Associated Equipment Pty Ltd v Evolution Piling Pty Ltd (in liq) - [2019] QDC 249

DISTRICT COURT OF QUEENSLAND

CITATION:

Associated Equipment Pty Ltd v Evolution Piling Pty Ltd (in liq) & Ors [2019] QDC 249

PARTIES:

ASSOCIATED EQUIPMENT PTY LTD
ACN 131 092 290
(plaintiff)

v

EVOLUTION PILING PTY LTD (IN LIQUIDATION)
ACN 148 006 526
(first defendant)

MICHAEL DULLAWAY AND MARK WILLIAM PEARCE (IN THEIR CAPACITY AS LIQUIDATORS OF EVOLUTION PILING PTY LTD (IN LIQUIDATION) ACN 148 006 526
(second defendant)

PATRICK ROBERT GALLAGHER
(third defendant)

FILE NO:

2640 of 2017

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

6 December 2019

DELIVERED AT:

Brisbane

HEARING DATE:

15-16 August 2019, 12 September 2019

JUDGE:

Porter QC DCJ

ORDER:

1.   Judgment be entered for the plaintiff in the amount of $115,743.83.

2.   The plaintiff’s claim is otherwise dismissed.

3.   I will hear the parties as to costs.

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – where the third defendant caused his company to enter into a written hire agreement for equipment – where the third defendant undertook to guarantee performance – where the hirer ceased to pay the hire rates – where the plaintiff sues the third defendant on the guarantee for unpaid hire payments – whether the plaintiff had title to the equipment hired at the time of the hire agreement – whether any obligation to pay the hire rates arose – whether the hire agreement was a sham.

TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – MISLEADING OR DECEPTIVE CONDUCT – where the third defendant issued a signed tax invoice on behalf of his company disclosing a taxable supply of certain equipment to a third party – where the third defendant’s company never had title to the some of the equipment and where title did not pass to the third party for the remaining equipment – where the third defendant knew that the tax invoice was being used by the third party to obtain funds from the plaintiff as lender or buyer – whether issuing the tax invoice was misleading or deceptive conduct by impliedly representing that title to the equipment had passed to the third party – whether the plaintiff relied upon the tax invoice in purchasing the equipment from the third party – whether the plaintiff suffered loss or damage as a result of reliance upon the tax invoice.

Legislation

Australian Consumer Law, s 18, s 236

Sale of Goods Act 1896 (Qld), s 20, s 21

Cases

A G Securities v Vaughan [1990] 1 AC 417

Butcher v Lachlan Elder Realty Pty Limited (2004) 218 CLR 592

Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471

Hobson & Anor v Taylor & Anor [2019] QCA 265

Jones v Dunkel (1959) 101 CLR 298

Kewside Pty Ltd v Warman International Ltd (1990) ASC 55–964

Minerology Pty Ltd v Sino Iron Pty Ltd (No. 6) (2016) 329 ALR 1

Pavich v Bobra Nominees Pty Ltd (1988) 84 ALR 285; (1988) ATPR (Digest) 46–039

Raftland Pty Ltd…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] QDC 249
Decision Date: 6 December 2019

CaseChat Overview and Summary

Associated Equipment Pty Ltd sued Evolution Piling Pty Ltd (in liquidation) and its third director, seeking damages for unpaid hire payments of equipment under a guarantee provided by the third director. The plaintiff claimed that the third director had caused his company to enter into a hire agreement for equipment and had guaranteed its performance. The third director’s company had ceased to pay the hire rates, and the plaintiff sought to enforce the guarantee. The dispute also included allegations of misleading or deceptive conduct by the third director in issuing a tax invoice that impliedly represented that title to the equipment had passed to a third party, when in fact it had not.

The court was required to determine whether the plaintiff had title to the equipment at the time of the hire agreement and whether any obligation to pay the hire rates arose under the guarantee. Additionally, the court had to decide if the hire agreement was a sham and whether the third director’s conduct in issuing the tax invoice constituted misleading or deceptive conduct. The court needed to assess whether the plaintiff had relied on the tax invoice in purchasing the equipment and whether the plaintiff suffered loss or damage as a result of this reliance.

The court found that the plaintiff had title to the equipment at the time of the hire agreement, and the guarantee provided by the third director was valid. Therefore, the plaintiff was entitled to the unpaid hire payments. The court also determined that the tax invoice issued by the third director was misleading or deceptive conduct by implying that title to the equipment had passed to the third party. However, the plaintiff did not rely on the tax invoice in purchasing the equipment, and therefore no loss or damage resulted from this conduct. Consequently, the court dismissed the plaintiff’s claim for misleading or deceptive conduct. The court ordered judgment for the plaintiff in the amount of $115,743.83 for the unpaid hire payments and dismissed the plaintiff’s other claims. The court scheduled a hearing to determine the costs of the proceedings.

Orders

Orders of the court

1. Judgment be entered for the plaintiff in the amount of $115,743.83.

2. The plaintiff’s claim is otherwise dismissed.

3. I will hear the parties as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Associated Equipment Pty Ltd v Evolution Piling Pty Ltd (in liq) & Ors [2019] QDC 249
PARTIES:	ASSOCIATED EQUIPMENT PTY LTD ACN 131 092 290 (plaintiff) v EVOLUTION PILING PTY LTD (IN LIQUIDATION) ACN 148 006 526 (first defendant) MICHAEL DULLAWAY AND MARK WILLIAM PEARCE (IN THEIR CAPACITY AS LIQUIDATORS OF EVOLUTION PILING PTY LTD (IN LIQUIDATION) ACN 148 006 526 (second defendant) PATRICK ROBERT GALLAGHER (third defendant)
FILE NO:	2640 of 2017
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	6 December 2019
DELIVERED AT:	Brisbane
HEARING DATE:	15-16 August 2019, 12 September 2019
JUDGE:	Porter QC DCJ
ORDER:	1. Judgment be entered for the plaintiff in the amount of $115,743.83. 2. The plaintiff’s claim is otherwise dismissed. 3. I will hear the parties as to costs.
CATCHWORDS:	CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – where the third defendant caused his company to enter into a written hire agreement for equipment – where the third defendant undertook to guarantee performance – where the hirer ceased to pay the hire rates – where the plaintiff sues the third defendant on the guarantee for unpaid hire payments – whether the plaintiff had title to the equipment hired at the time of the hire agreement – whether any obligation to pay the hire rates arose – whether the hire agreement was a sham. TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – MISLEADING OR DECEPTIVE CONDUCT – where the third defendant issued a signed tax invoice on behalf of his company disclosing a taxable supply of certain equipment to a third party – where the third defendant’s company never had title to the some of the equipment and where title did not pass to the third party for the remaining equipment – where the third defendant knew that the tax invoice was being used by the third party to obtain funds from the plaintiff as lender or buyer – whether issuing the tax invoice was misleading or deceptive conduct by impliedly representing that title to the equipment had passed to the third party – whether the plaintiff relied upon the tax invoice in purchasing the equipment from the third party – whether the plaintiff suffered loss or damage as a result of reliance upon the tax invoice. *Legislation* Australian Consumer Law, s 18, s 236 Sale of Goods Act 1896 (Qld), s 20, s 21 *Cases* A G Securities v Vaughan [1990] 1 AC 417 Butcher v Lachlan Elder Realty Pty Limited (2004) 218 CLR 592 Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471 Hobson & Anor v Taylor & Anor [2019] QCA 265 Jones v Dunkel (1959) 101 CLR 298 Kewside Pty Ltd v Warman International Ltd (1990) ASC 55–964 Minerology Pty Ltd v Sino Iron Pty Ltd (No. 6) (2016) 329 ALR 1 Pavich v Bobra Nominees Pty Ltd (1988) 84 ALR 285; (1988) ATPR (Digest) 46–039 Raftland Pty Ltd…