RGB Integration Pty Ltd v Audio Visual Imagenation Pty Ltd - [2009] WADC 165

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: RGB INTEGRATION PTY LTD -v- AUDIO VISUAL IMAGENATION PTY LTD [2009] WADC 165

CORAM: SCOTT DCJ

HEARD: 3, 4, 5 AUGUST 2009, 22 OCTOBER 2009

DELIVERED : 4 NOVEMBER 2009

FILE NO/S: CIV 1256 of 2004

BETWEEN: RGB INTEGRATION PTY LTD (ACN 089 691 261)
Plaintiff
AND
AUDIO VISUAL IMAGENATION PTY LTD (ACN 052 517 718)
Defendant

Catchwords:

Contract for supply of electrical components for courtroom - Extent to which representations were promissory and were terms of contract - Breach of contract - Turns on own facts

Legislation:

Nil

Result:

Judgment for plaintiff
Defendant's counterclaim dismissed

Representation:

Counsel:

Plaintiff: Mr M Holler
Defendant: Mr M L Segler

Solicitors:

Plaintiff: Formbys Lawyers
Defendant: Martin Lee Segler Barrister and Solicitor

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

Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41

SCOTT DCJ: In this case the plaintiff claims the sum of $46,836.90 being the price of various electronic components which were supplied by the plaintiff to the defendant between 2 May 2003 and 19 August 2003.
Although the defendant did not, in its substituted defence and counterclaim dated 19 December 2008 ("substituted defence and counterclaim"), specifically plead to each of the paragraphs in the statement of claim I was advised by counsel for the defendant at the commencement of this trial that save for the defendant's set‑off which was ultimately pleaded in an amended substituted defence and counterclaim dated 6 August 2009 ("substituted defence, set off and counterclaim"), the defendant admits the plaintiff's entitlement to the sum claimed by it in the statement of claim.
The principal electrical component supplied by the plaintiff to the defendant was an Extron 2424HV 425Mhz – 24 x 24 RGBHV switcher (the "24 x 24 Matrix switcher"). The other items comprising the electronic components supplied by the plaintiff to the defendant were ancillary to the 24 x 24 Matrix switcher.
In the substituted defence, set off and counterclaim the defendant alleges that:
"3.At all material times the defendant was contracted to the Department of Justice and the Government of Western Australia to provide a fully operational electronic courtroom with the ability to video link to remote witnesses, video conference to locations worldwide and electronic document display.
PARTICULARS
(a)On 18 December 2000, the defendant together with Spark & Cannon Pty Ltd and the Ministry of Housing and Works representing the State of Western Australia entered into a contract in writing numbered 75000 for the provision of court monitoring services transcription and support of audiovisual technologies for the Western Australian Ministry of Justice, Courts and Tribunals ('Contract 75000').
(b)Further to Contract 75000, the defendant by document RFT 1909 of 2003 tendered to the Department of Justice for the installation of an electronic courtroom at 111 St Georges Terrace Perth which tender was accepted.
4.On 10 April 2003 the Defendant was informed by the Plaintiff as to the availability of an RGBHV 24 x 24 Matrix switcher which had 24 inputs and 24 outputs, switchable between synchronisation terminations of 75 ohms and 510 ohms as manufactured by Extron and which had similar capacity as the 5RGBHV 12 x 8 Matrix switchers that had been supplied in 1999 by the Plaintiff to the Defendant for the purposes of District Court rooms located in the May Holman Centre at Perth.
PARTICULARS
Mr Tony Routledge on behalf of the Defendant telephoned Mr Ronald Boyes who represented the Plaintiff and was informed that such a Matrix switcher was available.
5.In or about the month of May 2003 the Plaintiff further represented to the Defendant that it could supply to it an RGBHV 24 x 24 425 Mhz Matrix switcher as manufactured by Extron ('the Matrix switcher') and ancillary electronic components for the purposes of the Defendant's said contractual arrangements (the 'Representation').
PARTICULARS
The capacity of the Matrix switcher to afford 24 inputs switchable between impedance levels of 75 ohms and 510 ohms and the purposes for which it was required, in particular, the installation of it in a proposed fully electronic courtroom were discussed in the course of telephone conversations between Mr Brett Hammond on behalf of the Defendant and both the said Mr Ronald Boyes and Mr Marc Booth on behalf of the Plaintiff.
6.Acting in reliance on the Representation and not otherwise the Defendant agreed to buy from the Plaintiff the Matrix switcher and the said ancillary electronic components.
PARTICULARS
On 12 May 2003 the Defendant issued to the Plaintiff a purchase order No 00507387 in respect of the Matrix switcher and other purchase orders in respect of the ancillary electronic components."
Although the term the "Representation" appears from the pleading to refer only to par 5 I have treated that definition as referring to both representations pleaded in par 4 and par 5 as that is the basis upon which the parties conducted this case at trial.
The defendant then pleads (par 7) that the material terms of the agreement (which is undefined) were that:
(a)the Matrix switcher would have the same switchable capacity between impedance levels of 75 ohms and 510 ohms as that supplied previously by the plaintiff to the defendant for installation in District Court rooms located at the May Holman Centre;
(b)the switchable capacity of the Matrix switcher would be available on all of its 24 inputs and all of its 24 outputs;
(c)the Matrix switcher would otherwise be fit for the purposes intended.
The defendant then pleads that the plaintiff delivered to it (inter alia) a 24 x 24 Matrix switcher and claims that in breach of the terms of the agreement between it and the plaintiff the 24 x 24 Matrix switcher supplied by the plaintiff:
(a)was not of the same switchable capacity as that supplied previously by the plaintiff to the defendant for the District Court rooms;
(b)had 24 inputs and 24 outputs of which only eight inputs had switchable synchronisation terminations between 75 ohms and 510 ohms and the balance of the inputs were set permanently to an impedance level of 510 ohms; and
(c)was not fit for the purposes intended.
The defendant then alleges that the Representation was untrue in that when the 24 x 24 Matrix switcher was installed in the electronic courtroom by the defendant the 24 x 24 Matrix switcher was incompatible with the design of the electronic courtroom as were the ancillary electronic components.
The defendant then pleads a set off against the plaintiff's claim and counterclaims damages.
At the outset of this trial I raised with counsel for the defendant a number of matters about which there seemed to me to be inadequate pleading as to the manner in which the defendant asserted that the Representation became a term of the agreement alleged between the defendant and the plaintiff ("agreement") and the manner in which the defendant asserted a cause of action referable to an allegation that the Representation was untrue.
Counsel for the defendant said that the defendant's claim was that the matters the subject of the Representation were oral terms of the agreement and that the defendant's claim was that the failure by the plaintiff to supply to the defendant a Matrix switcher which conformed with those terms constituted the breaches which resulted in the defendant suffering damage.
I raised the matter with counsel for the plaintiff who informed me that irrespective of the way in which the then substituted defence and counterclaim was pleaded his understanding was that the plaintiff's cause of action was founded in contract in respect to which an oral term of the contract was that the Matrix switcher would "do the things" claimed as part of the Representation pleaded such that it was a breach of contract claim which the plaintiff was required to meet.
Counsel for the defendant agreed that that was the manner in which the defendant's claim was couched and the basis upon which the issues fell to be determined at trial.
That was the basis upon which the trial proceeded without the necessity of pleading points being taken by the plaintiff.
In the plaintiff's reply and defence to the substituted defence and counterclaim the plaintiff:
(a)admitted that in or about the month of May 2003 it represented to the defendant that it could supply a 24 x 24 Matrix switcher and ancillary electronic components;
(b)denied it represented it could do so for the purposes of the defendant's contractual arrangements and says that the only representation was that it could supply a 24 x 24 Matrix switcher;
(c)denied that the defendant agreed to buy from the plaintiff a 24 x 24 Matrix switcher and the ancillary electronic components in reliance on an alleged representation by the plaintiff that the 24 x 24 Matrix switcher could be supplied for the purposes of the defendant's contractual arrangements with the Department of Justice.
Although in that pleading the defendant confines reference to the Representation to that pleaded by the defendant in par 5 of the substituted defence and counterclaim in its closing submissions the plaintiff refers to the Representation as (at least) comprising the telephone conversation of 10 April 2003 referred to in par 4 of the defendant's pleading.
In the plaintiff's written outline of closing submissions the plaintiff's contentions are:
(a)There was no Representation made by the plaintiff in the terms pleaded in par 4 (or par 5) of the substituted defence set off and counterclaim.
(b)If the Representation is made out by the plaintiff it could not be objectively inferred from the words and conduct of the parties that it was intended to be of contractual effect, i.e. promissory, and as a consequence did not become a term of the agreement between the parties.
(c)Even if the Representation was found to have been made and found to be of contractual effect the defendant has not proved that the matters the subject of the Representation were not true.
Defendant's counsel in oral closing submissions said that the defendants case relied upon the Representation being proved and that the Representation constituted the terms of the agreement pleaded.
The core issue which falls for determination in this trial is whether the Representation pleaded by the defendant was made by the plaintiff. The key components of the Representation as alleged by the defendant are as follows.

10 April 2003

In a telephone conversation on that day, Mr Boyes told Mr Routledge that:
(a)the plaintiff had available for the defendant a 24 x 24 Matrix switcher which had 24 inputs and 24 outputs switchable between synchronisation terminations of 75 ohms and 510 ohms manufactured by Extron;
(b)the 24 x 24 Matrix switcher had similar capacity as the 5RGBHV 12 x 8 Matrix switchers that had been supplied in 1999 by the plaintiff to the defendant for the purposes of District Court rooms at May Holman Centre, Perth.

May 2003

During the course of telephone conversations between Mr Hammond for the defendant and Mr Boyes and Mr Booth on behalf of the plaintiff, Mr Boyes and/or Mr Booth (the pleading lacks specificity) told Mr Hammond that the plaintiff could supply a 24 x 24 Matrix switcher and ancillary components for the purposes of the defendant's contractual arrangements with the Western Australian Ministry of Justice, Courts and Tribunals for the installation of an electronic courtroom at 111 St Georges Terrace, Perth having a capacity to afford 24 inputs switchable between impedance levels of 75 ohms and 510 ohms.
Counsel for the parties agreed that the defendant should first adduce evidence.
Mr Routledge gave evidence. He explained that the purpose of the Matrix switcher as it was to be utilised in Court 14.1 of the Supreme Court was to route high resolution computer display signals to and from the Judge, the Judge's staff, counsel and witness positions within the courtroom for the purpose, primarily, of the Bell Resources Group trial.
He said that a Matrix switcher allowed the switching of any computer from any of the courtroom or other positions to enable the display of electronic material which was then scanned in paper. The Matrix switcher was probably the most important item in the electronic componentry because it was needed to maintain the integrity of the high resolution display and to ensure that items are switched to the appropriate positions so that the electronic material could be viewed.
Mr Routledge described the term "impedance" as the load that is put on a circuit – much like turning on a tap insofar as if a tap does not have a restrictor at the end, it will result in a lower pressure. If one was to put a smaller outlet on the tap it would assist with the flow and help with the back pressure and maintain a constant circuit of water in that case.
He explained that impedance is a very important factor electrically in any electronic circuit.
The term "ohms" is the impedance, that is it equates to the resistance, effectively, on the circuit.
To that end Mr Booth explained that impedance applies to various video signals, audio signals and sync signals. Impedance is basically the load or resistance on a circuit or a source and it is measured in ohms. Different signals have different impedance levels. Video has typically a standard 75 ohms impedance level. With respect to video signals, the impedance is very much the same.
The term "sync" is a video sync made up of red, green and blue and the sync is the horizontal and vertical information and that basically dictates where the image is placed on the screen so that if the sync is not right there may be flickering or bending edges or there may not even be a picture at all.
Mr Booth said that with Extron products the best fit for sync signals is 500 ohms resistance. That is what the switchers on the inputs actually do – they are for the input to terminate the signals to the correct or nominal impedance. Impedance matching is matching the actual source or the signal to the load that it expects to receive.
Mr Booth said that if one has a number of sources such that if one was to have a 510 ohms load into a 75 ohms input there may not result in an image at all. Switchers allow one to choose between 75 and 510 ohms.
Mr Routledge said that he was the managing director of the defendant and had had 25 years experience in the industry.
He said that the defendant commenced dealing with the plaintiff in 1998 and that all told he dealt with Mr Boyes for about 20 years.
To that end the evidence of Mr Boyes was that the plaintiff did not commence business until December 1999. He was previously an employee of a company in the same industry as the plaintiff. That company was Gear House.
Mr Routledge said that in about 1999 the defendant installed a courtroom electronic system in the May Holman Centre to service four courts and two remote witness rooms and that an Extron switcher, sourced through Mr Boyes, had been supplied. It seems likely to me that the supply of that switcher must have been undertaken by Gear House if Mr Boyes was involved.
Five Extron 12 x 8 Matrix switchers were installed. They had a switchable capacity such that they could switch 12 inputs to 8 outputs which allowed any of the 12 inputs to be switched to a high and low impedance mode.
The Bell Resources Group trial was to be held in court 14.1. There was not a significant lead time for the installation of the electronic system. He was involved in designing the electronic system and in the installation.
He said that on 10 April 2003 he telephoned Mr Boyes. At the time he was driving south on the freeway. In his evidence there was some inconsistency in the words or text of the words spoken with Mr Boyes. Initially he said that the grain of the conversation was:
"Ron, we have got a job that we need a 24 x 24 Matrix switcher. What do you suggest, recommend? What is available?"
Mr Boyes responded that he would be checking with Extron that night to see if there was a new switcher that was becoming available and he would get back to Mr Routledge the next day. As far as the type of Matrix switcher was concerned he said:
"I discussed – the specification is simple. It would've been – it is 24 x 24, 24 inputs and 24 outputs" (T29).
There was then this exchange:
"Q.Now, as far as the type of Matrix switcher is concerned, was there any other discussion about the type?
A.That there would be no more required. It's a – the specification is 24 input, 24 output. No, there was no further discussion.
Q.And was there any discussions as to the switchability?
A.Again, 24 in, 24 out was all that anyone would need to understand. There was no mention that part of it was capable or there was no mention that there'd be any difference to – than what was supplied at May Holman.
Q.When you say 'no difference' in what context was the May Holman Centre?
A.Well each input is identical. All the 12 inputs are able to develop a 75 ohms circuit by way of a switch to switch that – that feature on.
Q.Was there any discussion between you and Mr Boyes by reference to what had happened at the May Holman Centre?
A.Yes I believe there was. I – I believe there was, the same as at May Holman Centre that you had visited – Ron had visited over some – some years prior.
Q.Did you discuss the May Holman Centre – what had been installed at the May Holman Centre in the context of what was to be supplied at courtoom 14.1?
A.I believe we did because it was the only ones we had ever provided."
Then when pressed by his counsel:
"Q.And was there any discussion between you and Mr Boyes at that time in relation to … in April of 2003 as to what this Matrix switcher would be used for?
A.Well, he would have understood …
Q.Well, no, what he would have understood. What did you say to him?
A.We have been given a job that is very urgent. Its for a very high profile case. It is the same system as the May Holman Centre. We need to have a bigger switcher that would be 24 x 24 or – I guess from that point we put it down to a – Ron helped – we weren't up to date with what he – Extron had in their catalogue. It was more we deferred that to him to say what would be appropriate and what would be available, more to the point, so it was – I left it up to him …"
He said that there was no further discussion between him and Mr Boyes with respect to the switchable capacity of 24 inputs and outputs because he said, "24 input, 24 output. There was – that's – it's a standard term".
He said that after the system was installed he realised that eight of the inputs had a switch that allowed 75 ohms or 510 ohms and the balance did not have that (capacity). He said that the defendant was meant to get 24 inputs that would have the switching capability so as to be able to switch from or to develop a 75 ohms circuit. That was what he expected.
He said it was two or three weeks after the system was physically bolted in that he became aware of this issue. Others in the employ of the defendant initially dealt with the plaintiff. He said that it was not possible to remove the 24 x 24 Matrix switcher and ancillary electronic componentry because the trial was ongoing and the Supreme Court would not allow any disruption.
It was not until January 2009 that the 24 x 24 Matrix switcher was removed and returned to the plaintiff and a new Matrix switcher having 24 input/24 output switchability was installed.
He said that the effect on the operation of the court of the 24 x 24 Matrix switcher was that it was necessary for the plaintiff to manually patch. He explained that the way that was accomplished was to physically unplug computers and extend cables so that computers could be manually patched.

If there had been total switchability the Associate could by touch cause what was being displayed on one computer to be displayed on the balance of the monitors. But because only eight of the computers could be serviced by the switchable facility it was then necessary for other computers to be patched manually in order that the images could be displayed.
The need to manually patch meant that although there was some opportunity to predict the course of evidence being given, generally speaking it was necessary for technicians to be at least on standby to undertake the manual patching required from time to time.
He said that whilst technicians were required to be on standby and manual patching was regularly undertaken during the course of this trial no records were kept by the defendant in respect to the attendances at the court or the time that was involved in this task.
In cross-examination Mr Routledge said that he did not have any file note of his telephone conversation of 10 April 2003 with Mr Boyes.
He was referred to his affidavit of 29 November 2004 in response to the plaintiff's application for summary judgment. He agreed that this was a very important step in the legal proceedings in the action and that he knew that it was very important for the defendant to put its best foot forward in respect to that application and for him to put forward his best story accurately, in his affidavit. He agreed that he made no reference in that affidavit to his telephone conversation with Mr Boyes on 10 April 2003.
Mr Routledge was then referred to the defendant's initial defence and counterclaim filed in this action in early February 2005 (Exhibit 2). He agreed that in that document there was again no reference to his telephone conversation with Mr Boyes on 10 April 2003 and that the representation relied upon by the defendant in that defence related to telephone conversations in May 2003 alleged to have been between Mr Hammond on behalf of the defendant and Messrs Boyes and Booth on behalf of the plaintiff.
He agreed that the first occasion that the telephone call of 10 April 2003 appeared in the defendant's pleadings was when the defendant filed the substituted defence and counterclaim dated 19 December 2008.
Mr Routledge said that between 2001 and late 2003 the defendant sold Extron products exclusively and was an Extron dealer. He said that the plaintiff was the Australian distributor for Extron.
He said that he had not personally sighted the Extron catalogues for 2001/2002 or 2002/2003.
He was referred to p 196 of the 2002/2003 Extron catalogue (Exhibit 12) under the heading "Sync" and agreed that with respect to the 2424 series (24 x 24) Matrix switchers reference was made to "inputs 1 ‑ 8 75 or 510 ohms, switchable; inputs 9 ‑ 32 510 ohms".
He agreed that that was what the catalogue said with respect to the 24 x 24 Matrix switcher and said that "I wish this was explained to us before". He was asked whether, had he consulted that catalogue at the time that the 24 x 24 Matrix switcher was ordered it would have been apparent to him that there were only eight switchable inputs, to which he agreed that he would have deduced that to be the case.
Mr Hammond gave evidence. He said that he was the general manager of the defendant and had been employed by the defendant since 1997. He said that he was involved in the installation by the defendant of the 12 x 8 Matrix switchers in the May Holman Centre.
He said that he had a discussion by telephone with a representative of the plaintiff, whose name he did not recall, before the 24 x 24 Matrix switcher was supplied for Court 14.1. He said that it was difficult to remember (who he spoke to) because it was so long ago. He said that in that discussion he requested pricing on a 24 x 24 Matrix switcher.
He said that the defendant had never previously installed a 24 x 24 Matrix switcher but many other 12 x 8s and other configurations.
There was then this exchange:
"And did you have any discussion about the previous installation with the person from RGB …? – No, I don't recall specifically discussing the May Holman Centre."
He was then asked what he said to the defendant's representative about the use for which the Matrix switcher to be supplied in the Supreme Court was required. He answered:
"That it was for – that it was for a courtroom – the courtroom installation and that we needed – that AVI needed more – it to have more inputs and more outputs and it was – it was actually suggested to me that there was a new model coming out which would meet that purpose and it had 425 meg band width which meant that it could support higher resolution images."
He was then asked:
"Was there any discussion as to the sync? – No, there wasn't, no. That was not raised at any time."
He said that pricing was then confirmed and a purchase order was placed. He said that as far as he recalled there was no manual with respect to the 24 x 24 Matrix switcher and he did not recall asking for a manual.
Mr Boyes gave evidence. He said that he was the managing director of the plaintiff. The plaintiff commenced business in December 1999 and was a distributor for Extron pursuant to which it distributed products to its dealers for re‑sale to end users. He said that in 2003 the plaintiff exclusively distributed Extron products to dealers, one of whom was the defendant.
He said that until the plaintiff commenced business he was employed by Gear House.
He said that he had known Mr Routledge for about 14 years. He said that when he was employed by Gear House he did not remember buying Matrix switchers for courtrooms in Perth in 1999. He said he had never heard of the May Holman Centre and he did not recall Gear House supplying Matrix switchers to the defendant for the purposes of District Court rooms in Perth.
He was referred to Exhibit 3 being a copy of an email from him to Mr Routledge dated 10 April 2003 under cover of which he attached a price list from Extron which included the 24 x 24 Matrix switch. He said that he thought Mr Routledge had telephoned him and having regard to the date of the email he said that that was possible. He said that he had no recollection of the conversation with Mr Routledge.
He said that there was no such thing as a 75 ohms input impedance industry standard.
In cross-examination he was referred to an Extron user manual in relation to a number of different CrossPoint Matrix switchers (Exhibit H).
He said that whilst the sync impedance according to that document was 75 ohms, it did not nominate whether it was the input or output impedance.
He said he did not recall a supply of Matrix switchers for the District Court rooms or the May Holman Centre in Perth and added that he was rarely informed of the end user of the equipment. He was not asked whether he had attended May Holman Centre as alleged by Mr Routledge.
He agreed that prior to 10 May 2003 the plaintiff had never supplied to the defendant a Matrix switcher that had specifications other than that which appeared on Exhibit H (p 5), but reiterated that reference to the sync impedance of 75 ohms did not specify whether it was input or output.
He agreed that when Mr Routledge contacted him in relation to the 24 x 24 Matrix switcher he sent to Mr Routledge a price list of all Matrix switchers.
In answer to a question as to whether he was aware at that time that Extron had changed some of the switchable capacities of any of those Matrix switchers in that price list he responded that they (Extron) continually improved their product over a series.
He said that he did not let Mr Routledge know of any change to specifications in respect to Matrix switchers listed in the price list and added that his company never gave information on product changes or updates or firmware updates because it happened continually.
He said he did not tell Mr Routledge which of the items in the price list were improved models or have any discussion with him in relation to those improved models and nor to his knowledge did Mr Routledge ask him whether there had been any changes to the Extron product line.
There was then this exchange:
"Q.Mr Routledge explained to you, did he not, what the purpose of the Matrix – the 24 x 24 Matrix switcher that he wanted for you was?
A.No. He requested a 24 x 24 RGBHV switcher and he needed it in a hurry so we obtained one as quickly as possible.
Q.But Mr Routledge has also explained to you that he wanted one similar to that that had previously been supplied, had he not?
A.No.
Q.He never said that to you?
A.No.
Q.Or is that you don't recall him saying that to you?
A.If that was part of the conversation on the telephone I do not recall that.
Q.So it's possible that he did say that to you but you just don't remember now?
A.Anything's possible."
He said that the first time that he became aware that the Matrix switcher was intended for installation in a Supreme Court room was well after the delivery of it.
It was put to him that all the Matrix switchers that he had supplied previously, or been involved in supplying previously to AVI, had inputs of the same termination arrangement with which he agreed.
In re-examination he said that as at 10 April 2003 if a person wished to find out the specifications for Extron Matrix switchers they could consult Extron's web site and use that model number to obtain the information or that information could have been obtained from a catalogue.
Mr Booth gave evidence. He was employed by the plaintiff and had been employed for approximately eight years in a role of technical support, product specialist. That was his role in the first half of 2003.
He has a degree in television production. He said that he worked for Channel 9 for a couple of years as a broadcast assistant and with Staging Connections setting up audio‑visual equipment, wiring, setting up monitors, and displays before being employed by the plaintiff.
He underwent various training courses with Extron in the United States and locally in Australia and in Singapore all with respect to audio‑visual theory, signal theory and provocation of signals.
He was shown a bundle of extracts from Extron catalogues from 1998 through to 2003 (Exhibit 9).
With respect to the 1998/1999 catalogue he was referred to the CrossPoint 1616 switcher (16 input, 16 output) and to the sync impedance which he said (from the catalogue) was that inputs 1 – 4 were switchable, 510 ohms or 75 ohms, inputs 5 – 16 were 510 ohms.
He was then referred to p 1 of that extract and asked what the sync input impedance was of the CrossPoint 128 HVA (the switches alleged to have been installed in the May Holman Centre) and said that all Extron CrossPoint Matrix switchers are 510 ohms on all inputs. He said that that was and is their normal impedance. He said the difference by reference to the 1616 was that inputs 1 – 4 were switchable between 510 and 75 (ohms) and said that:
"They've actually added some switches to allow you to choose between 75 and 510 instead of just being all 510."
He said that to his knowledge Extron have never made a Matrix switcher that had all the inputs switchable.
He said that one cannot, from the page of that catalogue referrable to the CrossPoint 128 HVA switcher ascertain the sync input impedance of that model because the catalogue did not actually list the input impedance, but the video input impedance at 75 ohms, so it was only the impedance of the video not the sync.
He was then shown the 1999/2000 catalogue with reference to the CrossPoint 128 switchers and said that with respect to input impedance inputs 1 – 4 were 75 ohms or 510 ohms switchable and inputs 5 – 16 were 510 ohms which was a progression from the earlier models where, he said, they were all fixed at 510 ohms.
As to the 2000/2001 catalogue he said that the input impedance for each of the 84 (which he said was 8 in, 4 out), 88 (8 in and 8 out), 124 (12 in, 4 out) and 128 (12 in, 8 out) series – was 510 ohms and there was no switching at all.
Below that there was reference to the 168 (16 in, 8 out) and 1616 (16 in, 16 out) in which inputs 1 – 4 were 75 ohms or 510 ohms switchable and inputs 5 ‑ 16 were all 510 ohms.
The same specification appears in the 2001/2002 catalogue.
Then in the 2002/2003 catalogue he identified the 24 x 24 Matrix switcher model in respect to which inputs 1 – 8 were 75 ohms or 510 ohms switchable and inputs 9 – 32 were all 510 ohms. He said that from his knowledge all inputs relating to the CrossPoint 128 HVA were 510 ohms.
He said that typically with CrossPoint switchers all inputs have since the Matrixs were built been 510 ohms inputs on the sync. The termination inputs were never anything else but that. When someone wished to accomplish a 75 ohms termination the accepted method was to use an adaptor on the input, which allowed one to terminate one end with a 75 ohms terminator which achieved the same result.
When Extron first started manufacturing Matrix switchers they only made them with 510 ohms inputs.
Subsequently, rather than having people add adaptors or use adaptors Extron decided to add switchers to make termination easier, but typically most source impedances were around 500 ohms and consequently the switchers were to enable switching from 510 ohms to 75 ohms to save using an adaptor.
To that end the addition of switchers was a development rather than, it seems to me on Mr Booth's evidence, a restriction.
Mr Booth also gave evidence as to the posting of the documents comprising Exhibit 11, which was a folder compiled by the plaintiff containing (inter alia) the 2001/2002 Extron catalogue, and Exhibit 12 which was the 2002/2003 Extron catalogue.
Exhibit 10 is a spreadsheet which was admitted into evidence pursuant to s 79C of the Evidence Act in respect to which Mr Booth gave evidence that a folder containing the material in Exhibit 11 was forwarded to each of the companies or businesses referred to. The number of folders sent are contained under the heading "Folders". As to the defendant three of those folders were forwarded to it. The date on the right‑hand side of the spreadsheet is the date upon which those folders were sent which in the case of the defendant was 3 August 2001.
He then said that in or about August of the following year Exhibit 12, being the Extron 2002/2003 catalogue, was forwarded to those companies to which the folder was forwarded in the preceding year. He said that he assisted in the mail‑out of the 2002/2003 Extron catalogue in August 2002. He said that the Extron 2002/2003 catalogue was sent to the defendant.
Mr Booth was shown Exhibit 13 which he identified as a notation made by him of a conversation which he had with Mr Hammond regarding the 24 x 24 Matrix switcher. He said that that conversation took place on or about 30 April 2003.
He said that Mr Hammond telephoned him. He said that reference in that note to "redundancy features" related to a backup power supply for the 24 x 24 Matrix switcher. He said that at that point in time the 24 x 24 Matrix switcher was in shipping but was not freely available because there were some issues with the redundancy. He said that he told Mr Hammond that if the defendant was prepared to take a unit without redundancy then it could be shipped immediately, but if the defendant wanted redundancy then the defendant would have to wait.
He said that the first time that he was aware that the defendant was engaged in the installation of any court related audio‑visual systems was when he responded by email to Drew of the defendant, on 22 May 2003 attaching information about a number of Matrix switches available at Extron for use in the courts of Albany.
He said that he was not aware that the defendant had acquired five Matrix switchers (128 HVA) from the company with whom Mr Boyes was previously employed.

Findings with respect to whether the representation was made

I do not accept that the representations (comprising the Representation) pleaded by the defendant in pars 4 and/or 5 of the substituted defence, set off and counterclaim were made.

10 April 2003

I accept that there was a telephone conversation between Mr Routledge and Mr Boyes on this date. That it was that date is demonstrated by Exhibit 1 being the email from Mr Boyes to Mr Routledge dated 10 April 2003 attaching a price list for Extron Matrix switchers including a 24 x 24 Matrix switcher.
When Mr Routledge, during the course of his evidence was pressed to relate the words spoken or the text of the words spoken in that telephone conversation he initially made no reference to the May Holman Centre (T 29) and then when asked specifically about whether there was any discussion between him and Mr Boyes by reference to what had happened at the May Holman Centre he said:
"Yes, I believe there was. I – I believe there was, 'the same as at May Holman Centre that you had visited' …"
And then in the further exchange:
"Q.Did you discuss the May Holman Centre – what had been installed at the May Holman Centre in the context of what was to be supplied at courtroom 14.1? –
A.I believe we did because it was the only ones we had ever provided …"
Those responses lacked certainty and in my view indicated some degree of reconstruction rather than mere semantics insofar as the words "I believe …" were concerned.
On the other hand, Mr Boyes said the plaintiff did not commence business until December 1999 and if there was any communication between him and Mr Routledge beforehand, it would have been when he was employed by Gear House.
He said that he had never before heard of May Holman Centre, he did not recall Gear House supplying Matrix switchers to the defendant for the purposes of District Court rooms in Perth and that he did not recall the supply of Matrix switchers for District Court rooms or May Holman Centre in Perth.
He said that he did not remember the conversation on 10 April 2003 but accepts that it was likely to have occurred given his email of 10 April 2003.
He denied that Mr Routledge explained what the purpose of the 24 x 24 Matrix switcher was for or that Mr Routledge explained to him that he wanted one similar to that which had previously been supplied.
It is true that in answer to the question "So it's possible that he did say that to you, but you just don't remember now?" he responded "Anything's possible", however that response does not have any probative value, it being merely speculative.
In addition, notwithstanding the obvious importance of this conversation on the defendant's case, there was no specific mention of it in Mr Routledge's affidavit (Exhibit 1) which was sworn 4½ years earlier than Mr Routledge gave evidence at this trial.
Further, there was no reference to that conversation in the defence and counterclaim filed on 2 February 2005.
I accept the evidence of Mr Booth that the catalogues of Extron for 2001/2002 and 2002/2003 were forwarded to and received by the defendant. The defendant was then a dealer in Extron products. I do not accept that Mr Routledge relied on Mr Boyes to advise him of the appropriate switcher for the configuration of the requirements of count 14.1. There was no evidence that Mr Boyes is alleged to have been told of that configuration. That highlights the unlikelihood that the conversation as Mr Routledge contends too place. There is no evidence which led me to accept that Mr Boyes had any more knowledge of the Extron products than did Mr Routledge.
Where there is any inconsistency between the evidence of Mr Routledge and the evidence of Mr Boyes I accept the evidence of Mr Boyes. I do not accept that any mention was made by Mr Routledge to Mr Boyes in that telephone conversation of the supply of Matrix switchers to the May Holman Centre or the District Court in or about 1999 or the purpose for which the defendant required a Matrix switcher viz Court 14.1 or any courtroom in the Supreme Court.

May 2003

Whilst I accept that there was a telephone conversation between Mr Hammond and Mr Booth on 30 April 2003, I do not accept that that conversation contained any reference at all to switchable inputs enabling all 24 inputs to be switchable between impedance levels of 75 and 510 ohms.

Mr Hammond said that it was difficult to remember to whom he spoke because it was so long ago. He said what he did recall was a conversation where he requested pricing on 24 x 24 RGBHV, the 24‑way Matrix switcher.
He said that he did not recall specifically discussing the May Holman Centre.
He said that he told the person to whom he spoke that the switcher was for a courtroom installation and that the defendant needed more inputs and more outputs in respect to which it was suggested to him by that representative that there was a new model coming out which would meet that purpose. He said that there was no discussion as to the sync.
Mr Boyes said that he did not have any discussion with Mr Hammond and I accept that he did not. Mr Booth gave evidence that he had a discussion with Mr Hammond on 30 April 2003 the substance of which I have recited above. Mr Booth said that there was no discussion in that conversation about the purpose for which the 24 x 24 Matrix switcher was required.
Mr Booth made a note of his conversation with Mr Hammond which was Exhibit 13. I accept the evidence of Mr Booth. I accept that Mr Hammond's recollection was, as he admitted, not clear having regard to the time which had past from the date of that conversation to the date upon which he gave evidence.
In any event even if I was to accept the evidence of Mr Hammond, that evidence does not bear out the terms of the representation pleaded in par 5 of the substituted defence, set off and counterclaim, because at best that evidence was to the effect that Mr Hammond made reference to the defendant needing more inputs and more outputs for a courtroom installation.
My finding that the Representation relied on by the plaintiff was not made necessarily results in the claims made by the defendant in the substituted defence set-off and counterclaim not being made out.
As a consequence there will be judgment for the plaintiff against the defendant for the sum of $46,836.90 together with interest at 6 per cent per annum pursuant to the provisions of s 32 of the Supreme Court Act calculated as and from 10 September 2003 to judgment. The counterclaim is dismissed.
I will hear from the parties in respect to the issue of costs including any costs which may have been reserved during the course of these proceedings.

Provisional findings and assessment of damages

If, in other proceedings, it is determined that I am wrong in my findings that the Representation was not made then I make the following findings.
The representation was not a contractual promise such that it formed part of the agreement in that it was not promissory in nature (Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 at 61 and the cases there cited).

Conversation on 10 April 2003

(a)This telephone conversation took place approximately 1 month prior to the purchase order being issued. There is no evidence that the substance of the conversation alleged between Mr Routledge and Mr Boyes was repeated or referred to after 10 April 2003 and before the purchase order was issued.
(b)No reference was made in the purchase order to this conversation and the words which are alleged to have constituted the representation on that occasion.
(c)On the evidence there was no statement made by Mr Boyes to the effect that the plaintiff guaranteed a switchable capacity on all inputs on the 24 x 24 Matrix switcher.
(d)The words alleged by Mr Routledge to have been spoken by Mr Boyes were not precise so as to be in terms that were promissory.
(e)The defendant had access to the specifications of the 24 x 24 Matrix switcher from the Extron website and, as I have found, from the 2002/2003 Extron catalogue.
(f)Whilst it is the case that the plaintiff was the Australian distributor of Extron products at the relevant time, the defendant was an Extron dealer.
(g)The fact that the telephone conversation on 10 April 2003 was not referred to by Mr Routledge in his affidavit of 29 November 2004 or in the defence and counterclaim first filed by the defendant in February 2005 underscores the lack of importance which the defendant placed on that conversation and the unlikelihood that the words spoken were objectively understood to have been promissory in character.

30 April 2003

The evidence given by Mr Hammond was not to the effect pleaded in par 5 of the substituted defence set off and counterclaim. Mr Hammond gave evidence that his conversation with the (unnamed) representative of the plaintiff Mr Hammond requested pricing on a 24 x 24 Matrix switcher, he did not recall discussing the May Holman Centre, there was no discussion as to the input sync impedance and the extent to which reference was made to a courtroom installation was that he said that he told that representative that the Matrix switcher was for a courtroom installation and the defendant needed to have more inputs and more outputs, there being no reference to switchability.
In any event, I am not satisfied on the evidence that the 128 HVA Matrix switchers installed in the District Court rooms in the May Holman Centre had switchability on each input. To that end:
(a)There was no material in the form of a catalogue or the like in evidence which might relate to the switchable capacity of the 128 HVA Matrix switchers available in 1998/9. The 1998/1999 catalogue (Exhibit 9) does not refer to the input sync impedance being switchable and the 1999/2000 catalogue refers to the 128 HVA switchers being suitable only on inputs 1 – 4.
(b)Mr Routledge gave evidence that in the May Holman Centre each input was identical. He said that each of the 12 inputs were able to develop a 75 ohms circuit by way of a switch that switches that feature on (T30). On the other hand Mr Booth gave evidence that to his knowledge no switcher which had been manufactured by Extron had an entirely switchable capacity.
(c)Although Mr Routledge said that Mr Boyes had visited May Holman Centre in relation to the installation of the 128 HVA switchers in or about 1999, Mr Boyes was not questioned on that issue and in any event said that he had not previously heard of the May Holman Centre.

Damages

Had the defendant established its claim for breach of the agreement pleaded by it, the damages, to which it would have been entitled are, in my view, as follows.
The defendant filed a schedule of damages dated 14 May 2009 referable to the plea in par 14 of the substituted defence set off and counterclaim.
1.(a) Administration and site attendances (par 14(a) and (b)) in the sum of $20,700 – provision of technicians at Court 14.1 to facilitate manual patching of signals.
The evidence from Mr Routledge (T 41) was that the defendant did not consider that item to be a chargeable item to its customer and so records were not kept by way of job sheet or otherwise. He said that there were a number of persons, including him, employed by the defendant who were required to be on site for this purpose.
(b)Mr Alexander Wade gave evidence. He is the business development manager for the defendant having been employed by the defendant in 2005.
(c)He said that he was first involved with the installation of electronic componentry in Supreme Court room 14.1 when he was State manager of Spark & Cannon and subsequently as business development manager for the defendant.
(d)There was no evidence given by Mr Wade with respect to the claim under this head of $20,706.10 nor was there any evidence given by Mr Routledge with respect to this claim. This claim is not made out.
2.Cost of Matrix switcher (May Holman Centre) withheld by the plaintiff from the defendant in the sum of $9,088.25. This claim is not pursued by the defendant.
3.The cost to the defendant of a replacement Matrix switcher in the sum of $50,892.50 exclusive of GST (par 14(d)):
(a)Mr Routledge gave evidence that the 24 x 24 Matrix switcher was returned to the plaintiff at the earliest opportunity once the Bell Resources trial was completed. The 24 x 24 Matrix switcher was removed and replaced with a unit manufactured by Kramer. Mr Routledge said that he sought quotes from competitors and selected the Kramer Matrix switcher having regard to the capability of the switcher and its ability to integrate into the existing system.
(b)The sum claimed by the defendant is $50,892.50 exclusive of GST. Exhibit B is an invoice from Kramer for a 32 x 32 3 chan/2 sync switcher in the total sum of $44,715. Exhibit A is the defendant's job sheet in which this item is included and in respect to which it is marked up by the defendant by 20 per cent. There was no evidence before me as to why the sum was marked up by the defendant. There is no evidence that the loss to the defendant was any more than the price paid by it for the replacement switcher. That is the extent of the claim capable of being maintained by the defendant.
(c)There was no evidence led by the plaintiff that a Matrix switcher has a particular lifespan or would be likely to be upgraded in any event – having regard to the fact that the 24 x 24 Matrix switcher had been utilised in Court 14.1 for six years or so. In my view the defendant would bear the evidentiary burden of adducing evidence if it wished to contend that the price for the replacement switcher was unreasonable. It has not done so. The sum of $44,715 is the appropriate amount under this head.
4.In respect of par 14(e):
(a)The cost to the defendant of airfares and accommodation to facilitate the attendance of the software engineer. To that end Mr Routledge said that Mr John White of White Noise was a programmer engaged to change the software to accommodate the replacement switcher. The cost of his airfare is Exhibit D and is the sum of $1,360.79 including GST. In Exhibit 1 the defendant has again marked up the airfare, this time by 25 per cent which I do not consider recoverable. The defendant would not be entitled to any sum greater than the cost to it viz $1,360.79.
In addition, accommodation costs for Mr White totalled $690 which is a recoverable sum. The mark-up claimed by the defendant is not.
(b)The cost to the defendant of a software developer to integrate the replacement for the 24 x 24 Matrix switcher being $7,500 exclusive of GST. Exhibit E is an invoice from White Noise Products for the sum of $6,600 inclusive of GST. The mark-up of 20 per cent in Exhibit 1 is not allowed. The sum of $6,600 is the extent of the loss to which the defendant is entitled.
(c)The cost to the defendant of the removal of the 24 x 24 Matrix switcher and the installation of the replacement for the 24 x 24 Matrix switcher including but not limited to administration, labour, testing and the commissioning of the replacement Matrix switcher being $8,855 exclusive of GST.
In this regard the defendant relies upon the evidence of Mr Wade who said that the company's employees recorded their activities on a daily basis and once that entry was recorded that database was used by the defendant to raise timesheets.
The relevant timesheet is then transposed to a job sheet being Exhibit A.
Mr Wade said that the installation of the replacement switcher commenced on 5 January 2009, system testing commenced on 7 January 2009 and concluded on that day. A further round of testing was conducted on 12 January 2009. The system was finished and operational on 12 January 2009.
In the job sheet, namely Exhibit A, the work activities are recorded as commencing on 28 November 2008 and being completed on 2 July 2009.
At best, on the evidence, the period 5 January 2009 – 12 January 2009 appears relevant.
There is no breakdown of the work undertaken by the named workers. In addition their time has been charged out at a particular rate about which there is no evidence.
I can only assume that these persons were employees. Prima facie the hourly rate ought to be commensurate with their salary, i.e. the actual cost to the defendant. In the event that the defendant wishes to allege that these employees were deployed for this task which resulted in them not being able to charge out at a particular rate on other work for which the defendant was then engaged over that period, evidence would need to have been adduced by the defendant in that regard. There is none. I cannot speculate as to the cost to the defendant and cannot therefore make any assessment with respect to this head and it is not allowed.
(d)Cost to the defendant of components required for the installation for the replacement Matrix switcher being $667.67 exclusive of GST.
There was no invoice raised nor any evidence relating to this item. There is a charge of $500 plus a 25 per cent mark-up in Exhibit A, however there was no evidence nor indication in the job sheet as to how that amount was calculated. There is no invoice which would indicate that the sum was charged by a contractor.
In those circumstances this sum is not recoverable.
As a consequence, the damages to which the defendant would have been entitled if it had made out its set‑off and counterclaim would be:
A.Replacement switcher  $44,715.00
B.Airfares and accommodation for John White         $2,050.79
C.White Noise   $6,600.00
Total$53,365.79