Lock & Hardware Supplies Pty Ltd t/a Stronglok v J a Brooks Pty Ltd & Ors'

[2005] QDC 209

[2005] QDC 209

DISTRICT COURT
CIVIL JURISDICTION

JUDGE ROBIN QC

No BD123 of 2004

LOCK & HARDWARE SUPPLIES PTY LTD	Plaintiff
ACN 099 085 659, trading as STRONGLOK
and
J A BROOKS PTY LTD	First Defendant
ACN 000 062 180
and
MICHAEL ATALLAH	Second Defendant
and
YVONNE JEANETTE ATALLAH	Third Defendant
and
MICHAEL HOLDINGS PTY LTD	Fourth Defendant
ACN 008 415 090
and
DAVID ELI JARJOURA
Fifth Defendant
and
RICHARD ELI JARJOURA
Sixth Defendant
BRISBANE

WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal ..DATE 16/06/2005

offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for
their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those
categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings.

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16062005 T25/DKD9 M/T CMS68/2005 (Robin J)

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ORDER
CATCHWORDS: Uniform Civil Procedure Rules r 292, r 304, r 307
- summary judgment awarded against first defendant for price
of goods supplied and interest under s 47 of Supreme Court Act
from filing of claim (as opposed to date of demand) -
application adjourned against second, third and fourth
defendants, given absence of any evidence of the basis of

their liability, of any memorandum under s 56(1) of the	10
Property Law Act 1974, in particular - plaintiff sought to discontinue against fifth and sixth defendants sued in error.
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2 ORDER 60

16062005 T25/DKD9 M/T CMS68/2005 (Robin J)

HIS HONOUR: This is an application for summary judgment under	1
rule 292 of the UCPR by the plaintiff against all six defendants. As pursued it exempted the fifth and sixth defendants, indeed the proposal regarding them is that the court, pursuant to rule 304, grant leave to discontinue.

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The plaintiff has made the surprising discovery that there are
two companies of similar name, one Michel Holdings Pty Ltd
ACN 008 415 090, registered in the ACT on the 18th of April

1996, and the other Michel Holdings Pty Limited registered in

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New South Wales whose ACN appears to be 000 234 202 on the 4th of June 1998. Now, is that the correct one?

MR ALFORD: That's the correct one, your Honour.
HIS HONOUR: But that's not the one you've named in the title.

You want the one that's "Ltd" so you've got that part right	30
but you want the other ACN number, you want the ACN of the New South Wales company?
MR ALFORD: Your Honour, we need the ACN 000 234 202.
HIS HONOUR: So, order that the ACN of the fourth defendant be
amended to become 000 234 202. The entity that the plaintiff	40
is interested to pursue is the New South Wales company whose directors are the second and third defendants.
They appear to have been identified by the plaintiff from the
role they played in the business transactions which underlie	50

the plaintiff's claim for the cost of goods supplied, the
nature of which is indicated by the plaintiff's name.
According to the plaintiff's director, Mr Hung's affidavit,
16062005 T25/DKD9 M/T CMS68/2005 (Robin J) 3 ORDER 60

the second and third defendants and also the fourth defendant	1
company rendered themselves liable to pay for purchases of goods along with the first defendant.
A company search, presumably, led to the ACT company whose ACN

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does but should not appear in the title of the proceedings and
to identification as its directors of the fifth and sixth
defendants. Nobody claims they had the slightest connection
with the plaintiff or its claim. This has been made known to

and accepted by the plaintiff and its solicitors who need

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leave to discontinue pursuant to rule 304, given that a
defence is in from the other four defendants. See subrule
(2). There is no consent before the Court of the other
parties to permit the discontinuance. The other four

defendants have failed to appear when called.

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One of the matters to be attended to while the application was stood down for some hours today was the establishing of service of the application by post on their solicitors on the record, Drakos and Company.

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Sub-rule (4) makes it clear that discontinuance may be selective and denied to some defendants. Rule 307 deals with the costs situation.

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The fifth and sixth defendants, it appears from supplementary affidavit material prepared in some haste while the matter was stood down, have been advised that their protests that the claim has nothing to do with them are being accepted. It 16062005 T25/DKD9 M/T CMS68/2005 (Robin J) 4 ORDER 60

doesn't appear that they had to do any more than write their	1
letter of protest, so there probably are no costs. There is no necessity appearing for the court to make any order under sub-rule (2). Mr Alford for the plaintiff accepts that if it
be the case that the fifth and sixth defendants are somehow

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entitled to costs under sub-rule (1), they may take such steps
as they are advised to pursue the plaintiff.

The defence that was filed is reminiscent of the unsatisfactory pleadings commonly provided by customers who

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have failed to pay for goods or services provided to them. evidence from the first defendant to show that the state of its indebtedness differs from that sworn to on the plaintiff's side. What the defence does assert is that only the first

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defendant had relevant contractual relations with the
plaintiff. There's also a counter-claim. Together, the
counter-claim and defence make various complaints about the
plaintiff in relation to a distributorship of "Edmonds

Keyblanks and Accessories".

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There is the not entirely unexpected aspect of a counter-claim over-topping the plaintiff's claim by a few thousand dollars. The plaintiff, when the application first came on, tendered an agreement referred to in the defence and counter-claim as

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exhibit 1 - in a form apparently faxed to the plaintiff's
solicitors by the defendants' solicitors according to imprints
at the top - an agreement of the date indicated between J.A.
Brooks Pty Ltd, the first defendant, and Stronglok. The
16062005 T25/DKD9 M/T CMS68/2005 (Robin J) 5 ORDER 60

individual signatories appear to have been Mr Dingwall for	1
Stronglok, and W.A. Stewart for the first defendant.
In circumstances such as the present, one expects there to be a written agreement between a supplier company and its

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customer associated with guarantees, usually of directors. speculated that there may be available invoice forms which contain relevant conditions on them that might in some way become effective to render others than the purchaser liable to

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the plaintiff.

Section 56 of the Property Law Act 1974 provides in sub- section (1) that "No action may be brought upon any promise to guarantee any liability of another unless the promise upon

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which such action is brought, or some memorandum or note of
the promise, is in writing, and signed by the party to be
charged, or by some other person by that party lawfully
authorised." Whether or not there are possibilities open of

circumventing the prohibition in section 56 which may be

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available if no defendant appears to take the point, Mr Alford
has not wished to pursue that somewhat risky approach.

The consequence of doing so may well be to obtain a judgment which could not possibly survive an appeal. In any event, the

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plaintiff, in the circumstances which are that during the
hours available no written memorandum has been located, has
elected to proceed to judgment against the first defendant
only.
16062005 T26-27/EAM34 M/T CMS68/2005 (Robin DCJ) 6 ORDER 60

I think the plaintiff is entitled to such a judgment. The	1
plaintiff will remain free to pursue the application against the second, third and fourth defendants. It seems to me that the Court's orders ought to be as follows:

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1.    That the ACN of the fourth defendant be amended to become 000 243 202.

2. That pursuant to Rule 292 of the Uniform Civil Procedure Rules, there be judgment for the plaintiff against the

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first defendant in the sum of $67,631.28 which includes
interest from the date of the claim in the sum of $1,650.

3. That a Notice of Discontinuance under Rule 304(4) of the UCPR is to be filed within two days to discontinue the

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whole of the claim against the fifth and sixth
defendants.

4.    That the first defendant pay the plaintiff its costs of the proceeding, including the costs of this application

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to be assessed on the standard basis and not to include
costs referrable solely to other defendants.

5.    That the application as against the second, third and fourth defendants be adjourned to a date to be fixed.

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I would observe that, although interest was claimed in the draft order supplied from a date in November 2003, when demand is alleged to have been made, the standard outcome under 16062005 T26-27/EAM34 M/T CMS68/2005 (Robin DCJ) 7 ORDER 60

Section 47 of the Supreme Court Act, which is the basis for	1
the interest claim, is to allow interest (at a rate which is currently nine per cent) from the date of commencement of proceedings. There is not a great deal in it as the claim was filed on 14th of January 2004.

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The draft order also sought dismissal of the counter-claim. That is not something set out in the served application and I am not persuaded that the first, second, third and fourth defendants have been given any fair notice that relief of that

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kind would be obtained. It may be thought unlikely in the
extreme that the counter-claim will be pursued but, in
principle, I think it ought to remain on foot unless the
plaintiff brings and successfully prosecutes an application to

dispose of it.

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...

HIS HONOUR: The Court is recording an undertaking by Clapin

Lawyers and Mr Russ, in particular, to file an original sworn

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version of the affidavit of which Exhibit 3 is an unsigned

copy, exhibiting copies of the documents in Exhibit 4.

What you just handed up will be Exhibit 4.

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ADMITTED AND MARKED "EXHIBIT 4"

MR ALFORD: Thank you.

HIS HONOUR: And what you handed up before will be 3.

8 ORDER 60

16062005 T26-27/EAM34 M/T CMS68/2005 (Robin DCJ)

ADMITTED AND MARKED "EXHIBIT 3"	1
MR ALFORD: Thank you.
HIS HONOUR: There will not be any order taken out until that is filed. I will ask my Associate to hang onto the file-----
MR ALFORD: Thank you.	10
HIS HONOUR: -----as a security that that will happen.
MR ALFORD: I can understand that.
HIS HONOUR: At that stage, you can anticipate that it will be orders as per the initialled draft. It is different from the draft you have got because there is, additionally, the adjournment-----
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MR ALFORD: Yes, your Honour.
HIS HONOUR: -----against the other defendants and the correction of the ACN.
MR ALFORD: Thank you, your Honour. Once the document is filed, your Honour, I'll have Clapin get in touch with your Associate.
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9 ORDER 60