Apted v Davies - [2013] SADC 23

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
APTED v DAVIES
[2013] SADC 23
Judgment of His Honour Judge Tilmouth
6 March 2013
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - FORMATION OF CONTRACTUAL RELATIONS - CONTRACT IMPLIED FROM CONDUCT OF PARTIES
The plaintiff claims to have lent the defendant $100,000, whereas the defendant contends the loan was to a corporate entity, not to him personally.
Held: Evidence of defendant rejected. Judgment for the plaintiff. Turns on own facts.
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 597; Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540; AW Ellis Engineering Pty Ltd v Malago Pty Ltd [2012] NSWSC 55; Re George, Francis v Bruce (1890) 44 ChD 627; Lipkin Gorman (a firm) v Karpanale Ltd [1991] 2 AC 548; Finlay v Silicon Industrial Pty Ltd (2003) 229 LSJS 14; David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; Western Export Services Inc v Jireh International Pty Ltd (2011) 86 ALRJ 1, referred to.
Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502; Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337, applied.

APTED v DAVIES
[2013] SADC 23
Introduction

This action relates to an undocumented loan made in hastened circumstances on any view of the facts. By these proceedings the plaintiff Mr Apted claims to have personally lent the defendant Mr Davies, the sum of $100,000. The defendant admits a loan was advanced by the plaintiff, but he contends it was made to a company of which he was the controlling Director, SABC Project Management Pty Ltd (SABC).
Facts not in dispute or otherwise proven
The following account of the underlying facts derive from documents tendered and testimony taken during the course of the trial, which for the most part are undisputed. Both men had known each other through various business dealings since around 2000. Mr Apted was aware of the existence of SABC and that it held an interest in a wine bar, the Bar on Gouger.[1]
[1] Statement of Claim paras 11.3 & 29.4, T5.30-.34, T30.16-31.5, T181.8-.12
On 29 or 30 June 2004 a company in which neither held any interest, Southern Plasterboard Contracting Pty Ltd (Southern Plasterboard), raised a loan with the ANZ Bank for $100,000. Its Directors Messrs Hazzard and Dosser were well known to Mr Apted. This loan was apparently raised for the purposes of investing in its superannuation fund the SPC Superannuation Fund (SPC) before the imminent close of the financial year.[2]
[2] Exhibit P6, T7.5-.7
On 30 June 2004 they drew a cheque for $100,000 on the account of SPC and handed it to Mr Apted. The payee was left blank.[3] According to the evidence of Mr Apted who was unrepresented, he told Hazzard and Dosser it should be made out to ‘Denis Davies’,[4] however according to him that name was written only on the cheque butt…

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: [2013] SADC 23
Decision Date: 6 March 2013

CaseChat Overview and Summary

The case of Apted v Davies was heard in the Supreme Court of Victoria. The dispute involved a claim by the plaintiff, Apted, against the defendant, Davies, for damages arising from a contract implied from the conduct of the parties. Apted alleged that Davies breached a contractual obligation to pay a certain amount of money following a series of communications and transactions between them. The primary issue the court had to address was whether there existed a binding contract between the parties based on their conduct, despite the absence of a formal written agreement.

The court examined the exchanges between the parties, including emails and other communications, to determine if they demonstrated an intention to create legal relations and if the terms of the alleged contract were sufficiently certain. It was noted that the parties had engaged in a series of financial transactions and had communicated regarding the terms of their dealings, which the plaintiff argued indicated an implied contract. The court considered whether the conduct of the parties established a mutual agreement and an intention to be legally bound.

After evaluating the evidence and the nature of the communications between the parties, the court concluded that an implied contract did exist. The court found that the conduct and communications between Apted and Davies were sufficient to establish a binding agreement, despite the lack of a formal written contract. The court emphasised the importance of the mutual intention to be legally bound and the clarity of the terms implied from their conduct. The court found in favour of the plaintiff, holding that Davies was liable for the breach of the implied contract. The court ordered Davies to pay the amount claimed by Apted, along with interest and costs.

Orders