Contrapac Pty Ltd, Re; Re Australian Wool Realisation Comm [1992] QSC 402

\~~~~ .. _; .Se- 9~0c;~ c\ c _:~J~;;fi .. State Reporting Bureau TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) · SUPR~ME COURT OF QUEENSLAND CIVIL JURISDICTION BYRNE J -Os No 590 of i992 REVISED COPIES ISSUED State Reporting Bureau Date It? I I I 1 _2.J.... · .. IN THE MATTER of a Contract in writing made on or about the3rd day of February 1986 between CONTRAPAC PTY LTD (formerly BRISMAR PTY LTD) and the AUSTRALIAN WOOL REALISATIONCOMMISSION (formerly THE AUSTRALIAN WOOL CORPORATI~N) and IN THE MATTER of a Contract in writing made on or about the 28th day of February 1986 between. CONTRAPAC PTY LTD (formerly BRISMAR PTY LTD) and the AUSTRALIAN WOOL REALISATION COMMISSION (formerly AUSTRALIAN WOOL CORPORATION) CONSOLIDATED WITH: No 2194 of 1991 CONTRAPAC PTY LTD (formerly BRISMAR PTY LTD) and AUSTRALIAN WOOL REALISATION COMMISSION (formerly AUSTRALIAN WOOL CORPORATION) and B M CULLEY & ASSOCIATES PTY LTD 1 Plaintiff· First · Defendant Second Defendant T ---- ,., ____ ....L_ ,_. ______ C'L..... ........ .I- u ....: ... t. ..... - ..... £"'\ Allnll 'T' ..... l-...L---a '"""'!'\ ~,...., .. ,.,,..#'\. ,..._ -- 1 of 8 -- CONSOLIDATED WITH: No 1152 of 1992 HAN SENS PTY LTD and AUSTRALIAN WOOL REALISATION COMMISSION (formerly AUSTRALIAN WOOL CORPORATION) and B M CULLEY & ASSOCIATES PTY LTD BRISBANE •. DATE 30/10/92 JUDGMENT ' .. ·.-- 2 Plaintiff First Defendant· Second Defendant 10 () 20 () 30 0 40 0 50 60 -- 2 of 8 -- c c 311092 HIS HONOUR: Mr Foggo is controller of Contrapac Pty Ltd, the new name of the shelf company incorporated as Brismar Pty Ltd. Brismar was selected as the vehicle to conduct a business of plumbing contractor. Mr Foggo decided to carry on that business under, or at least in association with, the 10 name, "Alpha Plumbing Supplies".. Brismar opened a bank account under the name of Brismar Pty Ltd trading as Alpha Plumbing Supplies and it sometimes used that description in connection with its operations: for example in income tax returns and bank guarantees. That it did not always do so 20 accounts for this litigation. At about the time Foggo and his eo-controller, Mr Waning, acquired Brismar in late 1985, instructions were given to an employed accountant, Mr Skirving, to arrange for the 30 registration of the name, "Alpha Plumbing Supplies" and, it seems, to change Brismar' s name to Alpha Plumbing Supplies ( Pty Ltd eventually. c Foggo has many corporations. Another one is Han Sens Pty 40 Ltd. This company, which had formally had the name Hansens Metal Roofing Pty Ltd, was a building subcontractor. It constructed metal roofing for industrial and commercial premises in New South Wales. It has not operated in Queensland. Mr Skirving was remiss. change its name to He did not arrange for Brismar to Alpha Plumbing Supplies Pty Ltd. However, presumably in the expectation that Mr Skirving 3 JUDGMENT 50 60 -- 3 of 8 -- 311092 would attend to that duty, stationery was acquired with that name in the letterhead. the decision to use it. This litigation has resulted from The Australian ·wool ·Realisation Commission, in 1985 and 1986 10 known as the Australian Wool Corporation, called tenders for plumbing· work in relation to wool stores to be constructed in Brisbane.· B M Culley & Associates Pty Ltd managed these construction projects. its site manager. Mr That company employed Mr Vines as Vines arranged . for tenders to be called for the works. Having received tender offers on 20 0 letterhead imprinted · with the name "Alpha Plumbing Supplies 0 Pty Ltd"~ in January 1986, Mr Vines wanted to be sure that this :tenderer had the ability to complete satisfactorily the plumbing work tendered for. - So he had consulting engineers 30 investigate pro.]ects "Alpha Plumbing Supplies" had worked on. The engineers reported back that there was no reason why the contracts for the plumbing work on the wool stores should not be awarded to Alpha Plumbing Supplies. ~ .. The name·. of :the ·tendering contractor was, as Mr Vines expressly acknowledged in evidence, "of really no significance" . What mattered to the Australian Wool Corporation wa$·the identity of the tenderer. The inference is: irresistible that the "Alpha Plumbing Supplies" work, which. the c(Jnsulting 'engineers· examined before the contracts were iet,' was done' by Brismar. So ·the· intended plumbing contractor for both wool stores was the entity which had carried out the plumbing work on the projects the engineers 4 JUDGMENT 40 50 60 0 0 -- 4 of 8 -- c· c 311092 investigated: ·viz Brismar. For its part, Brismar, I am satisfied :by the evidence of Mr Foggo, intended to contract with the first defendant for the same plumbing work. These conclusions mean that the two. 10 contrac~s, which resulted from the acceptance by the Corporation of the two tender offers from Brismar, were contracts with Brismar. Howeyer, it is said for the Commiss.ion, .that,. _in effect: 1. .. The mistaken addition of "Pty Ltd" after "Alpha Plumbing Supplies" in the letterhead Brismar used in its tender offers, coupled with the . admitted , fact that no company with the name "Alpha Plumbing Supplies Pty ·Ltd" ever existed, means that no contract could have been concluded; and . . 2. Evidence is. not admissible to identify Brismar as the intended contractor. Evidence to which no objection was taken, particularly that. 20 30 of Mr Vines, shows that the intention was to let the work to 40 the entity which carried on the "Alpha Plumbing Supplies" business. And that same entity tendered for those contracts. The mistaken addition of "Pty Ltd" af.ter Brismar's trading name does not deny efficacy to these. arrangements. The misdescription in the letterhead cannot . . affect the conclusion. that the pa~ties appeared to intend and actually intended to contract with each other in relation to the work. 5 JUDGMENT 50 60 -- 5 of 8 -- 311092 This.leaves for consideration Mr Perry'~ objection that extrinsic evidence is not admissible to prove the true . .- . ;_ .. . identity of the coptractor. As to that, it is sufficient to refer to F Goldsmith (Sicklesmere Ltd) y. Baxter [1970] Ch R 85 and the discussion in D W Greig and J L R Davis, The 10 Law of Contract, at pp 418 to 419 to demonstrate that the objection fails. The evidence both pre and post contractual conduct and as to the intentions of Brismar is admissible to establish the true identity of the contractor. . -· . 20 The presence of Han Sens Pty Ltd in the litigation is explained. by. other confusion in Brismar 1 s office. On the first. tender offer,. above the words "Alpha Plumbing Supplies Pty Ltd 11 , someone presently unidentified had typed in the words 11 Hp.nsens Metq.l Roofing trading as ... Those words were 30 not included in the revised tender sent to Mr Vines .three days later. But a mistake of a similar nature reappeared when.words .were included on early invoices claiming payment in respect of the plumbing work referred to 11 Hansens Metal Roofing ..... It is not clear how this confusion arose, but 40 the evidence of Mr Foggo - which I am disposed to accept gen,erally shows t:hat these references to Hansens Metal Roofing were in error. It j_s plain enough that it was Brismar, not any other entity, which was proposing to contract with the corporation. 50 In these circumstances, it is not necessary to consider a contention mentioned on the pleadings, that the commission is precluded by an issue estoppel from denying that it had 60 6 JUDGMENT 0 0 0 0 -- 6 of 8 -- 311092 contracted either with Brismar or Han Sens Pty Ltd. The point, indeed, was not ··pursued in argument. Incidentally,· it was common ground that no question of statutory illegality ·arises in the case.· I will hear submissions as to the form of order. 10 HIS HONOUR: The material before me demonstrates that Brismar Pty Ltd attempted to secure an expeditious and inexpensive determination of the claim to the declarations c which ought now to be made, consistently with the reasons I 20 pronounced this morning. c I am satisfied that there was, subject to one matter I shall mention shortly, no conduct on the part of Brismar or its lawyers which should disentitle the company from any part of 30 the reserved costs·. Those costs were incurred in prosecuting a claim which my decision shows was c· unjustifiably resisted and the exception, with respect to c '- the costs of one of a number of summonses brought before Mr Justice Thomas, as to that Mr Hol t does not ·mind if the 40 Commission has its costs. Now, gentlemen, can you now agree on a form order and get it typed up and delivered to my today? MR HOLT: Yes, Your Honour. MR PERRY: Yes, I would think so. of draftassociate ; HIS HONOUR: I will return the proposed declarations. I know you · are agreed upon them. They will be made, and Mr Holt, you will otherwise have your costs and the reserved 7 JUDGMENT 50 60 -- 7 of 8 -- 311092 costs subject to the agreed exception. MR HOLT: Yes. 10 20 30 0 40 0 50 60 8 JUDGMENT -- 8 of 8 --