Northern Bricks and Pavers P/L v Collinson

[2015] SADC 64

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil: Minor Civil Review)

NORTHERN BRICKS AND PAVERS P/L v COLLINSON

[2015] SADC 64

Judgment of His Honour Judge Tilmouth

27 April 2015

MAGISTRATES - APPEAL AND REVIEW

Application to review a judgment in a minor civil claim dismissing an action for the recovery of money, allowed on the basis that the Magistrate dismissed the claim in contract, whilst failing to consider the cause of action in debt.

Peter Turnbull & Co Pty Ltd v Mundas Trading Co (Australasia) Pty Ltd (1954) 90 CLR 235; City Motors (1933) Pty Ltd v Southern Aerial Super Service Pty Ltd (1961) 106 CLR 477; Young v Queensland Trustees Ltd 1956) 99 CLR 560; Pavey and Matthews Pty Ltd v Paul (1987) 69 ALR 577; In Re Brookers (Aust) Ltd (in liq); Brooker v Pridham (1986) 41 SASR 380; Ogilvie v Adams [1981] VR 1041; Slades Case (1602) 76 ER 1074; Magistrates Court Act 1991 (SA) s 35, s 38(7)(a); Magistrates Court Civil Rules 2013 (SA) R 124, referred to.

NORTHERN BRICKS AND PAVERS P/L v COLLINSON
[2015] SADC 64

Application for review

1. This is an application to review a Minor Civil judgment given in the Small Claims jurisdiction of the Magistrates Court at Port Augusta on 24 November 2014, wherein an application by the appellant (Northern Bricks) claiming judgment of $12,832.77, being monies owing for the provision of bricks and pavers to the respondent Mr Collinson, was dismissed.

2. The application for review seeks an order for judgment in favour of Northern Bricks on the basis that the evidence established those goods were supplied to Mr Collinson, that there was sufficient evidence of the relationship between them giving rise to enforceable rights, and that the Magistrate failed to give sufficient weight to payments made by Mr Collinson to Northern Bricks, as evidence of that relationship.

   Evidence at trial

3. The evidence before the Magistrate consisted of the tender of a summary of invoices said to reflect the supply of bricks and pavers to Mr Collinson, in the period between 20 December 2013 and 13 February 2014.  Entitled simply as ‘statement’, it records a payment of $2,683.70 on 26 February 2014, out of chronological sequence.  This sum is not on the face of matters referrable to any particular invoice.  Otherwise it contains a list of 18 invoices in chronological sequence and by number.  Evidence was given before the Magistrate that whilst acknowledging the goods were supplied, Mr Collinson understood he was dealing with another company, Boral, with whom Northern Bricks operates on a franchise basis from the same site in Port Augusta.  Mr Collinson’s evidence before the Magistrate was that he did not receive any invoices from Northern Bricks.  Mr S Moulder, the supervisor/manager of Northern Bricks, agreed this was the case.  Mr S Moulder said that Mr Collinson could have collected the tax invoices from the premises had he wanted to, but that Mr Collinson was however provided a statement at the end of each month summarising the supplies to him and the relevant invoices.  Those monthly statements were not, however, tendered before the Magistrate.

4. It emerged that Mr Collinson signed an agreement with Northern Bricks on 9 July 2013.  This became Exhibit P2 before the Magistrate.  It encompassed terms and conditions of trade as between them.  This agreement provided that Mr Collinson accepted and was bound by its terms and conditions once he places an order for, or accepts, delivery of goods from Northern Bricks (clause 2.1).  The evidence was that on 8 November 2013 he paid the sum of $935.18 to Northern Bricks for supplies with respect to an invoice number 403,[1] which was not one of the invoices upon which the claim was based.  Her Honour properly regarded this payment, and that of 26 February 2014, as furnishing ‘some evidence that the defendant was dealing with the plaintiff to some extent’.[2]  There was also an email of 12 February 2013 from Mr Collinson copied to Northern Bricks, in which he wrote in part ‘I would be a complete fool to keep purchasing products …’, which is evidence, as the Magistrate found, of a business relationship existing between them and ‘an indication he had been supplied products from the plaintiff …’.[3]  There was of course the original credit facility which conditioned the provision of the supply of goods in the first place.  The evidence of Mr S Moulder before her Honour was that he collated a running sheet of Mr Collinson’s activities:[4]

   … quite simply for our own benefit, to record it to a point where we can enter it electronically into our system, which obviously then generates a tax invoice … .

   [1]    Exhibit P4.

   [2]    Northern Bricks and Pavers Pty Ltd v Geoff Collinson, PAVCI 14-24, at [25].

   [3]    Above at [24], Exhibit P5.

   [4]    T18.13-16.

5. This running sled became Exhibit P3.  The evidence, although somewhat imprecise, was to the effect that from time to time Mr Collinson would be appraised of what he owed and that he would make episodic payments.  Mr Collinson acknowledged during the hearing that he had seen it and that he was ‘happy with what [he had] seen’.[5]  This document recorded the product collected by Mr Collinson, the quantity thereof and the date.

   [5]    T18.28-29.

6. During the course of the trial Mr Collinson further acknowledged that Mr S Moulder told him at one point ‘You are up over your $10,000 limit,’ to which he responded ‘fine, I will clear it up as soon as the job is finished’.[6]  He further acknowledged the informal way of dealing:[7]

   … that’s how they did business with me for 20 years.  We never had accounts with Boral up until recently’.

   [6]    T28.34-37.

   [7]    T36.20-21.

7. He repeatedly said during his evidence before the Magistrate that the problem was Boral’s and not his.  The evidence before the Magistrate proved a somewhat informal arrangement existed between the parties.

   The reasons of the Magistrate

8. The Magistrate appears to have regarded the fact that regular tax invoices were not rendered, as decisive of the issue.  She found, correctly, that the plaintiff bore the onus of proof.  Her Honour considered Mr Collinson was a ‘frank and credible witness’.  In the result, her Honour was not satisfied the plaintiff had discharged the onus of proof in the circumstances.  Her conclusion is best captured in this passage of her judgment:

   [25]The plaintiff bears the onus of proof with respect to this claim.  The onus of proof is on the balance of probabilities.  There is no evidence that the plaintiff provided tax invoices and/or made demands for payment for the goods the subject of the charge prior to the filing of the claim.  The particulars of claim allege there had been a demand for payment for the goods supplied.  There is no evidence of a written demand or demands being made by the plaintiff to the defendant.  There is no evidence that the plaintiff provided tax invoices to the defendant at any stage prior to trial. …

   Further evidence on appeal

9. In support of his claim Mr Collinson gave evidence before the Magistrate that he held an extant account with Boral.  Evidence by way of affidavit of Mr S Moulder’s father, Terrance Moulder the regional manager of Boral Hollowstone Masonry SA, at first admitted on review, purports to assert Mr Collinson’s account with Boral was suspended with effect from 22 July 2013, a state of affairs supported by the annexures thereto.  This suspension – if that is what it was – therefore took place before the period of time during which goods are claimed to be supplied to Mr Collinson by Northern Bricks and shortly after he signed the agreement with it.  This evidence was permitted on review, since Northern Bricks had not anticipated when the case came on for hearing before the Magistrate, that Mr Collinson ‘was going to claim he was dealing with Boral’.[8]

   [8]    T4.7-.10, 17/3/2015.

10. As Mr Collinson declined, for reasons of inconvenience, to appear when the review was heard, a full transcript and the affidavit of Mr T Moulder were both sent to him, on which he was given liberty to make such submissions as he wished to in writing.  He did so in a long letter dated 23 March 2015.  In this he claimed the affidavit contained ‘blatant lies’ and objected to it.  Aside from a number of matters irrelevant to these proceedings, he further claimed that he ‘terminted all business with [Northern Bricks] when I made my last payment …’.  That would have been 26 February 2014, which lies outside the period to which the claim relates.

11. At the same time Mr Collinson also enclosed full copies of material he sent to the District Court, after the application for review was lodged.  At one point in the letter he asserted the ‘Learned Magistrate was quite accurate in accepting that I believed I was supplied the goods by Boral …’.  Of particular note is that at no point does he deny receiving the goods in question.  For reasons of fairness, in light of the objection to the tender of the affidavit of Mr T Moulder, no account will be taken of that material, and no weight given to it in resolving this appeal.

    Analysis

12. Returning to the underlying evidence, there is no doubt that from 9 July 2013 there was a contract for the supply and delivery between the parties.  By this contract Mr Collinson accepted that upon placing orders for or accepting goods supplied by Northern Bricks, he was liable for the payment of such goods on dates determined by Northern Bricks and, at prices in its discretion (clauses 2, 4.1 and 4.4 respectively).  From then on, he was supplied with bricks and pavers on a number of occasions up to November 2013, which he paid for.[9]  Thereafter, a number of ‘invoices’ were produced to the court (to use a neutral expression) between 20 December 2013 and 13 February 2014 totalling $15,490.47, which remain unpaid, bar for the payment on 26 February 2014 of $2,683, thus giving rise to the claim of $12,832.77.  There was no supporting evidence that the goods were supplied by Boral Masonry.

    [9]    Invoice 403, 8 November 2013, Exhibit P4.

13. As indicated earlier, the decision of the Magistrate founded on the assumption that underlying proof of the due render of tax invoices was required.  As a matter of the law of contract, that conclusion is perfectly sound.  In an action for the recovery of debt, that is not the case.  Ever since Slade’s Case, remedies in contract or indebitatus assumpsit became an established form of action at common law, as alternatives to the enforcement of debt, that is to say ‘an action on the case on assumpsit is as well a formed action … as an action of debt …’.[10]  The fundamental difference between the two for the present purpose is that an action in contract requires proof of the underlying debt, whereas in an action in simple debt, all a plaintiff need prove is performance, as the debt arises instantly on delivery: City Motors (1933) Pty Ltd v Southern Aerial Super Service Pty Ltd,[11] Young v Queensland Trustees Ltd,[12] Pavey and Matthews Pty Ltd v Paul.[13]  As explained by Kitto J in the latter case:[14]

    The law considers a party who has entered into a contract to deliver goods … to another as having substantially performed it if he has tendered the goods …

    [10] (1602) 76 ER 1074, 1077.

    [11] (1961) 106 CLR 477.

    [12] (1956) 99 CLR 560, 566.

    [13] (1987) 162 CLR 221, 230-231, 235.

    [14]   Above, 486.

14. Furthermore, recovery in debt has procedural advantages over recovery under breach of contract, for there is no obligation to give notice or to make demand before the cause of action accrues: In Re Brookers (Aust) Ltd (in liq); Brooker v Pridham,[15] Young v Queensland Trustees Ltd.[16]

    [15] (1986) 41 SASR 380, 382.

    [16] (1956) 99 CLR 560, 566-567.

15. It follows from this analysis that although as a matter of contract law the Magistrate was perfectly correct, as a matter of the enforcement of a simple debt, she was not.  Given the proof of part performance in the acknowledged delivery of the goods the quantum of which is not in dispute, coupled with the underlying agreement of July 2013, the two part payments with respect thereto, and the several admissions in the material referred to above, the obligation to pay debts to Northern Bricks arising from the supply of bricks as and when they were ordered, collected or delivered, is proven to the required degree.

    Conclusion and orders

16. Accordingly the application for a review is allowed.  The judgment of the Magistrate is rescinded.  In lieu thereof, judgment is entered against Mr Collinson in favour of Northern Bricks for the claimed sum of $12,832.77, plus a court filing fee of $131.00.

17. The judgment sum of $12,832.77 attracts interest from the date when judgment should have been entered in favour of Northern Bricks on 24 November 2014, pursuant to s 35 of the Magistrates Court Act 1991 (SA), at the rate prescribed by R 124 of the Magistrates Court (Civil) Rules 2013 (SA), at 5 per cent per annum.  For ease of enforcement, a lump sum of $300 in lieu of interest is fixed, to be paid in addition to the above sums, to cover the period from 24 November 2014 to the present.

18. Since both parties were not represented on the review, there will be no order as to costs: s 38(7)(a) Magistrates Court Act.