Certified Skills Victoria Pty Ltd v Reeves
[2017] VCC 37
•10 February 2017
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
COMMERCIAL DIVISON
GENERAL LIST
Case No. CI-15-02838
| CERTIFIED SKILLS VICTORIA PTY LTD | Plaintiff |
| v. | |
| DARREN REEVES & ANOR | Defendants |
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JUDGE: | His Honour Judge Anderson | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 February 2017 | |
DATE OF JUDGMENT: | 10 February 2017 | |
CASE MAY BE CITED AS: | Certified Skills Victoria Pty Ltd v. Reeves & Anor | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 37 | |
REASONS FOR JUDGMENT
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Catchwords: Contract – An individual entering into an agreement referred in correspondence and discussions to the business entity as All Trade Training – No mention was made that there was a company All Trade Training Pty Ltd – Whether the agreement was with the individual or the company – Sections 153(1), 88A and 144 of the Corporations Act 2001 (Cth).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J. Ribbands of Counsel | Corrs Chambers Westgarth |
| For the First Defendant For the Second Defendant | Mr D. Reeves (in person) Mr D. Reeves (by leave) |
HIS HONOUR:
1The issue for determination in this proceeding is whether, in June 2014, Marie Leone on behalf of the plaintiff Certified Skills Victoria Pty Ltd (“Certified Skills”) entered into an agreement (“the Agreement”) with the first defendant Darren Reeves personally or with the second defendant All Trade Training Pty Ltd (“the Training company”), a company of which Mr Reeves was the sole director and shareholder.
2At the trial, Mr Reeves represented himself and was given leave to appear for the Training company. By the pleadings, the defendants admitted the Agreement had been entered into between Certified Skills and the Training company and denied that Mr Reeves was the contracting party.
3Certified Skills’ counsel, Mr Ribbands conceded in his final submissions that the onus was upon his client to prove that Certified Skills had entered into the Agreement with Mr Reeves personally. If Certified Skills failed to meet that onus, then judgment could only be entered against the Training company.
4At the commencement of the trial, the parties informed the Court that they had agreed the issue of quantum and any judgment entered against Mr Reeves or the Training company should be in the total sum of $82,000.
5After considering the evidence and the parties’ submissions, I am satisfied that Certified Skills contracted with Mr Reeves personally and not with the Training Company. Accordingly, there shall be judgment for the plaintiff against the first defendant that the first defendant pay to the plaintiff the sum of $82,000. The claim against the second defendant shall be dismissed.
Background
6Ms Leone is a director of Certified Skills. Certified Skills was incorporated in January 2013. The business of Certified Skills was to source students interested in obtaining a formal qualification in the construction industry and to refer the students to a training provider.
7By mid-2014, the arrangement Certified Skills had with an existing training provider had ceased and Ms Leone was seeking a replacement provider for the approximately 160 students she had who required a placement for training. Ms Leone made a google search, referencing words similar to “certificate in building and construction”. The results of her search directed Ms Leone to a website which contained a contact mobile phone number which proved to Mr Reeves’ number.
8There is uncertainty as to what this website was. Mr Ribbands tendered in evidence printed copies of pages from what Mr Reeves confirmed was the website under the name “All Trade Trading” in mid 2014. The website contained two contact phone numbers, a landline and Mr Reeves’ mobile number. Mr Reeves said that the contact with Ms Leone may have arisen from an advirtisement he had placed on Gumtree.
9There is no dispute that Ms Leone and Mr Reeves first spoke by phone on or shortly before 13 June 2014, the date of the first email from Ms Leone to Mr Reeves. In the conversation, Ms Leone told Mr Reeves that she was seeking to arrange training opportunities for a number of students.
10Mr Reeves told Ms Leone that he had arrangements in place with Sunraysia TAFE and Wodonga TAFE which would enable the students to obtain formal qualifications and for the providers to qualify for financial provision from the Federal Government, to be paid through the TAFE.
11Ms Leone had an existing arrangement with Compass Skills Pty Ltd (“Compass Skills”) who employed qualified trainers. Ms Leone and Mr Reeves discussed a possible arrangement between the three parties and the appropriate share of the student payments to which each of them would be entitled.
12Only limited email correspondence between Ms Leone and Mr Reeves is in evidence. The first email is dated 13 June 2014 and is from “Marie Leone <[email protected]>” to “[email protected]”. The email reads, “Hi, will try sending just the spreadsheet. The red highlighted are all they have. Tell me if you get it and can open. Thanks, chat soon”.
13The email was signed, “Marie Leone Director Training Advisor Certified Skills Victoria Pty Ltd Ph. [deleted] Email: [email protected]”. The email attached a spreadsheet. All the emails written by Ms Leone in evidence (about eleven emails) are signed “Marie Leone Director Certified Skills Victoria Pty Ltd” with her phone number and email address.
14The next emails between Ms Leone and Mr Reeves in evidence are dated 23 and 24 July 2014 and relate to a proposed meeting, apparently between the three parties, to be held on 29 July 2014. An email dated 31 July 2014 from Mr Reeves to Ms Leone and representatives of Compass Skills about “first draft fee structure” sets out the proposed division of payments between the three parties and the “trainer”. The email is signed “Darren Reeves Director with two phone numbers.
15The fees were apparently agreed by the three parties and on 1 August 2014 Ms Leone by email distributed the “agreed fee schedule” to the other parties.
16An email from Mr Reeves to Ms Leone dated 9 May 2015, purportedly terminating the arrangement with Certified Skills, was also signed “Darren Reeves Director with his mobile number. However, the emails from Mr Reeves to Ms Leone dated 24 July 2014 and 19 September 2014 are simply signed “Darren”.
17An email from “Darren” to Ms Leone dated 15 May 2015, apparently written by Angela Etheridge, the Business Manager of All Trades Training, was signed “Ange Assistant Director” with her mobile number and the email address “[email protected]”. Ms Etheridge was not an officer of the Training company.
18The Certified Skills’ “ledger report All Trade Training” shows that:
a.the earliest invoices were apparently dated 6 July 2014;
b.the first payment was received from “All Trade Training” on 8 December 2014 and a total of 9 payments were made before Certified Skills issued the Writ in this proceeding on 10 June 2015;
c.four payments were made after the proceeding was commenced.
19Ms Leone gave evidence that at some stage, presumably before any invoices were issued, she had a conversation with Mr Reeves and asked him, “Who am I invoicing?” Mr Reeves replied “All Trade Trading”. A few invoices are in evidence. They are all addressed to “Darren Reeves All Trade Trading Shed 5, 6 Builders Close Wendouree VIC”.
20Ms Leone said in evidence that she had, when Mr Reeves had told her to invoice All Trade Training, asked him, “Is that a company?” Moments later, Ms Leone said in evidence that she had asked Mr Reeves in relation to All Trade Training, “Is that a business name?” When questioned by me about this discrepancy, Ms Leone responded that “possibly” she had asked whether All Trade Training was a company.
21Ms Leone related Mr Reeves’ statement about All Trade Training being a business name or company to Mr Reeves telling her that he was trying to contact his accountant about “restructuring” his business. Later Ms Leone said that she had had “several later conversations” with Mr Reeves about him “restructuring his end of the business” in which Mr Reeves had complained about his accountant not getting back to him.
22Ms Leone said in evidence that in about October 2014, one of the trainers had told her that he had received an email from Mr Reeves noting that all further invoices from the trainers for their fees should be addressed to “Trade Training Australia”.
23Ms Leone said that after receiving this information, she telephoned Mr Reeves and told him that she had been forwarded his email to the trainer that he was now “using a company”. Ms Leone asked Mr Reeves whether he wanted her “to invoice” Trade Training Australia. Mr Reeves replied, “No, continue what you are doing”.
24Ms Leone said in evidence that she had been conscious in mid-2014 that companies might be used to limit the liability of an individual. She said that her accountant had told her that in such a case there would be a need to get the individual behind the company to sign a guarantee.
25Ms Leone further gave evidence that:
a.there was no reference to the Training company in any of the relevant correspondence or any conversation with Mr Reeves, and he had not shown her a document referring to the Training company;
b.Mr Reeves had never told her to invoice the Training company;
c.Ms Leone was not aware that the Training company existed until her solicitors searched All Trade Training when she instructed them on behalf of Certified Skills to issue the proceeding;
d.Ms Leone would have asked Mr Reeves to sign a guarantee if she had been made aware that a company was involved in the Agreement;
e.after Certified Skills commenced business in 2012, it (and Ms Leone) had essentially worked with one business, a company Australian Multiskill Services Pty Ltd. In relation to that company, Ms Leone said she had not obtained directors’ guarantees because she did not feel “overly concerned” because her accountant was also the accountant for that company.
26Mr Reeves had worked for many years as a plasterer, and later training plasterers. He became interested in the need for a general improvement in the training undertaken by persons holding themselves out as tradesmen, other than in the regulated electrical and plumbing trades.
27The Training company had been established so that he could work with TAFEs in the area of Recognition of Prior Learning (RPLs) for a variety of trades. This involved an assessment of the skills and experience of persons, without formal qualifications but who had worked in a particular trade for a number of years. The RPL scheme was apparently discontinued in 2013. Mr Reeves was anxious to move into the area of training and on site skills assessment. The Training company was incorporated and arrangements put in place for insurance cover, trainers, a facility at Wendouree and relationships with the Sunraysia TAFE and Wodonga TAFE.
28Mr Reeves said in his evidence that:
a.the initial contact with Ms Leone was by phone;
b.shortly after the phone call, Ms Leone had visited the Wendouree premises. The certificate of registration of the Training company was displayed at the premises. Outside the building, a large sign with the words “All Trade Training” was displayed;
c.in the initial conversation with Ms Leone, Mr Reeves had told her of his contracts with the Wodonga TAFE and the Sunraysia TAFE;
d.Mr Reeves tendered in evidence;
i.an Agreement between “Wodonga Institute of TAFE” and “The Trustee for The Reeves Family Trust trading as All Trade Training Pty Ltd” for “the provision of training and assessment”. The document was signed by Mr Reeves on behalf of the Training company on “16.3.15” but was not executed by Wodonga TAFE. The “commencement date” of the Agreement was noted as “1 September 2014”;
ii.the front sheet and pages 1 and 34 of 37 pages of a “training and assessment subcontracting agreement” dated 17 July 2014 between “Sunraysia Institute of TAFE” and “All Trade Training”. It is not clear whether the document was ever executed;
e.from the first conversation with Ms Leone, Mr Reeves said that Ms Leone “understood that she needed someone who had a contract with a TAFE”. He told her that All Trade Training had existing arrangements with Wodonga TAFE and Sunraysia TAFE. Ms Leone made no request “to see the contracts”;
f.Ms Leone “would have known” that only a company could contract with a TAFE in the way Mr Reeves told Ms Leone that All Trade Training had been conducting business with Wodonga TAFE and Sunraysia TAFE;
g.Mr Reeves could not recall any conversation with Ms Leone in which she asked, “Who am I to invoice?”;
h.Mr Reeves said that he had discussed with his accountant “structural” changes in the operation of his business in the context of whether trainers were contractors or employees and whether there was an obligation to pay superannuation. He had a “vague recollection” that he may have discussed this with Ms Leone;
i.Mr Reeves said that, at his accountant’s suggestion, Trade Training Australia Pty Ltd was incorporated in the latter part of 2014. Although after this time, all monies continued to be received by All Trade Training, Trade Training Australia Pty Ltd was responsible for the Sunraysia TAFE students;
j.in May 2015, Mr Reeves and his business interests were experiencing “cash flow problems”, although the “only person not being paid was Certified Skills”. At that time, about 80-90% of all students being trained through Mr Reeves’ businesses had been introduced by Certified Skills. To earn its proportion of the fees, Certified Skills’ responsibilities were complete with the introduction of the student to All Trade Training. However, payment of Certified Skills’ share was generally not due for payment until the student completed the course;
k.All Trade Training only continued to trade until the end of 2015.
Assessment of the witnesses and the evidence
29Both Ms Leone and Mr Reeves generally presented as straight-forward honest witnesses. I consider, however, that I should be cautious of accepting statements by either of them which does not receive any independent support either specifically or inferentially from other evidence.
30I will not, for this reason, take account of the evidence of Ms Leone that she asked Mr Reeves whether All Trade Training was a “company” or a “business name”, as she variously said, particularly as she said that it was only a possibility that she had asked whether All Trade Training was a company.
31Mr Reeves suggested that Ms Leone was likely to have seen the certificate of registration of the Training company when she visited the Wendouree premises. It became apparent during Mr Reeves’ evidence that the certificate was on the wall of Mr Reeves’ office and that Ms Leone only “passed through” the office on her way to a meeting room upstairs.
32Mr Reeves then gave evidence that Ms Leone had briefly stopped to comment on copies of student certificates of qualification from the TAFEs which were also hanging on the wall alongside the certificate of registration.
33Ms Leone denied any conversation about TAFE certificates or specifically seeing any certificates on the wall as she passed through Mr Reeves’ office. In the circumstances, I do not accept that Ms Leone was likely to have seen or taken any particular notice if a certificate of registration of the Training company was on the wall of Mr Reeves’ office.
34The “agreements” with the Wodonga TAFE and the Sunraysia TAFE tendered by Mr Reeves do not appear to be documents which were in existence at the time Ms Leone spoke to Ms Reeves in mid June 2014. The Wodonga TAFE document is signed by Mr Reeves on 16 March 2015 and has a commencement date of 1 September 2014. The Sunraysia TAFE document is dated 17 July 2014 and simply refers to “All Trade Training” as the contracting party.
35These documents provide no evidence that at the time the parties reached the Agreement, Ms Leone was aware that she was dealing with the Training company and not simply Mr Reeves trading as All Trade Training. I do not consider that Ms Leone was required to clarify by a business name or other search of “All Trade Training” whether a company, All Trade Training Pty Ltd, was in existence.
36Further, I do not accept, as Mr Reeves suggested, that a TAFE would only enter into training and assessment contracts with a company or, more significantly, that Ms Leone knew that this was so, and that therefore All Trade Training must have been an incorporated company.
37Apart from the email dated 31 July 2014, signed by “Darren Reeves Director there is no documentary evidence or credible testimony that Ms Leone would have had knowledge, or might reasonably have been expected to assume, that All Trade Training was an incorporated company.
38All documents referred simply to All Trade Training. This included the email correspondence and the invoices sent to Mr Reeves. Of the invoices which are exhibited, the highest number is “375”. Certified Skills’ ledger refers to invoices up to number “554”. There were obviously a large number of them.
39Whether or not I accept all or any part of Ms Leone’s account of the conversation about how Mr Reeves should be invoiced, it is clear that all invoices were intended by the parties to be addressed, as they were, to “Darren Reeves All Trade Training”. There was no evidence that Mr Reeves ever requested that the invoices be addressed to the Training company.
The Corporations Act 2001 provisions
40Section 153(1) of the Corporations Act 2001 (Cth) provides that, “A company must set out its name on all its public documents and negotiable instruments”. Section 88A(1) of the Act provides that a “public document of a body corporate” means and includes:
“(b) an instrument of, or purporting to be signed or issued by or on behalf of, the body that is signed or issued in the course of, or for the purposes of, a particular transaction or dealing; or
(c)without limiting paragraph (a) or (b), a business letter, statement of account, invoice, receipt, order for goods, order for services or official notice of, or purporting to be signed or issued by or on behalf of, the body”.
41By section 144 of the Act, “A company must display its name prominently at every place at which a company carries on business and that is open to the public”.
42In my view, an email sent by Mr Reeves to Ms Leone was a “business letter” within the meaning of section 88A, and therefore a public document” for the purposes of section 153(1) of the Act. In those circumstances, the Training company, if it wished to transact business, was required to “set out its name” on all correspondence, and to “display its name prominently” where it carried on business with the public.
43This means a company’s whole name, including the words “Pty Ltd”, if it were a proprietary company. Otherwise, the members of the public transacting business with a company or visiting its premises may not know with whom they are dealing or the nature of the entity.
44Mr Reeves agreed that the large sign outside the business premises at Wendouree read “All Trade Training” and that there was no other sign at the premises which included the words “Pty Ltd”. The emails sent by Mr Reeves similarly did not include those words. By contrast, and in appropriate compliance with the Act, Ms Leone always signed, “Marie Leone Director Certified Skills Victoria Pty Ltd”.
45I do not consider that the lack of compliance by the Training company with the Act, if it were intended that persons transact business with the company, should be conclusive in my consideration of whether Ms Leone, on behalf of Certified Skills, was dealing with Mr Reeves personally or the Training company.
46It is, however, an important consideration, particularly in the absence of any reference in all relevant documents to “All Trade Training Pty Ltd” and of any credible testimony of matters which might have made Ms Leone aware that she was contracting with anyone other than Mr Reeves personally or, possibly, other proprietors of the business name All Trade Training.
47In the circumstances, I am satisfied that the relevant contracting party with Certified Skills was Mr Reeves and not the Training company. Mr Reeves is therefore personally indebted to Certified Skills in the agreed sum of $82,000 and judgment will be entered accordingly.
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Certificate
I certify that these 9 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 10 February 2017.
Dated: 10 February 2017
Carla Cianfaglione
Associate to His Honour Judge Anderson
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