HAWKER NOYES EQUIPMENT PTY LTD v DUEEASY PTY LTD [1996] NSWCA 242

HAWKER NOYES EQUIPMENT PTY LTD v DUEEASY PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER, SHELLER and COLE JJA 9 July 1996, 18 July 1996

[1996] NSWCA 242

PRACTICE AND PROCEDURE — application for summary judgment — District Court Rules Pt9 r17, Pt11A r2 — power to order summary judgment not to be exercised unless no real question to be tried; Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99; Singh v Varinder Kaur (1985) 61 ALR 720 at 722.

The respondent sued the appellant for breach of an agreement to carry out repair work to an excavating machine, and, in the alternative, claimed that the appellant was negligent in carrying out the repairs. In its notice of defence, the respondent did not admit any of the allegations made against it. The respondent applied by notice of motion for orders pursuant to Pt9 rl7 and Ptl1A 12 of the District Court Rules.

Judge Kennedy-Smith heard the application, and found that it was 'overwhelmingly obvious' that the appellant had agreed to repair the machine and had failed Properly to do so, and that it appeared to have dismantled and replaced parts of it thereby causing the machine to suffer damage in operation. His Honour found that this amounted to negligence, and entered summary judgment for the respondent pursuant to Ptl1A r2.

HELD:

1. The power to order summary judgment is one that should be exercised with great care and should never be exercised unless it was clear that there is, without doubt, on the whole of the material, no real question to be tried. Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99; Singh v Varinder Kaur (1985) 61 ALR 720 at 722 per Samuels JA.

2. If a repairer undertakes to repair a machine and it fails to operate within a short time, an inference may be drawn that the repairs were not done properly. However, the case pleaded put the nature of the breach differently, and was not made.out in the respondent's evidence. Ptl1A r2 requires evidence to support the actual claim made, not some different claim. (per Cole JA dissenting) r2(1)(a) will be satisfied if there is evidence of facts on which the claim or part of the claim is based, and then the court exercising a judicial discretion could give summary judgment if it found there was 'no real question to be tried'. The plaintiff s claim was ill pleaded, but its substance was tolerably clear. Two of the particulars of the alleged breach were established by the evidence, and this was sufficient evidence to justify the entry of summary judgment in favour of the respondent, with the issue of damages reserved for later argument.