Glencoe Meats Pty Ltd v McLeod Family Butchery Pty Ltd

[2010] QDC 464

[2010] QDC 464

DISTRICT COURT

CIVIL JURISDICTION

JUDGE SAMIOS

No 1465 of 2010

GLENCOE MEATS PTY LTD	Plaintiff
and
McLEOD FAMILY BUTCHERY PTY LTD and OTHERS	Defendant

BRISBANE

DATE 14/09/2010

ORDER

HIS HONOUR:  The plaintiff has sued four defendants for the sum of $199,539.27.  As against the first of those defendants the claim is for goods sold and delivered between the 14th of December 2009 and the 4th of May 2010 pursuant to a written agreement.  As to the other three defendants the claim is based on an alleged written guarantee.

The second and fourth defendants have filed and served a notice of intention to defend in response to the claim and statement of claim of the plaintiff.

On the face of it the notice of intention to defend of the second defendant and the fourth defendant would appear to put in issue the entering into a guarantee.  However, paragraph 11 of the notice of intention to defend of the second and fourth defendants admits that on or about the 3rd of May 2007 they agreed with the plaintiff that in consideration of the plaintiff from time to time supplying the first defendant with goods on credit, they would enter into a guarantee with the plaintiff and to this purpose signed and provided the plaintiff with a signed application for credit on behalf of the first defendant on or about the 3rd of May 2007, and their obligations to guarantee the performance of the first defendant did not come into effect unless and until the plaintiff and the first defendant entered into agreements from time to time for the supply and delivery of goods from the plaintiff to the first defendant.

The relevant written agreement and guarantee are exhibited to the affidavit of Mr Carswell which has been filed in support of the summary judgment application which has come on before me today.

Mr Carswell's affidavit also deposes to and exhibits the outstanding amount and the relevant invoices.  There is no response from the second defendant and fourth defendant by way of affidavit from themselves.  What has been filed by leave this morning is an affidavit of their solicitor.

This attempts to raise doubts about the plaintiff's claim.  However, I have come to the view that the fourth defendant at least seems to have been involved in dealings between the plaintiff and the first defendant in the course of transactions between the parties for the supply of the goods and there is no deposition from the second defendant and the fourth defendant as to how they might be prejudiced with respect to documentation.  Some claim is made by the solicitor for the defendants, for the second and fourth defendants, that the total invoices mentioned in a particular page amount to $69,588.75.  However, I fail to see how that is material to the affidavit of Mr Carswell.  It does not cast any doubt on Mr Carswell's affidavit in my opinion.

It is also claimed that the second and fourth defendants have not had access to the records of the first defendant but again there is no deposition from the second defendant and fourth defendants as to how that might prejudice them in responding to Mr Carswell's affidavit in which he discloses the relevant invoices and how those invoices amount to the amount claimed.

These are documents that the second defendant and fourth defendant have had for some time now and I do not consider the affidavit of the solicitor is a sufficient response to what is otherwise a straightforward matter deposed to by Mr Carswell in support of the claim made in the claim and statement of claim.

Rule 292 provides that, "The plaintiff may, at any time after the defendant files a notice of intention to defend, apply to the Court under this part for judgment against the defendant."  Subsection 2 of that rule provides, "If the Court is satisfied that the defendant has no real prospect of successfully defending all or a part of the plaintiff's claim and there is no need for a trial of the claim or the part of the claim, the Court may give judgment for the plaintiff against the defendant for all or the part of the plaintiff's claim and may make any other order the Court considers appropriate."

On the material before me I am satisfied the second defendant and fourth defendant have no real prospect of successfully defending all of the plaintiff's claim, and there is no need for a trial of the claim.

I therefore give judgment for the plaintiff against the second defendant and the fourth defendant for the sum of $199,539.27.

Do you have a draft order?

...

HIS HONOUR:  There will be an order as per the draft initialled by me and left with the papers.

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