Hangani Pty Ltd v Muscat

[2009] VCC 1313

IN THE COUNTY COURT OF VICTORIA Revised

(Not) Restricted

AT MELBOURNE
COMMERCIAL LIST

EXPEDITED CASES DIVISION	Case No. CI-09-01992
HANGANI PTY LTD and LETHLEAN	Plaintiffs
PROPERTY CONSULTANTS PTY LTD
v.
MUSCAT	Defendant

---

JUDGE:	His Honour Judge Anderson
WHERE HELD:	Melbourne
DATE OF HEARING:	16 October 2009
DATE OF JUDGMENT:	16 October 2009
CASE MAY BE CITED AS:	Hangani Pty Ltd & Anor v Muscat
MEDIUM NEUTRAL CITATION:	[2009] VCC 1313

REASONS FOR JUDGMENT

---

Catchwords:  Practice and Procedure – Defendant’s application to strike out
statement of claim – Application refused.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr B. Gillies	Bennetts Lawyers
For the Defendant	Mr S. Pitt	Hobsons Bay Law

HIS HONOUR:

a.

The plaintiffs have supplied a table which sets out the amounts allegedly taken. This table is different from an earlier version of the table provided to the defendant. The changes to the table delete or change a number of items where the defendant indicated that she was absent from the business on a particular date that a theft of money was alleged to have occurred.

b.

occasion on which it is alleged that money was taken from the plaintiffs or the persons for whom the money was originally intended, being the landlords of properties managed by the plaintiffs. It is The particulars provided in the table do not sufficiently identify each benefit of the owners of the properties and in those circumstances, the plaintiffs have suffered no loss as a result of any of the alleged thefts of money by the defendant.

1.    This matter is fixed for trial on 11 November 2009. The defendant by summons dated 8 October 2009 seeks an order that the plaintiffs amended statement of claim dated 18 May 2009 be struck out.

2.    The plaintiffs allege in the amended statement of claim that the defendant was employed by the first plaintiffs between 16 December 2007 and 31 January 2009 as a branch manager and property manager and during that time, she misappropriated from clients of the plaintiffs, sums totalling approximately $124,000.

3.    The plaintiffs allege that generally the misappropriations occurred by the defendant taking cash and then manipulating the console records to cover up the misappropriations. The plaintiffs have employed an investigator who has had access to a separate part of the console records which has allowed an audit of all transactions. The plaintiffs allege that the records show that the monies originally received by the defendant on behalf of the plaintiffs was a larger sum and that monies were misappropriated, and the console records were amended to attempt to hide the misappropriations.

4.    The defendant in her defence has denied that any misappropriations were made.

The present complaint about the further amended statement of claim is that:

The tables which provide the details of the individual transactions are sorted firstly in property order and secondly in date order. It seems to me that adequate details are provided which would enable the

defendant to ascertain precisely the date in respect of which each theft is alleged to have occurred, the identity of the tenant who provided money to the business, the property in respect of which the money was paid and in general terms, the way in which the money was said to have been misappropriated by the defendant. The provision of that information both chronologically and by reference to properties would further assist the defendant to identify each of the alleged misappropriations included in the claim. The fact that there have been changes in the tables to correct what were apparently errors in the original tables is not, in my view, a sufficient basis for concluding that the defendant cannot properly defend the claim. The changes were made after further investigations of the defendant’s responses to the first version of the table. In my view, it is apparent that the defendant was able to understand and address the claim at that stage. The defendant is now in the same position to address the claim as it is now articulated. The plaintiffs must be bound by the present articulation of its claim unless and until they seek to amend the statement of claim and the particulars of it. If they did so, the defendant would need a fresh opportunity to investigate the claim if it were permitted to be amended.

c.

The third complaint is that the plaintiffs had no entitlement to the monies allegedly misappropriated. The plaintiffs received the monies from the tenants as agent and property managers for the owners of the property. The money was apparently received in cash. It was held securely until banked. It was presumably banked in the plaintiffs’ business accounts, in a trust account. In the circumstances, the plaintiffs arguably had sufficient property in the money alleged to have been taken by the defendant, to found their cause of action.

5.    In the circumstances, I see no reason to conclude that the defendant has not been given a proper articulation of the claim made against her and for that reason, the defendant’s summons dated 8 October 2009 will be dismissed.

Certificate

I certify that these 3 pages are a true copy of the reasons for decision of His

Honour Judge Anderson delivered on 16 October 2009.

Dated: 16 October 2009

Hannah Christensen

Associate to His Honour Judge Anderson