Artek Productions Pty Ltd v World of Adams Platform Pty Ltd (No 2)
[2005] VSC 128
•23 February 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. 8433 of 2004
| ARTEK PRODUCTIONS PTY LTD AND ORS | Plaintiffs |
| v | |
| THE WORLD OF ADAMS PLATFORM PTY LTD | Defendant |
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JUDGE: | KAYE J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 23 February 2003 | |
DATE OF JUDGMENT: | 23 February 2003 | |
CASE MAY BE CITED AS: | Artek Productions Pty Ltd and Ors v The World of Adams Platform Pty Ltd (Ruling No 2) | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 128 | |
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APPLICATION FOR LEAVE TO FILE FURTHER AFFIDAVIT – Rule 77.05(7)(b) Rules of Supreme Court – Summary judgment – Validity of nomination.
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APPEARANCES: | Counsel |
| For the First Plaintiff | Mr M.T.Bevan-John |
| For the Defendant | Mr D.F.Hyde |
HIS HONOUR:
This is an appeal by the plaintiffs from an order of the Master made on 10 February 2005 which dismissed a summons by the plaintiffs, in which the plaintiffs had sought summary judgment against the defendant pursuant to r.22.02 of the Rules of the Supreme Court.
The plaintiffs’ claim is based on a deed which a number of parties, including the second and third plaintiffs, entered into with the defendant and others, dated 22 December 2000. By the terms of that deed, Clause 8(a), the defendant undertook and agreed to pay to the second and third plaintiffs or their nominee a sum equal to 15% of the net revenue moneys received by the defendant derived from the granting of broadcasting licences utilising the Adams Platform technology up to a ceiling amount of $A10 million. Clause 8(b) provided that payments were to be made quarterly in arrears, and Clause 8(c) provided that the second and third plaintiffs would be entitled to receive an audit certificate from an auditor mutually agreed upon between the parties to accompany the quarterly payments.
The plaintiffs’ case is that the second and third plaintiffs have appointed the first plaintiff as their nominee.
In the course of the life of the agreement, the defendant has made seven separate payments to the first plaintiff for the period between 22 December 2000 and 30 September 2003. The defendant has received moneys from the granting of broadcasting licences, and it is the plaintiffs’ claim that those moneys entitle them to $644,775.55 pursuant to the terms of the deed for the period from 1 October 2003 to 31 March 2004. That amount has not been paid.
When the matter came on for judgment before the Master, the main issue, it seems, that was debated was whether the plaintiffs had adequately established that the first plaintiff had been nominated in accordance with Clause 8(a) of the deed. The Master upheld those submissions and accordingly dismissed the summons brought by the plaintiffs.
On appeal I have given leave to the plaintiffs to file a further affidavit which was sworn in Greece by the second plaintiff, Tassos Iounnidis, dated 16 February 2005, and I shall refer to that affidavit shortly.
On appeal, Mr Hyde, who appeared on behalf of the defendant, properly and realistically accepted that the one issue which was to be agitated before me was whether in fact the plaintiffs had adequately proven that the second and third plaintiffs had nominated the first plaintiff for the purpose of receiving what would be the eighth payment under the deed, which is the amount being claimed by the first plaintiff in this proceeding. Mr Hyde contends, correctly, that, this being an application for summary judgment, the plaintiffs must strictly prove their claim. Accordingly, the defendant is entitled to take advantage of any lack of proof which would be required to establish to my satisfaction an element of the claim. One element of that claim which needs to be proven, of course, is the nomination by the second and third plaintiffs of the first plaintiff for the purposes of Clause 8(a) of the deed.
Before I come to the terms of the further affidavit that has been received by the court today, I should express my views as to whether the plaintiffs have proven the critical element of their claim, namely, the nomination, based on the proofs which were before me. In my view, such an element has been sufficiently made out for the purposes of the entry of summary judgment. The evidence reveals that in respect of the first seven payments, which I should say included some rather substantial sums, the first plaintiff sent to the defendant, care of its accountant, Berry Warburton Woods, an invoice. The evidence establishes that, consequent on that invoice, the defendant paid the amounts referred to in the invoice to the first plaintiff. Thus, it has been established, and indeed, I consider correctly, conceded by Mr Hyde, that the evidence clearly establishes that for the first seven payments the first plaintiff was nominated by the second and third plaintiffs to receive those amounts. The evidence clearly establishes a course of dealing in which the sending of such an invoice was sufficient to constitute a nomination.
In respect of the payment which is in issue in this case, namely, the eighth payment, the first plaintiff sent a further invoice, dated 18 August 2004. In those circumstances, without any rebutting material, I would consider that a court would be entitled to be satisfied that, given the course of conduct to which I have already referred, the sending of that invoice would be sufficient to constitute the nomination in this case.
However, that conclusion is not necessary to the result which I reach. The further affidavit, at paragraph 2, contains the following sworn by the second plaintiff:
“Pursuant to the right given under Clause 8 of the deed exhibited to the affidavit of John Dimitropoulos sworn 26 November 2004 as Exhibit JD.2, my wife and I nominated the first-named plaintiff by letter forwarded by facsimile transmission to the directors of the defendant care of Paul Warburton’s office dated 20 July 2001 in the terms set out in the letter of that date, of which a copy is now produced and shown to me and marked TI.1, being a true copy of the letter dated 20 July 2001.”
The letter which was sent was directed to the directors of W.A.P., attention Paul Warburton, a fax number was given, and it was sent from Tassos and Ria Iounnidis, who I understand to be the second and third plaintiffs. It stated as follows:
“Dear Paul: Further to our conversation today, I am writing to inform you that the nominee company to receive the income stream, in accordance with our agreement dated 22 December 2000, will be Artek Productions Pty Ltd (details have been forwarded to you by our accountant, Yiannis & Co.) Please pay the amount into GPZ Trust Account as instructed in my previous letter. Thanking you.”
Then it is signed by the second and third plaintiffs.
In my view, that letter is clearly sufficient to constitute a nomination for the purposes of Clause (a). Mr Hyde argued strenuously that there was not sufficient proof of the sending of the letter by way of facsimile, pointing to the fact that the fax cover sheet was not exhibited. The exhibiting of that cover sheet is not necessary to prove the sending by facsimile. The second plaintiff has sworn that he nominated the first plaintiff by letter forwarded by facsimile. That is sufficient to prove the transmission of the document. Mr Hyde also contended that the reference to the GPZ Trust Account created an ambiguity; in other words, rather than nominating Artek Productions, someone else must have been nominated as the potential recipient of the payments.
In my view, the substance and context of the document is unambiguous and clearly Artek Productions Pty Ltd, the first plaintiff, was properly nominated. The reference to the trust account is no more than a reference to where the moneys ought to be paid for and on account of the first plaintiff.
In those circumstances, I consider that the plaintiffs, and in particular the first plaintiff has made out sufficiently for the purposes of summary judgment the element of nomination required under Clause 8(a) of the deed. There being no other submission put forward as to any other missing proof in the plaintiffs’ case, I accordingly conclude that there should be summary judgment for the first plaintiff for the amount claimed in the writ.
(Discussion ensued re interest and costs.)
HIS HONOUR:
I will award the plaintiff costs both before the Master and before myself.
The orders will be:
1.The plaintiff’s appeal from the Master is allowed and the Master’s order is set aside.
2.In lieu, pursuant to O.22.02, there be judgment for the plaintiff in the sum of $644,775.55, together with interest pursuant to the Supreme Court Act in the sum of $27,133.57.
3. That the defendant pay the plaintiffs’ costs of the summons before the Master and the costs of appeal.
4.That the defendant pay the plaintiffs’ costs of the proceeding including reserved costs.
5. There will be a certificate to the defendant under the Appeal Costs Act.
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