JK Wealth v Xposure
[2009] VCC 42
•9 February 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
COMMERCIAL LIST
EXPEDITED CASES DIVISION
Case No. CI-08-02443
| JK WEALTH CREATION PTY LTD (A.C.N. | Plaintiff |
| 104 297 467) | |
| v | |
| XPOSURE PTY LTD (A.C.N. 117 940 888) | Defendant |
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| JUDGE: | HER HONOUR JUDGE KENNEDY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 9 February 2009 |
| DATE OF JUDGMENT: | 9 February 2009 |
| CASE MAY BE CITED AS: | JK Wealth v Xposure |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0042 |
REASONS FOR JUDGMENT
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr. M. Clarke | Lewenberg & Lewenberg |
| For the Defendant | Mr. M. Goldblatt | Goldsmiths |
| HER HONOUR: |
1 In this case the plaintiff seeks judgment in the amount of $673 623.13 for breach of an income sharing agreement.
2 The hearing proceeded unopposed after Mr Goldblatt appeared briefly for the defendant to announce that the matter could proceed undefended. He further indicated that the director of the defendant had, last week, sought to place the defendant company into voluntary administration. However, he did not proceed with this course after being asked for funds- which he was unable to produce.
3 The statement of claim seeks a range of relief. However, Mr Clarke, who appeared for the plaintiff, only sought the amount of $673 623.13 as aforesaid based on the breach of agreement claim together with interest and costs.
4 Briefly, the claim arises in circumstances wherein John Kadamani, director of the plaintiff company and Mr Cedric Beards, director of the defendant entered into negotiations for the plaintiff to supply certain electronic equipment or “kiosks” to the defendant in return for specified payments. These “kiosks” consisted of certain electronic equipment which produced advertising material.
5 The plaintiff alleges that the payments due under the agreement have not been made by the defendant.
6 Mr Kadamani gave evidence and produced the income sharing agreement dated 12 December 2005.
7 Pursuant to clause 2.1 of that agreement the defendant (or “1st party”) was to pay to the plaintiff (or “2nd party”) an income amount as stated in Schedule 1, item 3. The income sharing amount in item 3 of Schedule 1 was payable by 12 monthly instalments paid on the fifteenth of each month. Item 3 of Schedule 1 gave an income sharing amount of $.13 cents per printed advertisement/directory.
8 Pursuant to clause 2.2 of that agreement the defendant was also to provide various documents in relation to each new agreed site at which kiosks were to be located. Each new site was to generate a minimum number of printed advertisements as stated in Schedule 1 item 5. Item 5 of Schedule 1 gave the minimum number of advertisements as 300 per day.
9 Mr Kadamani gave evidence that he purchased 20 of these machines or kiosks during the period from 13 October 2005 to 10 January 2006 and provided them for the use of the defendant.
10 The plaintiff also produced a document entitled “amount owing by Xposure Pty Ltd from 13 October 2005- 9 February 2009.” This document shows the amount claimed based on 12 monthly instalments being due on the 15th day of each month for each of the 20 kiosks supplied by the plaintiff from the date of supply of each kiosk. Given that the plaintiff was never provided with details of advertisements generated using the kiosks, the plaintiff claims an entitlement to payments based on the minimum advertisements per machine at 300 per day. This gave a total of $39.00 per day (300 X $.13 cents per printed advertisement).
11 Mr Kadamani confirmed that the total claimed using this document (accounting for any portions paid by the defendant) amounted to $673 623.13. [This amount is less than the amount of $705,623.13 shown on that document as the plaintiff is not pursuing an amount of $32,000 for “tracks” as shown therein].
12 Mr Kadamani confirmed that the said amount of $673,623.13 has not been paid by the defendant.
13 I have noted that there was a Notice of Defence filed on 27 August 2008. Paragraph 6 of that Defence appears to rely on a release given pursuant to clause 8 of an alleged termination agreement between the parties dated 29 February 2008.
14 It appears that the release referred to therein only operates prospectively as contended for by Mr Clarke. It would therefore not affect the plaintiff’s rights under the income sharing agreement of December 2005. In any event, any defence based on such a release was not pursued by Mr Goldblatt and no evidence was formally adduced of the full terms and effect of any termination agreement.
15 On the basis of the material before me then, I am therefore satisfied that the plaintiff is entitled to judgment for breach of the income sharing agreement of 12 December 2005 in the amount of $673,623.13 together with interest and costs.
16 I will hear from Mr Clarke further as to the precise form of final orders.
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