Daphne Pty Ltd v Landmara Pty Ltd & Ors [2007] QDC 169

DISTRICT COURT OF QUEENSLAND CITATION: Daphne Pty Ltd v Landmara Pty Ltd & Ors [2007] QDC 169 PARTIES: DAPHNE PTY LTD Plaintiff V LANDMARA PTY LTD First Defendant AND NICKOLAS PTY LTD Second Defendant AND CONVENIENCE CORPORATION PTY LTD Third Defendant FILE NO/S: BD991/07 DIVISION: PROCEEDING: Application ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 14 August 2007 DELIVERED AT: Brisbane HEARING DATE: 17 July 2007 JUDGE: McGill DCJ ORDER: Application dismissed; costs reserved CATCHWORDS: CONTRACT – Parties – identification of party liable for work done – whether summary judgment appropriate. UCPR r 65(2)(a). Christiani and Nielsen Pty Ltd v Goliath Portland Cement Co Ltd (1993) 2 Tas R 122 – cited. Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 – applied. Pohlmann v Harrison [1995] 2 Qd R 59 – cited. Siu Yin Kwan v Eastern Insurance Co Ltd [1994] 2 AC 199 – cited. -- 1 of 5 -- 2 COUNSEL: A. C. Harding for the plaintiff M. D. Martin for the third defendant SOLICITORS: Sunnybank Solicitors for the plaintiff Le Mass Solicitors for the third defendant [1] This is an application by the third defendant for summary judgment under r 293 of the UCPR. The plaintiff is a manufacturer of commercial refrigeration equipment, and in the latter part of last year manufactured, supplied, and installed a quantity of such equipment into premises at Calamvale, which were being set up as a convenience store. The convenience store was subsequently operated by the third defendant under a franchise agreement between it and the first defendant, and the fitting out work was done at least under the day-to-day supervision of the second defendant; there is a dispute between the parties as to the precise role of the second defendant. The plaintiff has sued each defendant in the alternative, seeking to recover the unpaid part of the remuneration it says it is entitled to for doing that work. [2] The third defendant’s case is simply that it was required under its agreement with the first defendant to fit out the premises at its expense, and it entered into a contract with the second defendant to do the required fit out for a particular amount. That contract included the refrigeration work, which was in fact the responsibility of the plaintiff. The third defendant has paid the second defendant most but not all of what is owing pursuant to the contract between them, there being a dispute between them as to some defects in the work done (apparently not relating to the refrigeration work). [3] The plaintiff’s claim pleaded against the third defendant, which was expressly pleaded as arising only if the second defendant was not the servant or agent of the first defendant, or acting as principal in its own right, is that the second defendant was the agent of the third defendant, so that the second defendant in entering into an agreement with the plaintiff for the work to be done was acting as agent for the third defendant and the third defendant is liable on that agreement. In the alternative, it was claimed that the third defendant has been unjustly enriched because the equipment installed by the plaintiff at the plaintiff’s expense has been used by the third defendant in the operation of the store for its benefit, and was accepted by the third defendant, and the work was carried out by the plaintiff at the request of the third defendant. In the further alternative, it was said that the request of the defendant gave rise to an obligation to pay a reasonable price for the work done. [4] It appears likely that the second defendant is not worth suing; it has not filed a notice of intention to defend. The first defendant, however, has filed a notice of intention to defend, in which it denied that there was any contract between it and the plaintiff, one basis of the case pleaded against the first defendant. In response to the allegation that the manufacture, supply and installation of the equipment was carried out by the plaintiff at the request of the first defendant, the first defendant admitted that request but alleged that it was made in the first defendant’s capacity as agent for the third defendant. [5] Some light as to the factual background behind all this has been shed by the affidavit of the person who was responsible for organising all this so far as the -- 2 of 5 -- 3 plaintiff was concerned, Mr Moloney. 1 He said that the plaintiff has on many occasions designed and installed refrigeration equipment in convenience stores operated by franchisees of the first defendant. He said that he had contact at a particular time with a particular representative of the first defendant, who sought a quotation for the alteration of existing refrigeration to suit the first defendant’s specifications. A written quotation on behalf of the plaintiff was submitted to the first defendant for these works, but they did not go ahead. Subsequently there was a further quotation sought by the first defendant and submitted to it by the plaintiff. The first quotation at least was a fairly informal document, and the same may have applied to the second quotation; the plaintiff cannot locate a copy of it. [6] Subsequently the first defendant sought a further revised quotation which involved replacing the existing refrigeration equipment and that quotation was provided to the first defendant on two occasions. Subsequently another representative of the first defendant telephoned the plaintiff and said (according to the plaintiff) that the plaintiff’s quotation for the work had been accepted and that a particular individual “would handle works at the Calamvale convenience store.” He was told that this individual would be coordinating the job and to meet him on the site. [7] The plaintiff’s representative subsequently met that individual (who is the individual behind the second defendant) on the site, and that individual asked to be provided with the plaintiff’s final quotation. The final quotation was sent to him on 12 October 2006; a copy is in evidence. At about that time the plaintiff’s representative also telephoned the first defendant’s representative to ask about whether it was appropriate to send this person the quotation, and he was told that it was and that he was coordinating the work. Subsequently that person called and said that the plaintiff had the go ahead to start the work, and the work proceeded. The working drawings were submitted to the first defendant for final approval before manufacture and installation, and that approval was given orally. The work was done, with the second defendant on site acting as coordinator for the work and building foreman. On one occasion during the work an instruction for a variation came from the first defendant. [8] According to Mr Moloney before any invoices were raised by the plaintiff, and just before the work was completed, the representative of the second defendant approached him on the job site and told him that he wished to provide the plaintiff with a cheque for $20,000 as a progress payment. The cheque was handed over and a receipt was provided by way of an invoice addressed at the request of this person to the business name under which it was alleged the second defendant traded. Subsequently the plaintiff gave that individual an invoice for the balance of the amount of the original quotation, also addressed to that business name, and later a further invoice addressed to it in respect of some additional work. This was done because the individual had asked him to make out the receipt in that name. Subsequently he had discussions with the representatives of all the defendants; the representatives of the first and second defendants say the third defendant is responsible for payment, while the representative of the third defendant says the second defendant is. [9] The representative of the third defendant has sworn that he did not have any contact with the plaintiff until after the work was done, and has said that he entered into a 1 Filed 12 July 2007. -- 3 of 5 -- 4 contract with the second defendant by accepting a quotation from the second defendant which in fact is addressed to the first defendant.2 That quotation covered the refrigeration work. He said that pursuant to the agreement between the first and third defendants the fit out work had to be approved by the first defendant but was to be paid for by the third defendant. The terms of the franchise agreement are not before me; that means that they may provide that the first defendant was the agent of the third defendant for the purpose of arranging the fit out of the shop, or they may provide that the first defendant was not the agent of the third defendant for that (and perhaps any other) purpose, or may well be silent on the subject. I do not know what the first defendant’s witnesses would say if there were a trial. [10] UCPR r 65(2)(a) provides that in a proceeding two or more persons may be defendants if there is doubt as to the person from whom the plaintiff is entitled to relief. The evidence overall which is currently before me rather suggests that the appropriate analysis of the situation is that, although there was some liaison of the kind that might be expected in the circumstances between the plaintiff and the first defendant, the plaintiff did the work under a contract with the second defendant, and the second defendant was responsible for all of the fit out work, including the refrigeration, under a contract with the third defendant. If that was the true situation, and the plaintiff cannot recover payment from the second defendant, then the plaintiff is in trouble; if there was a contract between the third defendant and the second defendant which covered this work together with the other work then there cannot be any claim outside the contract between the plaintiff and the third defendant: Pohlmann v Harrison [1995] 2 Qd R 59, which indicated that the absence of an enforceable contract was a prerequisite to a claim in quasi contract or restitution. See also Christiani and Nielsen Pty Ltd v Goliath Portland Cement Co Ltd (1993) 2 Tas R 122 at 168, 171 per Zeeman J with whom Crawford J agreed. [11] However, it is not I think sufficiently clear that that will be the outcome for me to say at this stage that it is not necessary to have a trial of the action. The test to be applied under r 293 is that expounded by the Court of Appeal in Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232. It is not sufficiently clear what the outcome of the action will be if it goes to trial for me now to give judgment for the third defendant in a summary way. The difficulty is that there is no contract in writing, and there appears to be no contemporaneous documentation which unambiguously identifies the other party to any contract with the plaintiff. [12] It is also possible that there was no contract, because there was never the necessary meeting of minds; the plaintiff may have thought it was contracting with the first defendant, in circumstances where the first defendant had no intention to contact with it, but was merely expressing approval under the franchise agreement of a contract to be arranged with the third defendant, while the third defendant although recognising an obligation to pay for the works may have believed that they were to be carried out under a contract involving the first defendant. In those circumstances there would be an obligation on the part of someone to pay for the works, but there is some doubt at this stage, in the absence of all of the evidence which would be led at a trial, as to which defendant will ultimately end up liable to the plaintiff. [13] It is at least possible that the first defendant will end up being liable; if the plaintiff’s evidence were accepted, there would appear to have been an oral 2 Affidavit of Kern filed 13 July 2007. -- 4 of 5 -- 5 acceptance on behalf of the first defendant of the quote “provided by the plaintiff to the first defendant”, which looks to me rather like a contract. If the first defendant is liable, it may be that the third defendant is also liable,3 depending on whether the first defendant in arranging for such work was acting as agent for the third defendant. That may well turn on the terms of the franchise agreement which is not before me. It is possible that that agreement provided that the first defendant was the agent of the third defendant for the purposes of arranging for the necessary work to be done, at the third defendant’s expense. In such circumstances the first defendant would have been contracting as agent for an undisclosed principal, and the plaintiff is entitled to sue the undisclosed principal,4 and not just pursue the first defendant (which would in any event no doubt be entitled to recover from the third defendant). If in such circumstances the third defendant has overpaid the second defendant, that would then be the third defendant’s problem. [14] I am not to be taken as saying that I regard that analysis as particularly likely in the light of all of the material that I have seen, but that is not what is relevant for present purposes. What matters at the moment is that it is not clear from the material I have seen that such an outcome would not occur if the matter went to trial. It is not enough to suspect that it probably would not occur. Accordingly it is not appropriate for me to give summary judgment in favour of the third defendant. [15] It does occur to me, however, that it is possible that at a trial findings will be made that there were things in the affidavits which were used in connection with the application which were not true. I have in mind in particular the plaintiff’s affidavits as to what passed between the plaintiff’s representative and the representatives of the first defendant. That has been of some significance in terms of my approach to this application, and if a trial judge after hearing all of the relevant evidence were to conclude that aspects of those affidavits were not true then that I think would be a relevant consideration in relation to the costs of this application. In view of that, the costs of the application should be reserved to the trial judge. [16] Accordingly, the application is dismissed, with the costs of the application reserved. 3 In the alternative: Petersen v Moloney (1951) 84 CLR 91 at 102. 4 Bowstead and Reynolds on Agency (18 th Ed 2006) p 372 [8-070]; Siu Yin Kwan v Eastern Insurance Co Ltd [1994] 2 AC 199 at 207. -- 5 of 5 --