JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : AMEDURI -v- COTELLESSA [2012] WADC 86 CORAM : STONE DCJ HEARD : 11-14, 17-21, 24 & 26 OCTOBER 2011 DELIVERED : 15 JUNE 2012 FILE NO/S : CIV 3751 of 2009 BETWEEN : JOHN AMEDURI First Plaintiff
KAREN AMEDURI
Second Plaintiff
AND
SERGIO COTELLESSA
Defendant
Catchwords: Contract - Construction and interpretation Legislation: Nil Result: Judgment for First Plaintiff and Second Plaintiff
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Representation: Counsel:
First-named Plaintiff : Mr N D C Dillon
Second-named Plaintiff : Mr N D C Dillon
Defendant : Mr M F Rynne & Mr P J Hannan
Solicitors:
First-named Plaintiff : McDonald Pynt
Second-named Plaintiff : McDonald Pynt
Defendant : De Vita & Dixon Lawyers
Case(s) referred to in judgment(s):
Tradesman Technologies Pty Ltd v Ameduri [2012] WADC 85
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Introduction 1 Tradesman Technologies Pty Ltd (Tradesman), a company previously known as Concepts 2000 Ltd imported from overseas and supplied in Australia traffic related products such as cones and bollards. Mr Sergio Cotellessa was the sole director of Tradesman which traded as Tradesman Technologies. 2 Signs All Pty Ltd, a company previously known as Traffic Products Group Pty Ltd and later known as Allpack Signs Pty Ltd (Allpack), purchased traffic products from Tradesman. Mr Con Scrinis was the sole director of Allpack. 3 In mid-2008 Mr Cotellessa sold Tradesman for a share in a combined group of companies called The Traffic Group. The Traffic Group, which included Allpack, was involved in selling traffic products. A few months later Mr Cotellessa did not want to be a member of The Traffic Group and he wanted the return of Tradesman. Tradesman was subsequently transferred back to Mr Cotellessa on the understanding that Tradesman would only supply The Traffic Group and its associated companies with traffic products. 4 On or about 19 January 2009 Tradesman, Mr Cotellessa and his associated companies as suppliers entered into a written supplier agreement with The Traffic Group and its associated companies (Restricted Supply Agreement). Under the terms of the Restricted Supply Agreement Tradesman, Mr Cotellessa and his associated companies promised The Traffic Group and its associated companies that Tradesman would only supply traffic products to The Traffic Group and its associated companies. 5 From time to time between July 2008 and April 2009 Tradesman supplied traffic products to Allpack in response to orders placed by Allpack. Tradesman rendered invoices to Allpack for the traffic products. The amount owed by Allpack to Tradesman as at 8 April 2009 was in dispute. 6 At all material times after October 2008 Mr John Ameduri who resided in Western Australia held a supervisory role with Allpack and he reported to Mr Scrinis who resided in Victoria. Mr Ameduri was authorised by Mr Scrinis to place orders on behalf of Mr Scrinis and Allpack for the purchase of traffic products from Tradesman. (Page 4)
Mr Ameduri was an authorised signatory on cheques drawn by Allpack. On occasions Mr Ameduri was authorised by Mr Scrinis to sign documents on behalf of Allpack as the State Manager, director or director/secretary. 7 Mr Cotellessa and Mr Ameduri had been friends as teenagers. They crossed paths again during their business dealings several years before the events of this action. Their friendship and business relationship continued from that time and they saw each other regularly at the business premises of Tradesman or Allpack. 8 On 8 April 2009, by arrangement, Mr Cotellessa attended a meeting at the home of Mr Ameduri and his wife Mrs Karen Ameduri in Noranda. There was no dispute that at that meeting Mr Ameduri and Mrs Ameduri agreed to lend Mr Cotellessa $150,000 to be repaid by him by 30 November 2009. However, what was also agreed at that meeting was the subject of the dispute in the proceedings in CIV 294 of 2011 and the proceedings in CIV 3751 of 2009. 9 Mr Cotellessa claimed that at the meeting on 8 April 2009 an oral agreement was made between himself, Tradesman, Mr Ameduri on behalf of Allpack and Mrs Ameduri (Continuing Supply Agreement). 10 Mr Cotellessa claimed, in the pleadings in CIV 294 of 2011 and CIV 3751 of 2009, the Continuing Supply Agreement contained the following terms: 1. Subject to the term in sub-paragraph 3, Mrs Ameduri promised to advance $150,000 to Tradesman. 2. Subject to the terms in sub-paragraphs 4 and 5, Mr Cotellessa would be responsible for the repayment to Mrs Ameduri of the $150,000 to be advanced by Mrs Ameduri to Tradesman. 3. Mrs Ameduri was not obliged to make the advance in sub-paragraph 1 unless and until Mr Cotellessa had signed a document to the effect that $150,000 would be lent by Mrs Ameduri to Mr Cotellessa and repaid by 30 November 2009. 4. Subject to the term in sub-paragraph 5, Mr Cotellessa was obliged to pay Mrs Ameduri the advance in sub-paragraph 1 by 30 November 2009. 5. The obligation in sub-paragraph 4 was conditional upon Allpack: (a) paying all invoices rendered by Tradesman to Allpack, within 30 days of the date of each such invoice, in respect (Page 5)
11 Mr Ameduri and Mrs Ameduri denied there was discussion of a Continuing Supply Agreement. 12 Mr Ameduri and Mrs Ameduri claimed that following the meeting Mr Cotellessa, Mr Ameduri and Mrs Ameduri entered into a written agreement which was signed by them, as individuals, on 9 April 2009 (Loan Agreement). The Loan Agreement was in the following terms: This is an agreement between John Ameduri and Karen Ameduri and Sergio Cotellessa. Ameduri to lend $150,000 to Sergio Cotellessa. The following monies will be paid back to Ameduri by 30 November 2009 with part payments to be paid as Cotellessa receives payments from Allpack Signs. (Page 6)
13 On 30 November 2009 Mrs Ameduri requested Mr Cotellessa pay $150,000 that was due under the Loan Agreement. Mr Cotellessa declined. Mr Cotellessa contended that the obligation to pay Mr Ameduri and Mrs Ameduri $150,000 was conditional upon compliance with the terms of the Continuing Supply Agreement and there had not been compliance. 14 Tradesman claimed that in late May 2009 a large quantity of Tradesman's traffic products stock had left its warehouse in Malaga for Allpack's warehouse in Malaga in response to orders placed by Allpack. Tradesman subsequently rendered invoices to Allpack for the traffic products. 15 Tradesman claimed that during May, July and September 2009 Mr Ameduri made representations to Mr Cotellessa to the effect that Allpack would soon have the financial capacity to pay Tradesman the outstanding invoices for traffic products supplied by Tradesman to Allpack after the Continuing Supply Agreement was entered into on 8 April 2009 and if Allpack did not pay Tradesman the outstanding invoices then he would make that payment. Tradesman claimed that in reliance upon the representations by Mr Ameduri Tradesman continued to supply traffic products on credit to Allpack during and after May 2009 and until about December 2009 and Tradesman continued to abide by the Restricted Supply Agreement by not contracting to supply traffic products to competitors of Allpack during the period from May 2009 and until about January/February 2010. 16 Tradesman claimed that as at 30 November 2009 Allpack owed Tradesman approximately $501,566.88 for outstanding invoices for supplies of traffic products prior to 8 April 2009 and invoices rendered for supplies of traffic products during the period from April 2009 to November 2009. On or about 4 December 2009 Tradesman received a payment of $35,358.19 in part payment of outstanding invoices. Around that time Tradesman insisted Allpack pay cash for traffic products supplied by Tradesman. 17 In late April 2010 and early May 2010 Allpack sold its Western Australia and South Australia business operations. The National Australia Bank took the proceeds payable to Allpack for the sale of the businesses by virtue of a security held by bank over the assets of Allpack. On 11 May 2010 liquidators were appointed to Allpack. (Page 7)
18 On 1 March 2011 a registrar ordered that the proceedings in CIV 294 of 2011 and the proceedings in CIV 3751 of 2009 be tried together before the same judge with evidence in one action to be evidence in the other.
Issues in dispute 19 What was agreed at the meeting on 8 April 2008? Was the Loan Agreement entered into in terms of the written agreement or, alternatively subject to the additional oral terms of the claimed Continuing Supply Agreement?
Finding 20 For the reasons I gave with respect to this issue in Tradesman Technologies Pty Ltd v Ameduri[2012] WADC 85, which I delivered this morning, I preferred the evidence of Mr Ameduri and Mrs Ameduri to the evidence of Mr Cotellessa. 21 In the circumstances I am satisfied that Mr Ameduri and Mrs Ameduri had established that Mr Cotellessa was obliged under the Loan Agreement to pay them $150,000 on 30 November 2009.
Conclusion 22 Mr Ameduri and Mrs Ameduri are entitled to judgment of $150,000 and interest thereon from 30 November 2009 until payment.
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