Premier Blinds Pty Ltd v Fitzpatrick

[1993] QCA 241

[1993] QCA 241

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 20 of 1993

Brisbane

[Premier Blinds. v. Fitzpatrick]

BETWEEN:

PREMIER BLINDS PTY. LTD.

(Plaintiff) Respondent

- and -

ELAINE ELIZABETH FITZPATRICK

(Defendant) Appellant

The President
Mr Justice Pincus

Mr Justice Thomas

Judgment delivered 22/06/93
JUDGMENT OF THE COURT

APPEAL ALLOWED. JUDGMENT BELOW SET ASIDE. IN LIEU THEREOF, RESPONDENT TO HAVE JUDEGMENT AGAINST THE APPELLANT FOR $40,000.00, TOGETHER WITH THE COSTS OF THE APPLICATION BEFORE THE PRIMARY JUDGE AND INTEREST AT THE RATE OF OF 10% PER ANNUM PURSUANT TO THE COMMON LAW PRACTICE ACT FROM 1 NOVEMBER 1992 TO THE DATE OF THIS JUDGMENT. AS TO THE BALANCE, RESPONDENT IS AT LIBERTY TO PURSUE ITS CLAIM AND THE APPELLANT IS AT LIBERTY TO PURSUE HER COUNTER-CLAIMS. RESPONDENT TO PAY APPELLANT'S COSTS OF AND INCIDENTAL TO THE APPEAL TO BE TAXED.

CATCHWORDS:	PRACTICE - Summary Judgment - Whether sufficient evidnece to support judgment sum.
Counsel:	Mr S.D. Rapoport for the appellant Mr R.C. Morton for the respondent
Solicitors:	Messrs. Quinland Miller and Treston for the appellant Messrs. Biggs and Biggs, Francis and McGregor for the respondent
Hearing Date(s):	20/05/93

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 20 of 1993

Brisbane

Before The President
Mr Justice Pincus
Mr Justice Thomas

[Premier Blinds v. Fitzpatrick]

BETWEEN:

PREMIER BLINDS PTY. LTD.

(Plaintiff) Respondent

- and -

ELAINE ELIZABETH FITZPATRICK

(Defendant) Appellant

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 22/06/93

On 18 August 1992, the respondent commenced proceedings in the District Court at Brisbane against the appellant, claiming $61,07.91 for goods sold and delivered by the respondent to the appellant at her request, plus interest pursuant to section 72 of the Common Law Practice Act 1867 as amended. According to the Plaint, the goods were sold and delivered between March and July, 1992.

On 10 September 1992, the appellant's solicitors wrote to the respondent's solicitors requesting further and better particulars of allegations in the plaint and asking for a reasonable extension of time after the particulars had been provided for the delivery of a Defence. So far as the material reveals, the respondent neither acceded to nor rejected those requests.

On 23 December 1992, Mr Richard A. Prime, the respondent's Financial Controller, swore an affidavit with the following exhibits namely:

"A" - Copy Deed of Agreement between Plaintiff and

Defendant 12 August 1991

"B" - Copy bundle of order forms, Defendant to
Plaintiff
"C" - Copy bundle of invoices, Plaintiff to Defendant
"D" - Copy reconciliation of Defendant's account
"E" - Bundle of credit notes and journal entries
"F" - Copy letter, Plaintiff to Defendant 21 July 1992

None of the exhibits except "A" was reproduced in the appeal record used before this Court, but it is apparent that the material was voluminous.

On 5 January 1993, the appellant amended its plaint to claim $71,203.27 and to allege that the goods were sold and delivered between March and October 1992, which was sworn to by Mr Prime in his affidavit. On the same day, a judgment summons was issued by the respondent, although the amended Plaint, the Judgment Summons and Mr Prime's affidavit were not served upon the appellant until 12 January. The judgment summons was returnable on 21 January.
On 15 January 1993, the appellant entered an appearance and filed a Defence and Counter-Claim together with an affidavit, which once again had a number of exhibits including correspondence which had been exchanged between the parties and their solicitors.
On the return of the Judgment Summons on 21 January 1993, the District Court Judge before whom the matter was heard ordered that the respondent "be at liberty to sign final Judgment for the sum of $71,203.27, together with costs, including the costs of this Application and together with interest at the rate of 10% per annum pursuant to the Common Law Practices Act 1867 from the first day of November 1992 to the 21st day of January 1993". Judgment pursuant to that order was entered on 3 February 1993.

The appellant appealed to this Court by notice of appeal filed on 11 February 1993. The Notice of Appeal asked that the order below be set aside and that the appellant have unconditional leave to defend or, alternatively, that the order be varied by ordering that execution on the judgment be suspended until the determination of the appellant's Counter-Claim. At the hearing, the appellant by her Counsel acknowledged that leave to appeal might be necessary, at least in relation to the alternative order sought, and accordingly asked for leave.

It is a gross understatement to say that the matter came before this Court in an unsatisfactory form. The difficulties were exacerbated by the omission of the District Court Judge to give reasons for his decision but, that aside, the material was incomplete, confused and confusing.

To take but one example, the respondent arrived at the figure of $71,203.27 which it claimed in the amended Plaint on the basis that the goods sold and delivered to the appellant between March and October 1992 totalled $88,249.04 from which there was to be deducted a "Security Deposit" of $17,045.77. Mention has already been made of the fact that the proceeding was commenced in August 1992, that is, before some of the goods apparently claimed for were sold and delivered. Further, there was evidence, including correspondence from the respondent's solicitors which gave rise to a strong inference that the relationship between the parties had terminated in July 1982, at which time the goods sold and delivered totalled $75,198.52. On this basis, after deduction of the "Security Deposit", the appellant was at most indebted to the respondent for only $58,153.15, not the $71,203.27 claimed. According to the affidavit in support of the application for judgment, Exhibit "C" consisted of `true copies of the invoices delivered by the plaintiff to the defendant throughout the said period'. That period was between March 1992 and October 1992, the dates mentioned in the amended plaint. Examination of Exhibit "C" shows that it consists of delivery dockets as well as invoices; many of the invoices reverse charges previously made, a circumstance which is unexplained. Assuming that the delivery dockets are to be treated as correctly imposing extra charges and do not merely duplicate items appearing in the invoices, the total of the debits is $68,196.52, the earliest debit being 25 March 1992 and the latest 30 October 1992. It will be noted that the total of the debits in the delivery dockets and invoices is some $20,000 less than the amount claimed for goods sold and delivered during the relevant period, namely $88,249.04 as mentioned above. It hardly needs to be added that it is the responsibility of solicitors to attempt to ensure that what is sworn to is accurate and that documents exhibited which are supposed to support the claim do in fact do so.

The appellant's material was, if anything, even less satisfactory. It emerged during argument that, at most, the appellant could quantify claims against the respondent in connection with the transactions between them at about $13,000.00, plus a possible claim for loss of future profits (if the appellant had been trading profitably, which was not stated) and a claim in trespass related to the dispossession of the appellant by the respondent's employees when the relationship between them was terminated.

There is no need to attempt to go into these matters in any more detail. Suffice it to say that, on the material available, the appellant sufficiently demonstrated arguable claims against the respondent only to the extent of making it appropriate to reduce the respondent's judgment against the appellant to $40,000.00, together with the costs of the application before the primary judge and interest at the rate of 10% per annum pursuant to the Common Law Practice Act from 1st November 1992 (the date selected by the District Court Judge) to the date of this judgment. As to the balance, the respondent is at liberty to pursue its claim and the appellant is at liberty to pursue her counter- claims.

The appellant has succeeded in having the judgment against her reduced on appeal and, accordingly, the respondent must pay her costs of and incidental to the appeal to be taxed.