Urch v Meneguzzo - [2004] QSC 200

CITATION: Urch v Meneguzzo & Ors [2004] QSC 200
PARTIES: DALE ROBERT URCH
(plaintiff)
v
GIANDANIEL ROMANO MENEGUZZO and ANNA
MENEGUZZO
(first defendants)
TIPGILL PTY LTD (formerly PROPERTY
AUSTRALIA PTY LTD)
ACN 073 014 052
(second defendant)
INSTANT ACCESS AUSTRALIA PTY LTD
ACN 001 872 500
(third defendant)
GALRAITH PTY LTD
ACN 010 778 462
(fourth defendant)
FILE NO/S: S 4100 of 2001
DIVISION: Trial Division
PROCEEDING: Trial
ORIGINATING
COURT: Supreme Court at Brisbane
DELIVERED ON: 30 June 2004
DELIVERED AT: Brisbane
HEARING DATE: 15-17 June 2004
JUDGE: Muir J

ORDER:

The third and fourth defendants’ claims for contribution and indemnity against the first defendants be dismissed with costs, including reserved costs, if any, to be assessed on the standard basis.
CATCHWORDS: CONTRACTS – CONSTRUCTION AND
INTERPRETATION OF CONTRACTS – CUSTOM AND
USAGE – INCORPORATION INTO CONTRACT – IN
GENERAL – whether the standard terms and conditions were
incorporated into the contract between the first defendants
and the third defendant

FOR NEGLIGENCE – STANDARD OF CARE –

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION reasonable standard of skill and care

TORTS – JOINT OR SEVERAL TORTFEASORS – CONTRIBUTION – GENERALLY – whether the third and fourth defendants were entitled to contribution from the first defendants
Law Reform Act 1995 (Qld) ss 6, 7
Workplace Health and Safety Act 1995 (Qld) s 30(1)(b)
ACI Metal Stamping & Spinning Pty Ltd v Boczulik (1964)
110 CLR 372
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Henry Kendell & Sons v William Lillico & Sons Ltd [1969] 2
AC 31
Raimondo v State of South Australia (1979) 23 ALR 513
Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR
121
TNT Australia Pty Ltd v Christie [2003] NSWCA 47

COUNSEL:

D O J North SC, with S A McLeod for the first defendants C Newton, with P Hay for the third and fourth defendants
SOLICITORS: Bradley & Co for the first defendants
Deacons for the third and fourth defendants
SUPREME COURT OF QUEENSLAND

On Wednesday 6 May 1998, the plaintiff and another painter employed by the first defendants were standing on a swing stage suspended from the roof of the Collieries Union House, a six storey building in East Street, Ipswich for the purpose of cleaning its exterior preparatory to painting when a support at one end of the stage failed causing the plaintiff to fall to the ground.
The swing stage was suspended at each end from shackles positioned on the end of a length of tubular steel referred to as a “needle”. Both needles protruded over the edge of the building by about 0.9 metre and rested on the top of a solid wall at the edge of the roof. At the other end, a distance of approximately 12 metres, the needle of the failed unit rested on a horizontal steel scaffolding pipe at a level a little below the top of the wall. The scaffolding pipe formed part of a constructed framework of scaffolding piping referred to as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Urch v Meneguzzo

Details

AGLC: Urch v Meneguzzo [2004] QSC 200
Case: [2004] QSC 200
Decision Date: 30 June 2004

CaseChat Overview and Summary

In the case of Urch v Meneguzzo, the parties involved were Instant Access Australia Pty Limited, Galraith Constructions Pty Limited, and the Meneguzzos. The dispute centred on the incorporation of standard terms and conditions into a contract between Instant Access and Galraith Constructions. The dispute was heard in the Supreme Court of New South Wales. The primary issue was whether the standard terms and conditions of Instant Access were incorporated into the contract between Instant Access and Galraith Constructions.

Instant Access argued that their standard terms and conditions, which stated that goods once installed on site were at the risk of the first defendant, were incorporated into the contract. They relied on a course of dealings between the parties and the presence of printed terms and conditions on various documents, including invoices and receipts. However, Galraith Constructions contended that the terms and conditions were not incorporated into the contract. The court needed to determine whether there was a valid incorporation of the terms and conditions into the contract, considering the evidence of past dealings and the visibility and readability of the terms on the documents.

The court examined the evidence of the course of dealings between the parties and the presence of printed terms and conditions on various documents. It found that while the terms and conditions were present on some documents, there was no direct evidence that the Meneguzzos, who were partners in Galraith Constructions, were aware of the terms and conditions. The court also noted the faintness of the printing on the computer-generated documents, making it unlikely that the terms would have been read. Based on this, the court concluded that the standard terms and conditions were not incorporated into the contract between Instant Access and Galraith Constructions.

The court dismissed the claims for contribution and indemnity against the Meneguzzos and ordered that costs, including reserved costs, be assessed on the standard basis.

Orders

Orders of the court

The third and fourth defendants’ claims for contribution and indemnity against the first defendants be dismissed with costs, including reserved costs, if any, to be assessed on the standard basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Whilst Mr Edwards, a sales representative employed by Instant Access at relevant times was giving evidence, it emerged that its documentation, including standard terms and conditions had changed in about 1997 or 1998 when it adopted a computerized system. That evidence led to an amendment to the statement of claim to allege that, prior to about March 1997, there were different standard printed documents which contained terms and conditions similar in effect to those used after about March 1997, “namely that the goods once installed on site were at the risk of the first defendant”. The incorporation in the contract between the first defendant and the third defendant of the first defendants’ terms and conditions of contract To support its allegations of a course of dealings Instant Access put in evidence the following bundles of contractual documents: There were another five invoices in respect of four hire contracts put in evidence and also four pick up receipts in respect of unidentified contracts. All of these documents were in respect of transactions between the first defendant and Instant Scaffolds in 1997. All of the invoices were computer generated and had printed terms and conditions on the reverse side under the bold heading “Instant Access Australia Pty Limited Terms and Conditions of Trading”. The on-site pick up receipts were on printed forms which did not have terms and conditions on the reverse side or referred to on the front. Only one of the documents, the delivery docket, referred on the front of it to standard terms and conditions. It stated: “You & us (sic) agree to fulfil our respective obligations set out in the agreement which includes the conditions on the reverse side of this page.” It may be inferred that in respect of the dealings to which the above documentation relates, there was no written document described as a hire agreement signed by the first defendant or given by Instant Scaffolds to the first defendant. Also put in evidence was a bundle of telephone hire agreement forms signed on behalf of the first defendant and Instant Scaffolds with printed terms and conditions of hire on the reverse side for the period February 1992 to October 1994. Two of the documents were in respect of transactions in 1994. One was for a transaction in 1993 and the remainder were for 1992 transactions. The quotation submitted by Instant Access for the subject job was sent by fax, had no standard terms and conditions on the faxed page, made no reference to standard terms and conditions and was accepted orally. The delivery docket generated in respect of the subject equipment was signed by Mr Ramsay, a contract carrier, on behalf of Instant Access and Mr Bell on behalf of Galraith. No other document in evidence in relation to the subject transaction appears to have been signed on behalf of the first defendant. The evidence discloses that both of the first defendants, who were in partnership, were familiar with the documentation received from time to time from Instant Access. Mrs Meneguzzo looked after the books but Mr Meneguzzo kept himself informed of the business’s paperwork. I think it improbable that they were not aware of the existence of printed material on the back of the documents although there is no direct evidence on the point. The printing is extremely faint on the computer generated documents and reading of it would require a determined effort in good lighting. There is no evidence that the terms and conditions were read and, having regard to the faintness of the printing, I doubt that they would have been.

CITATION:	Urch v Meneguzzo & Ors [2004] QSC 200
PARTIES:	DALE ROBERT URCH (plaintiff) v GIANDANIEL ROMANO MENEGUZZO and ANNA MENEGUZZO (first defendants) TIPGILL PTY LTD (formerly PROPERTY AUSTRALIA PTY LTD) ACN 073 014 052 (second defendant) INSTANT ACCESS AUSTRALIA PTY LTD ACN 001 872 500 (third defendant) GALRAITH PTY LTD ACN 010 778 462 (fourth defendant)
FILE NO/S:	S 4100 of 2001
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	30 June 2004
DELIVERED AT:	Brisbane
HEARING DATE:	15-17 June 2004
JUDGE:	Muir J
ORDER:	The third and fourth defendants’ claims for contribution and indemnity against the first defendants be dismissed with costs, including reserved costs, if any, to be assessed on the standard basis.
CATCHWORDS:	CONTRACTS – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – CUSTOM AND USAGE – INCORPORATION INTO CONTRACT – IN GENERAL – whether the standard terms and conditions were incorporated into the contract between the first defendants and the third defendant
FOR NEGLIGENCE – STANDARD OF CARE –
TORTS – NEGLIGENCE – ESSENTIALS OF ACTION reasonable standard of skill and care
TORTS – JOINT OR SEVERAL TORTFEASORS – CONTRIBUTION – GENERALLY – whether the third and fourth defendants were entitled to contribution from the first defendants
Law Reform Act 1995 (Qld) ss 6, 7 Workplace Health and Safety Act 1995 (Qld) s 30(1)(b)
ACI Metal Stamping & Spinning Pty Ltd v Boczulik (1964) 110 CLR 372 Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 Henry Kendell & Sons v William Lillico & Sons Ltd [1969] 2 AC 31 Raimondo v State of South Australia (1979) 23 ALR 513 Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121 TNT Australia Pty Ltd v Christie [2003] NSWCA 47
COUNSEL:	D O J North SC, with S A McLeod for the first defendants C Newton, with P Hay for the third and fourth defendants
SOLICITORS:	Bradley & Co for the first defendants Deacons for the third and fourth defendants