McKeagg Contractors Pty Ltd v Howard Porter Pty Ltd

[2000] WADC 287

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   McKEAGG CONTRACTORS PTY LTD -v- HOWARD PORTER PTY LTD [2000] WADC 287

CORAM:   COMMISSIONER GREAVES

HEARD:   22 SEPTEMBER 2000

DELIVERED          :   14 NOVEMBER 2000

FILE NO/S:   CIV 3672 of 1999

BETWEEN:   McKEAGG CONTRACTORS PTY LTD (063 036 199)

Plaintiff

AND

HOWARD PORTER PTY LTD
Defendant

Catchwords:

Contract - Corporation - Preregistration contract - Absence of evidence of intention to contract on behalf of corporation prior to formation - Summary judgment - Appeal from refusal of Registrar - No real question to be tried on pleadings - Appeal allowed

Legislation:

Corporations Law

Rules of the District Court

Rules of the Supreme Court

Result:

Appeal allowed

Representation:

Counsel:

Plaintiff:     Mr Ke Yin

Defendant:     Mr MC Hotchkin

Solicitors:

Plaintiff:     McKenzie Lalor

Defendant:     Hotchkin Hanly

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

Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87

Case(s) also cited:

Tweddle v Atkinson (1861) 1 B & S 393

Wilson v Darling Island Stevedoring & Lighteridge Co Ltd (1956) 95 CLR 43

1. COMMISSIONER GREAVES: This is the defendant's appeal from the decision of the learned Registrar dated 11 July 2000 whereby he dismissed the defendant's application for summary judgment pursuant to O 16 r 1(1) of the Rules of the Supreme Court.  An appeal pursuant to O 6 r 11(1) of the District Court Rules is to be heard and determined de novo.

2. The writ of summons in this action was issued on 24 September 1999.  By its statement of claim, the plaintiff seeks relief under a contract alleged to have been made between the plaintiff and the defendant on or about 23 December 1997.  The alleged contract was for the manufacture, supply and installation of a 20,000 litre truck mounted water tanker on, it appears, the plaintiff's Volvo truck.

3. The application for summary judgment is supported by the affidavit of Francis Angelo Skrzypek sworn 3 March 2000.  At par 10 of that affidavit, the deponent states that her search of the Australian Securities and Investment Commission records reveals that the plaintiff was incorporated on 4 June 1998 and did not exist at the time of the alleged contract.  It is upon that fact which the defendant relies in support of the present application.

4. In opposition to the application the plaintiff relies upon the affidavit of Murray Wayne McKeagg sworn 11 April 2000.  The deponent admits that the plaintiff was incorporated on 4 June 1998.  He states that on 23 December 1997, on behalf of McKeagg Contractors Pty Ltd, ARN 063 036 199, he contracted with the defendant for the supply and installation of a 20,000 litre water tank on his eight wheel rigid truck.  He says that on 23 December 1997 the Australian Securities and Investment Commission had deregistered that company.  He says that deregistration occurred on 18 September 1996.  He says that as at 23 December 1997 he was not aware of the fact of that deregistration.  He continues at par 11 et seq of his affidavit:

   "After purporting to enter into both the contract and the loan agreement on behalf of the first company, I was advised by my accountant that the first company had previously been deregistered.  I was advised by my accountant that it would be cheaper to register a new company than to re-register the first company.  Accordingly, the plaintiff was registered for the purpose of owning and running the business on 4 June 1998.  The plaintiff had the same name as the first company (as at the date of deregistration) and both were proprietary companies.  They also had the same directors (being myself and my wife), the same shareholders and the same secretary (my wife).

   …

   From the date of its registration, the plaintiff has adopted the benefits of the contract, including having exclusive use of the tank the subject of the contract, and has adopted the losses associated with the tank as its own, including the loss suffered as a result of the inadequacies of the tank, and depreciation of the same."

5. So far as the present application is concerned, the facts are not in dispute.  The onus is upon the defendant to show that there is no serious question to be tried on any cause of action raised by the plaintiff.  The learned authors of the Red Book at 16.1.4 refer to Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99 for the proposition that the power to order summary judgment should be exercised with great care and should never be exercised unless it is clear there is no real question to be tried.

6. In short, counsel for the defendant submitted that upon the evidence to which I have referred the plaintiff cannot establish that Mr McKeagg entered into the alleged contract on behalf of the plaintiff before it was registered.  He submitted, therefore, that on the pleadings the plaintiff cannot establish that it is entitled to the benefit of the alleged contract as a pre-registration contract.  In my opinion, on the facts before the Court, that submission should be accepted.  Neither Mr McKeagg, nor the plaintiff, entered into or purported to enter into the alleged contract.  The plaintiff cannot, therefore rely on s 131 or s 183 of the Corporations Law, in the present circumstances.

7. In my opinion, therefore, the defendant has discharged the burden upon it in the present application and established that on the pleadings before the Court there is no real question of law or fact to be tried since, for the reasons which I have given, the plaintiff's claim as pleaded cannot succeed.

8. Accordingly, in my opinion, this appeal should be allowed, the decision of the learned Registrar set aside and summary judgment entered for the defendant.