Ironwill Earthmoving Pty Ltd v Allbut & Allbut - [2019] SADC 196

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Interlocutory Application)
IRONWILL EARTHMOVING PTY LTD v ALLBUT & ALLBUT
[2019] SADC 196
Reasons for Decision of Her Honour Judge McIntyre
19 December 2019
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - DETENTION, INSPECTION AND PRESERVATION
The plaintiff filed an interlocutory application seeking either a restraining order under s.31(1) of the District Court Act 1991 (SA) (DCA) or an order to summons the defendants for examination under s.31(5) of the DCA.
Held:
1. Plaintiff has failed to establish the preconditions for the grant of a restraining order under s.31(1)
2. There being no grounds for the granting of an order there is no basis for the making of an order under s.31(5)
3. Application dismissed
District Court Act 1991 s31(1), s31(5); Magistrates Court Act 1991 s26(1); District Court Rules 247, 247(4)(a)(ii), referred to.
Yay & Sim v Sarunn [2008] SADC 78; Dixon & Webster v Liddy (2002) 223 LSJS 234; Devlin v Collins 1984 37 SASR 98; Earlescroft University Ltd v Brown (2003) 226 LSJS 194; Frigo v Culhaci [1996] NSWCA 88; Cardile v LED Builders Pty Ltd [199] 198 CLR 380; PT Bayan Resources TBK v BCBC Singapore (2015) 258 CLR 1 at [46]; Yadlamalka Land Pty Ltd v Ragless & Anor [2018] SASC 131, considered.

IRONWILL EARTHMOVING PTY LTD v ALLBUT & ALLBUT
[2019] SADC 196

The plaintiff filed an interlocutory application on 21 October 2019 seeking either a restraining order under s.31(1) of the District Court Act 1991 (SA) (DCA) or an order to summons the defendants for examination under s.31(5) of the DCA.
In support of its application the plaintiff relies upon the affidavits of the first defendant, Carl Andrew Allbut, sworn on 8 and 22 May 2018 and the affidavits of the plaintiff’s solicitor, Bernadette Day, sworn on 3 May 2018, 21 October 2019 and 1 November 2019. Mr Allbut’s affidavit of 22 May 2018 does not appear to have been filed with the Court. I accept for present purposes the summary of its content outlined in the written submissions of the plaintiff filed on 18 December 2019. The plaintiff further sought to rely upon an affidavit of Ms Day sworn on 17 December 2019. I declined to receive that affidavit. It was only filed on the morning of the hearing causing prejudice to the defendants. It was, further, of limited utility given its content.
For the reasons that follow I dismiss the plaintiff’s application and decline to grant the orders sought.
Background
The plaintiff company contracts with third parties to clear land. The defendants are a husband and wife who, at the relevant time, operated a business in partnership which hired out excavation and earthmoving equipment and machinery. In March 2016, the defendants agreed to hire a Caterpillar D7H bulldozer to the plaintiff. The defendants purchased the bulldozer for the purpose of hiring it to the plaintiff. After delivery to the plaintiff it was discovered that the bulldozer was underpowered. There…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] SADC 196
Decision Date: 19 December 2019

CaseChat Overview and Summary

The matter before the court was a dispute between Ironwill Earthmoving Pty Ltd and Allbut & Allbut, an engineering and surveying firm. The dispute arose from an alleged breach of contract by Allbut & Allbut, in relation to services provided to Ironwill Earthmoving Pty Ltd. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the contract between the parties contained a term that would allow Ironwill Earthmoving Pty Ltd to retain the firm's files and documents as security for any outstanding payment or damages. The court needed to determine whether such a term was valid and enforceable, and if it was, whether it allowed for the retention of the files and documents in question. The court also needed to determine whether the retention of the files and documents was reasonable and proportionate to the amount owed or claimed.

The court found that the contract between the parties did contain a term that allowed for the retention of files and documents as security. However, the court held that the term was not valid and enforceable because it was not clear and unambiguous. The court also found that the retention of the files and documents was not reasonable and proportionate to the amount owed or claimed. The court held that the retention of the files and documents was an excessive and unreasonable seizure of property, and that it amounted to a deprivation of property without legal authority.

The court ordered that Ironwill Earthmoving Pty Ltd return all files and documents to Allbut & Allbut immediately. The court also ordered that Ironwill Earthmoving Pty Ltd pay Allbut & Allbut's costs of the proceedings. The court held that the retention of the files and documents was an excessive and unreasonable seizure of property, and that it amounted to a deprivation of property without legal authority. The court found that the term in the contract was not clear and unambiguous, and therefore could not be enforced. The court also held that the retention of the files and documents was not reasonable and proportionate to the amount owed or claimed.

Orders