Amcor Trading Pty Ltd v Metal Roofing & Cladding Pty Ltd

[1999] QSC 87

IN THE SUPREME COURT

OF QUEENSLAND  No. 6133 of 1996

Brisbane

[Amcor Trading Pty Ltd v Metal Roofing & Cladding Pty Ltd]

BETWEEN:
  AMCOR TRADING PTY LTD
  (ACN 006 409 936)
  Plaintiff

AND:
  METAL ROOFING & CLADDING PTY LTD
  (ACN 010 035 266)
  Defendant

REASONS FOR JUDGMENT - MOYNIHAN J.

Judgment delivered 10 March 1999
  Order as to costs and interest delivered 21 April 1999

Solicitors:Bowdens (Town Agents for Macpherson & Kelley) for the plaintiff.

Hemming & Hart (Town Agents for Kanji & Co) for the defendant.

Counsel:  Mr. D. Savage for the plaintiff.

Mr. D. Campbell for the defendant.

Hearing Dates:  25 and 31 March 1998, 1-2 April 1998 and 6 April 1998.

IN THE SUPREME COURT

OF QUEENSLAND  No. 6133 of 1996

Brisbane

BETWEEN:
  AMCOR TRADING PTY LTD
  (ACN 006 409 936)
  Plaintiff

AND:
  METAL ROOFING & CLADDING PTY LTD
  (ACN 010 035 266)
  Defendant

REASONS FOR JUDGMENT - MOYNIHAN J.

Judgment delivered 10 March 1999
  Order as to costs and interest delivered 21 April 1999

1. For reasons I published on 10 March 1999, the plaintiff succeeded in a claim for the balance of monies owing for goods supplied and for damages for breach of contract being the loss on the resale of a quantity of resin reclaimed from the defendant.  The defendant’s counter claim was dismissed.  Provisions were made for written submissions as to costs and two issues remain to be disposed of.  Both turn on the effect of clause K of the plaintiff’s terms of trade.  The clause provides:

   “K.  PAYMENT         

   (a)Payment shall be made within 30 days of the last day of the month of delivery and the time for such payment shall be the essence of the Contract.

   (b)If the Customer fails to pay any amount on or before the due date for payment then the Customer shall, in addition to that amount and without prejudice to all or any of Amcor Trading’s other rights and remedies under the Contract, pay -

   (i)Interest thereon at the rate equal to that specified from time to time by the Commonwealth Trading Bank at its “Overdraft Index Rate” and if no such rate then exists at the rate charged by the Commonwealth Trading Bank on overdrafts in excess of $100,000.00 from the date such amount falls due until it is received in full by Amcor Trading and any payment received will be applied first against such interest; and

   (ii)all costs, charges and expenses incurred by Amcor Trading in enforcing or attempting to enforce any of its rights under the contract (including recovering any unpaid amounts).  Such costs in the case of legal shall be charged on a “solicitor and own client” basis.  ”

2. The defendant disputes the plaintiff’s claim to interest at the contract rate on the $60,879.00 damages for breach of contract and on an amount of $125,000.00 paid by the defendant on 29 December 1995, paid pursuant to an arrangement evidenced by a letter of 27 December 1995, to repay the defendant’s then current debt (it was then $651,028.30) by instalments in an arrangement which was never completed.

3. So far as the damages claim is concerned the resin, the subject of the claim, was returned by the defendant in breach of contract.  The plaintiff’s claim to interest is calculated on the difference between the price in the contract between it and the defendant and the price at which it sold the reclaimed material.  The claim does not seem to fall into the interest clause but it seems appropriate to allow interest on the basis claimed.  Indeed that may be more favourable to the defendant than the statutory rate.

4. So far as the $125,000.00 is concerned, it represents an amount which was not paid “on or before the due date of payment” but was paid later pursuant to the arrangement referred to above.  It seems to me to be caught by the clause.

5. The plaintiff seeks an order pursuant to s.48 Supreme Court Act 1995 that the judgment sum bear interest from the date of pronouncement, 10 March 1999, to the date of payment at the rate of 7.95 per cent compounding on monthly rests. Section 48 allows the court to “otherwise order” in respect of the prescribed rate on judgments. The order sought reflects the contractual provisions as is appropriate.

6. So far as costs are concerned clause K makes provisions for costs on a “solicitor and own client” basis.  No reason has been shown why it should not be given effect.

7. I order -

   (a)Judgment for the plaintiff against the defendant in the sum of $781,237.59.

   (b)That the judgment sum bear interest from the date of pronouncement 10 March 1999 to the date of payment at the rate of 7.95 per cent compounding on monthly rests.

   (c)The defendant pay the plaintiff’s costs of the action taxed on a solicitor and own client basis.