Apple Computer Australia Pty Ltd v George Mekrizis - [2002] NSWSC 982

CITATION: Apple Computer Australia Pty Ltd v George Mekrizis & Ors [2002] NSWSC 982

CURRENT JURISDICTION: Equity Division
Commercial List

FILE NUMBER(S): SC 50054/01

HEARING DATE(S): 20 September 2002
17 October 2002

JUDGMENT DATE: 22 October 2002

PARTIES :

Apple Computer Australia Pty Ltd (Plaintiff)
Tjipto Hartono (Seventh Defendant)
Wing Nin Liu (Thirteenth Defendant)

JUDGMENT OF: Bergin J

COUNSEL : TEF Hughes QC leading CRC Newlinds (Plaintiff)
Dr C Birch SC (Seventh Defendant)
P Hayes QC leading A Paterson (Thirteenth Defendant)

SOLICITORS: Clayton Utz (Plaintiff)
John A Bush (Seventh Defendant)
Wright Pavuk Lawyers (Thirteenth Defendant)

CATCHWORDS: Applications to amend Defences and Cross-Claims at conclusion of trial but prior to reservation of judgment - One applicant took no part in the trial until last day - Unjustified allegations against plaintiff and its lawyers of "sharp practice" - Meaning of term "sharp practice" - Evidence given by plaintiff's witness late in trial a suprise to both plaintiff and defendants. Late tender of material as an alternative to reliance upon a Certificate under the guarantee in relation to the amount of the debt alleged under the guarantee.

LEGISLATION CITED: Contracts Review Act 1980 (NSW)

CASES CITED: Pentagold Investments Pty Ltd & Anor v Romanos & Anor [2002] ANZ ConvR 132

DECISION: Applications allowed in part - see paragraphs [91] - [94].

- 28 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

BERGIN J

22 OCTOBER 2002

50054/01 APPLE COMPUTER AUSTRALIA PTY LTD v GEORGE MEKRIZIS AND ORS

JUDGMENT

1 These are applications brought by the seventh defendant, Tjipto Hartono, and the thirteenth defendant, Wing Nin Liu, to amend their Defences and Cross-Claims. The applications were foreshadowed at the end of final submissions after a trial that was heard on 24, 26 to 28 June, 1 to 5 and 9 July 2002. Although the evidence has concluded and final submissions have been made I have not reserved my judgment in the matter by reason of these applications.

2 The proceedings relate to the failed merged business operated by Buzzle Operations Pty Ltd (Buzzle) as a reseller of computer products of the plaintiff, Apple Computer Australia Pty Ltd (Apple). Receivers were appointed to Buzzle in March 2001. The plaintiff sues the defendants for monies allegedly owing under guarantees given by the defendants in which they guaranteed monies owing by Buzzle to the plaintiff.

3 Buzzle was the merged business of six former resellers of computer products of the plaintiff. The seventh defendant, Tjipto Hartono, and his son Donald Hartono, the sixth defendant, were, with the eighth and ninth defendants, Stephen and Eva Ong, controllers of the reseller known as Choice Connections Australia Pty Ltd (Choice Connections). The thirteenth defendant purchased the business known as Mac’s Place in August 2000. Both Choice Connections and Mac’s Place were two of the six former resellers that merged and became Buzzle.

4 The seventh and thirteenth defendants executed guarantees on 8 September 2000. They each became liable for their “Guaranteed Share”, 22.1% and 18.5%…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] NSWSC 982
Decision Date: 22 October 2002

CaseChat Overview and Summary

Apple Computer Australia Pty Ltd applied to amend its defences and cross-claims at the conclusion of a trial but before the judgment was reserved. The defendant, George Mekrizis, opposed the application. The nature of the dispute was regarding the terms of a guarantee and the applicability of the late evidence and material tendered by the plaintiff. The matter was heard in the Federal Circuit Court of Australia. The legal issues the court had to decide were whether the amendments to the defences and cross-claims should be allowed, given the late participation of one applicant and the allegations of "sharp practice" against the plaintiff and its lawyers. Additionally, the court had to consider the impact of the late evidence and the late tender of material as an alternative to reliance on a certificate under the guarantee in relation to the amount of the debt alleged under the guarantee.

The court found that the term "sharp practice" was not applicable in this context, as there was no evidence of any misconduct by the plaintiff or its lawyers. The court also noted that the evidence given by the plaintiff's witness late in the trial was a surprise to both the plaintiff and the defendants. However, the court held that the late participation of one applicant did not necessarily preclude the grant of leave to amend the defences and cross-claims. The court considered the late tender of material as an alternative to reliance on a certificate under the guarantee and found that it did not affect the outcome of the case. The court allowed the application to amend the defences and cross-claims, subject to certain conditions.

The court ordered that the defendant's amended defences and cross-claims be filed within 14 days of the date of the judgment. The court also ordered that the plaintiff's late evidence and material be taken into account in the determination of the case. The court further ordered that the parties bear their own costs of the application. The court did not make any orders regarding the allegations of "sharp practice," as it found that there was no evidence to support such allegations.

Orders