Airkorp Australia v Zampelis Holdings

[2009] VCC 1432

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE

CIVIL DIVISION

Case No.

AIRKORP AUSTRALIA	Plaintiff
v
ZAMPELIS HOLDINGS	Defendant

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF JUDGMENT EX TEMPORE:	11 November 2009
CASE MAY BE CITED AS:	Airkorp Australia v Zampelis Holdings
MEDIUM NEUTRAL CITATION:	[2009] VCC 1432

REASONS FOR JUDGMENT – EX TEMPORE

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Catchwords: Debt recovery, no case submission, applicable test, claim dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T. D. Best	A’Beckett Lawyers
For the Defendant	Mr S. Pitt	Mills Oakley Lawyers
HIS HONOUR:

1          By a proceeding commenced by writ issued in this court on 22 April 2009, the plaintiff Airkorp Australia Pty Ltd ACN 088966205 sues Zampelis Holdings Pty Ltd ACN 006301524. The statement of claim, amended pursuant to an order that I made by consent on 10 November 2009, claims the sum of $155,801.48, by the plaintiff from the defendant.

2          The plaintiff carries on business in the field of air-conditioning and refrigeration engineering. The statement of claim in Paragraph 3 pleads that the defendant named, “At all times material”, traded as, “The Zampelis Group.” In the alternative it pleads that the defendant is and was at all material times the registered proprietor of the business name, “Zampelis.”

3          The statement of claim then pleads in paragraph 5 that the defendant is indebted to the plaintiff in the sum of $155,801.48, in respect of air- conditioning and refrigeration services supplied to the defendant at the defendant's request between 1 July 2007 and 27 September 2008 particulars of which are said to be described in a number of invoices listed in the pleading.

4          The defence delivered on 4 June 2009 admits formal incorporation of both parties and denies that the defendant, at all material times, traded as “the Zampelis Group”. It admits that it is the registered proprietor of the business name “Zampelis”.

5          The defence denies the allegations contained in Paragraph 5 of the statement of claim and says that the plaintiff has not performed any air-conditioning and refrigeration services for the defendant or at the defendant's request.

6          It further says that any invoice identified in the particulars sub-joined to Paragraph 5 of the statement of claim is the responsibility of the entity identified under the column “Location” in the statement of claim, and not the defendant.

7          It is therefore incumbent upon the plaintiff, in order to prove its case, that the named defendant, at all times material, traded under the business name “the Zampelis Group”, whether registered or unregistered, and that air-conditioning and refrigeration services supplied were supplied to the defendant as named and at the request of the defendant as named.

8          The plaintiff, called Mr Kor, the managing director of the plaintiff and the plaintiff's financial controller, Mr Guirguis, both of whom gave sworn evidence before me. In addition, the plaintiff put into evidence many invoices issued by it which fall into a number of groups or exhibits.

9          The first group, which I marked as Exhibit G, are found in the Court Book at pp.40 to 151, (both inclusive).

10        That group of invoices from the plaintiff is addressed to “Nick Zampelis, Zampelis Group, 300 City Road, Southbank, Victoria”.

11        When examined those invoices purport to charge for works carried out by the plaintiff at various locations described as variously “Waterfront Crown - Fish & Company”, “Campari, Lynden Investments”, “Waterfront Beacon Cove - Zampbeacon”, “Long Room”, “Cafe Greco, Cosmopolitan Hotel”, “Watergrill - Alianda Valley”, “Head office - Wembley Court”, and other locations.

12        The second group of invoices, which I marked as Exhibit H, are found in the court book at pp.152-169 (both inclusive). Those invoices from the plaintiff are addressed to “Silk Road, care of Zampelis Group, 300 City Road, Southbank, Victoria, 3006”. The job location described in that category of invoices, marked as Exhibit H, is “The Establishment Bar & Grill”.

13        The invoices which I marked as Exhibit H were the subject of a great deal of evidence before me. In summary the defendants evidence is that those invoices related to work carried out at a restaurant known as the Establishment Bar & Grill, which later changed its name to Silk Road.

14        There is in evidence at p.170A, which forms part of Exhibit J, a fax from Zampelis Group to the plaintiff on or about 17 August 2006 which inter alia says, “Could Airkorp Australia invoice the above project to the Establishment Bar & Grill Pty Ltd, 300 City Road, Southbank, Victoria, 3006.”

15        The defendant's case essentially is that whereas the plaintiff carried out work at various restaurants, each of those restaurants was owned or controlled by a separate corporate entity, and that when the plaintiff invoiced for its services it should have invoiced and charged each of the separate corporate entities and not the defendant. In fact there is no evidence before me of the plaintiff ever having invoiced the named defendant in this proceeding.

16        In June of this year there was correspondence entered into, between the solicitors for the plaintiff and the solicitors for the defendant. Various letters were exchanged five of which found their way into evidence, and appear as Exhibit K in the court book at pp.207 to 214 (both inclusive). At the outset of the proceeding the defendant's solicitors wrote to the plaintiff and said, inter alia, “As you will see from the defence Zampelis Holdings Pty Ltd denies any responsibility for the claims, on the basis that no work has been performed for it, and further, that it never made a request for the work.”

17        That was later followed by a letter of 21 October 2009 in which the defendant's solicitors advised the plaintiff's solicitors of the names of each company, operating or owning the various restaurants, where the plaintiff claimed to have carried out work. A letter from the defendant's solicitors to the plaintiff's solicitors of 29 October of this year said inter alia, “Our client was dealing with, 'The Zampelis Group', of 300 City Road, Southbank, Victoria, 3006, as described on the letterhead of all correspondence from your client to ours and is the addressee of every invoice sent by our client to yours (on your client's instructions). The only question is which entity or entities is actually trading as the Zampelis Group. If there is an entity or entities other than the named defendant which trades under the name the Zampelis Group, then we ask you advise us immediately, otherwise we confirm that we are ready to proceed for trial”.

18        By way of response, on 30 October 2009, the defendant's solicitors advise, inter alia, “The words 'the Zampelis Group' are utilised on correspondence by our client to signify that there are a number of various companies within the group. There is no business which is operated under the name the Zampelis Group, and all of the various businesses are operated by companies, the details of some of which we have previously supplied to you”.

19        In evidence viva voce, Mr Kor was emphatic that at all times his company was dealing with “the Zampelis Group”. That evidence was confirmed by Mr Guirguis in his evidence.

20        At the conclusion of the plaintiff's case, Mr Pitt of counsel, who appears on behalf of the defendant, made a submission that there was no case for the defendant to answer. When asked by me, he told me that he was electing not to call evidence.

21        In a detailed and, if I may say so, helpful written submission, Mr Pitt traversed the authorities in order to demonstrate that the plaintiff, in order to prove its case, must prove some privity of contract with the defendant as named. In particular, he relied upon the principles in Pethybridge v Stedikas Holdings Pty Ltd [2007] N.S.W.C.A. 154, at Paragraph 54 and Paragraph 60, and Walker v Wimborne & Ors (1976) 137 C.L.R. p.1, and Industrial Equity Ltd Ors v Blackburn Ors (1977) 137 C.L.R. p.567.

22        In summary form, the submission made by Mr Pitt is that when examined closely, there is no evidence whatsoever in this case from which any contractual arrangement can be concluded between the plaintiff and the defendant as named, nor is there any evidence from which such an inference can be made.

23        Mr T. Best of counsel, who appears on behalf of the plaintiff, by way of response, points to a number of matters. First of all he goes to the invoices and he contends correctly that there is no doubt that the invoices are made out to the Zampelis Group. He also contends correctly that there is unchallenged evidence that Mr Kor and Mr Guirguis were dealing at all times with “the Zampelis Group”.

24        He pointed to the evidence at p.260 of the court book, being part of Exhibit M, that shows that the business name “Zampelis” is a business name owned by the named defendant. However, that is not a business name evidenced in these proceedings.

25        I have looked at the evidence very closely in this matter and the transcript will reveal that on a number of occasions I have pressed counsel for the plaintiff to take me to the evidence in the case which shows that the defendant named in the proceeding carried on business or traded as “the Zampelis Group” or any evidence which showed that the defendant as named had dealings with the plaintiff.

26        I did so because it is clear that the plaintiff did a lot of hard work over a long period of time at a number of entities and ought to have been paid for that work. However, at the end of the day, as Mr Kor was forced to concede in cross-examination, the naming of the defendant in this proceeding was but nothing more than a guess. There is no evidence before the court which shows that the defendant requested the plaintiff to do work for it at all.

27        Paragraph 5 of the pleading in the statement of claim is not made out. I am mindful of the fact that this is an application that the proceeding should be dismissed on the basis that the plaintiff, having closed its case, has not proved its case.

28        In assessing the evidence I have applied the test as to whether or not there is any evidence upon which the plaintiff could succeed. In doing so I have applied the principles recently and helpfully summarised by

His Honour Justice Kaye in Jason Henry Oakley & Anor

v. Insurance Manufacturers of Australia [2008] V.S.C. 68 at Paragraph 3.

29        Applying the relevant test to the evidence in this case, there is no evidence whatsoever on which the plaintiff could succeed in this proceeding. Accordingly I uphold the defendants no case submission. The proceeding will be dismissed.

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