IRM Pacific Pty Ltd v Nudgegrove Pty Ltd

SUPREME COURT OF QUEENSLAND

CITATION:

IRM Pacific Pty Ltd v Nudgegrove Pty Ltd & Ors [2008] QSC 195

PARTIES:

IRM PACIFIC PTY LTD
ACN 069 213 556
(Plaintiff/Applicant)
v
NUDGEGROVE PTY LTD
ACN 056 377 792
(First Defendant/Respondent)
and
COLIN CLARK CONSTRUCTIONS PTY LTD
ACN 055 506 459
(Second Defendant/Respondent)
And
RHETT LENNON
(Defendant added by Counterclaim)

FILE NO/S:

284 of 2006

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Rockhampton

DELIVERED ON:

02 September 2008

DELIVERED AT:

Townsville

HEARING DATE:

28 August 2008

JUDGE:

McMeekin J

ORDER:

1.  That the application be dismissed

2.  Costs reserved

CATCHWORDS:

PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – CROSS CLAIMS: SET-OFF AND COUNTERCLAIM – SET-OFF – WHAT MAY BE SET-OFF – EQUITABLE SET-OFF – where the applicant seeks to rely on an equitable set-off against the respondents’ claim – whether there is sufficient justification to award an equitable set-off

UCPR r 173, r 190.

Blacksheep Productions Pty Ltd v Waks [2008] NSWSC 488

British Anzani (Felixstowe) v International Marine Management (UK) Ltd (1980) 1 QB 137

Forsyth & Anor (as trustees for the C & S Forsyth Superannuation Fund) v Gibbs [2008] QCA 103, applied

D. Galambos & Son Pty Ltd v McIntyre (1974) 5 ACTR 10, applied

Hill Corcoran Constructions Pty Ltd v Navarro & Anor [1992] QCA 017

COUNSEL:

P Mills (sol) for the plaintiff/applicant

A Arnold for the defendants/respondents

SOLICITORS:

Mills Oakley Lawyers for the plaintiff/applicant

Purcell & Associates for the defendants/respondents

1. McMEEKIN J: This is an application by the plaintiff in the proceedings for judgement for the sum of $142,384 under r 190 of the Uniform Civil Procedure Rules 1999. Rule 190 gives the court power to make orders to which a party may be entitled on the basis of admissions contained in the opponents’ pleading.

The Pleadings

1. The plaintiff claims $189,992 for hire charges said to be due and owing in respect of trucks leased to the defendants under five agreements.

1. Whilst the defendants deny owing any monies to the plaintiff their pleading accepts that there were contracts for hire, accepts that the plaintiff’s trucks were used by the defendants, alleges payment of the sum of $518,386 under those contracts, asserts that “the only amount that could have been due from the defendants to the plaintiff was the sum of $660,770.00”, and then pleads, at paragraph 1(q) of the defence, in relation to the balance:

“Further any balance of $142,384 is not due and owing from the defendants to the plaintiff because the plaintiff was in fundamental breach of and repudiated the contracts (as particularised in the defendants’ counterclaim) and the defendants sets-off against the amount claimed by the defendant (sic) the amount of the defendants counterclaim.”

1. In brief, by their counterclaim, the defendants assert that the contracts for hire came into being following conversations between a servant or agent of the plaintiff, a Mr Rhett Lennon, and Mr Colin Clark on behalf of the defendants whereby representations were made concerning the suitability of…