ALLSTATE Plumbing Pty Ltd v Crouch Developments Pty Ltd

[2009] WADC 47

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   ALLSTATE PLUMBING PTY LTD -v- CROUCH DEVELOPMENTS PTY LTD [2009] WADC 47

CORAM:   DEPUTY REGISTRAR HARMAN

HEARD:   20 MARCH 2009

DELIVERED          :   2 APRIL 2009

FILE NO/S:   CIV 3314 of 2008

BETWEEN:   ALLSTATE PLUMBING PTY LTD

Plaintiff

AND

CROUCH DEVELOPMENTS PTY LTD
Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Application for summary judgment

Legislation:

Nil

Result:

Application unsuccessful

Representation:

Counsel:

Plaintiff:     Mr S J Blyth

Defendant:     Mr B P Wheatley

Solicitors:

Plaintiff:     Lewis Blyth & Hooper

Defendant:     Mossensons

Case(s) referred to in judgment(s):

Nil

1. DEPUTY REGISTRAR HARMAN:  The plaintiff's claim is for the cost of plumbing services provided to the defendant pursuant to an agreement.  It has applied for summary judgment.

2. Subject to satisfaction of certain procedural requirements by the applicant the jurisdiction to award summary judgment is unfettered.  The test to be applied is whether on the evidence before the court the applicant has a clear case for judgment.  It carries the onus of persuasion.

3. There is no defence but the defendant has filed an affidavit.

4. The plaintiff sought leave to rely upon the content of a responsive affidavit of Raymond John Beal sworn 17 March 2009.  The requirement for leave is founded upon the test in the substantive application.  Unless what is sought to be adduced is likely to bring clarity, its introduction would tend to obscure the object of the exercise in the procedure.  In order to attract a grant of leave such evidence should be amenable to characterisation as being sufficiently conclusive on an issue.  The reason for the requirement is not simply to inject a measure of discipline into the task of evaluating the prospect of success upon receipt of the respondent's affidavit.  It is in the interest of the court that recourse to the procedure does not become a form of trial.  No part of the affidavit of Beal to which the plaintiff referred in the context of the application for leave satisfied the requirement that it was sufficiently conclusive on any point.  Accordingly leave was refused.

5. The plaintiff pleads that the defendant was the developer and/or builder of particular premises and that it provided a quotation to the defendant for the provision of services at those premises.  The quote was accepted, it provided services and rendered invoices; four of which have not been paid despite demand.

6. In his affidavit of 10 February 2009 Beal deposes to those matters and that the relevant invoices were dated 31 March 2008, 29 April 2008, 19 May 2008 and 30 June 2008.  He annexes the invoices.  Each of the first three issued simply specifies that it is a numbered progress claim; the fourth, that it is for particular variations.

7. At par 13 he deposes to the existence of a dispute between the defendant and the owners of the premises.  He annexes a facsimile from the defendant dated 30 April 2008 by which the plaintiff is notified of the dispute and expresses that an issue between the defendant and the owner is the refusal of the defendant to remove the plaintiff from the site.  It concludes:

   "Please don't attend site until further notice."

8. At par 9 he deposes:

   "The Defendant agreed to the Plaintiff ceasing the provision of plumbing services in respect of annexure 'A' by facsimile dated 19 May 2008, a copy of which is annexed and marked 'B'.

9. Annexure "A" is the quotation.  The facsimile dated 19 May 2008 in its material parts is as follows:

   "We are in receipt of your faxed correspondence dated the 18th May 2008.

   Crouch Developments Pty Ltd agrees with your decision to remove your plumbing licence from the above building site.

   We will process your final account with the developers accordingly.

   Please send final invoice and maintain contact."

10. In the course of the submissions I was not informed of the significance of the evidence relating to the dispute, the content of those communications and any impact that they may have on the works the subject of the last two invoices rendered.

11. In my opinion more significant than those considerations is that there is no evidence before me and there was no indication even in the form of submissions, of any entitlement to render invoices for "progress claims".  Unless I was satisfied that the plaintiff was entitled to be paid upon an invoice that simply referred to a progress claim, the plaintiff could not expect to obtain summary judgment.  As to the last of the invoices there is no pleaded case for recovery of the cost of variations.

12. I do not get to the point of considering whether the plaintiff has a clear case.