Contrapac Pty Ltd, Re; Re Australian Wool Realisation Comm [1992] QSC 269

·State Reporting Bur->_.au, 4th F1oor, Tne Law Courts George Street, . ' BRISBANE, 0. 4000 Tel. (07) 227.4360 (Copyright in this tra11SCript is vested in the Crown. Copies t.~ereof must not be made or sold without the written authority of the Di..rector, State Reporting Bureau.) ·. .. .. . SUPREME COURT OF QUEENSLAND CIVIL ·JURISDICTION RYAN J No 590 of 1992 IN THE MATTER OF "THE COMMERCIAL ARBITRATION ACT 1990" and IN THE MATTER OF A CONTRACT IN WRITING ~DE ON . .. ·... . ·. .· OR ABOUT THE 3RD DAY OF FEBRUARY 1986 BETWEEN CONTRAPAC PT~ LTD (FORMERLY BRISMAR PTY LTD) AND THE AUSTRALIAN WOOL REALISATION COMMISSION (FORMERLY THE AUSTRALIAN WOOL CORPORATION) 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 THE AUSTRALIAN WOOL CORPORATION) BRISBANE . .• DATE 31/07/92 JUDGMENT 1 JUDGMENT -- 1 of 10 -- 310792 HIS HONOUR: summons of Accordingly, the applicant I dismiss both the originating and the application by the respondent for a stay of these proceedings and for the matters raised in the originating summons to be referred to the arbitrator for determination. I shall hear submissions as to any further orders I should make, including orders as to costs. I publish my reasons. I amend the order to read: "I dismiss the application to have the matters in the originating summons determined forthwith." directions in the form handed to me, changing I giv:e in paragraph one "statement of costs" to "statement of claim". The only issue in my mind is whether I should make determinations at this point in these proceedings in relation to the issue of costs, or whether I should reserve the costs to the point of trial. It seems to me that while there would be some advantages in me, as the Judge who heard the issues in which I have already given judgment, making an order, it will be plain to anyone who had the judgment put before him what the course of proceedings has been. In the circumstances, I think the proper thing to do is simply reserve all the costs to the trial Judge. 2 JUDGMENT 10 20 30 40 50 60 -- 2 of 10 -- ( ! \ "' \ ) IN THE SUPREME COURT OF QUEENSLAND O.S. No. 590 of 1992 IN THE MATTER of Commercial Arbitration 1990" - and - "The Act IN THE MATTER of a contract in writing made on or about the 3rd day of February, 1986 between Contrapac Pty. Ltd. (formerly Brismar Pty. Ltd.) and the Australian Wool Realisation Commission (formerly the Australian Wool Corporation) - 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 the Australian Wool Corporation) JUDGMENT - RYAN J. Delivered the Thirty-first day of July, 1992 Counsel: R. Holt of Counsel for the Applicant J. Doyle, Solicitor for the Respondent Solicitors: McCrea Jones t/a for Carter Green & Co., Solicitors for the Applicant Doyles Solicitors for the Respondent Hearing Dates: 30 June, 6, 8, 17, 20 and 22 July, 1992. -- 3 of 10 -- ( \ ( ) IN THE SUPREME COURT OF QUEENSLAND O.S. No. 590 of 1992 IN THE MATTER of Commercial Arbitration 1990" - and - "TheAct IN THE MATTER of a contract in writing made on or aboutthe 3rd day of February, 1986 between Contrapac Pty. Ltd. (formerly Brismar Pty.Ltd.) and the Australian Wool Realisation Commission (formerly the Australian Wool Corporation) - and - IN THE MATTER of a contractin 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 the Australian Wool Corporation) JUDGMENT - RYAN J. Delivered the Thirty-first day of July, 1992 In a judgment which I delivered on 17 July, 1992, I decided. that the question of the parties to certain contracts should be decided by the court before an arbitrator proceeded further with an arbitration and that the question should be decided forthwith pursuant to s. 6A(4) of the Commercial Causes Act 1910-1972. I permitted the respondent to put evidence before me on that issue. -- 4 of 10 -- 2 There was an obvious problem with the case presented by the applicant. This had sought declarations as ,to the proper construction of agreements in writing made on 3 February 1986 and 28 February 1986, but the copies of contacts annexed to the main affidavit filed in support of the applications identified them as contracts dated 24 June, 1986. There had however been tendered two exhibits in the form of letters addressed by B.M. Culley & Associates Pty. Ltd. to the Manager, Alpha Plumbing Supplies Pty. Ltd., dated respectively 3 February, 1986 and 0 28 February, 1986, confirming on behalf of the Australian Wool Corporation acceptance of tenders in respect of Store 1 and Store 2. No point had been made on behalf of the respondent about this apparent discrepancy until I mentioned it after I had delivered my judgment. The respondent's efforts had been directed to having the question of the parties left to the determination of the arbitrator, or to having that issue determined after directions for a trial had been given. On 20 July, 1992, I gave leave to read and file an affidavit by Mr. Vines on behalf of the respondent, the Australian Wool 0 0 Realisation Commission. He annexed to his affidavit copies of c=) the Store 1 and Store 2 contracts, based upon reconstruction of the contracts from his files and recollections. Store 1 contract is said to consist of the following: 1. Tender letter of 17 December, 1985 and tender letter of 20 January, 1986. The letter of 17 December, 1985 is on a letter head in the name of Alpha Plumbing Supplies Pty. Ltd. and is subscribed Alpha Pluming -- 5 of 10 -- / \ 3 Supplies Pty. Ltd. Typed above the letter-head are the words "Hansen Metal Roofing Trading As". The letter of 20 January, 1986 is also headed and subscribed Alpha Pluming Supplies Pty. Ltd. There is no reference . in this letter to Hansen Metal Roofing. 2. Letter of acceptance of tender of 3 February, 1986. 3. This is addressed to the Manager, Alpha Plumbing Supplies Pty. Ltd. and is signed on behalf of B.M. Culley & Associates Pty. Ltd. Special Conditions of contract, dated 24 June, 1986. 4. Trade contract dated 24 June, 1986. This states the trade contractor to be Alpha Plumbing Supplies Pty. Ltd. 5. Certain drawings. 6. A schedule of technical data. 7. A specification dated 24 June, 1986. Mr. Vines states that the contract for Store 1 exhibited to his affidavit differs from Exhibit A to Mr. Foggo's affidavit in ( ' j certain respects. First, Mr. Foggo does not include the letters of tender dated 17 December, 1985 and 20 January, 1986, or the letter of acceptance dated 3 February, 1986. Secondly, the special conditions of contract included in Mr. Foggo's affidavit appear to be initial conditions which he recalls were revised later to change, inter alia, Superintendent to Construction Manager. Thirdly, the drawings were not included. Fourthly, the specification is unsigned and appears to be missing two or three pages at the commencement. He noted also that a schedule of -- 6 of 10 -- 4 technical data (referred to in the Points of Claim) is not included, and states that he believes that this schedule did not at any time exist. I was informed by counsel for the applicant that it accepts for the purposes of the application and the arbitration that the Store 1 contract consists of the following documents as referred to in Mr. Vine's affidavit: 1. The letter of tender of 17 December, 1985 2. The letter of tender of 21 January, 1986 3 . The letter of acceptance of tender of 3 February, 1986. 4. General conditions of contract dated 24 June, 1986. 5. Special conditions. 6. Specifications. 7. There is no technical data. 8. The drawings are those referred to in cl. 2.01 of the General Conditions. Store 2 contract is said by Mr. Vines to consist of the following:- 1. Letter of tender of 25 February, 1986. This is headed Hansen Metal Roofing trading as Alpha Plumbing Supplies Pty. Ltd. 2. Letter of acceptance of tender of 28 February, 1986. This is addressed by B.M. Culley & Associates Pty. Ltd. to The Manager, Alpha Plumbing Supplies Pty. ltd. 3. Special conditions of contract. •,1" 0 0 0 0 -- 7 of 10 -- 5 4. Trade contract of 24 June, 1986. This is stated to be made between Australian Wool Corporation and Alpha Plumbing Supplies Pty. Ltd. 5. Certain drawings. 6. A schedule of tendering data. 7. A specification. He states that this contract differs from the exhibi:t to Mr. Foggo's affidavit in certain respects. The exhibit does not ( include the letter of tender dated 25 February, 1986 or letter of acceptance dated 28 February, 1986. Two pages appear to be missing from the trade contract exhibited by Mr. Foggo. The drawings are not included in the exhibit. The special conditions and preliminaries provided in Mr. Foggo's exhibit for Store 2 appear to be for the Store 1 document. The schedule of technical data referred to in the points of claim are not included by Mr. Foggo. Mr. Vines states that ne believes that this schedule ( '· 1 did not at any time exist. ,,_ / ( ' ,) I was informed by counsel for the applicant that it accepts for the purposes of the application and the arbitration that the Store .2 contract refers to the following documents referred to in the affidavit of Mr. Vines. 1. Letter of tender 25 February, 1986. 2. Letter of acceptance 28 February, 1986. 3. General conditions of Contract. 4. Special conditions. 5. Specification (the document lacks an index). 6. Drawings. The applicant says that the drawings are those mentioned in cl. 2.01 of the trade contract. -- 8 of 10 -- 6 7. There is no technical data. Though there are some discrepancies as to·the contents of the Store 1 and Store 2 contracts, it seems clear that Store 1 contract was completed upon the acceptance by the Australian Wool Corporation of the tender letters dated 17 December, 1985 and 20 January, 1986 on 3 February, 1986, and that Store 2 contract was completed upon acceptance on 28 February, 1986 of the letter of tender of 25 February, 1986. The issue in this case is defined in the originating summons as being one as to the proper construction of agreements in writing made on 3 February, 1986 and 28 February, 1986. These agreements purport to be made between the Australian Wool Corporation and Alpha Plumbing Supply Pty. Ltd. The latter never obtained corporate existence. The question is then one of establishing who was the party with whom the contracts were made by the Australian Wool Corporations. On the material originally placed before me, there was nothing to suggest that there was likely to be a conflict in the evidence on this point. No material was filed on behalf of the respondent which called into question the applicant's claim that the contractor was Brismar Pty. Ltd. It was not suggested in any of the respondent's material that Hansen Metal Roofing Pty. Ltd. was or may be a contracting party, or that nothing had come to its notice indicating that Brismar Pty. Ltd. claimed to be a contracting party until after the contract had been concluded. It was in a position to file an affidavit giving reasons for putting in issue the claim of Brismar Pty. Ltd. to be a contracting party, and in my opinion it should have done so at 0 0 0 0 -- 9 of 10 -- . ' / ( ( \ \ 7 the initial hearing before me. If it had, it is likely that the proceedings would have been conducted differently. However, when the proceedings were subsequently continued before me on 20 July, 1992, Mr. Foggo was cross-examined extensively with the object of indicating that Alpha Plumbing Supplies Pty. Ltd. should be understood as Hansen Metal Roofing Pty. Ltd. or that it was questionable whether Brismar Pty. Ltd. had tendered as Alpha Plumbing Supplies Pty. Ltd. at the date of the contracts. I have concluded that it is impossible to determine "forthwith" what now appear clearly to be contested matters of fact. Accordingly, I dismiss both the originating summons of the applicant and the application by the respondent for a stay of these proceedings and for the matters raised in the originating summons to be referred to the arbitrator for determination. I shall hear submissions as to any further orders I should ( make, including orders as to costs. \, / ( -- 10 of 10 --