Halkrep Pty Ltd t/a J.R. Electrical Contracting v Bwanolar Pty Ltd t/a GFR Group
[2013] WADC 195
•17 DECEMBER 2013
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: HALKREP PTY LTD t/a J.R. ELECTRICAL CONTRACTING -v- BWANOLAR PTY LTD t/a GFR GROUP [2013] WADC 195
CORAM: REGISTRAR KINGSLEY
HEARD: 24 OCTOBER 2013
DELIVERED : 17 DECEMBER 2013
FILE NO/S: BUN CIV 1 of 2013
BETWEEN: HALKREP PTY LTD t/a J.R. ELECTRICAL CONTRACTING
Plaintiff
AND
BWANOLAR PTY LTD t/a GFR GROUP
Defendant
Catchwords:
Practice - Application for summary judgment - Debt owing - No new principles
Legislation:
Nil
Result:
Judgment for plaintiff
Representation:
Counsel:
Plaintiff: Mr G Dunne
Defendant: Ms A Spencer
Solicitors:
Plaintiff: Slee Anderson & Pidgeon
Defendant: Civic Legal
Case(s) referred to in judgment(s):
Blythe v The State of Western Australia [2008] WASCA 10
REGISTRAR KINGSLEY: By a quotation dated 7 September 2010 the plaintiff (Halkrep) offered to perform electrical installation work for the defendant (Bwanolar) for a lump sum price of $279,092 inclusive of GST. Bwanolar accepted the offer by the issue of purchase order 0029597 (the first agreement).
Pursuant to the first agreement Halkrep rendered an invoice dated 25 February 2011 in the amount of $223,273.60 which Bwanolar paid. On 17 February 2012 Halkrep rendered a further invoice RH‑1‑12/02-02 for the balance owing under the first agreement of $55,818.40. Halkrep pleads that this amount remains outstanding.
By a quotation dated 10 September 2010 Halkrep offered to perform further electrical installation work for Bwanolar for a lump sum price of $268,617.80 inclusive of GST. Bwanolar accepted the offer by issue of purchase order 29598 (the second agreement). Pursuant to the second agreement Halkrep rendered two invoices to Bwanolar totalling $241,755.80 which were paid. On 17 February 2012, Halkrep rendered invoice RH‑1‑12/02‑01 for the balance owing under the second agreement of $26,862. Halkrep pleads that this amount remains unpaid.
Halkrep has bought an application pursuant to O 14 seeking summary judgment. That application is supported by the affidavit of Rhys Gilbert Hales sworn 12 June 2013 (Halse's affidavit).
Bwanolar opposes the application and its managing accountant, Santhosh Thanapaul, has filed an affidavit sworn 1 August 2013 (Thanapaul's affidavit).
Thanapaul deposes that the scope of works for the project was amended and amended purchase orders were submitted by Bwanolar to Halkrep. Attached and marked ST1 and ST2 to Thanapaul's affidavit are copies of the amended purchase orders.
Thanapaul deposes that he verily believes the change in the scope of works was communicated to Halkrep by way of discussions between the project manager, Barney Starcevic for Bwanolar, and Rhys Hales for Halkrep. Thanapaul deposes that he was copied into the correspondence and that email chain is attached and marked ST3 to his affidavit.
Thanapaul goes on to depose that the disputed invoices were not issued pursuant to Bwanolar's terms and conditions in that cl 11.2 of the purchase order General Conditions for the Supply of Goods (and Associated Services) (the General Conditions) provides that a supplier (Halkrep) must render invoices to the company (Bwanolar) in relation to the provision of the supply at the end of each month during the period in which supply is provided. Thanapaul deposes that the disputed invoices were issued approximately one year following the supply.
Further, Thanapaul deposes that pursuant to cl 13.1 of the General Conditions Bwanolar is not obliged to request or acquire a minimum level of supply from the supplier (Halkrep).
Objections to Thanapaul's affidavit
Counsel for Halkrep submits that par 6(a) and par 6(b) of Thanapaul's affidavit must be struck. The submission is that paragraph does not comply with O 37 r 6(2)(a) Rules of the Supreme Court (RSC) in that it comprises hearsay information and no source of that information is revealed. Halkrep's counsel cites Blythe v The State of Western Australia [2008] WASCA 10 [43] ‑ [45] and the authorities cited therein.
I am not prepared to strike par 6(a) in that at par 2 of Thanapaul's affidavit he states that the facts contained within the affidavit are true to the best of his own knowledge, information and belief, except where indicated otherwise. Thanapaul deposes in par 6(a) that the scope of works for the project was amended and as a result amended purchase orders were submitted by the defendant to the plaintiff. In light of his opening statement I can take it that the statement in par 6(a) comes from his own knowledge.
I will not strike par 6(b). Thanapaul's deposes that the change in the scope of works was communicated to Halkrep. Thanapaul refers to an email chain of discussions between the project manager for Bwanolar and Halse for Halkrep. A careful reading of the email chain does not disclose any specific reference to the amended purchase orders. However, Thanapaul is deposing that the information contained in the email chain comes from his own knowledge. In my opinion that is sufficient for the purposes of O37 r 6(2)(a) RSC.
The amended invoices
The principle defence of Bwanolar is that the scope of works were amended and by reason of the amendments no monies are owing by Bwanolar to Halkrep.
In my opinion there is no admissible evidence that the scope of works were amended. Clause 2.4 of the General Conditions provides that:
No amendment or variation of the contract is valid and binding on a party unless made in writing and signed by the supplier and companies.
The amended purchase orders (ST1 and ST2 to Thanapaul's affidavit) are not signed by any parties. In written submissions on this point Bwanolar's solicitor submit that there is evidence before the court that the contract was amended and that the amendment was communicated to Halkrep through the email chain at ST3. Further, Bwanolar's solicitors submit that an analysis of the email chain shows there is doubt as to what work was performed by Halkrep pursuant to the contract.
An examination of that email chain does not refer to amended purchase orders.
In an email dated 21 February 2012 (Thanapaul's affidavit, page 7) from Barney Starcevic, the project manager for Bwanolar, to Michaela, the accounts administrator for Halkrep, Starcevic writes:
As a bottom line, JR was asked to perform work outside of GFR's scope and GFR was never issued SI or VO for that work. Because of that, GFR is not able to charge BHP for that work so we pay JR, this was raised earlier and Rhys was aware of that.
Whilst invoices are mentioned in the 21 February 2012 email, there is no copy of those invoices.
What is clear from the email exchange is that the two disputed invoices were for the final 20% of purchase order 29597 and 10% of purchase order 29598. Equally clear is that it appears Halkrep was asked to perform work which had not been, at that time, authorised by the head contractor BHP. There is an acknowledgment by Starcevic, for Bwanolar, that it is liable to Halkrep.
The authorities are clear as to the evidence a defendant must put forward in opposing an application pursuant to O 14 RSC. The defendant must condescend to particulars. The purported variations at ST1 and ST2 of Thanapaul's affidavit are unsigned, contrary to the contract, and bear the same date as the Purchase Order they are relating to. In my opinion, the only relevant purchase orders are Purchase Order 0029597 and Purchase Order 0029598, both made on 17 September 2010.
Finally, Bwanolar's counsel raised but did not press the argument that the disputed invoices were issued by Halkrep approximately one year following completion of the works, being outside the time allowed under the terms of the contract. The submission is this acted as a bar to proceedings on claims arising under the General Conditions. Clause 11.2 of the General Conditions provides that the supplier (Halkrep) must, unless otherwise agreed, render an invoice to the company (Bwanolar) at the end of each month during the period in which supply is provided. There is no suggestion that a breach of that term acts as a complete bar.
The contention that, pursuant to cl 13.1 of the General Conditions Bwanolar is not obliged to request or acquire a minimum level of supply from the supplier (Halkrep) was not pressed.
Conclusion
I am not satisfied that the defendant has discharged its obligations in sufficiently particularising a defence to the plaintiff's O 14 application. I will give judgment to the plaintiff for the claimed amount together with costs of the action and costs of the application including costs reserved to be taxed.
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