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Fehlberg v Bumford

Fehlberg v Bumford

Case [2017] TASSC 76 19 December 2017

Summary Judgment

Jurisdiction

Contract Formation

Civil Litigation & Procedure

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[2017] TASSC 76

COURT: SUPREME COURT OF TASMANIA

CITATION: Fehlberg v Bumford [2017] TASSC 76

PARTIES:  FEHLBERG, Shane Gregory
  v
  BUMFORD, Philip Jason
  BUMFORD, Jodie Maree

FILE NO:  2639/2017
DELIVERED ON:  19 December 2017
DELIVERED AT:  Hobart
HEARING DATE:  21 November 2017
JUDGMENT OF:  Geason J

CATCHWORDS:

Procedure – Ending proceedings early – Summary disposal – Setting aside.
Aust Dig Procedure [1306]

Time for Appeal – Extension of time.
Aust Dig Time for Appeal [387]

REPRESENTATION:

Counsel:

Appellant: F C Brimfield
Respondents: J Buckley

Solicitors:

Appellant: Ogilvie Jennings
Respondents: Tierney Law

Judgment Number: [2017] TASSC 76
Number of paragraphs: 29

Serial No 76/2017
File No 2639/2017

SHANE GREGORY FEHLBERG
v PHILIP JASON BUMFORD and JODIE MAREE BUMFORD

REASONS FOR JUDGMENT GEASON J

19 December 2017

By an order made on 17 July 2017, Magistrate S Cooper, sitting in the Civil Division of the Magistrates Court, made an order for summary judgment in favour of the respondents. Judgment was entered in the sum of $29,447.85, and an order for costs was made in their favour.
The appellant appeals those orders seeking an order from this Court setting aside the summary judgment.
Before the appellant can pursue his appeal, he requires an extension of time to do so. The last day for filing an appeal was 1 August 2017. The appeal was filed on 14 September 2017. He is 44 days outside the appeal period. Because a relevant consideration in determining that application is the merit of the case sought to be put, the Court will deal with that issue first.

The facts

On 11 April 2017, the respondents filed a claim in the Magistrates Court against the appellant for $29,957.85. By that claim, the respondents plead that:
(a)an agreement was entered into with the appellant to carry out plastering works;
(b)they performed those works and accounted to the appellant for costs;
(c)the appellant has not paid those cost.
On 15 May 2017, the appellant filed his defence to the claim. By his defence, the appellant asserts:
(a)that though the works were performed, he did not contract with the respondents to perform that work, but rather, the agreement was with the appellant's company, Core Building and Joinery (Core);
(b)that company was placed into liquidation after the invoice was rendered;
(c)therefore the respondents' debt is owed by the company in liquidation, and not the appellant in person.
On 13 June 2017, the respondents filed an interlocutory application seeking an order for summary judgment. An affidavit was sworn in support of the application by Philip Bumford, in obedience to r 115 of the Magistrates Court (Civil Division) Rules 1998 (the Rules). That rule says:
"115 Summary judgment
(1)   A party, at any stage of the proceedings, may apply to the Court for –
(a)   summary judgment in an action; or
(b)   the disposal of the whole or part of an action; or
(c)   immediate relief.
(2)   The party is to file an affidavit in support…

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.

Continue reading Fehlberg v Bumford

Details

AGLC: Fehlberg v Bumford [2017] TASSC 76
Case: [2017] TASSC 76
Decision Date: 19 December 2017

CaseChat Overview and Summary

The case of Fehlberg v Bumford was heard in the Magistrates Court of Victoria. The respondents, Mr and Mrs Bumford, sought summary judgment against the appellant, Mr Fehlberg, in relation to an alleged debt for plastering services rendered. The respondents claimed that they had performed work for the appellant at the Old School House in Dover, and that they had issued an invoice which remained unpaid. The appellant, however, contested the respondents’ claim, indicating that there were disputes regarding the identity of the parties involved in the contract and the identity of the party liable for payment.

The central legal issue before the court was whether the respondents had established a prima facie case for summary judgment, given that the appellant disputed the identity of the parties to the contract and thus, his liability. The court had to consider whether the respondents had provided sufficient evidence to demonstrate that, on any possible view of the facts or law, the appellant did not have a defence. The affidavit sworn by Mr Bumford was central to the respondents' argument, and the court had to examine whether it adequately addressed the appellant's potential defences.

The court found that the affidavit did not sufficiently address the appellant's potential defences. The respondents had acknowledged the existence of a factual dispute concerning the identity of the parties to the contract. By failing to address this dispute in the affidavit, the respondents did not meet the requirement under r 115(2)(a) of the Rules to specify the reason, on any possible view of the facts or law, that the appellant had no defence. Consequently, the court concluded that the respondents had not established a prima facie case for summary judgment. The interlocutory application was dismissed.

The court ordered that the respondents pay the appellant's costs of the application. This outcome underscores the necessity for parties seeking summary judgment to provide a comprehensive affidavit that adequately addresses all potential defences, particularly when there are factual disputes central to the case.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 13 June 2017, the respondents filed an interlocutory application seeking an order for summary judgment. An affidavit was sworn in support of the application by Philip Bumford, in obedience to r 115 of the Magistrates Court (Civil Division) Rules 1998 (the Rules). That rule says:"115 Summary judgment (1) A party, at any stage of the proceedings, may apply to the Court for –(a) summary judgment in an action; or(b) the disposal of the whole or part of an action; or(c) immediate relief.(2) The party is to file an affidavit in support of an application under subrule (1) , specifying — (a) the reason any other party, on any possible view of the facts or law, does not have a good action or defence on the merits; or(b) the reason relief ought to be granted.(3) On hearing the application, the Court may –(a) enter judgment accordingly; or(b) grant the whole or part of the relief sought and order that the action continue in relation to the part not disposed of; or(c) make an order for an early trial; or(d) make any other order." Importantly r 115(2)(a) directs an applicant to specify the reason it is said that "on any possible view of the facts or law" the respondents do not have a defence. The affidavit filed by Mr Bumford deposed to the following:"1 My full name is Philip Jason Bumford. I am one of the Claimants in the action The other Claimant is my wife, Jodi Maree Bumford. We are the proprietors of and partners in the registered business 'Huon Valley Plaster'.2 I was asked by the Defendant to perform plastering work at the 'Old School House' in Dover. The Defendant was the head contractor for the renovation of that building.3 Annexure 'PJB-1' is a copy of the quotation which I provided to the Defendant. It is addressed to the Defendant personally. He accepted it.4 I performed the work required by and in accordance with the quotation.5 Annexure 'PJB-2' is a copy of an invoice which I subsequently issued and gave to the Defendant. It is addressed to the Defendant personally.6 The Defendant had not paid anything on account of the invoice.7 Subsequently I became aware that the Defendant is the director of a company 'Core'. At no time prior to giving him the invoice did the Defendant mention that company or that he was acting on behalf of that company or any entity other than himself.8 Accordingly, I believe that the Defendant has no defence to the action."(It is not necessary to reproduce the annexures for the purposes of this decision). At par 7, Mr Bumford deposes to the fact that after issuing an invoice for the work he became aware that the appellant was a director of a company. He says that the appellant had not mentioned that when they entered into the contract, nor that he was acting on behalf of a company (or any other). The affidavit addresses the basis for the respondents' belief as to the identity of the party with whom they were contracting. Relevantly for present purposes, the respondents recognise that there is a dispute on the facts going to the identity of the parties to the contract, and thus the liability of the appellant to the respondents.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Fehlberg v Bumford [2017] TASSC 76

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Cases cited in this decision · 11 of 11 shown

Burnett v FitzGerald and Browne
[2017] TASSC 31 Para 1

…In Burnett v FitzGerald and Browne [2017] TASSC 31, Brett J considered the principles which are applicable to the grant of an extension of time.…
Woods v Deputy Commissioner of Taxation
[2011] TASSC 68 Para 11

…Referring to the decision of Porter J in Woods v Deputy Commissioner of Taxation [2011] TASSC 68, the appellant identifies the following principles: 1The power to order summary judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no other question…
Port v Alexopoulos (No 2)
[2011] TASSC 37 Para 11

…the defendant might be able to establish a defence to the plaintiff's claim. A complete defence does not have to be shown: Port v Alexopolous (No 2) [2011] TASSC 37.…
Spencer v Commonwealth of Australia
[2010] HCA 28 Para 10

…bmits that there are a number of matters required to be established before summary judgment should be granted. In Spencer v Commonwealth of Australia [2010] HCA 28 at [24], French CJ and Gummow J said in respect of the power generally: "The exercise of powers to summarily terminate proceedings must always be att…
Tomko v Palasty (No 2)
[2007] NSWCA 369 Para 3

…f the English Court of Appeal in Palatan Investments Ltd v Burt and Sinfield Ltd [1985] 1 WLR 942 at 946; 2 All ER 517 at 520; Tomko v Palasty (No 2) [2007] NSWCA 369."…
Batistatos v Roads and Traffic Authority of New South Wales
[2006] HCA 27 Para 11

…the proceedings if it were to go to trial in the ordinary way: Agar v Hyde [2000] HCA 41, 201 CLR 552; Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27, 227 ALR 425. 4Where there are factual issues capable of being disputed and in dispute, summary judgment should not be awarded to the respondent simp…
Agar v Hyde
[2000] HCA 41 Para 11

…y unless there is a high degree of certainty about the ultimate outcome of the proceedings if it were to go to trial in the ordinary way: Agar v Hyde [2000] HCA 41, 201 CLR 552; Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27, 227 ALR 425. 4Where there are factual issues capable of being disputed an…
Martin v NRMA Insurance Limited
[2000] FCA 773 Para 11

…54 CLR 87. 2The court should refuse to enter summary judgment unless it is absolutely clear there is no case to be tried: Martin v NRMA Insurance Ltd [2000] FCA 773. 3Ordinarily a party is not to be denied the opportunity to place his or her case before the court in the ordinary way unless there is a high degree…
Jackamarra v Krakouer
[1998] HCA 27 Para 3

…(c)whether the appellant has a fairly arguable case; and (d)the extent of any prejudice suffered by the respondent if the application is granted. See Jackamarra v Krakouer (1998) 195 CLR 516 per Brennan CJ and McHugh J at 520-521, referring to a judgment of the English Court of Appeal in Palatan Investments Ltd v Burt and Sinf…
Fancourt v Mercantile Credits Ltd
[1983] HCA 25 Para 11

…cised with great care and should never be exercised unless it is clear that there is no other question to be tried: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87. 2The court should refuse to enter summary judgment unless it is absolutely clear there is no case to be tried: Martin v NRMA Insurance Ltd [2000] FC…
[1985] 1 WLR 942
[1985] 1 WLR 942 Para 3

…516 per Brennan CJ and McHugh J at 520-521, referring to a judgment of the English Court of Appeal in Palatan Investments Ltd v Burt and Sinfield Ltd [1985] 1 WLR 942 at 946; 2 All ER 517 at 520; Tomko v Palasty (No 2) [2007] NSWCA 369."…

Legislation cited in this decision · 2

Magistrates Court (Civil Division) Rules 1998 (TAS)
1 mention (from Para 3)
Supreme Court Rules 2000 (TAS)
1 mention (from Para 2)