Roll Form Industries Pty Ltd v WBE Engineering Group Pty Ltd

DISTRICT COURT OF QUEENSLAND

CITATION:

Roll Form Industries Pty Ltd v WBE Engineering Group Pty Ltd [2012] QDC 333

PARTIES:

ROLL FORM INDUSTRIES PTY LTD
(applicant/plaintiff)

v

WBE ENGINEERING GROUP PTY LTD
(respondent/defendant)

FILE NO:

2787/12

DIVISION:

Civil

PROCEEDING:

Application for Summary Judgement

ORIGINATING COURT:

Brisbane

DELIVERED ON:

7 November 2012

DELIVERED AT:

Brisbane

HEARING DATE:

15 October 2012

JUDGE:

Robin QC, DCJ

ORDER:

Application dismissed

CATCHWORDS:

Uniform Civil Procedure Rules r 292

Claim for price of goods (or damages for non-payment) - defence based on alleged overcharging of defendant and of the previous owner of the business supplied in respect of transactions going back years - whether very late deed of assignment of its rights by previous owner to defendant was valid.

COUNSEL:

Mr M. D. Martin for the applicant

Mr D. Atkinson for the respondent

SOLICITORS:

Shand Taylor Lawyers for the applicant

Wonderley & Hall Solicitors for the respondent

1. Before the court is the plaintiff’s application for summary judgment pursuant to r 292 which was filed on 27 December 2012. It seeks judgment for $201,345.88 plus interest and costs on the indemnity basis. In the alternative it is sought that most of the defence and counterclaim be struck out under r 171.

1. The plaintiff has proceeded expeditiously, its claim for that amount for breach of contract, in the alternative money due and owing for goods sold and delivered on various dates from January to April this year, having been issued on 13 July 2012.  What is sued for is the balance of invoice prices, less $31,770.91 paid on 20 June 2012.

1. By admitting paragraphs 6 and 14 of the Statement of Claim, the defence effectively admits that the relevant goods were delivered.  It was filed with the notice of intention to defend on 21 August 2012.

1. The substantive defence, pleaded in terms of “entitlement to restitution” is that the plaintiff has overcharged (and been paid accordingly) for goods earlier supplied to the defendant, and, indeed, before that supplied from a date in 2009 to 1 July 2011 to a company called Waterbrook Enterprises Pty Ltd at a business it operated in Perth.  The “Perth premises” are pleaded to have commenced operations around 2008, by way of expansion of a long established business called “WBE Engineering” based in Brisbane.  It is pleaded that early in 2009 the plaintiff indicated it would seek slightly higher prices for goods supplied to Perth and that Waterbrook agreed.  A new pricelist published in February 2009 reflected the increase which came to be charged and paid for.

1. The defence refers to two later pricelists which did not provide for special pricing for Perth.  The plaintiff continued to charge (and receive) higher prices for goods supplied to Perth.  It is asserted that at relevant times, the Brisbane rate should have applied to supplies to Perth, that Waterbrook and the defendant have paid $334,305.50 more for supplies to Perth than the plaintiff was entitled to.  The defence contains the following:-

“Entitlement to restitution

20.At no…