Trend A Division of Pillar Australia Pty Limited and Clifton Brick (Queanbeyan) Pty Limited v Michael Wellsmore and Louis Donald [1987] ACTSC 31 (5 May 1987)

SUPREME COURT OF THE ACT

TREND a division of PILLAR AUSTRALIA PTY LIMITED and CLIFTON BRICK
(QUEANBEYAN) PTY. LIMITED v. MICHAEL WELLSMORE and LOUIS DONALD
S.C. No. 407 of 1987
S.C. No. 408 of 1987
Application of Summary Judgment

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Kelly J.(1)

CATCHWORDS

Application for Summary Judgment - Affidavit failing to disclose that deponent could swear positively to the facts verifying the cause of action and the amount claimed - No affidavit containing statements of information and belief with the sources and grounds thereof sought to be used.

Lombard Australia Limited v. Mulley (1976) 9 ACTR 23.

Joseph Terry Pty Ltd v. T & G Fire & General Insurance Co Ltd (1973) VR 458.

HEARING

CANBERRA
5:5:1987

ORDER

The application made by summons dated 27 April 1987 be dimissed.

The plaintiff pay the defendants' costs of and incidental to the application.

The application made by summons dated 27 April 1987 be dimissed.

The plaintiff pay the defendants' costs of and incidental to the application.

DECISION

These are applications for summary judgment under Order 15 rule 1. They have common defendants and generally have much in common so that it is convenient to deal with them together.

No. S.C. 407 of 1987

2. In this case the plaintiff, Trend, a Division of Pillar Australia Pty Limited, claims by its statement of claim annexed to the writ the sum of $16,424.50 said to be payable by the defendants as guarantor in respect of the price of goods sold and delivered by the plaintiff to a company known as Freeman Constructions Pty Ltd (the company). By the statement of claim the plaintiff alleged that between September and October 1986 it sold and delivered goods to that company at its request. Short particulars were given, it being alleged that full particulars of the debt exceeded three folios and had already been supplied to the debtor company. The nett amount shown as owed by the company was $16,424.50.

3. The statement of claim went on to say that the goods were sold and delivered to the company on condition that it would pay for them but it had failed to do so. It was then alleged that the defendants on 7 February 1985 "in writing agreed to guarantee the payment of any amounts owing by (the company) to the plaintiffs". Finally, the statement of claim alleged that neither the company nor the defendants had paid the amount claimed.

4. An appearance to the writ was entered on 16 April 1987. On the same day a defence was delivered which dealt with the substance of the statement of claim by saying,

"The defendants deny the allegations

contained in paragraphs 2, 3, 4 and 5 of the
Statement of Claim."

5. I considered the defence to be in breach of Order 23, rule 17 and Order 15, rules 1 and 3 and on the application of the plaintiff ordered that it be struck out.

6. The summons for summary judgment was filed on 27 April 1987. In support of the summons William Werch deposed that he was the manager of the plaintiff and as such was responsible for the supply and delivery of goods and services on behalf of the plaintiff and for the books of the plaintiff. He said he was duly authorised to make affidavits on behalf of the plaintiff, that the defendants were justly and truly indebted to the plaintiff and were so indebted at the commencement of the action and that particulars of the claim appeared correctly in the statement of claim. He annexed to his affidavit a copy of the guarantee said to have been signed by the defendants. He then deposed that the first defendant had agreed in November/December 1986 that was owed by the company and that arrangements were made such that a balance of $16,424.50 was to be paid in March 1987. He said that the final payment of $16,424.50 was not in fact made and that he verily believed that there was no defence to the action.

S.C. 408 of 1987

7. In this action the plaintiff, Clifton Brick (Queanbeyan) Pty Limited, also alleged that it had sold and delivered to the company at its request certain goods. Full particulars were said to have exceeded three folios and to have already been supplied. Short particulars were given in the statement of claim. It was then alleged that the goods were sold and delivered by the plaintiff to the company on condition that the company should pay for them but that it had failed to do so. It was further alleged that on 12 February 1985 the defendants had agreed to guarantee the payment of any moneys owing by the company to the plaintiff, and that neither the company nor the defendants had paid a balance of $12,369.36 shown by the short particulars to be the balance owing.

8. The plaintiff claims that sum from the defendant (sic) as guarantor (sic) plus costs and interest pursuant to s.53A of the Supreme Court Act 1933.

9. An appearance on behalf of the defendants was filed on 13 April 1987 and a defence, similar in form to that filed in action S.C. 407 of 1987, was filed and no doubt delivered on 16 April 1987. Because it suffered from the same defects as those to which I have referred in relation to the defence in the earlier action I ordered on the application of the plaintiff that it too be struck out.

10. The summons for summary judgment was dated 27 April 1987.

11. In his affidavit in support of the summons, Neil Jeffrey Green deposed that he was the manager of the plaintiff and was as such responsible for the supply and delivery of goods and services on behalf of the plaintiff and for the books of the plaintiff and was duly authorised "to make Affidavit on behalf of the Plaintiff". He then said that the defendants were justly and truly indebted to the plaintiff and were so indebted at the commencement of the action and that the particulars of the claim appear correctly in the amended statement of claim, a copy of which was annexed to his affidavit marked with the letter "A".

12. It should be noted that in this case also the plaintiff sought leave to amend its statement of claim as indicated but, in my opinion, such an application was unnecessary having regard to the provisions of Order 32, rule 2. However, I think that in the event nothing turns on the terms of the amended statement of claim.

13. There was appended to Mr Green's affidavit what was described as "a copy of the Guarantee signed by the Defendants". The affidavit concluded by his statement that he verily believed that there was no defence to the action.

14. The admissibility of the copy guarantee was challenged and I ruled it inadmissible. Thereupon the plaintiff tendered affidavits which were sworn by each of the defendants and which contained the following:-

"I deny that the annexure "B" (the copy
guarantee referred to in the affidavit of Mr
Green) is in the form of any document signed
by me. In particular the document signed by
me on 12 February 1985 did not have the words
"Freeman Constructions Pty Limited" in line
11 and that part was blank."

15. Order 15, rule 1 of the Rules of Court is in the following terms:-

"(1) Where a defendant appears to a writ of
summons specially indorsed with or
accompanied by a statement of claim under
Order 4, rule 5, the plaintiff may, on
affidavit made by himself or by any other
person who can swear positively to the facts,
verifying the cause of action and the amounts
claimed (if any liquidated sum is claimed),
and stating that in his belief there is no
defence to the action except as to the amount
of damages claimed (if any), apply to the
Judge for liberty to enter judgment for such
remedy or relief as upon the statement of
claim the plaintiff is entitled to.

(1A) Notwithstanding sub-rule (1), an
application under that sub-rule may, if the
Judge so directs, be supported by an
affidavit containing statements of
information and belief of the sources and
grounds thereof."

16. Sub-rule (1A) was inserted in 1977 following and no doubt because of the decision of Blackburn J (as he then was) in Lombard Australia Limited v. Mulley (1976) 9 ACTR 23. His Honour ruled in that case that affidavits sworn on information and belief were insufficient. He referred to Symon & Co v. Palmer's Stores (1903) Ltd. (1912) 1 KB 259 and to Joseph Terry Pty Ltd v. T & G Fire & General Insurance Co Ltd (1973) VR 458. In the latter case it was held that the affidavit in support of an order for summary judgment based on a rule similar to Order 15, rule 1, did not state expressly or show by implication that the deponent could swear to the truth of all the necessary facts from his own knowledge but was at best equivocal. The rule in question read:-

"The plaintiff shall support his application
by affidavit made by himself or by any other
person who can swear positively to the facts
verifying the cause of action and the amount
claimed, and stating that in his belief there
is no defence to the action."

Blackburn J reached the same conclusion in Lombard Australia Limited v. Mulley.

17. Neither the affidavit of Mr Werch or that of Mr Green states expressly that the deponent could swear to the truth of all the necessary facts from his own knowledge. Nor does this appear by necessary implication. On the contrary, I was far from persuaded that a person holding the position in each company which the deponent in each case said that he held would be in a position to swear positively to the facts without the use of hearsay material. That, of course, following the insertion of rule (1A), should occasion little difficulty since in the normal case one would expect that an affidavit by such a manager would contain statements of information and belief with the sources and grounds thereof and that it would be readily admitted by the Judge. No such affidavit was, however, filed in these cases.

18. In my opinion, therefore, the plaintiff fails at the threshhold in each case. It therefore becomes unnecessary to consider the many other points which were raised during the course of the hearing by counsel for the defendants.

19. Each application is dismissed and the plaintiff is to pay the defendants' costs of and incidental to the application.