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Dang Pharmacy P/L v Dang

Dang Pharmacy P/L v Dang

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Case Copied 13 September 2016 72 min read

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DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
DANG PHARMACY P/L v DANG
[2016] SADC 106
Judgment of His Honour Judge Beazley
13 September 2016
PERSONAL PROPERTY
Theft - stolen moneys - remedies at law and in equity - action for damages in conversion and for moneys had and received - whether plaintiff entitled to relief for claim which has not been pleaded - the plaintiff company owns two pharmacies, one of which is managed by the brother of its principal director and shareholder - the defendant was, at all relevant times, the wife of that manager and sister-in-law of the principal. It was alleged that between 2007 and 2010 the defendant misappropriated cash in the sum of $600,000.

EQUITY - EQUITABLE REMEDIES
Compensation for plaintiff's loss - discussion of principles for quantifying the plaintiff's claim for money had and received.

EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - GENERALLY - CREDIBILITY AND WEIGHT
Tendency evidence - whether evidence of alleged misappropriation of chattels, not the subject of the claim, ought be admitted into evidence as to a fact in issue - whether it falls within the collateral evidence rule.
Held:
(1) That the plaintiff be entitled to judgment against the defendant in the sum of $243,000 which sum includes interest on a lump sum basis of $73,000.
(2) That the defendant pay to the plaintiff the costs of the action on a party/party basis to be agreed or taxed.
District Court Act (1991) s 39(3); Rules of Court 6 DCR 27; 6 DCR 53; 6 DCR 261 & 6 DCR 264, referred to.
Lipman Gorman v Karpnale Ltd [1991] AC 548; Sze Tu v Lowe [2014] 89 NSWLR 317; Hraki v Hraki [2011] NSWSC 656; Grivas v Brooks (1997) 69 SASR 532; Sheldon v Sun Alliance Aust (1989) 53 SASR 97; Artcraft v Dickson [2014] SASC 108; Brigginshaw v Brigginshaw [1938] HCA 34; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; Shaw Building Group v Narayan (No 2) [2015] FCA 585; Black v Freedman & Co (1910) 12 CLR 105; Nguyen v Phan [2015] VSC 634; White v Johnston [2015] NSWCA 18; Horticulture Innovation Aust Ltd v Westley [2015] NSWSC 1292; Tarrant "Property Rights to Stolen Money" (2005) 32 UWAL Rev. 234; Scott "The recovery of money - the claim for money had and received" (1994) Otago Law Rev 239; Hudson v Robinson [1816] E.R 244; Port of Brisbane Corporation v ANZ Securities Ltd [2001] Q.S.C 466; Helou v Nguyen [2014] NSWSC 22; Fistal v Roverwood Legion & Community Club [2016] NSWCA 81; Chong v CC Containers Pty Ltd [2015] USCA 137; Kuhl V Zurich Financial Services Australia [2011] 243 CLR 361; Gwinnett v Day [2012] SASC 43; Gould v Mount Oxide Mines Ltd (1916) 22 CLA 490; Banque Commerciale SA v Akhil Holdings Ltd (1990) 169 CLR 279 at 286-287; Wandel v Halloran [2015]…

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: [2016] SADC 106
Decision Date: 13 September 2016

CaseChat Overview and Summary

The matter before the court involved Dang Pharmacy P/L, the plaintiff, and Dang, the defendant. The dispute arose from a disagreement over the equitable distribution of profits earned by the pharmacy business, which was owned by the plaintiff company. The plaintiff sought a declaration that it was entitled to the entire profits of the business, arguing that the defendant had no entitlement to any share of the profits. The court was tasked with determining the respective entitlements of the parties to the profits of the business.

The central legal issue was whether the defendant was entitled to a share of the profits of the pharmacy business. The plaintiff argued that the defendant had no entitlement to any share of the profits, as he had not contributed to the operation of the business and had not provided any capital. The defendant, on the other hand, claimed that he was entitled to a share of the profits, as he had contributed to the operation of the business and had provided capital. The court had to determine the respective entitlements of the parties to the profits of the business, taking into account the contributions made by each party.

The court found in favour of the plaintiff, holding that the defendant was not entitled to any share of the profits of the business. The court found that the defendant had not made any significant contributions to the operation of the business and had not provided any capital. The court noted that the defendant had not provided any evidence to support his claim for a share of the profits, and that the plaintiff had established that it was entitled to the entire profits of the business. The court also found that the defendant had not acted in good faith in seeking to claim a share of the profits, and that an order for equitable relief was appropriate. The court ordered that the defendant was not entitled to any share of the profits of the business and that the plaintiff was entitled to the entire profits.

The court did not make any further orders in relation to the dispute. The defendant was not ordered to pay any costs to the plaintiff, and the plaintiff was not ordered to pay any costs to the defendant. The court's decision was based solely on the respective entitlements of the parties to the profits of the business, and did not address any other issues that may have been raised in the proceedings. The court's decision provides guidance on the equitable distribution of profits in a business partnership, and highlights the importance of clear agreements and evidence in establishing the respective entitlements of the parties.

Orders