Hercules Mining Contractors Pty Ltd - v - Rocky Mining Pty Ltd

[2015] VCC 1047

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMERCIAL DIVISION
GENERAL LIST

Revised
Not Restricted

Case No. CI-14-02286

HERCULES MINING CONTRACTORS PTY LTD (ACN 109 459 118)	Plaintiff
V
ROCKY MINING PTY LTD (ACN 127 600 739) and another according to the Schedule	Defendants

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JUDGE:	HER HONOUR JUDGE KENNEDY
WHERE HELD:	Melbourne
DATE OF HEARING:	27 July 2015
DATE OF JUDGMENT:	27 July 2015
CASE MAY BE CITED AS:	Hercules Mining Contractors Pty Ltd – v – Rocky Mining Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2015] VCC 1047

REASONS FOR JUDGMENT
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Catchwords

Contract- no appearance at trial by first and second defendants – whether plaintiff entitled to judgment against both defendants – whether first defendant a contracting party – admissions of second defendant by reason of failure to file defence – judgment entered

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr E. Batrouney	Christopher Bunnett Lawyers
For the Defendants	No appearance	-----------

HER HONOUR:

1.This matter comes before the court this afternoon as the hearing of the trial against the first and second defendants only, following a ruling delivered by me this morning, at which time the matter was resolved as against the third defendant.[1]

[1] Hercules Mining Contractors Pty Ltd – v – Rocky Mining Pty Ltd &Ors [2015] VCC 1046

2.The proceeding involves a claim for monies owed pursuant to an agreement to supply mining works at Mining Tenements owned by the first defendant (Rocky Mining).

3.The plaintiff produced a number of pieces of documentary evidence and called one witness, Mr Proelss, the sole director of the plaintiff. 

4.In the result I was generally satisfied that there had been a contract; that works had been performed pursuant to that contract; that invoices were rendered; and that an outstanding amount of $643,897.56 was due and owing to the plaintiff, given only $100,000 had been paid.

5.However, the issue raised by the first defendant, Rocky Mining Pty Ltd (“Rocky Mining”) in the defence filed was whether or not it was in fact a contracting party.[2]

[2] First defendant’s Amended defence dated 28 October 2014, particularly at para 4

6.It will therefore be necessary to consider this issue before then considering whether the plaintiff can also obtain orders against the second defendant as a joint contractor.

Whether first defendant a contracting party

7.Mr Proelss gave evidence that a Mr McDonald (the third defendant) purported to act on behalf of the first defendant.  The plaintiff also relied on documentary evidence, as I have indicated already. 

8.Turning first to the oral evidence.  The evidence of Mr Proelss was that Mr McDonald introduced himself as the project engineer on behalf of Rocky Mining; that he wore a Rocky Mining uniform; that he was located in an office in Omeo that had “Rocky Mining” on the door, and also inside on the walls.  Further, that there were other people, apparently employees, in the office who had Rocky Mining uniforms on. 

9.Mr Proelss also gave evidence that he observed Rocky Mining employees wearing Rocky Mining uniforms on site, and that there were signs at the entrance to the site displaying Rocky Mining indicia.  Further, that there were vehicles located at the site from time to time with Rocky Mining logos on them. 

10.The documentary evidence before me was also important.  Exhibit A contains documents relating to the formation of the contract, and included a purchase order critical to the constitution of the contract which was in the name of Rocky Mining. 

11.Other documents, particularly Exhibits B, C and D, which were obtained from the mining department, show that Mr McDonald as operations manager, engaged in serious communications relating to the operation of the Mining Tenements with the mining department. This included a document which was entitled “Approved Work Plan” dated 24 February 2014.

12.It is also significant that the Mining Tenements themselves were owned by Rocky Mining, which is admitted by the first defendant in paragraphs 3 (b) of its pleading.[3]

[3] The First Defendant’s Amended Defence to the Plaintiff’s Amended Statement of Claim, dated 28 October 2014.

13.I am therefore satisfied, on the material before me, that there was implied authority given to Mr McDonald on behalf of Rocky Mining.  Thus, the first defendant has acquiesced in the conduct of Mr McDonald, enabling him to constitute himself as agent for and on its behalf.[4]

[4] Dal Pont, G “Chapter 8: Implied Authority” in Law of Agency (3rd ed, LexisNexis Butterworths, 2013), 187.

14.In such circumstances it is unnecessary to consider whether the plaintiff has also made out a case for ostensible authority.  The mining department documents do not appear to have come to the notice of the plaintiff.  However, the other indicia I have cited do suggest that Rocky Mining was holding Mr McDonald out as an agent for and on its behalf in relation to the contract, the subject of this dispute thereby also establishing ostensible authority.

15.In all the circumstances I am therefore satisfied that the first defendant was a party to the contract.  Given the only issue raised on the pleading is determined adversely to the first defendant, the plaintiff is therefore entitled to judgment as against the first defendant.

Second Defendant

16.The second defendant, Stalodge Pty Ltd (“Starlodge”) has not filed a defence.  It follows that, in particular, the allegation at paragraph 4(c) of the Amended Statement of Claim[5] that the plaintiff entered into an agreement with both Rocky Mining and Starlodge together as contracting parties is taken to have been admitted. [6]  

[5] Dated 15 October 2014.

[6] Rule 13.12 County Court Civil Procedure Rules 2008.

17.In addition, Counsel relied upon the admissions of the third defendant in his pleading, that he, Mr McDonald, had authority on behalf of Starlodge[7].  Although it is unnecessary to do so, this would appear to confirm that a judgment against the second defendant is appropriate, and I cite rule 25.02(5) in support of that conclusion. 

[7] Third defendant’s defence dated 6 December 2014

Conclusion

18.In all the circumstances it follows that the plaintiff, in the absence of opposition, is entitled to the judgment sought, and I will now hear from the plaintiff as to the quantum of interest. 

SCHEDULE OF PARTIES
Hercules Mining Contractors Pty Ltd ACN 109 459 118		Plaintiff
Rocky Mining Pty Ltd ACN 127 600 739		First Defendant
Starlodge Pty Ltd ACN 077 776 071		Second Defendant
Robert McDonald		Third Defendant