Ginza Pte Ltd v Vista Corporation Pty Ltd
[1999] WASC 64
GINZA PTE LTD -v- VISTA CORPORATION PTY LTD [1999] WASC 64
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASC 64 | |
| Case No: | CIV:1647/1998 | 10 JUNE 1998 | |
| Coram: | MASTER SANDERSON | 17/06/99 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| PDF Version |
| Parties: | GINZA PTE LTD VISTA CORPORATION PTY LTD (ACN 009 446 217) |
Catchwords: | Practice and procedure Summary judgment Turns on its own facts |
Legislation: | Rules of the Supreme Court 1971, O 14 r 6 Therapeutic Goods Act |
Case References: | Nil Parkville Court Pty Ltd v Salvaris [1975] VR 393 Suburban Homes Pty Ltd v Ward [1928] VLR 267 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
BETWEEN : GINZA PTE LTD
- Plaintiff
AND
VISTA CORPORATION PTY LTD (ACN 009 446 217)
Defendant
Catchwords:
Practice and procedure - Summary judgment - Turns on its own facts
Legislation:
Rules of the Supreme Court 1971, O 14 r 6
Therapeutic Goods Act
Result:
Application dismissed
(Page 2)
Representation:
Counsel:
Plaintiff : Mr M H Zilko
Defendant : Mr E M Corboy
Solicitors:
Plaintiff : John Steers
Defendant : Clayton Utz
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Parkville Court Pty Ltd v Salvaris [1975] VR 393
Suburban Homes Pty Ltd v Ward [1928] VLR 267
(Page 3)
1 MASTER SANDERSON: This is the defendant's application for summary judgment on its counterclaim. The application is brought under the provisions of O 14 r 6. Pursuant to O 14 r 6(2) the application is treated the same way as an application by a plaintiff for summary judgment in an action. Under O 14 r 1 which deals with summary judgment applications by a plaintiff, an application must be made within 21 days of the filing of an appearance. There is no reference in r 6 to the time within which an application must be made. Both parties treated the application as being made well out of time - the counterclaim was first raised almost 12 months ago. But I think that approach is incorrect. No time limits apply to an application for summary judgment on a counterclaim. On that basis I have simply considered this application on its merits, there being no requirement for a grant of leave to bring the application.
2 The nature of the action brought by the plaintiff against the defendant is relatively simple. The plaintiff is a company registered in Singapore which carries on the business of the manufacture and sale of contact lens solution. The defendant, an Australian registered company, is an importer and wholesaler of contact lens solution and related products in Australia. It is alleged in par 3 of the statement of claim that in or about 1991/1992 the plaintiff and the defendant agreed that the plaintiff would supply to the defendant contact lens solution on certain terms and conditions. The plaintiff says that this agreement was partly oral and partly in writing. The defendant does not deny the agreement but says that it was partly oral, partly in writing and partly to be inferred. Nothing turns on this difference between the plaintiff and the defendant. Both parties agree that there was a contract and that from time to time contact lens solution was to be supplied pursuant to this contract.
3 The plaintiff's claim is that from time to time it supplied contact lens solution to the defendant and that it has not been paid for the goods supplied. The defendant does not deny that it received the goods, as alleged, but it says that they were defective. The defendant says, by par 5 of its defence, that it was an express or implied term of the agreement between the plaintiff and the defendant that the goods supplied would meet the requirements of the Therapeutic Goods Association of Australia standards and would be sterile. In its reply, the plaintiff admits that goods it supplied had to meet the requirements of the Therapeutic Goods Act and that they were to be sterile.
4 The counterclaim alleges that certain of the goods were not sterile and that as a consequence it was necessary to issue a recall of certain
(Page 4)
- batches of goods which had been distributed to retail pharmacies. It is further alleged that the defendant, as a consequence of the failure to supply sterile contact lens solution, has suffered loss of goodwill and damage to its reputation. This claim is not particularised.
5 The defendant has filed lengthy affidavits in support of its application. It would appear that there is no doubt that some of the contact lens solution supplied by the plaintiff to the defendant was not sterile. During the course of his submissions, counsel for the plaintiff indicated that his client would "probably concede" that some of the contact lens solution supplied by his client was contaminated. In the light of the testing undertaken by independent laboratories, that appears to be a proper concession. Once that concession is made it is apparent that the plaintiff is in breach of its contract with the defendant. As I have indicated above, all deliveries of contact lens solution were made pursuant to the one contract entered into in 1991/1992. Both parties agree that it was a term of that contract that all materials supplied would be sterile. If non-sterile material is supplied, then there is a breach of contract which is actionable without proof of loss. It is simply a question then of what loss will flow consequent upon the plaintiff's breach of contract.
6 In reality, that is what this case is all about. The defendant has not tested each and every container of contact lens solution which was supplied by the defendant to various retailers and has subsequently been recalled. They have tested certain batches at random. Based upon that testing, acting reasonably and acting in accordance with directions issued by the Therapeutic Goods Association, the defendant says they properly recalled and destroyed a quantity of the goods. What is at issue is whether or not the quantity of goods recalled and destroyed was reasonably recalled and destroyed. That necessarily involves a consideration of what contamination was found in the goods, how the sampling was carried out, whether the directions of the Therapeutic Goods Association were reasonable, and a range of other matters. While in strict terms consideration of such questions may amount only to an assessment of damages, the issues are complex and the evidence required from each party is extensive. The entry of judgment in favour of the defendant on the counterclaim will do nothing to shorten the proceedings between the parties. The defendant did not seek orders that the plaintiff had breached the contract on certain specified dates by the delivery of certain specified batches of contact lens solution. The order that it sought (although this is not reflected in the chamber summons but arose out of counsel's submissions) was simply judgment in favour of the defendant on the counterclaim with damages to be assessed.
(Page 5)
7 In my view, to enter judgment in the circumstances of the application would be wholly inappropriate. The better course is to allow the issues raised by the counterclaim to go to trial. The amount of time taken to resolve the issues between the parties would not be shortened by a minute by entering judgment at this stage. Rather, the imprecise nature of the judgment so entered might well muddy the waters so as to render an assessment of damages a difficult task. The Judge or Master faced with the task of assessing damages may not be entirely sure of the ambit of the judgment entered and the basis upon which damages are to be assessed.
8 This is one of those rare cases which fits within O 14 r 3(1) and the provision that there is "some other reason for a trial of [the] claim". In my view the application ought be dismissed and costs of the application, including reserved costs ought be costs in the cause.
9 I would not like it to be thought that in offering these short reasons for dismissing the application, I have not given the detailed material filed, particularly by the defendant, careful consideration. I have studied all the material filed by both parties. But when a summary judgment application is unsuccessful there is little to be gained by a detailed analysis of the facts. Findings made in an application such as this on the factual material can have no relevance to the final determination of the proceedings but they do have the potential to embarrass the final judgment. There may be a discrepancy between a finding of fact or a conclusion as to a proposition of law in the interlocutory proceedings which are at odds with a conclusion reached in the final determination. That is to be avoided. It is against that background that I have not undertaken an exhaustive analysis of the material which has been filed. It would have been inappropriate for me to have done so.
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