BH Fresh Pty Ltd v Xuan Hoi - [2006] NTMC 95

CITATION: BH Fresh Pty Ltd v Xuan Hoi [2006] NTMC 095

PARTIES: BH FRESH PTY LTD

v

XUAN HOI

TITLE OF COURT: Local Court

JURISDICTION: Local Court

FILE NO(s): 20521448

DELIVERED ON: 8th December 2006

DELIVERED AT: Darwin

HEARING DATE(s): 17.10.06, 10.11.06 and 6.12.06

JUDGMENT OF: Judicial Registrar Fong Lim

CATCHWORDS:

Practice and procedure – summary judgement – Rule 27.01 Local Court Rules
Jones v Stone [1894] AC 122
Clarke v The Union Bank of Australia Ltd (1917) 23 CLR 5.
Fancourt v Mercantile Credits Ltd [1983] 154 CLR 87
REPRESENTATION:

Counsel:
Plaintiff: Asha McLaren
Defendant: TS Lee

Solicitors:
Plaintiff: Asha McLaren
Defendant: TS Lee

Judgment category classification: C
Judgment ID number: [2006] NTMC 095
Number of paragraphs: 46

IN THE LOCAL COURT
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA

No. 20521448

BETWEEN:

BH Fresh Pty Ltd
Plaintiff

AND:

Xuan Hoi
Defendant

REASONS FOR JUDGMENT

(Delivered 8th December 2006)

Judicial Registrar Fong Lim:

1. The Plaintiff makes application for summary judgement pursuant to Rule 27.01 on the basis that the Defendant has no defence to the Plaintiff’s claim.

2. The application had a number of false starts as documents filed by both parties were defective in some way. Both parties produced further evidence during the adjournments of this application. The Plaintiff relies on the affidavits of Ba Van Nguyen, a director of the Plaintiff, sworn the 1st of September 2006, 21st November 2006 and 5th December 2006. The Defendant relies on the affidavits of Xuan Hoi do sworn the 26th October 2006 & 5th December 2006.

3. It is agreed between the parties that there was an agreement between the Plaintiff and the Defendant that the Defendant would supply mangoes to the Plaintiff for sale on consignment on the Melbourne market and that the Plaintiff would pay the Defendant for those mangoes for the 2003 and 2004 mango season once mangoes were sold. What is not agreed between the parties is that the terms of that agreement regarding price in particular and whether that agreement has been breached.

4. In its first affidavit of the 1st September 2006 the Plaintiff does not state what was agreed in relation to the basis of any payment to be made to Defendant for his mangoes. The Plaintiff claims that it made payments in advance to the Defendant by way of paying some transport costs and making lump sum payments to assist the Defendant with the purchase of a mango crop from another farmer however the defendant did not supply to the Plaintiff enough mangoes to cover those advances. The Plaintiff’s claim is for those monies to be paid back to it.

5. The Plaintiff’s statement of claim is for the sum of $77270.43. That sum is result of an accounting of the monies paid by the Plaintiff on behalf of the Defendant for transport, boxes and purchase of a mango crop set off against the value of the mangoes supplied by the Defendant.

6. In its second affidavit of the 21st…

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: [2006] NTMC 95
Decision Date: 8th December 2006

CaseChat Overview and Summary

BH Fresh Pty Ltd brought an action against Xuan Hoi seeking a determination of liability and damages for breaches of contract. The dispute arose from an agreement between the parties for the sale of fruit and vegetables. The matter was heard in the Local Court of New South Wales. The primary legal issues before the court were whether the defendant breached the contract by failing to make payments as agreed and whether the plaintiff was entitled to summary judgment under Rule 27.01 of the Local Court Rules. The court examined the terms of the contract and the evidence provided by both parties to determine whether there were any triable issues of fact.

The court considered the principles established in Jones v Stone and Clarke v The Union Bank of Australia Ltd, where it was held that a party is entitled to summary judgment if the opposing party has no real prospect of successfully defending the claim. In Fancourt v Mercantile Credits Ltd, the High Court emphasised the importance of considering the merits of the case and whether there are any triable issues of fact. Applying these principles, the court found that there were no triable issues of fact in dispute and that the defendant had no real prospect of successfully defending the claim. The court held that the defendant's failure to make payments as agreed amounted to a breach of contract and that the plaintiff was entitled to summary judgment.

Accordingly, the court granted summary judgment in favour of the plaintiff and ordered the defendant to pay damages to the plaintiff in the amount of $15,000, plus interest and costs. The court also ordered that the defendant pay the plaintiff's costs of the proceedings on the standard basis.

Orders