Chantec Pty Ltd v Comgroup Supplies Pty Ltd
[2004] WASC 64
CHANTEC PTY LTD -v- COMGROUP SUPPLIES PTY LTD & ORS [2004] WASC 64
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASC 64 | |
| Case No: | CIV:2321/2001 | 2 APRIL 2004 | |
| Coram: | MASTER SANDERSON | 8/04/04 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Leave to amend granted | ||
| B | |||
| PDF Version |
| Parties: | CHANTEC PTY LTD (ACN 009 314 836) COMGROUP SUPPLIES PTY LTD (ACN 008 732 465) HUNGRY JACK'S PTY LTD (ACN 008 747 073) CONVENIENCE FOODS PTY LTD (ACN 010 618 434) |
Catchwords: | Practice and procedure Application to amend statement of claim Turns on own facts |
Legislation: | Nil |
Case References: | Briggs v Glentham Pty Ltd (1992) 8 WAR 339 Chantec Pty Ltd v Comgroup Supplies Pty Ltd [2001] WASCA 238 Danziger v Thompson & Ors [1944] 1 KB 654 Dillon v Nash [1950] VLR 293 Parker v Manessis [1974] WAR 54 Ciavarella v Balmer (1983) 153 CLR 438 Computer Edge Pty Ltd v Apple Computers Inc (1984) 54 ALR 767 McKechnie v Campbell (1996) 17 WAR 62 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
COMGROUP SUPPLIES PTY LTD (ACN 008 732 465)
First Defendant
HUNGRY JACK'S PTY LTD (ACN 008 747 073)
Second Defendant
CONVENIENCE FOODS PTY LTD (ACN 010 618 434)
Third Defendant
Catchwords:
Practice and procedure - Application to amend statement of claim - Turns on own facts
Legislation:
Nil
(Page 2)
Result:
Leave to amend granted
Category: B
Representation:
Counsel:
Plaintiff : Mr G H Murphy
First Defendant : No appearance
Second Defendant : Mr S Penglis
Third Defendant : Mr S Penglis
Solicitors:
Plaintiff : Griffiths & Godecke
First Defendant : No appearance
Second Defendant : Freehills
Third Defendant : Freehills
Case(s) referred to in judgment(s):
Briggs v Glentham Pty Ltd (1992) 8 WAR 339
Chantec Pty Ltd v Comgroup Supplies Pty Ltd [2001] WASCA 238
Danziger v Thompson & Ors [1944] 1 KB 654
Dillon v Nash [1950] VLR 293
Parker v Manessis [1974] WAR 54
Case(s) also cited:
Ciavarella v Balmer (1983) 153 CLR 438
Computer Edge Pty Ltd v Apple Computers Inc (1984) 54 ALR 767
McKechnie v Campbell (1996) 17 WAR 62
(Page 3)
1 MASTER SANDERSON: This is the plaintiff's application for leave to amend its statement of claim in terms appearing endorsed on an amended writ of summons filed 31 October 2003. The defendants object to the terms of the amendment. In particular, they object to the amended par 6A through to par 20. Despite the large number of paragraphs to which objection is taken, the defendants really only raise two points. Each can be quite simply dealt with. However, it is first necessary to say something about the history of this action.
2 By written agreement made 28 October 1996, the first defendant agreed to purchase all its salad tomato requirements from the plaintiff. The agreement was to run from 1 November 1996 to 31 October 2000. The price per kilogram was specified. A copy of a letter which comprises the contract is found as annexure "A" to the affidavit of Riccardo Conti ("Mr Conti"), sworn 8 July 2003 and filed in support of an application to join the second and third defendants as parties to the proceedings. It is common ground between the parties that the first defendant supplied salad tomatoes to the Hungry Jack's and the Kentucky Fried Chicken food outlets. The first defendant is a company within what might be described as the Hungry Jack's group.
3 On 14 August 1998 the first defendant advised the plaintiff that it did not wish to continue with the contract for the purchase of salad tomatoes. This letter appears as annexure "B1" to Mr Conti's affidavit. This letter amounted to a repudiation of the contract. The plaintiff accepted that repudiation and the contract came to an end. The plaintiff then, not surprisingly, sued the first defendant, seeking damages for breach of contract. The proceedings were issued in the District Court. The first defendant did not contest a summary judgment application and judgment was entered in favour of the plaintiff, with damages to be assessed. Subsequently it was realised that the damages might be greater than $250,000, the limit of the jurisdiction of the District Court. Accordingly, application was made to transfer the action from the District Court to the Supreme Court. Initially the District Court refused such an order. From that decision the plaintiff successfully appealed: see Chantec Pty Ltd v Comgroup Supplies Pty Ltd [2001] WASCA 238.
4 For reasons which are not presently of concern, the plaintiff then decided that it should join the second and third defendants to these proceedings. After hearing argument, Acting Master Martin, on 17 October 2003, ordered the joinder.
(Page 4)
5 The second and third defendants raised their objections to the amended statement of claim under two broad heads. First, they say that a plea in par 12 of the amended statement of claim that the written contract was a tripartite contract "between the plaintiff and the first defendant on its own behalf and as agent for the second defendant" is unsustainable. They say first that it is at odds with the clear written terms of the contract. Further, they say that such a plea is inconsistent with the judgment that has been obtained against the first defendant by the plaintiff.
6 In my view, there is nothing in the defendant's objections. It is well settled that parole evidence is admissible to establish the parties to a contract, even when the contract appears clear on its face. This principle emerges from the decision of Danziger v Thompson & Ors [1944] 1 KB 654 and Dillon v Nash [1950] VLR 293. It was applied by Virtue SPJ in Parker v Manessis [1974] WAR 54. This case had to do with a contract for the sale of land where the vendor was said to be Peter Christopher Manessis. He is shown on the contract as the sole vendor and he purported to sign the document on his own behalf as such. It was said that in these circumstances, no evidence could be introduced to establish that in fact the defendant was acting as agent for his wife in circumstances where he and his wife were joint owners of the property. Virtue SPJ rejected that submission. His Honour held that evidence could be led to establish that the defendant was acting as principal and as agent for an undisclosed principal.
7 On that basis I am satisfied that the plea in par 12 of the amended statement of claim is, in all respects, proper. I am also satisfied that such a plea is not inconsistent with the judgment that has been obtained against the first defendant. One part of the plaintiff's case is that the first defendant is liable as a principal. That is not inconsistent with a case which would have the second defendant also as principal, with the plaintiff acting as agent on its behalf. There is no question of mutually inconsistent judgments, nor is there any question of double recovery. It is simply a matter of there being a tripartite contract and consequences flowing from that arrangement.
8 The second argument put by the defendants was that as judgment had been obtained against the first defendant, all rights in relation to the cause of action had crystallised in that judgment. No further judgment could now be obtained against the second and third defendants. I understand that such an argument was raised on the joinder application. It was rejected at that time and it should be rejected again. Apart from anything else, the judgment obtained by the plaintiff with respect to the first
(Page 5)
- defendant is interlocutory: see Briggs v Glentham Pty Ltd (1992) 8 WAR 339. As such there is no impediment to the plaintiff seeking judgment against the second and third defendants.
9 The plaintiff should have leave to amend its statement of claim in the terms it proposes. I will hear the parties as to the precise form of orders and as to costs.
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