Salena Estate Wines Pty Ltd v Devito
[2005] SASC 274
•20 July 2005
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
SALENA ESTATE WINES PTY LTD v DEVITO & ANOR
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Perry and The Honourable Justice Sulan)
20 July 2005
PROCEDURE - INFERIOR COURTS - SOUTH AUSTRALIA - DISTRICT COURT
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - CONSTRUCTION AND INTERPRETATION OF CONTRACTS - OTHER MATTERS
Dispute as to the terms of an oral agreement - appellant alleged an oral agreement with the respondents that the appellant would process grapes delivered by the respondents and sell the wine produced therefrom on behalf of the respondents - the appellant was to receive payment for storage and production costs plus a margin for profit - payment was due to the respondents upon sale of the wine - respondents alleged that the agreement was a binding contract for the sale of grapes - trial judge acknowledged an inconsistency between the evidence of the respondent Mr Devito and the respondents' pleadings - the inconsistency was not put to the respondent in cross-examination - the respondent Mrs Devito was not called as a witness - the judge concluded that there was a contract for sale of grapes - he accepted Mr Devito's evidence and rejected the evidence on behalf of the appellant.
Whether the judge erred in finding that the contract between the appellant and respondents was a contract for the sale of grapes - whether the judge erred in not finding that the respondents' pleading was evidence of an admission of a contract in terms contrary to the terms alleged by the respondent Mr Devito in his evidence - whether Rule 46A.02(e) of the District Court Rules requiring a legal practitioner to provide certification verifying the pleading has the effect of elevating the pleading to a statement verified on oath by a party - appeal dismissed.
Corporations Act 2001 s 459E (2)(e), s 459G; Wine Grapes Industry Act 1991 (SA) s 5, s 6, s6(3); District Court Rules r 46, r 46A.02, r 47, referred to.
Boileau v Rutlin (1848) 2 Ex 665; 154 ER 657; Jones v Nuske (2003) 227 LSJS 331; Pearce v Hall (1989) 52 SASR 568, considered.
SALENA ESTATE WINES PTY LTD v DEVITO & ANOR
[2005] SASC 274Full Court: Doyle CJ, Perry and Sulan JJ
DOYLE CJ: I would dismiss the appeal against the judgment of the District Court. I agree with the reasons given by Sulan J, and those given by Perry J, for so deciding.
PERRY J: In my view the appeal should be dismissed.
I agree in substance with the reasons of Sulan J.
The case came down to a question of credit, more particularly as between the evidence of Mr Devito on the one hand and Mr Franchitto on the other.
The trial judge referred to a number of objective features of the dealings between the parties, which tended to support the account given by Mr Devito. Quite apart from those matters, he observed that Mr Devito was “not shaken in cross-examination”, and that he “gave no reason to disbelieve his evidence”.
On the other hand, he said that Mr Franchitto “… was not a good witness. He was argumentative and evasive. His evidence in cross-examination on the important issues was vague”.
The trial judge had the advantage of seeing and hearing the witnesses, and no case has been made out on appeal to interfere with his findings as to credit.
Faced with the difficulties associated with overturning the trial judge’s assessment of the witnesses, on the hearing of the appeal, Salena Estate Wines Pty Ltd (“Salena”) attempted to elevate the somewhat ambiguous pleading in paragraph 4 of the plaintiff’s statement of claim into some sort of evidentiary admission which was not accorded appropriate weight by the trial judge.
The argument was based on a strained interpretation of the words used. In any event, the argument fails for the reasons given by Sulan J.
SULAN J: Anthony Dominic Devito and Paulette Enid Devito, the respondents, are orchardists who grow grapes in the Waikerie area in the Riverland in South Australia. They were plaintiffs in the action. They carry on their business under the business name Devito Enterprises, and I shall refer to them as Devito Enterprises. Salena Estate Wines Pty Ltd (“Salena”), the defendant in the action and appellant in this appeal, carries on a business of wine making near Berri.
Devito Enterprises customarily harvest their grapes between March and April each year. Over the years, they sold their grapes to various wineries in the area. The wineries paid for grapes by the tonne upon delivery. The usual practice was for the grower to negotiate a price for grapes with a winery, or wineries, in about January of each year. The grower would deliver grapes in about March or April of that year. The grower was provided with weighbridge dockets upon delivery, and commonly that was the only written document which evidenced the quantity of grapes delivered.
In 2001, Devito Enterprises had contracted with Southcorp Limited (“Southcorp”) for the sale of grapes. Prior to the harvest, Southcorp merged with Rosemount. Rosemount was not prepared to take all the grapes grown by Devito Enterprises. As a consequence, in about March 2001 Mr Devito contacted Mr Franchitto, the Managing Director of Salena.
Mr Devito and Mr Franchitto discussed the purchase by Salena of Devito Enterprises’ grapes. At that time, Devito Enterprises had different varieties of grapes available, including Shiraz, Merlot, Cabernet Sauvignon, and Petit Verdot. According to Mr Devito, Mr Franchitto agreed to purchase the Shiraz grapes at $800 to $850 per tonne, depending on the sugar content. Mr Franchitto agreed to purchase the other varieties, namely, the Merlot, Cabernet and Petit Verdot, to which I shall refer as the “disputed grapes”, at $700 per tonne, on condition that payment would be made in September or October 2001. It was agreed that Devito Enterprises would deliver the grapes on a Friday night, or a weekend, to avoid interfering with the processing by Salena of other grapes. Accordingly, grapes were delivered by Devito Enterprises to Salena over a period of some weeks. Weighbridge dockets were provided in respect of those deliveries.
There is no dispute that during March and April 2001 Devito Enterprises delivered 284.55 tonnes of Shiraz grapes, 363.11 tonnes of Merlot grapes, 182.48 tonnes of Cabernet Sauvignon grapes, and 46.92 tonnes of Petit Verdot grapes to Salena. There is no dispute that Salena had agreed to pay Devito Enterprises $800 per tonne for the Shiraz grapes.
The dispute between the parties, and the issue at trial, related to the terms of any agreement in respect of the disputed grapes. Salena denied that Mr Franchitto had agreed to purchase the disputed grapes. Mr Franchitto gave evidence that there was no sale, but that there was a contract pursuant to which Devito Enterprises were to deliver the disputed grapes and Salena agreed to process them, store the wine and sell it on Devito Enterprises’ behalf. No payment was required until the wine had been sold. Mr Franchitto contended that there was no agreement that Devito Enterprises would receive $700 per tonne for the disputed grapes. Mr Franchitto gave evidence that the agreement was that Salena would process the grapes and charge Devito Enterprises for processing, and possibly storage. Salena would sell the wine, retain the production costs plus a margin for profit, and pay the balance to Devito Enterprises. It was only when the wine was sold that Salena was liable to make any payment. Mr Franchitto told Mr Devito that if the wine could be sold at $2 per litre Devito Enterprises could expect to receive $700 per tonne for the disputed grapes. Salena processed the grapes, and was able to sell the Merlot over a number of months. No payment was made because, according to Mr Franchitto, the Cabernet Sauvignon and Petit Verdot wine had not been sold, and the proceeds from the sale of Merlot was held back to cover the costs of processing and storing the unsold wine.
Devito Enterprises denied any such arrangement. It was Devito Enterprises’ case that there was a firm and binding agreement by Salena to purchase the disputed grapes. Mr Devito gave evidence that he was pressing Mr Franchitto for payment. On 7 November 2002, Devito Enterprises issued a statutory demand to Salena[1], claiming that it owed Devito Enterprises $414,757 for grapes delivered by them to Salena, pursuant to an oral agreement between them.
[1] Corporations Act 2001 s 459E(2)(e)
In the affidavit in support of the statutory demand, Devito Enterprises’ solicitor, Stuart Webb Andrew, deposed that the monies were due and payable for grapes delivered by Devito Enterprises to Salena, pursuant to an oral agreement between them. Pursuant to s 459G of the Corporations Act 2001, the statutory demand was set aside on the ground that a genuine dispute existed between the parties as to the terms of the contract. In support of its claim, Salena produced a document entitled, “Salena Estates and Tony Devito 2000 Vintage Joint Crush Venture”. The document purported to summarise the quantity of grapes delivered, the volume of wine produced therefrom, the volume sold, the processing and storage costs, resulting in a net balance of wine unsold and monies owing. The document was said to evidence that the respondents owed Salena $72,365.35, and that there was 231,168 litres of unsold wine.
The pleadings
Before considering the trial judge’s reasons, it is necessary to set out the relevant paragraphs of the pleadings, because it is Salena’s contention that in para 4 of the Statement of Claim Devito Enterprises admitted that there was a contract in respect of the disputed grapes, and that Devito Enterprises were to retain property in the grapes and the wine produced therefrom until the wine was sold. Counsel for the appellant contended that the respondents’ pleading in para 4 was inconsistent with Mr Devito’s evidence, and that the trial judge erred in not treating the Statement of Claim as having evidentiary effect as an admission by both plaintiffs, rather than merely a discrepancy between the pleadings and evidence. Counsel for Salena submitted that Mrs Devito did not give evidence to contradict the admission.
The relevant pleading is contained in paras 3 and 4 of the Statement of Claim as follows:
3.In or about March 2001, the Plaintiffs sold to the Defendant 284.55 tonnes of Shiraz grapes, 362.11 tonnes of Merlot, 182.48 tonnes of Cabernet Sauvignon and 46.92 tonnes of Petit Verdot.
4.The Defendant agreed to pay $800 per tonne for Shiraz. In relation to the Cabernet Sauvignon, Merlot and Petit Verdot the principal officer of the Defendant advised the male plaintiff that his Company would take the grapes and crush them and sell them and try and achieve as high a price as possible for the grapes. He indicated that the price which the Plaintiffs could expect to be paid would be $700 per tonne but not until September 2001. Pursuant to the Wine Grapes Industry Act, 1991, the Defendant was obliged to pay the Plaintiffs as to one third of the purchase price at the date of delivery, a further third by the 30th of June in the year of delivery and the balance on the 30th of September in the year of delivery.
The solicitor for Devito Enterprises endorsed the Statement of Claim with a signed certificate in accordance with Rule 46A.02 of the District Court Rules. I will come to the terms of the certificate in more detail later in these reasons.
In its Defence and Counterclaim, Salena pleaded, in response to para 4 of the Statement of Claim, as follows:
4.Except that the defendant admits buying the plaintiffs’ Shiraz grapes for $800.00 per tonne in March 2001 the defendant denies the allegations in paragraph 4 of the Statement of Claim and further says:
4.1 the defendant took delivery of the Merlot, Cabernet Sauvignon and Petit Verdot grapes referred to in paragraph 3 of this defence (“the grapes”) from the plaintiff’s on consignment;
4.2 the defendant accepted the delivery of the grapes on consignment the terms and conditions of which included:
4.2.1that the defendant would process the grapes into bulk varietal wine to be sold by the defendant on behalf of the plaintiffs;
4.2.2that the plaintiff would receive after deduction of the defendant’s costs including processing costs, storage costs and the defendant’s profit margin the net proceeds of sale of the wine;
(“the Consignment Agreement”).
4.3 it was a further term and condition of the Consignment Agreement that if the defendant sold the wine at $2.00 per litre that the defendant would pay the plaintiffs, after deducting the defendant’s processing costs, storage costs and profit margin, $700.00 per tonne of grapes delivered by the plaintiffs to the defendant;
4.4 The defendant has never received from the plaintiff a tax invoice with respect to the plaintiff’s alleged sale of the grapes.
The agreement that existed as alleged by Salena in respect of the disputed grapes was that Devito Enterprises would deliver grapes to Salena, which would then process them and endeavour to sell the wine. Devito Enterprises was to receive the proceeds of any wines sold after deduction of the cost of processing and storage and a profit margin. If the wine was sold at $2 per litre, Devito Enterprises was to receive $700 per tonne for the disputed grapes delivered.
The contract alleged by Salena was wrongly characterised as a “consignment agreement”. A consignment contract is one where the owner of the goods delivers them to the consignee, who has agreed to sell the goods on behalf of the owner. Payment is due only upon a completed sale, and unsold items may be returned to the person assigning.
The trial judge’s reasons
Mr Devito was the only witness for the plaintiffs. Mr Franchitto gave evidence for the defendant, together with two other witnesses. They were Jeffrey Semmler, another grape grower, and Christopher Byrne, Chief Executive of the Riverland Wine Grape Growers Association. They both gave evidence that so‑called “consignment” contracts of the kind described by Mr Franchitto, were not uncommon in the industry. Their evidence was not relied upon by Salena in support of the appeal and it is unnecessary to refer further to it.
Mr Devito’s evidence about the agreement, which was accepted by the trial judge, was:
I rang him just asking if he was interested in taking grapes, you know, told him what I had and he said he was interested in the shiraz, and if we had trouble with the other varieties he could take them and pay me $700 a tonne and pay me in September or October.
The trial judge observed that it was remarkable that a contract involving a significant amount of money should be made in a relatively short conversation, and that there was no written confirmation of the agreement. The trial judge posed the following question:
The question is, what were the terms of the contract? Was there a contract for the sale of grapes at a fixed price of $700 per tonne payable in September 2001 or was there a contract pursuant to which the defendant agreed to process the grapes into wine, store the wine and sell the wine on the plaintiffs’ behalf? There is no dispute the grapes were delivered and there is no dispute as to the quantities of the different varieties. There were 362.11 tonnes of merlot, 182.48 tonnes of cabernet sauvignon and 46.92 tonnes of petit verdot.
The trial judge accepted Mr Devito’s evidence. He concluded that the evidence was consistent with the objective facts that he found.
The trial judge specifically dealt with para 4 of the Statement of Claim. He concluded:
No explanation was offered for the way in which paragraph 4 of the Statement of Claim was worded.
Paragraph 4 of the Statement of Claim is inconsistent with the contractual terms for which the plaintiffs now contend. It does not allege a firm commitment to pay a fixed price of $700 per tonne for the grapes in any event. The allegation that the defendant “indicated the price which the Plaintiffs could expect to be paid would be $700 per tonne” falls short of an allegation of a firm commitment. On the other hand, paragraph 4 does not support the defendant’s claim for processing costs, storage and profit.
So far as the plaintiffs’ failure to call Mrs Devito is concerned, counsel for the defendant submitted that I should not assume that Mrs Devito would have corroborated the evidence of her husband. That may be correct, but it does not follow that I should not accept the evidence of Mr Devito if there are other reasons why his evidence should be accepted.
Notwithstanding the inconsistent wording in paragraph 4 of the Statement of Claim, I accept the oral evidence of Mr Devito as to the terms of the contract and the subsequent discussions about payment.
The trial judge found that there was a contract for the sale of grapes. He rejected the evidence of Mr Franchitto. He concluded that up to the point of the issue of the Statement of Claim the conduct of Salena was inconsistent with the agreement it now alleged. He concluded that it was a term of the contract for sale that Salena pay $700 per tonne for the disputed grapes and that payment be made by the end of September 2001. He ordered that Salena pay the respondents the amount of $414,757, plus interest.
The appeal
The appellant in its notice of appeal contends that the trial judge erred in fact and in law in finding that the contract between the plaintiffs and defendant was a contract for the sale of grapes at $700 per tonne. The respondent alleges that the trial judge ought to have found that the contract between the plaintiffs and the defendant was a contract to deliver 591.5 tonnes of grapes upon consignment for processing into varietal wines and sale at the best possible price, with the net proceeds, after processing and storage costs, payable to the plaintiffs, and that payment be made not before September 2001.
The appellant’s counsel submitted that the trial judge had erred, in that he failed to treat the plaintiffs’ pleadings, particularly para 4 of the Statement of Claim, as evidence conflicting with Mr Devito’s oral evidence. Counsel submitted that para 4 of the Statement of Claim amounted to an admission by the plaintiffs of a contract under which the plaintiffs were to retain property in the disputed grapes and wine derived therefrom until the wine was sold. It was a condition of the contract that Salena was accountable to Devito Enterprises for the proceeds of sale. Salena was to receive a reasonable remuneration for storing and processing the grapes and wine products.
Counsel for Salena acknowledged that the trial judge had rejected the evidence of Mr Franchitto, that a contract had been entered into as alleged in para 4 of the defence. However, he submitted that the trial judge failed adequately to consider the inconsistency between Mr Devito’s evidence and the evidentiary effect of the joint admission as asserted in para 4 of the Statement of Claim. It was submitted that having failed to conclude that para 4 of the Statement of Claim amounted to an admission, and that it should be treated as evidence by both plaintiffs conflicting with Mr Devito’s evidence, the trial judge failed adequately to address this conflict and fell into error in accepting Mr Devito’s evidence as to the terms of the contract.
That submission is dependent upon the appellant’s counsel establishing his contention that para 4, insofar as it deals with the disputed grapes, evidenced an agreement by Salena to take and crush the grapes and use its best endeavours to sell the wine and to achieve as high a price as possible. It was submitted that the reference to $700 per tonne is indicative only of what the plaintiffs might expect to receive. Counsel submitted that it was an implied term that the appellant would be entitled to reasonable charges for taking and crushing the grapes.
I consider that contrary to Salena’s assertion the wording of para 4 of the Statement of Claim is ambiguous. Paragraph 4 must be read together with para 3. Paragraph 3 alleges a sale of a quantity of Shiraz, Merlot, Cabernet Sauvignon and Petit Verdot grapes. Paragraph 4 purports to particularise the terms of the agreement for sale. It is open to the interpretation that, other than for the Shiraz grapes which were sold to Salena at $800 per tonne, Devito Enterprises could expect to be paid $700 per tonne for the disputed grapes, that amount to be paid by the end of September 2001.
The parties had agreed that the appellant would crush and sell the grapes and try to achieve as high a price as possible. Paragraph 4 could be so construed. Support for such construction can be derived from the reference to the Wine Grapes Industry Act 1991 (SA). The Act relates to the marketing of wine grapes. Section 5 provides that the Minister may, by order, recommend a price, expressed as an amount per tonne, for wine grapes grown in certain areas and sold to a processor. Section 6 provides that the Minister may, by order, fix terms and conditions relating to, inter alia, payments to be made by processors in default of payment within a prescribed time.
It was accepted by the parties that in 2001 there was an order of the Minister that in respect of wine grapes harvested in 2001 there was an implied term in any contract of sale that by the end of the month upon which they were delivered, being either in April or May, the grower would be paid one-third of the total amount payable for grapes delivered, fifty per cent of the remaining balance by 30 June and the final balance by 30 September.
The reference in para 4 of the Statement of Claim to the Wine Grapes Industry Act 1991 (SA) supported Devito Enterprises’ assertion that they had sold grapes to the defendant at an agreed price, and that payment for that sale was due and payable. The term of the contract that payment would not be made until the end of September 2001 was contrary to the order. That term was, therefore, void.[2]
[2] Wine Grapes Industry Act 1991 (SA) s 6(3)
Although para 4 of the Statement of Claim is poorly worded and is not entirely consistent with the evidence given by Mr Devito as to the terms of the agreement, I do not agree that the agreement as alleged is in terms as submitted by counsel for the appellant. The Defence and Counterclaim are inconsistent with such an interpretation. To be consistent with counsel’s contention the Defence would have not simply denied the assertion in para 4 of the Statement of Claim, but would have pleaded that para 4 asserts a contract other than for the sale of grapes. Salena would then have asserted the terms of the contract it now seems to assert.
I pause to observe that at trial it was not put to the trial judge that he should treat para 4 of the Statement of Claim as an admission by the plaintiffs that they had agreed to enter into an arrangement which, in essence, was a joint venture with no guaranteed return to Devito Enterprises, unless the wine produced from the disputed grapes was sold. It was not argued at trial that para 4 of the Statement of Claim was an admission by the plaintiffs that they would receive the price for which wine was sold, minus production and storage costs, and an unspecified amount representing Salena’s share of any profit.
Mr Devito was not cross-examined about the pleading. No explanation was sought from him for the supposed inconsistency between his evidence and the pleading. Some reference was made to the inconsistency in counsel’s address. The trial judge specifically referred to it and concluded that, notwithstanding the inconsistent wording in para 4 of the Statement of Claim, he accepted the oral evidence of Mr Devito as to the terms of the contract and subsequent discussions about payment.
The appellant’s contention fails on this ground alone. I do not agree that para 4 is unambiguous in its terms. The most that can be said is that it may be open to one or more interpretations. Paragraph 4 is poorly drafted. However, I do not agree with the appellant’s submission that it is an admission of a contract in terms contrary to the terms alleged by Mr Devito in his evidence.
On that basis alone, the appeal must be dismissed.
Even assuming that para 4 of the Statement of Claim did amount to an admission of contract in terms as submitted by the appellant, that alone would not suffice for the appeal to succeed. Counsel for the appellant accepted that for the appeal to succeed the Court must be satisfied that the plea in para 4 was more than an inconsistent pleading. However, he submitted that it should be construed as if the pleading had been verified on oath and was, therefore, an admission. It is settled law that unverified pleadings are regarded as no more than suggestions of counsel, and are not receivable as admissions.[3]
[3] Phipson S.L, Phipson on Evidence (London: Sweet & Maxwell, 15th Ed, 2003) at 722
In Boileau v Rutlin[4], Baron Parkes said that bills in equity, as well as pleadings at common law, are not to be regarded as positive allegations of the truth of the facts asserted therein for all purposes, but only statements of the case of the party, to be admitted or denied by the opposite party, and if denied to be proved and ultimately submitted for judicial decision.
[4] (1848) 2 Ex 665 at 680; 154 ER 657 at 663
In Pearce v Hall[5], King CJ, with whom Mohr and Prior JJ agreed, confirmed the position as expressed in Boileau, that pleadings which are not verified by signature or oath of the party on whose behalf they are filed are not evidence, and the party does not vouch for their truth or accuracy.
[5] (1989) 52 SASR 568
Counsel for Salena submitted that the pleading should be treated as if verified by the plaintiffs. He submitted that the certificate required by the Rules to be signed by the solicitor at the foot of the Statement of Claim amounted to verification. The certificate is in the following terms:
This pleading is put forward in accordance with the instructions of the plaintiffs by Stuart Webb Andrew who certifies that it complies with the rules concerning pleadings.
Counsel submitted that the certification verifies the pleading as if it had been verified on oath by the plaintiffs.
The certificate was filed in accordance with Rule 46A.02. Rule 46A.02 was introduced and applies to all actions and proceedings on pleadings commenced on and after 3 June 2000, and applies to the exclusion of Rules 46 and 47. Rule 46A.02 provides as follows:
46A.02 All pleadings are to:
(a) be as brief as the nature of the case permits;(b)plead only the material facts relied upon and not the evidence or arguments by which they are to be proved;
(c)be divided into discrete numbered paragraphs so that admissions and cross references may be made readily by referring to the paragraph numbers;
(d)bear the proper action heading and an endorsement of by whom and for whom they are filed;
(e)bear the following certificate signed by a legal practitioner except where the party has no solicitor on the record:
‘Certificate:
This pleading is put forward in accordance with the instructions of the [nature of party/parties] [name(s)] by [name of file principal], who certifies that it complies with the Rules concerning pleadings.
[Signed]
Print Name
Date
If filed electronically the signature, printed name and date shall be omitted.
In Jones v Nuske[6], Judge Lunn considered the introduction and the purpose of Rule 46A. He observed:
As this action was commenced after 3 June 2000 its pleadings are governed by the new Rule 46A. Much of the old law on pleadings and particulars have been superseded by the provisions of Rule 46A. Rule 46A is to be viewed and interpreted in the light of the mischief which it was designed to overcome. Under the former Rules it was notorious that substantial delays and costs were generated in actions by detailed requests for particulars, and arguments about them, when the resulting amended pleadings contributed little, if anything, to the just and expedient resolution of the action. Rule 46A is intended to limit disputes about proper particularity and pleadings to situations where the lack of particularity would significantly prejudice another party. The old practice also encouraged pleaders to give as little particularity as possible, and hope either the opponents would not request better particulars or the Court would not order them. The new Rules are intended to counteract this.[7]
[6] (2003) 227 LSJS 331
[7] (2003) 227 LSJS 331 at [6]
He observed that under the former Rules the Court would make interlocutory determinations about the degree of particularity which was required to enable a fair trial. Rule 46A placed the onus on the pleader to plead its claim with the necessary particularity in its initial pleading without the need for the Court to make such determinations.
Judge Lunn referred to Rule 46A.02(e) which requires any legal practitioner who is the on the record for the party filing the pleading to provide the certificate. He observed:
This certificate is an assurance to the Court by one of its officers that the rules of pleadings have been complied with including that all material facts needing to be pleaded under Rule 46A.03(a) and (b) have been so pleaded. Unless there is evidence to the contrary the Court is entitled to assume that such certificates are correct.[8]
[8] (2003) 227 LSJS 331 at [9]
In my view, the certificate contains no more than an assurance by the solicitor on record that the pleadings comply with the Rules, and that allegations pleaded therein are, to the solicitor’s belief, in accordance with the solicitor’s instructions. I do not agree with the appellant’s contention that the certificate has the effect of elevating the pleading to a statement verified on oath by a party. In my view, the Rule does no more than alert the solicitor to his or her obligations in respect of pleadings. A certificate without further evidence is no more than the solicitor’s statement that the solicitor has complied with the Rules and certifies that he has filed the pleading on instructions. In my view, the purpose of the certificate does no more than to bring home to solicitors their obligation to ensure that pleadings comply with the Rules. I do not agree with the contention that the effect of the certificates bind the party on whose behalf it is filed as if the pleading had been verified and personally adopted by that party.
The trial judge considered the pleading in para 4 of the Statement of Claim. He had regard to it. Nevertheless, he accepted Mr Devito’s evidence. He concluded that a contract for the sale of the disputed grapes had been made. No error has been demonstrated in his reasoning. There were other matters referred to in his reasoning to support his conclusion.
The appeal should be dismissed.