Instrumentation and Combustion Engineering Pty Ltd v Bendotti Exporters Pty Ltd - [2003] WADC 125

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: INSTRUMENTATION & COMBUSTION ENGINEERING PTY LTD -v- BENDOTTI EXPORTERS PTY LTD [2003] WADC 125

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 19 NOVEMBER 2002

DELIVERED : 4 JUNE 2003

FILE NO/S: CIV 2482 of 2002

BETWEEN: INSTRUMENTATION & COMBUSTION ENGINEERING PTY LTD
Plaintiff
AND
BENDOTTI EXPORTERS PTY LTD
Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Application by plaintiff for summary judgement - Turns on own facts

Legislation:

Nil

Result:

Dismissed

Representation:

Counsel:

Plaintiff: Mr P Mendelow
Defendant: Mr D A Herschowicy

Solicitors:

Plaintiff: Galic & Co
Defendant: Hammond King Touyz

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

DEPUTY REGISTRAR HARMAN: The plaintiff's claim the subject of a summary judgment application is for delivery up of a boiler in the possession on the defendant.
The significant uncontested facts in the application are that at the request of PIBA Equipment Finance, which describes itself as a division of Rabo Equipment Finance Ltd the plaintiff delivered a boiler to MAES Ltd and forwarded an invoice for the value of the boiler to Rabo. That invoice bore the statement: -
The title on these goods does not pass until complete payment has been received.
After the boiler was delivered to MAES it was utilised by MAES as an operational part of what was known as its frozen potato chip line at its business premises.
I infer that the relevant relationship between Rabo and MAES was one whereby at least continued possession of the boiler was contingent upon receipt by Rabo of regular payments from MAES. Under that arrangement MAES sought to make the first of such payments to Rabo. According to Rabo that cheque was returned because of the intervention of the administration of MAES. Under the administration Rabo sold the chip line to the defendant. Payment has not been made to the plaintiff by Rabo or otherwise.
I accept that conceivably there may be a broader scope of uncontested facts however it is difficult to make a judgment, as it is not necessarily appropriate to conclude that the lack of a specific response to certain evidence that the evidence is not contested. I make that as a general proposition but in this particular case the effect of the plaintiff's application is to seek to bring on the case for judgment at a relatively early stage presumably prior to the defendant having a fulsome opportunity to assess the evidence and obtain and assess the evidence. Whilst I may have no difficulty with the prospect that dealings inter partes may properly be dealt with by default that is not the case where the defendant may not be aware of the nature and extent of any dealings between the plaintiff and Rabo or indeed Rabo and either of MAES or its administrator.
The first relevant agreement was entered into between the plaintiff and PIBA Equipment Finance. That agreement is constituted by a facsimile sent by PIBA to the plaintiff and the plaintiff’s response. PIBA required the plaintiff to invoice Rabo for the identified boiler at a stipulated price and provided the identity of the party to which the boiler would be delivered. PIBA proposed a term as follows:
“Please note that this facsimile does not constitute a binding commitment by us to settle this transaction, as we will not settle the transaction unless and until our customer instructs us to do so and we shall hold your original invoice until all our conditions of approval have been met”
PIBA also indicated to the plaintiff the manner in which the plaintiff would express its invoice to Rabo. In response to the receipt of that facsimile the plaintiff delivered that boiler to MAES and the invoice to Rabo. I accept that MAES forwarded a cheque to Rabo. I am satisfied that at least that there is sufficient to allow for the prospect that there was a concluded agreement between the plaintiff and Rabo for the sale to Rabo and the supply to MAES.
In the application the plaintiff seeks to rely upon the provision expressed on its invoice to Rabo reserving its rights however there is nothing on the evidence before me to indicate that the term was either part of the agreement between itself and Rabo or ought properly be considered to have been part of that agreement. As to the latter prospect the only relevant conduct of the plaintiff would appear to have been the rendering of the invoice to Rabo. I know nothing of the response of Rabo to its receipt of the invoice other than that it did not pay the plaintiff. And it is the defendant’s case that Rabo sold the frozen potato chip line to it. It is at least arguable that Rabo did not accept the reservation of rights by the plaintiff expressed on the invoice.
Before leaving that part of the analysis the defendant would contend that by the integration of the boiler into the chip line and presumably by a process of attachment to the land as a matter of law it became part of the land. Although it is my understanding that it may not contend that it purchased the boiler along with the land arguably there is a basis for the defendant to allege that there was sufficient in that contention to negate the prospect that the reservation of title could have been effective.
There is no evidence as to how it came to be that Rabo was entitled to sell the chip line other than that contained in the administrators information memorandum to the effect that the relevant plant and equipment utilised in the frozen chip operations were leased items and that purchaser should direct enquires to Rabobank. As much as PIBA and Rabo are in effect the same entity, it may be that there is a relationship between Rabo and Rabobank. It is conceivable that there may have been no reason for Rabo or Rabobank to treat the boiler as any different to any other component of the frozen potato chip line.
There is evidence that the administrator of MAES recognised the title of the plaintiff in the boiler. However that recognition may have been no more than the recognition of an entitlement that accrued to Rabo prior to any such expression by the administrator having any force. In any event, it appears to me that the administrator had no authority to make any determination as to ownership as between the plaintiff and Rabo.
There is some basis to conclude that the defendant believed that it had purchased the boiler from Rabo. The documents particularly that attached to the invoice from Rabo would suggest otherwise. It may come down to an analysis of the offer and acceptance and whether there was any mistake made by either or both parties.
Suffice to say there is fertile ground for submissions to be made as to a number of issues and I am satisfied that the plaintiff has not made out a case for summary judgment.
As to the plaintiff's submission that there be security, my first observation is that it does not sit easily with the relief sought. Secondly I have some difficulty with the concept of a shadowy defence. It appears to me to be a convenient construct where the court lacks the courage to make a hard decision. In any event in my experience whether or not that result is expressly foreshadowed in the application, no respondent ever brings to the court evidence as to its financial capacity. The court would put itself into a difficult position if it were to foreshadow the provision of security and then of necessarily adjourn to allow the defendant to bring evidence which conceivably would demonstrate that it would be inappropriate so to do.
Thirdly my difficulty with the application is not the defendant’s case but rather the sufficiency of the plaintiffs. Whilst I accept that the defendant has the boiler and is utilising it those considerations alone do not motivate me towards the result that it would be appropriate to award security.