RCR Tomlinson Ltd v Allied Mining and Processing Limited - [2001] WADC 91

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: RCR TOMLINSON LTD -v- ALLIED MINING & PROCESSING LIMITED [2001] WADC 91

CORAM: DEPUTY REGISTRAR HEWITT

HEARD: 28 MARCH 2001

DELIVERED : 12 APRIL 2001

FILE NO/S: CIV 3396 of 2000

BETWEEN: RCR TOMLINSON LTD (ACN 008 898 496)
Plaintiff
AND
ALLIED MINING & PROCESSING LIMITED (ACN 002 594 872)
Defendant

Catchwords:

Practice - Western Australia - Summary Judgment - Turns on its own facts

Legislation:

Nil

Result:

Judgment for part of the claim conditional leave to defence for the remainder

Representation:

Counsel:

Plaintiff: Mr C E Chenu
Defendant: Mr R M Wilenski

Solicitors:

Plaintiff: Durack & Zilko
Defendant: Hammond Worthington

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

Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
MV Yorke Motors v Edwards [1982] 1 All ER 1024

Case(s) also cited:

Associated Bulk Carriers Ltd v Koch Shipping Inc The Fuohsan Maru [1978] 2 All ER 254
Australian Can Co Pty Ltd v Levin & Co Pty Ltd [1947] VLR 332
Eng Mee Yong & Ors v V Letchumanan s/o Velayutham [1980] AC 331
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Lewkowski v Bergalin Pty Ltd, unreported; FCt SCt of WA; Library No 7675; 26 May 1989
Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109
Webster v Lampard (1993) 177 CLR 598
White v Johnston (1886) 8 ALT 53

DEPUTY REGISTRAR HEWITT: In this action the plaintiff seeks summary judgment.

The Facts

The plaintiff filed its statement of claim endorsed on its writ and three separate causes of action are disclosed. The first cause of action relates to the dry commissioning of a Ball Mill in Perth. The plaintiff alleges and the defendant admits that by a contract comprised by three fax transmissions dated 9 December 1999, 26 January 2000 and 27 January 2000 it was agreed that the plaintiff would undertake certain work described in the fax dated 26 January 2000 to dry commission the defendant's Ball Mill at the rates set out in that fax. The defence filed denies that the work was carried out but the fax by the defendant dated 28 March 2000 (Exhibit CB4 to the affidavit of CJ Birmingham) clearly shows the work was done. The evidence establishes that an invoice dated 30 June 2000 was rendered to the defendant in respect of the work (Birmingham CJB5) and it is not disputed that account is unpaid. The defence to the first cause of action is contained in par 6 and 7 of Mohamed El‑Ansary's affidavit in opposition which state:
"6.I refer to paragraphs 4 to 6 of the Birmingham Affidavit. It was a term of the Ball Mill Dry Commissioning Agreement that any work which the Plaintiff sought to undertake which did not fall within the Plaintiff's scope of work as detailed in its facsimile to Allied date 9 December 1999 ('the Further Work'), required both Allied and the Plaintiff to agree that the work was necessary in order to dry commission the ball mill. I did not agree, prior to the Further Work being carried out by the Plaintiff that it was necessary in order to dry commission the ball mill. I am also informed by Ros Mackinlay and verily believe it to be true that she did not agree with anyone on behalf of the Plaintiff, prior to the Further Work being carried out by its employees, that the work was necessary in order to dry commission the ball mill.
7.Further, if this Honourable Court were to conclude that Allied is liable to pay the Plaintiff something for the Further Work, the applicable prices, rates or lump sum would have to be determined by the Court because they have never been agreed between Allied and the Plaintiff."
In those paragraphs Mr El‑Ansary refers to further work undertaken by the plaintiff which was outside the scope of work detailed in the fax dated 9 December 1999, which required the defendants agreement, and which was undertaken without that agreement being given.
The matter was argued before me on the basis that the further work was that described in a fax dated 6 August 2000 (Birmingham CJB6, p 20). A closer reading of the affidavit in opposition shows that the defendant has failed to identify the work undertaken which he says falls outside the agreement.
The argument before me was essentially a process of comparison of the fax of 6August 2000 and those of 9December 1999 and 26January 2000. In undertaking that process Counsel identified:
(a)the supply of grease and oil,
(b)the supply of a mobile crane,
(c)modification of a cordan shaft guard to suite modification of the gearbox piping, and
(d)some claims for delays as beyond the scope described in the earlier faxes.
As to (a) there is a mention in par 4 of the fax dated 9 December 1999 to the supply of oil and a reference to the supply of materials in the fax dated 26January 2000.
As to (b) the fax dated 26January 2000 refers to the supply of services.
As to (c) the fax dated 9December refers to manufacture of an oil returned pipe configuration to create oil bath in the gearbox and the fax dated 6August 2000 refers to “modify cardan shaft to suit modified gearbox piping…”.
As to (d) the fax dated 26January makes it clear the job would be costed at an hourly rate.
In my view all of (a), (b), (c) and (d) fall within the scope of work as defined by the faxes dated 9December 1999 and 26January 2000. The defendant has been content to make a general allegation that some of the work was beyond the scope of the agreement. It has made little or no effort to identify what precise tasks were under taken for which agreement was required and its defence on that aspect of the matter has no merit.
It is also notable that there is nothing before me to show that the defendant ever raised this point with the plaintiff before it was mentioned in the affidavit of Mr El‑Ansary. In par 8 of his affidavit Mr El‑Ansary states:
"I refer to paragraph 7 of the Birmingham Affidavit. Although the work was completed, I have not received any job sheets from the Plaintiff which identify specifically, the work undertaken by the Plaintiff and the time spent in undertaking each item of work. Accordingly I have not been able to verify the amount sought to be charged by the Plaintiff. I am informed by Ros Mackinlay and verily believe it to be true that the plaintiff did not provide her with this information either."
Nothing has been put before me to show that the defendant ever requested any job sheets from the defendant or showed any interest in or made any attempt to verify the plaintiff's charges.
In my view the plaintiff has satisfactorily made out a prima facie case for judgment on the first cause of action, the defendant has failed to show any triable issue, and plaintiff should be entitled to a judgment.
The second cause of action relates to the on site commissioning at two Nordeberg crushers. The contract for that work is alleged to have arisen through the exchange of faxes dated 19 June 2000, 7 July 2000, 7 July 2000 and a verbal instruction from an officer of the defendant to commence the work.
In relation to this cause of action the defence filed admits the contract, the receipt of the relevant invoice and denies or does not admit everything else.
In the light of that defence one would not have thought the issue of the formation of the contract would have been contentious. The defendant however in its defence to this application puts the formation of the contracts into issue. The defendant deals with the inconsistency of its pleaded case in par 5 of Mr El‑Ansary's affidavit in the following way:
"I have read the Defence filed on behalf of Allied in this action. I am advised by Allied's solicitors and verily believe that Allied will amend paragraph 1 of its Defence once the Plaintiff's Summary Judgment application has been determined to plead further, in respect of paragraphs 6 and 10 of the Plaintiff's Statement of Claim, Allied conducted its dealings directly with the Plaintiff but did so in performance of its contract with Premium Workforce Pty Ltd ('Premium') which contemplated that would occur in respect of the works set out in paragraphs E and F of 'MEA1' deposed to in paragraph 9.1 below. The matters contained in the Defence are otherwise true to the best of my knowledge, information and belief."
The proposition advanced by the defendant is set out in par 9 of Mr El‑Ansary's affidavit, and distilled to its essence, that proposition is that the defendant did not contract with the plaintiff but another company Premium Workforce Pty Ltd in regard to the work the subject of the plaintiff's second cause of action. Three documents are exhibited to support this contention appearing as annexures ME1, ME2 and ME3 to the affidavit. The first of those document is a quotation dated 10 May 2000 by Premium to the defendant including at E and F:
"E – Commissioning of ball mill Ravensthorpe,
Supply 2 x technicians RCR Bayswater 4 x days @ $62.00 per hour.
Includes shimms – laser and test running of mill for six hours.
Travel @ $46.00 per hour including vehicle x 16 hours
No mark up for Premium $9,532.00.
F – Commissioning of crusher
Supply 2 x technicians 1 x RCR @ $62.00 per hour, 1 x Norberg @ $90.00 per hour x 4 days including tooling, equipment and vehicle.
Travel @ $46.00 per hour x 16 hours
No mark up for Premium $8,768.00."
In response to that quotation the defendant sent a fax to Premium requesting certain of the works and stating "We will communicate further regarding orders and invoicing for the work carried out by the other RCR companies in your offer."
The final exhibit is an affidavit sworn by CJB Birmingham filed in the Supreme Court in which he deposes:
"3.On or about 10 May 2000, the Creditor provided a quotation in writing to the Company to carry out certain services specified in the written quotation ('the Services') relating to the disassembly, relocation, and re-assembly of a relocatable processing plant ('the Plant') for a quoted price of $155,062.00.
4.On or about 14 May 2000 the Creditor received a written order numbered PMC 097 for the sum of $155,062.00 from the Company to carry out the quoted services.
5.The Creditor has carried out the Services specified in the order as per the quotation.
6.…
7.Part of the Services to be provided pursuant to the quotation were to be carried out by RCR. RCR has rendered its account to the Company in the sum of $13,381.30 and the Company has paid RCR this sum."
The final relevant document is a deed of partial settlement executed between the plaintiff, the defendant, Premium, Tectonic Resources NL and Tectonic Systems Pty Ltd of which the relevant portions are recitals C, D, E and G which state:
"C.Allied retained the services of Premium and RCR to carry out certain, specified services relating to the disassembly, relocation, re-assembly, and commissioning of the Plant at Tectonic's minesite at Ravensthorpe (the 'Services') for a contract price of $155,000.00 (being that quoted by Premium by letter dated 10 May 2000) (the 'Premium/RCR Agreement').
D.Premium and RCR have carried out the Services referred to in the preceding Recital and various other services in relation to the disassembly, relocation, re-assembly and commissioning of the Plant and have rendered various invoices to Allied in the total sum of:
(a) in the case of RCR, $65,066.95;
(b) in the case of Premium, $344,894.98.
E.Allied maintains that it did not authorise part of the works for which payment is claimed by Premium and RCR, and that it does not have any liability to make payment for those works it maintains it did not authorise, and claims that such work was requested or authorised by Tectonic or a third party engaged by Tectonic, namely JR Engineering Services Pty Ltd, and therefore Tectonic and/or JR Engineering Services Pty Ltd is responsible for payment of those amounts (hereinafter referred to as 'the Disputed Invoices' which are described in Item 2 of the Schedule). This is disputed by Tectonic.
F.…
G.Allied and RCR and Premium are in dispute regarding the extent and/or Premium to claim on the various invoices submitted to Allied referred to in Recital D above."
Also relevant is par 2 which is in the following terms:
"2.The parties acknowledge and agree that:
2.1the payments referred to in clause 1 are made to Premium:
2.1.1in satisfaction of any liability which Tectonic may have to Allied, RCR or Premium for payment of Premium's invoices described in Item 1 of the Schedule to this Agreement;
2.1.2in satisfaction of any liability which Allied may have to Premium for payment of the invoices described in Item 1 of the Schedule;
2.2neither the fact of the payments referred to in clause 1, nor anything contained in this Deed, shall release Tectonic or Allied from any liability (which liability is denied by them) to pay the Disputed Invoices to Premium or RCR;
2.3neither the payments referred to in clause 1, nor anything contained in this Deed, shall be construed as an admission of liability:
2.3.1by Tectonic or Allied to make any further or other payment (including payment of the Disputed Invoices) to Premium or RCR;
2.3.2by Tectonic to make any further or other payment to Allied;
2.3.3by Allied that it has any liability to pay the said amount as a result of any contractual or other legally enforceable obligation to Premium and/or RCR."
The final fact to note in considering these issues is that Premium is a subsidiary of the Plaintiff.
On the materials filed I am unable to discern any information to suggest that the defendant took this point at any stage prior to the summary judgment application. There is nothing to show that the defendant at any stage objected to paying the plaintiff on the ground that Premium was the party to which payment was due. The quote exhibited by the defendant is expressed to be open for 30 days. It would have expired by 10 June 2000. The documents comprising the alleged agreements are pleaded to be (and admitted to be) faxes dated 19 June 2000 and 7 July 2000 from the plaintiff to the defendant and a fax from the defendant to the plaintiff dated 7 July 2000. In the last of those documents the defendant said:
"You have previously provided a budget to Premium workforce for this work. Can you please submit this itemised budget to us. In view of the nature of the work rates basis is probably the most satisfactory method. Noting however that we have a very limited budget remaining for this commissioning and request that none of your personnel are on site for any longer than absolutely necessary. Full back up details and time sheets to be submitted with your invoice. Accommodation is to be submitted on a separate invoice as this will be a Tectonic cost."
There has undoubtedly been some confusion in Mr Birmingham's mind about these matters as witnessed by his Supreme Court affidavit. To my mind however it is clear from the documents before me that the plaintiff's second cause of action is the result of a contract between the plaintiff and the defendant not the fulfilment of the quote from Premium.
Telling factors in reaching final view are:
1.The nature of the written documents comprising the agreement are consistent with the creation of a contract between the plaintiff and defendant not the performance of the Premium Quote.
2.The defendant has admitted in its defence the contract was with the plaintiff not some other entity.
3.No explanation of how such an admission came to be made is given.
4.No complaint has been raised by the defendant prior to the present application that the plaintiff is not the proper party to raise charges for the work.
5.The dispute referred to in recital E indicates that to the extent the plaintiff and defendant were in dispute over the plaintiff's invoice, that dispute arose over unauthorised work not, the contractual relationship of the plaintiff and defendant.
A further matter raised by the defendant is that in par 10 and 11 of Mr El‑Ansary's affidavit in which he states:
"10.I refer to paragraphs 16 and 17 and Annexure 'CB10' (the Plaintiff's Tax Invoice), 'CB11' (Boris Grigorovski's Job Card) and 'CB12' (the Field Service Report) of the Birmingham Affidavit. I am unable to specifically identify, from these documents, the work undertaken by the Plaintiff and the time spent in undertaking each item of work. Accordingly, I have not been able to verify either that the Plaintiff has undertaken all of the work it was required to undertake, or that the amounts sought to be charged by the Plaintiff is correct. I am informed by Ros Mackinlay and verily believe it to be true that the Plaintiff did not provide her with that information either.
11.Whether the Plaintiff in fact carried out all of the work requires:
11.1an understanding of the technical details of the scope of the works required to be carried out; and
11.2the content of the work in fact performed;
which are technical and expert assessment matters which I am not qualified to give. I note that Mr Birmingham does not depose to have the necessary expertise either."
There is nothing to suggest the defendant made any request for this information or raised this issue at any time prior to the bringing of the summary judgment application. On the face of the paragraphs there is nothing to suggest that the defendant's failure to pay is due to any concern over the amount charged or the work done. A defendant facing a summary judgment application is required to do more. No fact is put forward to suggest that the charge is excessive or the work incomplete. In my view the defendant has utterly failed to condescend to particulars in regard to this aspect of the matter.
The final matter is the plaintiff's third cause of action which relates to the commissioning of the ball mill on site.
Essentially the same considerations as relate to the second cause of action and I reach the same conclusion in regard to it as for the second cause of action.

The Law

The Court should not lightly grant a summary judgment application, and the power should not be exercised unless it is clear that there is no real question to be tried (Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87).
If the defence advanced by the defendant is shadowy or the bona fides of the defendant is in doubt the Court may grant the defendant leave to defend conditional on the defendant giving security MV Yorke Motors v Edwards [1982] 1 All ER 1024.
In the present case I find that there is no issue to be tried in relation to the first cause of action and order there be a judgment for the sum claimed.
In relation to the second and third causes of action I find that the defence is shadowy by reason of the lack of material facts advanced to support many of the allegations advanced, the failure of the defendant to raise the issues at an earlier stage, and the fact that the defendant has pleaded a defence inconsistent with the allegations now relied upon.
In relation to those causes of action I grant the defendant leave to defend conditional on the payment of the moneys claimed into Court.