Roy Galvin and Co Pty Ltd v Ives
[2009] WADC 178
•18 NOVEMBER 2009
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: ROY GALVIN & CO PTY LTD -v- IVES [2009] WADC 178
CORAM: REGISTRAR KINGSLEY
HEARD: 20 OCTOBER 2009
DELIVERED : 18 NOVEMBER 2009
FILE NO/S: CIV 164 of 2009
BETWEEN: ROY GALVIN & CO PTY LTD (ACN 008 719 408)
Plaintiff
AND
BENJAMIN WILLIAM IVES
Defendant
Catchwords:
Practice - Application for summary judgment - Turns on own facts
Legislation:
Nil
Result:
Application allowed
Judgment for the plaintiff
Representation:
Counsel:
Plaintiff: Mr Machlin
Defendant: In person
Solicitors:
Plaintiff: Machlins Lawyers
Defendant: Not applicable
Case(s) referred to in judgment(s):
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Jones v Stone [1894] AC 122
Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109
REGISTRAR KINGSLEY: The plaintiff's claim against the defendant arises out of an agreement dated 23 June 1999 ("the agreement") whereby the plaintiff, at the request of the defendant, agreed to sell, and the defendant agreed to purchase from the plaintiff from time to time, goods on credit. Pursuant to the agreement the plaintiff delivered various goods of a plumbing nature which, in the end, totalled $80,922.92. The plaintiff claims this amount together with interest and costs.
The plaintiff has brought an application pursuant to O 14 Rules of the Supreme Court 1971 ("RSC") and that application is supported by the affidavits of Joshua Jupp sworn 4 June 2009, 12 August 2009 and 17 September 2009, and the affidavit of David Galvin sworn 12 August 2009.
The defendant, who appeared in person, has opposed the application and filed an affidavit sworn 7 July 2009.
Consistently from the memorandum of appearance, and in Ives' affidavit sworn 7 July 2009, Ives has stated that it is not he personally who owes the money but a company Exodus Plumbing Pty Ltd. Ives deposes that upon leaving his father's company, Kenworthy Plumbing in June 1999, Ives traded under his personal name Benjamin William Ives. Ives deposes that he personally ceased trading in 2001 and appears to suggest he began as an employee of Exodus Plumbing Pty Ltd in 2001.
Exodus Plumbing Pty Ltd is a proprietary company limited by shares that started on 18 June 2001 and the sole director is Benjamin William Ives.
The business name Exodus Plumbing was first registered in July 2001 and ceased in September 2003. The person carrying on the business was shown to be Benjamin William Ives.
Benjamin Ives on 23 June 1999 made an application for a 30 day credit account with the plaintiff. The application is in the name of the defendant only. Jupp, in his affidavit of 12 August 2009, deposes that upon a review of the plaintiff's records there is no reference to the company Exodus Plumbing Pty Ltd. In fact, the existence of Exodus Plumbing Pty Ltd only came to the plaintiff's attention in January 2009 when these legal proceedings were being instituted. Jupp goes on to depose that the plaintiff's tax invoices for goods supplied to the defendant were made out in the name of Exodus Plumbing the business name. In or about November 2000 the plaintiff received notification from the defendant, under a notice headed Exodus Plumbing, of the name, fax number and postal address of Exodus Plumbing.
Jupp deposes in his affidavit of 17 September 2009 that whilst there was notification of change of address by the defendant there has been no notification of the entity Exodus Plumbing Pty Ltd. As Jupp deposes, the plaintiff's trading arrangements were with the defendant personally and not with any other entity or company.
The summary judgment procedure is a peculiar proceeding intended only to apply to cases where there can be no reasonable doubt that a plaintiff is entitled to judgment. The power to order final judgement is one that should be exercised with great care and should never be exercised unless it is clear that there was no real question to be tried (Jones v Stone [1894] AC 122 and Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87).
Where a plaintiff has satisfied all the requirements of O 14 to give it a prima face right to an order in the terms asked, the burden shifts to the defendant to satisfy the court why judgment should not be given against him. The defendant must show, by affidavit or otherwise, there is some triable issue in fact or law, and the defendant's affidavit must condescend upon particulars by giving such facts as point to the basis upon which the defendant alleges its right to defend arises (Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109).
From the evidence contained in the affidavits of Jupp it is clear that the defendant made an application for credit in his name. During the course of his dealings with the plaintiff, the defendant notified the plaintiff of the existence of the trading entity Exodus Plumbing. Thereafter Exodus Plumbing, through the defendant, notified the plaintiff of various changes of address. In my opinion, the plaintiff has satisfied all the requirements of O 14 to give it the prima face right to an order in the terms asked. That being the case, the burden shifts to the defendant to show why judgment should not be entered.
In my opinion, the affidavit of Ives sworn 7 July 2009 does not disclose any evidence to discharge that prima face right. There is no evidence by the defendant that the trading relationship between he and the plaintiff changed from himself personally to Exodus Plumbing Pty Ltd. There is no evidence by the defendant, nor disclosed by the plaintiff, that there is notification by the defendant of a change in entity.
Accordingly, I am not satisfied that the defendant has discharged his burden and accordingly enter judgment in the sum of $78,047.88 together with interest and costs of the action and the application.
I leave it to the Taxing Officer to determine whether the number of affidavits filed by the plaintiff was reasonable and necessary in the circumstances.
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