CROSSCOMBE Pty Ltd v Hooper
[1999] WASC 243
•2 DECEMBER 1999
CROSSCOMBE PTY LTD -v- HOOPER [1999] WASC 243
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASC 243 | |
| 02/12/1999 | |||
| Case No: | CIV:1959/1999 | 9 NOVEMBER 1999 | |
| Coram: | MASTER BREDMEYER | 9/11/99 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed | ||
| PDF Version |
| Parties: | CROSSCOMBE PTY LTD (ACN 010 256 710) JOHN HENRY HOOPER |
Catchwords: | Summary judgment Possession of goods |
Legislation: | Nil |
Case References: | Nil Australian Can Co Pty Ltd v Levin & Co Pty Ltd [1947] VLR 332 Colonial Bank of Australasia Ltd v De Faro (1894) 20 VLR 241 Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd, unreported; FCt SCt of WA: Library No 970739; 23 December 1997 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 Gillon v Kyle, unreported; FCt SCt of WA; Library No 9123; 16 October 1991 Jacob v Booth's Distillery Co (1901) 85 LT 262 Lewkowski v Bergalin Pty Ltd, unreported; FCt SCt of WA; Library No 7675; 26 May 1989 Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537 Reid v Moreland Timber Co Pty Ltd (1946) 73 CLR 1 Sargent v ASL Developments Pty Ltd (1974) 131 CLR 634 Webster v Lampard (1993) 177 CLR 598 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
JOHN HENRY HOOPER
Defendant
Catchwords:
Summary judgment - Possession of goods
Legislation:
Nil
Result:
Application allowed
(Page 2)
Representation:
Counsel:
Plaintiff : Mr G D Cobby
Defendant : Mr D B Shaw
Solicitors:
Plaintiff : Godfrey Virtue & Co
Defendant : Bennett & Co
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Australian Can Co Pty Ltd v Levin & Co Pty Ltd [1947] VLR 332
Colonial Bank of Australasia Ltd v De Faro (1894) 20 VLR 241
Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd, unreported; FCt SCt of WA: Library No 970739; 23 December 1997
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Gillon v Kyle, unreported; FCt SCt of WA; Library No 9123; 16 October 1991
Jacob v Booth's Distillery Co (1901) 85 LT 262
Lewkowski v Bergalin Pty Ltd, unreported; FCt SCt of WA; Library No 7675; 26 May 1989
Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537
Reid v Moreland Timber Co Pty Ltd (1946) 73 CLR 1
Sargent v ASL Developments Pty Ltd (1974) 131 CLR 634
Webster v Lampard (1993) 177 CLR 598
(Page 3)
1 MASTER BREDMEYER: This is an application by the plaintiff for summary judgment. The plaintiff and the defendant entered into a contract for the sale of certain gymnasium equipment to the defendant on 4 December 1998 for $278,000. It was an oral agreement. It was negotiated by Mr Glyn Terry and Mr Brendan Edwards for the plaintiff and the defendant. The dispute is over the terms of payment.
2 The plaintiff says it was agreed that the defendant would pay for the goods on delivery. According to the plaintiff, the defendant asked if the plaintiff would finance the purchase and Terry said no. The defendant asked if the American manufacturer of the equipment would supply finance and Terry said no. It was obvious from the conversation that the defendant needed finance for the deal. He did not have the money in hand to pay for it. The defendant said he was considering buying the goods from Life Fitness, which is a competitor of the plaintiff, and if he bought their equipment he had obtained finance approval from RAC Finance for $270,000.
3 The plaintiff said the agreement was that the defendant would have to arrange his own finance. The plaintiff's men thought he would have no trouble getting finance because he said he owned a house, a sizeable boat, and a building and he had finance approval from RAC if he bought equipment from Life Fitness. Terry said if the defendant had trouble raising finance Terry knew of two finance brokers who could possibly assist and he named them.
4 The defendant's version of this term of the oral contract was that the plaintiff's representatives said that the plaintiff would provide the finance or arrange the finance. He said to them:
"If I buy Precor equipment from you it will have to be financed by you, or you will have to arrange suitable finance. That is the deal I would be able to get from Life Fitness. You will have to match their terms."
- And Terry said:
"Don't worry. I will talk to a financier and make the necessary arrangements. I will get from them an indicative payment schedule."
(Page 4)
- Terry. I add that all three men were staying at the Park Royal Hotel, Darling Harbour at the time. The note reads:
"- 15 Treadmills 159
- 6 EFX 546 Cross Trainers 60
- 1 Stepper $6
- 2 Concept II $4200
* - 10 Upright )
) Not ready
* - 5 Recumbent )
_______
$278 $229,200
Finance 48 months 20% res $4760/month
36 months 30% res $5462/month"
6 The second document is notes of the meeting which Hooper made shortly after the words were spoken which are found at page 43 of Terry's first affidavit. Those notes relate to the equipment. Point 6 is the relevant point and it states:
"This whole contract is subject to suitable finance."
7 The defendant says he sent a copy of the notes of the meeting to the plaintiff shortly after making them. This is denied by the plaintiff's witnesses. If Mr Hooper did send this note, then this document assists the defendant because the plaintiff took no action to contradict it. It shows the contract was "subject to finance" but is silent on the question of who was to obtain the finance. If he did not send the document to the plaintiff, it is inadmissible as self-serving.
8 In an O 14 application I am not normally allowed to dispose of factual matters on a conflict of affidavits. Normally I am to accept the version of facts put forward by the defendant unless they are inherently incredible, equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements of the same witness.
(Page 5)
9 I do not consider the defendant's version inherently incredible. There is no doubt that the defendant needed finance to pay for the equipment. He did not have the money in kitty. He made that clear in discussions. There was talk between the parties of raising the money through hire purchase. In these circumstances it would be reasonable to make the purchase "subject to finance". If one is buying real estate "subject to finance" means subject to the purchaser obtaining finance within a certain time, and, if he does not, the deal falls over. He gets his deposit back. The term is a written one set out in the contract. On the other hand, if one is buying a tractor or bulldozer or photocopiers the sale is often a hire purchase one arranged by the vendor or the dealer. The dealer is in league with the finance company who arranges the finance. The truck for example is sold by the dealer to the finance company which, in turn, leases it on hire purchase terms to the purchaser. In that situation an agreed term "subject to finance" could mean subject to finance to be arranged by the vendor. In both cases it is the purchaser who has to borrow the money or sign the hire purchase agreement.
10 The defendant in his affidavit says that the agreed term was:
"(1) The plaintiff provide the finance, ie vendor finance, or
(2) the plaintiff arrange the finance for the defendant."
- In Mr Dunn's letter of 27 July 1999, in response to a letter of demand from the plaintiff (GT13), he says the agreed term was the latter.
11 Are there any contemporary documents or independent evidence which support or contradict the defendant's version? GT4 is a fax from Mark Caddy of Security Capital Corporation Pty Ltd of 19 January 1999:
"I am adjusting the approval for finance to suit John's requirements and am not in a position to give final invoicing instructions as yet."
12 The defendant has an explanation for this and I quote from par 30 of his affidavit:
"30. In so far as concerns paragraphs 63 and 64 of Mr Terry's affidavit, I agree that neither Mr Terry nor Mr Edwards had ever met or had contact with Mr Caddy or SCCPL prior to Mr Terry receiving Mr Caddy's fax of 19 January 1999. I had discussed at my meetings in Sydney with Mr Terry and Mr Edwards the fact of SCCPL's advice that RAC Finance would make me a conditional offer of
(Page 6)
- finance. We had a conversation the substance of which was to the following effect:
I said: 'I have had verbal confirmation from Mark Caddy, a finance broker at [SCCPL] of an offer of finance from RAC Finance for some Royel equipment - but it is conditional and I believe the conditions will be too onerous. I am therefore looking at vendor-financing or vendor-arranged finance. I know that Life Fitness will vendor-finance equipment for me. You will have to arrange finance on at least the same terms as I can get from them.'
He said: 'We will arrange the finance for you, but you should also continue talking to RAC Finance. Ask them if they will finance our Precor equipment.'
I said: 'I don't believe they will finance Precor equipment - but I will put it to them'."
13 This evidence in total is against the defendant. It shows him trying to get finance previously approved for a purchase of Life Fitness equipment transferred to this purchase. It is the defendant getting the finance.
14 At par 65 of Terry's affidavit he states that on 21 January 1999 he got a call from Ian Chellew of the Balcatta branch of the National Australia Bank. He said he had received an application for finance from the defendant and requested details of the equipment the defendant had ordered from the plaintiff. The plaintiff responded by a fax to the bank of the same date (see GT5). The defendant's version of this is stated in par 31 of his affidavit:
"In so far as concerns paragraphs 65 to 67 of Mr Terry's affidavit, in early January 1999 Mr Terry asked me to contact my nearest branch of National Australia Bank ("NAB") because he banked with NAB in Queensland and he believed that NAB may be able to arrange finance. Therefore, I contacted Mr Chellew at the Balcatta branch of NAB. I had had no previous contact with Mr Chellew. I asked Mr Chellew to contact Mr Terry. I subsequently received a telephone call from
(Page 7)
- Mr Chellew informing me that NAB would not provide finance. He did not tell me why."
15 The evidence on this topic is against the defendant. The bank received an application for finance from the defendant to finance the purchase of this equipment. The evidence is consistent with the plaintiff's version that it was simply to assist the defendant to raise finance.
16 Paragraph 68 of Terry's affidavit states that he was informed by Tim Lowe of Macquarrie Commercial Finance Pty Ltd that the defendant had contacted Lowe for finance in January 1999 but finance was declined. The defendant says at par 32 of his affidavit he did not contact Lowe. Lowe contacted him and said he had been asked to contact him. The defendant could not recollect if it was Terry or Edwards who asked Lowe to contact him.
17 Lowe has filed an affidavit saying he cannot recall whether he or the defendant initiated the conversation.
18 The evidence on this topic slightly favours the plaintiff. Let me say in the defendant's favour that it was the plaintiff who contacted the broker. Then that supports the plaintiff's version. It is the plaintiff using its contacts with the broker it knew and had recommended to the defendant to get a loan for the defendant.
19 A major factor against the truth the defendant's version is that the plaintiff did nothing to arrange HPA finance for the defendant. If that had been the agreed term the plaintiff would want to do it. It was in its best interests to do it. It had delivered the goods to the defendant; it wanted to get paid. As I have said above it is a commercially feasible way to sell equipment, that is to sell it to a finance company and the finance company then sells it on hire purchase conditions to the defendant.
20 I accept Mr Shaw's statements of the law on summary judgment as follows:
"1. The ultimate burden of persuading the Court that the claim made is a good one and that there is no defence to it, rests with the applicant.
Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (SC (WA) Full Court Lib No 970739, 23 December 1997, unreported).
(Page 8)
- 2. If it is not possible to say without doubt on the whole of the material that there is no questions to be tried, there should be leave to defend.
Fancourt v Mercantile Credits Ltd(1983) 154 CLR 876 at 99.
3. It was never intended that when the facts are in dispute actions should be disposed of summarily and the Court does not dispose of the factual merits on a conflict of affidavits or by rejecting the defendant's affidavit evidence because of its arguable inconsistency with documentary evidence adduced by the plaintiff.
Gillon v Kyle (Full Court, 1991, unreported, Lib No 9123).
4. If a version of the facts is put forward by the defendant which is not inherently incredible, then in the absence of any opportunity of cross-examination it is incumbent upon the Court to proceed on the basis that it will ultimately be accepted at the trial of the action.
Webster v Lampard(1993) 177 CLR 598 at 608."
21 I would give leave to the plaintiff to rely on answering affidavits of Terry sworn 19 October, Edwards sworn 19 October and Lowe sworn 25 November. The programming orders allowed for affidavits in reply to be filed and served by 20 October. The first two were sworn within time but filed and served late. The third one was much later but related only to a narrow point and the deponent lives in Sydney.
22 I think it is perfectly arguable that this contract was subject to finance. This was for the defendant's benefit. He had to arrange finance. All the vendor had to do was to introduce Mr Hooper to suitable financiers. The vendor did that. I would imply a term into the contract that the finance had to be arranged within a reasonable time. Two to three months would be more than reasonable. If finance cannot be arranged, the equipment has to be returned. Reasonable efforts were made by Hooper but he was unable to get finance. The deal is therefore off. The equipment has to be returned.
23 I do not see the plaintiff's arguments as to election as crucial.
(Page 9)
24 I have considered the counterclaim. I do not consider it as an arguable defence. It is based on a representation but I do not see that the representation is falsified. I consider that the defendant has no arguable defence, that there is no question of fact or law that needs to be tried, or any other reason why judgment should not be given.
25 I propose to enter summary judgment. The equipment is to be returned to an address in Perth. I will allow time - 21 days - to allow the return to be made decently.
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