Tank Sales Sydney Pty Ltd v NWSP Pty Ltd
[2017] WADC 85
•20 JUNE 2017
TANK SALES SYDNEY PTY LTD -v- NWSP PTY LTD [2017] WADC 85
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2017] WADC 85 | |
| Case No: | CIV:3750/2013 | 19 JUNE 2017 | |
| Coram: | DERRICK DCJ | 20/06/17 | |
| PERTH | |||
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Judgment for the plaintiff | ||
| PDF Version |
| Parties: | TANK SALES SYDNEY PTY LTD NWSP PTY LTD |
Catchwords: | Contract Breach of contract Damages |
Legislation: | Corporations Act 2001 (Cth) Supreme Court Act 1935 (WA) Rules of the Supreme Court 1971 (WA) |
Case References: | Nil |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
NWSP PTY LTD
Defendant
Catchwords:
Contract - Breach of contract - Damages
Legislation:
Corporations Act 2001 (Cth)
Supreme Court Act 1935 (WA)
Rules of the Supreme Court 1971 (WA)
Result:
Judgment for the plaintiff
Representation:
Counsel:
Plaintiff : Mr B Long
Defendant : No appearance
Solicitors:
Plaintiff : Celtic Legal
Defendant : Not applicable
Case(s) referred to in judgment(s):
- DERRICK DCJ:
Introduction
1 The plaintiff claims against the defendant damages for breach of contract.
2 At the trial the plaintiff called one witness, Mr Michael Crawford.
3 At the trial no one appeared, or sought leave to appear, for the defendant. The trial therefore proceeded in the absence of the defendant: Rules of the Supreme Court 1971 (WA), O 34 r 2.
4 I note that immediately prior to the commencement of the trial proper, and in the absence of any appearance for the defendant, I stated my reasons for deciding that it was in all the circumstances appropriate to proceed with the trial in the absence of the defendant.
The facts
5 On the basis of the admissions made by the defendant in its substituted defence and counterclaim filed on 11 March 2015 and the undisputed evidence of Mr Crawford, I find the relevant facts to be as follows.
6 The plaintiff is, and was at all material times, a company incorporated in accordance with the Corporations Act 2001 (Cth) (the Corporations Act). The plaintiff carries on the business of manufacturing and supplying tankers. The plaintiff's business is based in Ingleburn in New South Wales.
7 Mr Crawford is, and was at all material times, the sole director of the plaintiff. Mr Crawford has been involved in the industry of manufacturing and supplying tankers for 37 years.
8 The defendant was at all material times a company incorporated in accordance with the Corporations Act. The defendant carried on the business of the transportation of potable water and liquid waste removal.
9 On 12 June 2012 the plaintiff sent to the defendant by email what was in effect a quote for the manufacture and supply of a new 26,000 litre vacuum tanker model 26188 (the first tanker). The quoted price for the first tanker was $150,000 plus GST.
10 The defendant instructed the plaintiff to manufacture and supply the first tanker.
11 On 12 June 2012 the plaintiff sent to the defendant a tax invoice in respect of the first tanker. The tax invoice was, so far as is relevant, in the following terms:
TAX INVOICE
Brent Rowe
NWSP
Perth
(0418) 732757
[email protected] 12 June 2012
One only new 26,000 litre vacuum tanker model 26188, fitted with BPW tri-axle airbag suspension, Deutz powered 420 c.f.m wet ring vacuum pump, hose trays, complete ready to work.
Cost $150,000 plus GST
Deposit 30% balance on completion.
COMMONWEALTH, INGLEBURN
BSB…
ACCOUNT…
12 On or about 9 August 2012 Mr Brent Rowe of the defendant visited the plaintiff's premises in Ingleburn, New South Wales. Mr Rowe was the representative of the defendant who to this point in time Mr Crawford had dealt with exclusively. Mr Rowe had the authority to act on behalf of the defendant.
13 Mr Rowe attended the plaintiff's premises in order to view the first tanker which was still in the process of being built.
14 During his visit to the plaintiff's premises Mr Rowe saw and inspected a new but unassembled 26,000 litre tipping vacuum tanker model 26188T (the second tanker). Having inspected the second tanker, and while still at the plaintiff's premises, Mr Rowe, on behalf of the defendant, agreed with Mr Crawford, on behalf of the plaintiff, as follows:
1. The defendant would purchase the second tanker on an 'as it is, where it is' basis;
2. The plaintiff would supply the second tanker and the components for the tanker (the components) to the defendant, and the defendant would be responsible for completing the assembly of the second tanker;
3. The defendant would pay $130,000 plus GST for the second tanker and the components; and
4. The defendant would become liable to pay for the second tanker and the components once the manufacture of the first tanker had been completed and the first tanker was operational and 'on the road'.
15 On 9 August 2012 the plaintiff provided to the defendant a 'Certificate of Tank Integrity' in respect of the second tanker bearing that date. By the certificate, which was signed by a Mr Noel Haigh, a certified boiler maker/welder employed by the plaintiff, the plaintiff certified as follows:
This tank meets the following requirements –
It is impervious and of sound construction suitable for the transportation of controlled waste.
The tank is free of cracks, rust and leaks.
All welds and joins are structurally sound.
All external fittings have kam-locks to prevent a discharge of waste.
Tank is fitted with one of the following methods of measurement:
Dipstick or
Sight gauge.
16 On 13 August 2012 the plaintiff, through Mr Crawford, sent to the defendant an email in the following terms:
Brent Rowe
NWSP
Perth
(0418) 732757
[email protected] 13 August 2012
One only new 26,000 litre tipping vacuum tanker model 26188T,
fitted with BPW tri-axle airbag suspension,
Deutz powered 420 c.f.m wet ring vacuum pump,
pump supplied complete with engine, secondary and muffler
valves and camlocks supplied not fitted
brake kit supplied not fitted
valves supplied not fitted
mudguards supplied not fitted
bumper and lights supplied not fitted
VIN supplied
Tank integrity certificate supplied
Cost $130,000 plus GST
Completed price is $160,000 plus GST
17 On or about 16 August 2012 the plaintiff supplied the second tanker and the components to the defendant pursuant to the agreement arrived at between Mr Crawford and Mr Rowe on 9 August 2012. There were no defects, issues or faults with the second tanker.
18 On a date in August 2012, and in any event no earlier than 16 August 2012, the defendant took possession of the first tanker. The defendant took possession of the first tanker 'early' when there was still some work to be done on the tanker in return for the plaintiff supplying some 'extras' to the defendant.
19 At some point after taking possession of the first tanker the defendant arranged, through a finance company, for the plaintiff's tax invoice dated 12 June 2012 previously issued in respect of the first tanker to be paid in full.
20 On 6 November 2012 Mr Rowe sent an email to Mr Crawford in which he stated, among other things, that the 'first tanker is in a [sic] operational capacity this month'.
21 On 13 March 2013 the plaintiff sent to the defendant, by email, a tax invoice in respect of the second tanker. The invoice was in the following terms:
TAX INVOICE
Brent Rowe
NWSP
Perth
(0418) 732757
[email protected] 13 March 2013
One only new 26,000 litre tipping vacuum tanker model 26188T,
fitted with BPW tri-axle airbag suspension,
Deutz powered 420 c.f.m wet ring vacuum pump,
pump supplied complete with engine, secondary and muffler
valves and camlocks supplied not fitted
brake kit supplied not fitted
valves supplied not fitted
mudguards supplied not fitted
bumper and lights supplied not fitted
VIN supplied
Tank integrity certificate supplied
Cost $130,000
GST $13,000
Total $143,000
Terms nett 7 days.
Title does not pass until all monies paid.
22 The invoice was received by the defendant.
23 The second tanker and the components have remained in the possession of the defendant since they were supplied by the plaintiff to the defendant. The defendant has not paid the amount of $143,000 or any amount for the second tanker and the components.
The plaintiff's claim
24 The plaintiff alleges that the defendant, by failing to pay the amount of $143,000 for the second tanker and the components, has breached the agreement made between it and the defendant on 9 August 2012. The plaintiff therefore claims damages in the sum of $143,000 plus interest pursuant to s 32 of the Supreme Court Act 1935 (WA) (the Supreme Court Act)at 6% per annum from the date of the alleged breach of the agreement until the date of judgment.
25 In his closing submissions the plaintiff's counsel accepted that despite the fact that the first tanker was operational in November 2012, no liability on the part of the defendant to pay for the second tanker and the components arose until seven days after the date of the issue by the plaintiff to the defendant of the invoice in respect of the second tanker dated 13 March 2013.
Decision
26 In light of the above outlined relevant facts I am satisfied of the following:
1. On 9 August 2012 the plaintiff and the defendant entered into a contract pursuant to which the defendant agreed to purchase from the plaintiff the second tanker and the components for the sum of $143,000 inclusive of GST (the contract);
2. On or about 16 August 2012, and in accordance with the contract, the plaintiff supplied the second tanker and the components to the defendant;
3. On 20 March 2013 the defendant became liable under the contract to pay to the plaintiff the sum of $143,000 for the second tanker and the components;
4. The defendant has not paid to the plaintiff the sum of $143,000, or any amount, for the second tanker and the components; and
5. By failing to pay the sum of $143,000 for the second tanker and the components the defendant has breached the contract.
27 I am also satisfied that the damages payable to the plaintiff by the defendant for the breach of the contract should be calculated by reference to the agreed purchase price for the second tanker and the components, namely $143,000.
28 I would therefore enter judgment for the plaintiff and award the plaintiff damages in the amount of $143,000. I would also, pursuant to s 32 of the Supreme Court Act, order that the defendant pay interest on the amount of $143,000 at the rate of 6% per annum calculated from 20 March 2013.
29 Further, in the absence of any evidence adduced in support thereof, I would dismiss the defendant's counterclaim as pleaded in pars 30 - 39 of the substituted defence and counterclaim.
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