RISC Pty Ltd v Helix Well Technologies Pty Ltd - [2002] WADC 92

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: RISC PTY LTD -v- HELIX WELL TECHNOLOGIES PTY LTD [2002] WADC 92

CORAM: REGISTRAR KINGSLEY

HEARD: 13 & 20 MARCH 2002

DELIVERED : 14 MAY 2002

FILE NO/S: CIV 3127 of 2001

BETWEEN: RISC PTY LTD (ACN 065 389 497)
Plaintiff
AND
HELIX WELL TECHNOLOGIES PTY LTD (ACN 090 839 973)
Defendant

Catchwords:

Practice - Application pursuant to O 14 Rules of the Supreme Court - Turns on own facts

Legislation:

Trade Practices Act

Result:

Application dismissed

Representation:

Counsel:

Plaintiff: Mr D K Cooper
Defendant: Mr M Van Brakel

Solicitors:

Plaintiff: Price Sierakowski
Defendant: Clayton Utz

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

Fieldrank Ltd v E Stein [1961] 1 WLR 1287
Webster v Lampard (1993) 177 CLR 598

Case(s) also cited:

AWA Ltd v Exicom Australia Pty Ltd (1990) 19 NSWLR 705
Axel Johnson Petroleum AB v M G Mineral Group AG [1992] 2 All ER 163
Bateman v Slatyer (1987) 71 ALR 553
Brickhill v Cooke [1984] 3 NSWLR 396
Clark Equipment Australia Ltd v Covcat Pty Ltd (1987) 71 ALR 367
Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18
D Galambos & Son Pty Ltd v McIntyre (1974) 5 ACTR 10
Elders Trustee & Executor Co Ltd v E G Reeves Pty Ltd (1987) 78 ALR 193
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 2 FCR 82
Grimwade v Beresford (1974) 9 SASR 157
Henderson v Merrett Syndicates Ltd [1995] 2 AC 145
Industrial Equity Ltd v Blackburn (1977) 137 CLR 567
Maritime Stores Ltd v HP Marshall & Co Ltd [1963] 1 Lloyd's Rep 602
Mid Density Developments Pty Limited v Rockdale Municipal Council (1993) 44 FCR 290
Montgomerie v United Kingdom Mutual Steamship Association Ltd [1891] 1 QB 370
Mutual Life & Citizens Assurance Co Ltd v Evatt (1968) 122 CLR 556
Olsson & Anor v Dyson (1969) 120 CLR 365
Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191
Petersville Limited v Rosgrae Distributors Pty Ltd & Ors (1975) 11 SASR 433
San Sebastian Pty Ltd & Anor v Minister Administering the Environmental Planning and Assessment Act 1979 & Anor (1986) 162 CLR 340
Silverton Ltd v Harvey & Anor [1975] 1 NSWLR 659
Walker v Wimborne & Ors (1976) 137 CLR 1

REGISTRAR KINGSLEY: The plaintiff pleads that it is a company incorporated in Western Australia carrying on the business of providing consulting services to oil and gas industries. The defendant is a company incorporated in New South Wales and carries on the business of providing well engineering consulting services to oil and gas industries. The plaintiff pleads that in or about October 2000 to August 2001 the plaintiff was retained by the defendant by an agreement, partly oral and partly written, to provide services and secure software for the defendant in relation to an oil and gas project known as the Zhongyuan Oilfield Redevelopment Project (“the project”). The plaintiff pleads that in accordance with the agreement, and at the direction of the defendant, the plaintiff provided services to the defendant including the procurement of software particulars of which have been contained in invoices. The plaintiff pleads that it issued invoices for services rendered to the defendant, or, at the direction of the defendant, issued invoices to the defendant’s ultimate holding company Helix Well Technologies Ltd ("Helix-UK"), a company with its office in London. The plaintiff details the invoices rendered and then pleads at par 13 that the defendant has despite demand refused to pay three invoices totalling $79,489.15 together with $7,948.91 GST.
On this pleading the plaintiff has brought an application pursuant to O 14 Rules of the Supreme Court. The plaintiff’s application is supported by an affidavit sworn by Geoffrey Joel Barker, a director of the plaintiff company.
In his affidavit sworn 22 January 2002 Barker deposes that he met with Roy Hartley for the defendant in October 2000. Hartley requested Barker to arrange for the plaintiff to provide services for the defendant. Barker goes on to depose that the plaintiff provided services and software to the defendant during the period October 2000 to August 2001. The services provided to the defendant were invoiced to either the defendant or to Helix-UK. Barker deposes that only the last three invoices have not been paid - all the other invoices have been paid without comment. Barker deposes that the defendant has not, at any time, indicated that it is dissatisfied with the services or software provided by the plaintiff.
The defendant opposes the application and in an affidavit sworn by Roy Hartley on 18 February 2002 at par 7 Hartley deposes to three grounds of defence and an equitable set-off and counterclaim against the plaintiff. Hartley deposes that:
"(a)The Defendant was, at all times, acting as an agent on behalf of its principal, Helix Well Technologies Limited ("Helix-UK").
(b)Alternatively if there was a contract between the plaintiff and the defendant it was agreed by all parties in May 2001 that Helix-UK be substituted in place of the defendant.
(c)Regardless of the agreement the services were provided for the benefit of a party other than the defendant and the defendant is under no obligation to pay for the services.
(d)If there was an agreement the defendant has an equitable set-off and counterclaim in that the plaintiff failed to exercise reasonable care and skill in the performance of its services and as a result the defendant has suffered loss."
Hartley is the director, Australia and Asia, of the defendant. Hartley deposes at par 12 that he was authorised to act as an agent of Helix-UK. At all times with his dealings with the plaintiff he stated that he was acting on behalf of and reporting to Helix-UK.
Hartley at par 14, deposes that in November 2000 he arranged for the invoices submitted by the plaintiff to be paid by forwarding them to Helix-UK, requesting Helix-UK to transfer funds to Australia to cover the payment. At par 15 Hartley deposes that arrangement took place until May 2001. In May 2001 the financial director of Helix-UK then instructed Hartley to arrange for all invoices to be sent to Helix-UK. Hartley deposes that he spoke to Barker by telephone and requested that all future invoices be sent direct to Helix UK and that GST not be charged.
Barker in his second affidavit deposes at par 6 that he did not discuss nor did he consider changing the party with whom they were dealing when the request was made by Hartley in June 2001. Barker did not consider that the request made by Hartley to change the addressee of the invoices as being intended to constitute a change of contracting parties. An examination of the invoices from 30 November to 31 May 2001 shows that the client is Helix Well Technology of 50 Ord Street, West Perth. There is a credit note of 26 June 2001 where the client is stated to be Helix Well Technology of 50 Ord Street, West Perth. All the invoices up to 31 May 2001 have been paid. There is a second invoice dated 31 May 2001 numbered 2000-135 which is directed to the client Helix Well Technologies Pty Ltd with an address in Aberdeen. Again that invoice has been paid except for the sum of $650.00. Invoices from 13 July 2001 numbered 2001-001 directed to Helix Well Technologies Pty Ltd or Helix Well Technologies Ltd have not been paid.
The principles applicable to an application pursuant to O 14 Rules of the Supreme Court are clear. The jurisdiction conferred must be exercised with great care in order the defendant not be shut out from defending unless it is clear there is no real question to be tried. Fieldrank Ltd v E Stein [1961] 1 WLR 1287 is authority for the proposition that leave to defend ought not be given where patently there is no defence on the law and no possibility of a real defence on the facts. Unless the facts are shown to be so inherently incredible, then it must be assumed that the facts, so far as they are in dispute, favour the respondent (Webster v Lampard (1993) 177 CLR 598).
Barker states that at all times his dealings were with Helix-Australia and whilst it may be normal practice that regional companies such as Helix-Australia have reporting lines back to their overseas parent, this does not reduce the subsidiaries management obligations and authorities. Hartley in his affidavit deposes that he had stated to Barker, and others of the plaintiff, that he was acting on behalf of, and reporting to, Helix-UK. This contention is disputed by Barker.
The central issue is; with whom was the plaintiff dealing. This is not a question that can be answered on affidavit evidence. There is a conflict between the parties. Barker deposes at par 5 and par 13 of his second affidavit that he dealt directly with Hartley and that Hartley did not state he was acting on behalf of Helix-UK. Hartley in his affidavit states at par 12 that he informed Barker he was acting as agent. It is not inherently incredible to have accounts rendered to Helix-Australia for on forwarding to - or payment by - Helix-UK. Arguably it may well be that Helix-Australia was only the agent for Helix-UK. There then being a disclosed principal there is a real issue who is the proper defendant.
Accordingly I am of the opinion that on the evidence before me there is a dispute as to the proper defendant.
There was much argument in relation to a set-off, and issues of novation, negligent misstatement and breach of the Trade Practices Act. In my opinion these arguments amount to nothing; the central question has first to be dealt with. That being the case leave to defend ought to be given and that leave be unconditional.
In the circumstances I am of the opinion that the costs ought be costs in the cause.