Honeycombes Townsville Pty Ltd –v- Trade Painters Pty Ltd
[2004] QDC 212
•14 July 2004
DISTRICT COURT OF QUEENSLAND
| CITATION: | Honeycombes Townsville Pty Ltd –v- Trade Painters Pty Ltd [2004] QDC 212 |
| PARTIES: | HONEYCOMBES TOWNSVILLE PTY LTD Plaintiff Against TRADE PAINTERS PTY LTD Defendant |
| FILE NO: | 453 / 03 |
| PROCEEDINGS: | Application for summary judgment. |
| DELIVERED ON: | 14 July 2004 |
| DELIVERED AT: | Townsville |
| HEARING DATES: | 14 July 2004 |
| JUDGE: | CF Wall QC |
| ORDERS: | Application dismissed. |
| CATCHWORDS: | PRACTICE – SUMMARY JUDGMENT - CONTRACT – alleged breach – contest as to factual issues and meaning of contractual provisions – necessity for evidence at trial - court unable to conclude that def had no real prospect of success at trial – costs Legislation referred to: |
| COUNSEL: | Mr C. White for the Plaintiff |
| SOLICITORS: | Connolly Suthers for the Plaintiff |
DISTRICT COURT
CIVIL JURISDICTION
JUDGE C F WALL QC
No D453 of 2003
HONEYCOMBES TOWNSVILLE PTY LTD
(ACN 050 419 068)Plaintiff and
TRADE PAINTERS PTY LTD
(ACN 010 291 924)Defendant TOWNSVILLE
..DATE 14/07/2004
JUDGMENT
HIS HONOUR: This is an application by the plaintiff for summary judgment under rule 292 of the Uniform Civil Procedure Rules. That rule empowers the Court to give judgment for the plaintiff against the defendant if the Court is satisfied that the defendant has no real prospect of successfully defending the plaintiff's claim and there is no need for a trial of the claim.
The dispute between the parties relates to a painting contract, whereby the defendant agreed to carry out the painting work on a residential unit development being constructed by the plaintiff. The contract is Exhibit DS2 to the affidavit of David Scott filed on the 9th of June 2004. The construction program for the purposes of the contract (referred to in clause 105) envisaged that painting by the defendant pursuant to the contract would commence between the 1st of February 2003 and the 1st of April 2003 and be completed by the 30th of June 2003. That program was admittedly altered by the plaintiff. As to how it came to and was able to alter that program is a matter of some dispute.
Mr Xhemajlaj, for the defendant, attended the construction site in February 2003 and observed that work was behind schedule. He was told by a foreman that the project was, "a long way out and was nowhere near ready."
In Mr Scott's affidavit, in particular paragraphs 10, 11 and 12, reference is made to conversations between Mr Xhemajlaj and Mr Scott in July 2003. Those conversations are denied by Mr Xhemajlaj and to the extent that they are relevant to the dispute between the parties, there is a factual contest about them.
At a time about a week before the 1st of September 2003 the plaintiff, through it appears probably Mr Scott, contacted the defendant and requested that the defendant commence the painting work pursuant to the contract. This contact is referred to in the letter from the defendant to the plaintiff dated the 1st of September 2003, Exhibit DS3 to the affidavit of Mr Scott. The contact referred to is probably that also referred to by Mr Scott in paragraph 13 of his affidavit where he deposes to contacting Mr Xhemajlaj by telephone in late August 2003 and instructing him to go to the site and arrange to commence the painting contract works.
The telephone conversation referred to by Mr Scott in paragraph 14 of his affidavit does not appear to be referred to by Mr Xhemajlaj in his affidavit.
According to Exhibit DS3, the letter dated the 1st of September 2003, the plaintiff required the defendant to commence painting work on 1st of September 2003 with completion required by the end of November 2003. That does not appear to be inconsistent with what Mr Scott appears to be saying.
The defendant in the letter dated the 1st of September 2003 said as follows:
"I am writing to advise that my company is unable to complete the works for the following reasons:
(1)The construction program included in the contract shows my contract works commencing on the 1st of April 2003 to be completed by 30th June 2003. Due to the short notice received from your company and the substantial delay to the program of works required by your company Trade Painters is unable to meet the revised program due to other commitments and short labour supplies."
The defendant appears to have treated the contract as abandoned, either by the plaintiff unilaterally, or mutually for those reasons.
Another interpretation of the letter is that it supports the plaintiff's contention that according to both the plaintiff and the defendant the contract was then still on foot and that the defendant was merely unable to comply with its contractual obligations. There is, in my view, a factual dispute about that interpretation.
The grounds alleged in the amended defence, whereby the defendant alleges breaches of the contract by the plaintiff, are as follows:
(1)A failure to allow the defendant to commence work by the 1st of April 2003 in accordance with the construction program initially agreed to (paragraph 3(e)(v)A);
(2)An associated failure to adhere to the construction program as specified in the contract (paragraph 3(e)(v)B);
(3)A failure by the plaintiff to contact the defendant at all between August 2003 and February 2003 and then after February 2003 (which was the time when the defendant attended the site and was told by the foreman that the project was "a long way out and was nowhere near ready"), which the defendant considered to amount to a mutual abandonment of the contract or a repudiation of the contract by the plaintiff (paragraph 5(d)).
The following appear to be the more relevant provisions of the contract for present purposes:
"105 Construction Program
Our construction program, showing key dates, is attached. You are to schedule your works to meet the completion dates requested. This program may be altered from time to time depending on changed circumstances or conditions.
115 Completion
Complete contracted work in accordance with contract documents and written variation orders issued by the Construction Manager.
118 Variations
No variation to this contract will be binding on Honeycombes unless the Contractor can produce an order signed by either John Rosel or Rohan Greyling.
120 Conditions of Contract
A)'Works Program' means any program or schedule detailing Honeycombes' timetable for commencement and completion of the works attached to this contract which shall in that event form part of this contract. This program may be changed from time to time as the work progresses.
B)The Supplier/Subcontractor has agreed to carry out or supply the Works at the Site by the Supply Date or in accordance with the Works Program for the Price."
In relation to clause 105, Mr White for the plaintiff submitted that the contract did not specify how the construction program may have been "altered from time to time" and in those circumstances oral notice would be sufficient. A similar submission was made in relation to the alteration in relation to the change to the program referred to in the definition of "works program" in clause 120 A).
On the other hand, Mr Major for the defendant, relied upon clauses 115 and 118. He submitted that these clauses required that any alteration to the construction program or change to the timetable for commencement and completion of the works was a variation to the contract and was required to be in writing and no written notice of alteration or change was given by the plaintiff to the defendant. Mr White countered by submitting that clauses 115 and 118 applied only to the "scope of works" and not to alterations to the construction program.
I do not think that this issue is capable of being decided at this stage on this application. There is a clear dispute and it may be that evidence is required as to how those provisions should be interpreted. At any rate, I think that the interpretation submitted by the defendant is one which is, at this stage at least, not an unreasonable interpretation to place on the contractual provisions.
One further matter remains to mention and it is this. If Mr White is correct in his submission that notification of any alteration from time to time in the construction program be provided orally to the painter, then the contract is silent as to how much notice of such alteration should have been given. Mr White conceded, after some initial reluctance, that in all probability it would be implicit that reasonable notice be given.
The defendant on this basis may have an argument open to it to the effect that notwithstanding very limited contact between the parties as to the works program, the plaintiff gave the defendant only one week's notice to commence work on the 1st of September and this was not reasonable notice. That was reinforced in the letter from the plaintiff's solicitors to the defendant dated the 2nd of September 2003, Exhibit DS4 to the affidavit of Mr Scott, which stated this:
"Our client has instructed us to give you notice that unless you indicate whether you are prepared to start works on site forthwith and provide our client with that indication in writing by 5 p.m. tomorrow, our client reserves the right to seek alternative contractors..."
It may also be open to the defendant to argue that any written notice altering the construction program should specify or allow a reasonable time for the commencement of work. For these reasons I think that the situation is not sufficiently clear-cut or beyond doubt, such that summary judgment should be granted. In my view, it could not be said that the defendant has no real prospect of successfully defending the plaintiff's claim. For these reasons, the application will be dismissed.
...
HIS HONOUR: I think it is not an irrelevant consideration in relation to costs here that notwithstanding the fact that the contract was entered into in Townsville, the work was to be performed in Brisbane. The defendant's solicitors are Brisbane solicitors. Not unreasonably, they have attended with counsel from Brisbane at some expense to resist this application. Also I do take the view that the application was really a long way short of being able to achieve that level of satisfaction required, with respect, to obtain summary judgment. So in the circumstances I think the defendant is entitled to its costs, but I think that payment of those costs should be deferred until the conclusion of the proceeding, either by agreement or by judgment.
So the formal order will be that the application for summary judgment is dismissed and the plaintiff is to pay the defendant's costs of and incidental to the application to be assessed on the standard basis unless agreed. Payment of those costs is to be stayed until the conclusion of the proceeding either by judgment or by agreement.
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