Smoothy Cattle Co Pty Ltd v CCS Mining and Civil (WA) Pty Ltd

Case [2019] WADC 134


JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   SMOOTHY CATTLE CO PTY LTD -v- CCS MINING AND CIVIL (WA) PTY LTD [2019] WADC 134

CORAM:   GETHING DCJ

HEARD:   21 AUGUST 2019

DELIVERED          :   17 SEPTEMBER 2019

FILE NO/S:   CIV 3256 of 2018

BETWEEN:   SMOOTHY CATTLE CO PTY LTD

Plaintiff

AND

CCS MINING AND CIVIL (WA) PTY LTD

First Defendant

KIERAN JOHN DUGGAN

Second Defendant

STEPHEN CHRISTOPHER O'SULLIVAN

Third Defendant

DONNCHA LOWNEY

Fourth Defendant

DANIEL HOGHTON

Fifth Defendant


Catchwords:

Practice and procedure - Impact of the deregistration of party on a claim for legal professional privilege - Relevance of a prior inconsistent statement

Legislation:

Evidence Act 1903 (WA), s 21, s 22

Result:

Registrar's decision upheld

Representation:

Counsel:

Plaintiff : Mr J C Yeldon
First Defendant : Not applicable
Second Defendant : No appearance
Third Defendant : Ms C A Boothman
Fourth Defendant : Ms C A Boothman
Fifth Defendant : Ms C A Boothman

Solicitors:

Plaintiff : Pacer Legal
First Defendant : Not applicable
Second Defendant : Rowe Bristol Lawyers
Third Defendant : HWL Ebsworth Lawyers
Fourth Defendant : HWL Ebsworth Lawyers
Fifth Defendant : HWL Ebsworth Lawyers

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

Amcus Pty Ltd v Hurst Rentals Pty Ltd (No 2) [2010] NSWSC 239

Australia Machinery Engineering (AME) Pty Ltd v Moore Group Holding Pty Ltd [2017] WADC 124

Australian Competition and Consumer Commission (ACCC) v TPG Internet Pty Ltd (2013) 250 CLR 640; [2013] HCA 54

Baker v Evans (1987) 77 ALR 565

Beecham Group Ltd v Bristol Myers Co [1979] VR 273

Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) [2008] WASC 239; (2008) 39 WAR 1

Briggs v Glentham Pty Ltd (1992) 8 WAR 339

Browne v Dunn (1894) 6 R 67 (HL)

Burke v Corruption and Crime Commission [2012] WASCA 49

Charara v Grewal [2013] NSWSC 1015

Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517

Fairfax Media Publications Pty Ltd v Western Australian Rugby Union Inc [2008] WASCA 123

Fraser v Fraser [2019] WASC 135

George Ballantine & Son Ltd v FER Dixon & Son Ltd [1974] 1 WLR 1125

Global Funds Management (NSW) Ltd v Rooney (1994) 36 NSWLR 122

Grant v Downs [1976] HCA 63; (1976) 135 CLR 674

Hadley Hall Estate Holdings Ltd v HHE Management Ltd [2005] WASC 44

HAR v The State of Western Australia [No 2] [2015] WASCA 249

Hazart Pty Ltd v Rademaker (1993) 11 WAR 26

Hunt v Knabe (No 2) (1992) 8 WAR 96

Job v The State of Western Australia [2006] WASCA 186

Kellert v Foate [2015] NSWSC 954

Kezic v St John of God Health Care Inc [2015] WASCA 220

Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd t/as Uncle Ben's of Australia (1994) 126 ALR 58

Liebherr-Australia Pty Ltd v Bloomfield [2006] WASCA 128

MJH v The State of Western Australia [2006] WASCA 167; (2006) 33 WAR 9

Moore v Devanjul Pty Ltyd (No 3) [2012]…

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Details
AGLC
Smoothy Cattle Co Pty Ltd v CCS Mining and Civil (WA) Pty Ltd [2019] WADC 134
Case
[2019] WADC 134
Decision Date

CaseChat Overview and Summary

The case of Smoothy Cattle Co Pty Ltd v CCS Mining and Civil (WA) Pty Ltd concerned a dispute over the validity of a statutory demand issued by Smoothy Cattle Co against CCS Mining and Civil (WA) Pty Ltd. CCS Mining and Civil (WA) Pty Ltd, represented by Duggan SC, sought to set aside the statutory demand issued by Smoothy Cattle Co, which related to invoices INV-0058 and INV-0059 totalling $231,000. CCS Mining and Civil (WA) Pty Ltd argued that there was no agreed contract in the terms outlined in the statutory demand and disputed the amount owed. CCS Mining and Civil (WA) Pty Ltd further contended that there were issues concerning the rates for the use of a cone crusher, the condition of the equipment, and delays caused by the unavailability of the equipment. The court was tasked with determining whether CCS Mining and Civil (WA) Pty Ltd had a genuine dispute regarding the statutory demand.

The court considered several legal issues, including the impact of the deregistration of CCS Mining and Civil (WA) Pty Ltd on the claim for legal professional privilege and the relevance of a prior inconsistent statement made by Duggan SC. The court examined whether the statutory demand was valid, whether there was a genuine dispute over the debt claimed, and if there was an existing contract as alleged by Smoothy Cattle Co. The court also had to assess the arguments regarding the state of repair of the equipment and the impact of the unavailability of the cone crusher on CCS Mining and Civil (WA) Pty Ltd's operations.

The court found that CCS Mining and Civil (WA) Pty Ltd had not established a genuine dispute over the statutory demand. The court concluded that the statutory demand was valid and that the debt claimed was owed by CCS Mining and Civil (WA) Pty Ltd. The court determined that the text messages exchanged between the parties constituted a binding agreement, despite the absence of a formal written contract. The court also found that there was no evidence to support CCS Mining and Civil (WA) Pty Ltd's claims regarding the condition of the equipment and the alleged delays. As a result, the Registrar's decision to uphold the statutory demand was affirmed.

CCS Mining and Civil (WA) Pty Ltd's application to set aside the statutory demand was dismissed. The court ordered that the statutory demand remain in place, and CCS Mining and Civil (WA) Pty Ltd was required to pay the amount claimed by Smoothy Cattle Co within the specified period.

Orders

Orders of the court

Registrar's decision upheld

Background

Background to the litigation

In the Duggan SC Affidavit, Mr Duggan relevantly deposes:[34][34] Duggan SC Affidavit, pars 1 ‑ 12, par 18 and pars 31 ‑ 35.1.I am a Director of CCS Mining and Civil (WA) Pty Ltd trading as CCS Equipment (CCS) and as such I am authorised to make this affidavit on behalf of CCS. 2.I make this affidavit in support of the plaintiff's application to set aside the statutory demand dated 23 April 2018 issued by the defendant pursuant to section 459E of the Corporations Act 2001 (Act) relating to the defednant's invoices INV-0058 and INV-0059 for the total sum of $231,000.00 (Statutory Demand).3.The matters set out in this affidavit are based on my own knowledge unless otherwise stated in which case I refer to the source of my information.4.The matters deposed to in this affidavit are true to the best of my knowledge and belief.BACKGROUND5.In or about December 2016, CCS entered into Contract with McMahons Contracting to provide crushing and screening service at Newcrest's Telfer mine (Telfer). 6.In carrying out the services, CCS required the use of a cone crusher.7.In or about 10 April 2017, I spoke with the defendant concerning the potential hire a 1540 Cone Crusher (Machine), I discussed with the Defendant the availability of the Machine, purchase price and the hire rates, I agreed to hire rates of $30,000 per month based upon a maximum 300 hours usage per month.8.The basis of negotiations for the charge for the Machine was not on time in possession but rather upon time utilisation of the equipment. This was based on the plaintiff's previous agreement with the defendant whereby the plaintiff said on per hour of use basis.9.CCS had previously hired the Machine from the Defendant in or about January 2016 for a three (3) month period to carry out crushing and screening services under a contract with Newcastle at the Telfer. The terms of that hire agreement was based upon per hour usage.10.By text message dated 12 April 2017 the defendant through Brent Smoothy (Smoothy) wrote to me outlining proposed terms for the purchase of the Machine. Now shown to me marked 'KD-01' and attached is a copy of that text message.11.In or about early May 2017, by text message, I agreed to the hire of the Machine based upon the telephone discussion on or about 10 April 2016, I also agreed to collect the Machine from the defendant's storage yard. Now shown to me marked 'KD-02' and attached is a copy of that text message.12.No written agreement executed between the parties either for the purchase of the Machine or hire agreement of the Machine between the parties.…18.The plaintiff disputes that the defendant is entitled to the amount claimed by virtue of the fact that:i.Rates had not been agreed for the use of the Machine;ii.The Machine was not in a state of repair necessary to undertake the works for which it was required; andiii.As the Machine was not ready it caused the works programme for which it was required to be delayed.…STATUTORY DEMAND31.The Statutory Demand relates to invoices INV-0058 and INV‑0059. True copies of the statutory demand and affidavit in support are attached and collectively marked 'KD-07'. DISPUTE AS TO CONTRACT AND DEBT OWED32.The plaintiff disputes there is contract with the defendant in the terms contained in the text message at Annexure KD-01.33.No written agreement executed between the parties, personal guarantees or PPSR registration were entered into or arranged.34.The plaintiff disputed that the Statutory Demand debt amount is correct or agreed between the parties.35.The plaintiff says there is a genuine dispute concerning the issues raised by the statutory demand.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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