Chadwicks Ltd v Byrne Roofing Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 25 February 2005
• Neutral Citation: [2005] IEHC 47
• Court: High Court
• Date: 25 February 2005

[2005] IEHC 47

THE HIGH COURT

RECORD No.1078 S/2003

RECORD No.1079 S/2003

CHADWICKS LTD v P BYRNE ROOFING LTD & BYRNE

BETWEEN

CHADWICKS LIMITED

PLAINTIFF

And

P. BYRNE ROOFING LIMITED

DEFENDANT

AND ALSO

BETWEEN

CHADWICKS LIMITED

PLAINTIFF

And

PATRICK BYRNE

DEFENDANT

PRACTICE AND PROCEDURE

Summary judgment

Plenary hearing - Circumstances in which court should remit action to plenary hearing -Circumstances in which court should grant summary judgment - Whether defendant had established sufficient basis for defending action - Whether defendant had to satisfy court that defence would probably succeed -Whether the court should consider merits of matter where it has already decided to remit to plenary hearing - Judgment awarded for part sum and balance remitted to plenary hearing

1 JUDGMENT of Mr. Justice Clarke delivered the 25th day of February, 2005

2 In these proceedings the plaintiffs seek to recover €89,029.34 as against

3 P. Byrne Roofing Limited ("the defendant company") on foot of goods supplied and in respect of Mr. Byrne in the second proceedings on foot of a guarantee in respect of the indebtedness of the company.

4 Both matters came before the court by way of motion for summary judgment. The issue which I have to determine is as to whether, and if so to what extent, the defendants have established grounds so as to permit them to avoid judgment at this stage and have the matter remitted for plenary hearing.

5 While there is an assertion on the part of Mr. Byrne at para. 9 of an affidavit dated 20th October, 2003, sworn in the proceedings against him personally to the effect that he is advised that the guarantee upon which he is sued is invalid, that issue was not pursued at the hearing before me. However, the liability of Mr. Byrne on foot of the guarantee cannot exceed the liability of the company for goods supplied so that each of the points made by the company as to its defence to the claim against it are equably applicable to Mr. Byrne.

6 The real issue is, therefore, as to whether the company has established a sufficient basis for defending the action. Finally it should be noted that a variety of affidavits were sworn in both sets of proceedings both on behalf of the plaintiffs and the respective defendants. It was agreed in the course of the hearing before me that I could have regard to any affidavits so sworn in either proceedings even if technically that the relevant affidavit appeared to have been sworn in the other proceedings.

THE FACTS

7 It is common case that for the period between 1998 and the latter part of 2002 a course of business developed between the parties which was broadly along the lines deposed to by Pat Walsh, the group credit manager of the plaintiff company, as follows:-

"Notwithstanding the sending of a specific invoice for a specific sum relating to the supply of an item or group of items the defendant company would ordinarily pay rolling amounts to the plaintiff in consideration for the supplies received. As such the defendant company would not discharge the specific invoices."

8 This process would appear to have continued without any dispute on either side. The plaintiff from time to time furnished invoices to the defendant company who in turn paid them on the rolling basis above described.

9 In early 2003, the defendant company was, on the basis of such invoices, apparently indebted to the plaintiffs in a sum which the plaintiffs contended amounted to €111,984.25. Correspondence thereafter ensued in the course of which the defendant company, through its solicitors, in a letter of 27th August, maintained three matters by way of defence as follows:-

10 (1) It was contended that the plaintiff owed the defendant company a credit in respect of goods supplied by Tegral in the sum of €33,880.00.

11 (2) It was contended that the invoices reflected overcharging in the sum of €5,952.40.

12 (3) Finally it was contended that certain of the goods the subject matter of the invoices had not in fact been received by the defendant company though, at that stage, the amount attributable to such invoices was not specified.

13 The Tegral issue was finally compromised which resulted in a reduction of the sum claimed from the initial amount of €111,984.25 to the sum now claimed of €89,029.34 representing a credit (inclusive of V.A.T.) of €22,954.00. While it was contended at the hearing that the manner in which the plaintiff had dealt with this issue on their affidavits was unsatisfactory it seems to me that the Tegral issue no longer remains of any relevance to the issues between the parties.

14 The real issue between the parties stems from the third contention referred to above. In order to understand this dispute it is necessary to set out the manner in which the plaintiff accepted orders for goods and effected delivery of the goods so ordered. In an affidavit of the 11th October, 2004, Mr. Patrick Walsh described it as follows:-

"I say that when an order was phoned into our sales representative on behalf of the defendant company, the plaintiff company would produce a four part docket. The first part and third part of the docket (pink and yellow in colour respectively) would go with the goods when they were being delivered on site. The first part of the docket would be signed by a representative on behalf of the defendant company and the third part of the docket would remain with the goods on site. I say that occasionally and if there was nobody on site where the goods ordered by the defendant were being delivered to, the said goods would be left on site for the defendant. The first part of the docket would not be signed and it would be taken away by the driver of the goods but the third part of the docket would remain with the goods. I say that the second part (white in colour) of the docket is the invoice which would have been posted out to the defendant company on a weekly basis. The fourth part (green in colour) of the docket is a copy of the invoice which remains with the plaintiff. I further say that statements were sent by the plaintiff to the defendant on a monthly basis."

15 In general terms the defendants do not dispute that the above was the practice. However they draw attention to the fact that some of the delivery dockets with which they have been furnished either are not signed or are signed by persons whom, it is contended, had no authority to acknowledge receipt of goods on behalf of the defendant company not being employees thereof. In relation to the general operation of that system, Mr. Byrne in an affidavit of 5th December, 2004, states that in the ongoing day to day business operation of his company, each individual invoice was not necessarily scrutinised as and when received and the system relied in part on a level of trust between the parties who have an ongoing relationship over a period of time. He goes on to state that the company did not do a full...