclude that the plaintiff failed to provide the invoices in a timely manner. Therefore, while recognising that there is an unresolved dispute about these issues, I proceed to determine the application on this basis. It follows that in doing so I assume for the purposes of this application that the statutory demand dated 19 January 2010 was not only filed and received by the defendant on 20 January 2010, but as deposed by Mr Keating was sent or caused to be sent by the plaintiff to Ideal Electrical on or about 16 February 2010. This statutory demand was, as Mr Ulrick puts it, "glaringly inaccurate". As I have said, although the total amount due is said to be $198,362.07 an addition of the actual amount of the debt itemised for each individual invoice results in a total which is $36,610.52 more. I consider that this would have been evident to any person who received a copy of the demand. Mr Keating asserts that on the basis of the information provided to him by the credit manager of Ideal Electrical, this "glaringly inaccurate" demand was sent to that company with the purpose of damaging the defendant's business. Mr Evans was not satisfactorily able to identify what I could -- 39 of 44 -- 1-40 ORDER consider to be a legitimate purpose for the plaintiff to provide the demand to the company. His response to my question about this was: "I understand the company that is one that deals with both - was one of the companies that my client was sourcing goods to which were being paid so there's a commercial relationship between the plaintiff and this other company so it may have been in the course of that. I don't know that I can offer any greater explanation other than there may have been some discussion. As I say, we don't concede that it was done." Although Mr Evans submits that a comparison of the disparity of $36,610.52 with the statutory demand is clearly and sensibly explained as an innocent error through not subtracting the same amount which is shown as a payment in the 13 January 2010 statement and this amount also appears as a payment applied to invoice 1261 in the statement of claim, there are discrepancies between the 13 January 2010 statement and the 21 January 2010 statement (DEK-4). For example, in the 13 January statement, the $36,610.52 payment is shown as having been credited on 3 December 2009. In the 21 January 2010 statement the amount shown as credited on that date is $50,000. I appreciate that in the particulars to paragraph 6 of the statement of claim which is based on the reconciliation statement (DJVV-12) the $50,000 is shown as being applied to a number of different invoices with the $36,610.52 applied to invoice 1261. However, this is not how the sum appears in DEK-4 and the 13 January 2010 statement does not itemise any of the other applications. -- 40 of 44 -- 1-41 ORDER In my view, this raises a real issue as to whether the statement of 13 January 2010 was manufactured to support the incorrect statutory demand and the plaintiff never truly believed in the invoice amounts. The failure to provide invoices in a timely way is relevant to this. As I have said, Mr Evans concedes, despite Mr Van Vegchel's affidavit, that it is open to the Court to conclude that they were not provided to the defendant in a timely fashion. In my view, it is also open to a Court, having regard to this combination of circumstances, to conclude that this failure to provide the invoices in a timely manner was because the invoices were manufactured to support the incorrect statutory demand, which is the belief deposed to by Mr Keating. I also consider that it is open to a Court to conclude that the only reason for sending the incorrect statutory demand to Ideal Electrical was as Mr Keating deposes for the purpose of damaging the plaintiff's business. At the very least, it is open to a Court to conclude that with this purpose in mind, the plaintiff was at least recklessly indifferent to the truth. I consider that the interests of justice require that these issues be investigated at trial. This is consistent with the counterclaim asserting that in relation to the issue and service of the statutory demand, the plaintiff acted fraudulently as particularised in paragraph 9 as a consequence of which the defendant suffered financial loss from the suspension of its credit application with Ideal -- 41 of 44 -- 1-42 ORDER Electrical, and this loss has been particularised as $144,387.36. Further, it would be open to a Court to conclude that $9,505 was a loss incurred in the expenditure of solicitor and own client legal costs as a result of the fraud involved in the issue of the statutory demand. This is a total loss of $153,895.36 which almost equals the judgment to which the plaintiff would otherwise be entitled. Accordingly, I am not satisfied that the counterclaim fails to disclose a reasonable cause of action so as to give rise to my discretion to strike out all or any part of it under Rule 171 of the UCPR. I am also satisfied that the defendant/respondent has established some real prospect of succeeding on the counterclaim for an equivalent amount to the judgment to which the plaintiff would otherwise be entitled on the basis of the manner in which this application has been conducted. In these circumstances, the matter must go to trial. For completeness, even if I have not come to the view I have expressed concerning the counterclaim for the loss of $9,505 given the relatively small difference between the quantum of the judgment and what would then be the quantum of the counterclaim to be set off against it, I would have exercised my residual discretion to refuse summary judgment because I consider that given the nature of the issues to be tried to which the claim for this loss is integral, it would not be fair and just to order summary judgment for the quantum of -- 42 of 44 -- 1-43 ORDER this difference without full consideration of the claim as Mr Ulrick has submitted. In coming to this conclusion, after some considerable deliberation, I have been conscious of the great care which is required in deciding whether the power to order summary judgment should be exercised as recognised by the High Court of Australia in Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 89. As Williams JA observed in Salcedo at [17] the observations on summary judgment in that case are not incompatible with the application of Rule 292. I have also been conscious that as cited with approval by McMurdo P at [3] the judges of the High Court in Agar v Hyde (2000) 2001 CLR 552, 575-76 [57] said: "The test to be applied has been expressed in various ways but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way." I consider this is applicable to the formula in Rule 292. As McMurdo P also said in Salcedo at [3] the issues raised in proceedings will be determined summarily only in the clearest cases. I do not consider that this is such a case. Before making my formal orders, I observe that this decision should not be interpreted to mean that amendment of this pleading by the defendant is unnecessary. Accordingly, I order the application be dismissed. -- 43 of 44 -- 1-44 ORDER The question that arises is whether there is any issue of costs that I have to determine in relation to the application. ... HIS HONOUR: This was an application that was brought by the plaintiff to achieve two things: the first was that summary judgment be entered in the plaintiff's favour and that the counterclaim be struck out. Ultimately, the plaintiff/applicant has been unsuccessful on each of those issues, and although I have concluded that there are some deficiencies in the pleadings on behalf of the defendant and although it may be as Mr Evans argues that the defendant/respondent can be said to had just fallen over the line in the sense that subject to the set-off available in the counterclaim, I considered that the plaintiff/applicant was entitled to judgment in this case. It is nonetheless the case that the respondent has been successful in resisting the application and I consider in the circumstances there is no reason to depart from the rule that costs should follow the event and therefore I order that the plaintiff/applicant pay the defendant/respondent's costs of and incidental to this application on the standard basis to be assessed. ----- -- 44 of 44 --