Solomons Franchise Systems Pty Ltd v Taydex Pty Ltd

[1995] FCA 882

IN THE FEDERAL COURT OF AUSTRALIA )
QUEENSLAND DISTRICT REGISTRY     )    No. VG 30 of 1994
GENERAL DIVISION                 )

BETWEEN:    SOLOMONS FRANCHISE SYSTEMS PTY LTD (ACN 008 094 899)

First Applicant

AND      :    NO 1 RABEREM PTY LTD
  (ACN 007 733 995)
  Second Applicant

AND      :    NO 2 RABEREM PTY LTD
  (ACN 007 733 986)
  Third Applicant

AND      :    NO 3 RABEREM PTY LTD
  (ACN 007 733 977)
  Fourth Applicant

AND:    TAYDEX PTY LTD

(ACN 010 809 739)
  First Respondent

AND      :    MICHAEL ROY PARR
  Second Respondent

AND      :    CLIVE JOHN WALKER
  Third Respondent

CORAM:    Spender J
PLACE:    Brisbane
DATE:     25 October 1995

MINUTES OF ORDER

THE COURT ORDERS:

1. Judgment be entered for the applicants against the first respondent in the sum of $61,034.94.

1. The applicants on the motion are to have their costs of the motion, to be taxed if not agreed, and those costs may be taxed pursuant to Order 62 notwithstanding that the principal proceedings have not concluded.

Note:     Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )
QUEENSLAND DISTRICT REGISTRY     )    No. VG 30 of 1994
GENERAL DIVISION                 )

BETWEEN:    SOLOMONS FRANCHISE SYSTEMS PTY LTD (ACN 008 094 899)

First Applicant

AND      :    NO 1 RABEREM PTY LTD
  (ACN 007 733 995)
  Second Applicant

AND      :    NO 2 RABEREM PTY LTD
  (ACN 007 733 986)
  Third Applicant

AND      :    NO 3 RABEREM PTY LTD
  (ACN 007 733 977)
  Fourth Applicant

AND:    TAYDEX PTY LTD

(ACN 010 809 739)
  First Respondent

AND      :    MICHAEL ROY PARR
  Second Respondent

AND      :    CLIVE JOHN WALKER
  Third Respondent

CORAM:    Spender J
PLACE:    Brisbane
DATE:     25 October 1995

REASONS FOR JUDGMENT

This is a notice of motion for summary judgment in respect of part of the relief claimed in proceedings No. VG30 of 1994.  It is brought pursuant to O 20 r 1 which provides:

"1(1) Where, in relation to the whole or any part of the applicant's claim for relief, there is evidence of the facts on which the claim or part is based, and -

(a)there is evidence given by the applicant or by some responsible person that, in the belief of the person giving the evidence,
the respondent has no defence to the claim or part; or

(b)the respondent's defence discloses no answer to the applicant's claim or part;

the applicant may move on notice for such judgment for the applicant on that claim or part and the Court may pronounce such judgment and make such orders as the nature of the case requires. "

In paragraph 21A of the amended statement of claim in these proceedings, which was filed in the Victoria Registry on 10 May 1994, the applicant pleads that:

"In breach of Clause 5A(c) of the second agreement the First Respondent has failed, neglected and refused to pay for stock and other charges invoiced to it in accordance with the provisions of the second agreement or at all. "

As particulars of that claim, the applicant has pleaded that:

"During the term of the second agreement the Applicants invoiced the First Respondent for stock sold and delivered to the First Respondent and for other charges.  Of the sum so invoiced the sum of $61,530.28 remains unpaid notwithstanding the provisions of Clause 5A(c) of the Agreement.  Full particulars of those invoices which remain unpaid are annexed hereto. "

and annexed to the amended statement of claim are details of various invoices. 

Mr Clive Budlender, in an affidavit filed on 30 May 1995, swears that the current balance owing by the first respondent to the first applicant is $61,530.28, and that there is no defence to the claim.  However, he refers to the fact that in paragraph 20 of the amended defence, the second respondent claims that some of the carpet supplied to it by the first applicant was not of merchantable quality and that the first respondent was obliged to incur the cost of replacing that carpet.  The amount of that cost is said to be $495.34. 

It seems therefore that there is a triable issue in respect of that component of the sum of $61,530.28.

The claim for summary judgment does not seek any amount for interest.

I am satisfied that part of the applicant's claim, being the amount that I have just detailed, is owed by the first respondent, and there is no defence to the claim of the applicant for that amount.  I give judgment for the applicant against the first respondent in the sum of $61,530.28 less $495.34, namely, $61,034.94, and the applicant on the motion should have its cost of the motion, to be taxed if not agreed.

It seems to me that that disposes of that particular part of the action.  I ought to give leave pursuant to O 62 for the costs of the motion to be taxed, notwithstanding that the principal proceedings have not concluded.

I certify that this and the preceding two (2) pages are a true copy of the reasons for judgment herein of the Honourable Justice Spender.

Associate
  Date: 25 October 1995

Counsel for the applicants   :        Mr F. Redmond
instructed by               :        Whitman & Co.

The second respondent appeared in person.

No appearance for the first and third respondents    .   

Date of Hearing             :        25 October 1995