Kleio Pty Ltd v Comlease AFG Ltd - [2009] SADC 147

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
KLEIO PTY LTD v COMLEASE AFG LTD & ORS
[2009] SADC 147
Ruling of His Honour Judge Chivell
17 December 2009
PROCEDURE
NO CASE TO ANSWER - CONSIDERATION OF PRINCIPLES
Submission by first defendant that no case to answer - Claim for damages for breach of contract and for misleading and deceptive conduct - business conducted by partnership - whether plaintiff has standing to sue in own name - whether first defendant should elect whether to call evidence - whether a hiatus in the eviddence. Submission rejected.
Distict Court Rules 1987 r 27.02; Lunns Civil Procedure r 27.02.25 ; Stamp Duties Act 1923 (SA) s22; Corporations Act 2001 (Cth) s601AD(1), referred to.
Residues Treatment & Trading Co. Ltd and Anor v Southern Resources Ltd and Ors (1989) 52 SASR 54; R v Prasad (1979) 23 SASR 161; Popovic v Tanasijevic (No. 4) [1999] SASC 351; Sutherland and Ors v Gustar (1994) Ch 304; Burnside v Harrison Marks Productions Ltd [1968] 2 All ER 286; Coulls v Bagots Executor and Trustee Company Limited and Ors (1966) 119 CLR; Roche v Sherrington [1982] 2 All ER 426 ; Protean (Holdings) Ltd v American Home Assurance Co. [1985] VR 187; R v Bilick (1984) 36 SASR 321, considered.

KLEIO PTY LTD v COMLEASE AFG LTD & ORS
[2009] SADC 147
Ruling on Submission of No Case to Answer

This is an action for breach of contract, and misleading and deceptive conduct. The plaintiff carried on a supermarket business in partnership with Dimone Pty Ltd (“Dimone”) and Temalo Pty Ltd (“Temalo”). All three companies were trustees of family trusts. The partnership was created by a written agreement (Exhibit P4) dated 7 August 1997. Paragraph 3 of the agreement describes the partnership business as being the operating of the supermarket business known as “Big ‘N’ Fffresh Foodland” at 432 North East Road Windsor Gardens, South Australia.
The Plaintiff alleges that in September 1997, a contract was entered into between the partnership and the First Defendant (“Comlease”). The contract was for the “rental with maintenance” of a computerised point-of-sale system for the business.
The Plaintiff alleges that Comlease breached the contract in various ways. It also alleges, in the alternative, breaches of a written rental agreement dated 4 February 1998, and misleading and deceptive conduct by the Second Defendant (“IRS”) as agent for Comlease, and by Comlease on its own behalf.
The Second Further Amended Statement of Claim, dated 4 February 2009, asserts that the partnership has suffered loss and damage as a result of those breaches and that conduct (paragraph 24), but seeks damages, declarations and orders on its own behalf. Indeed, paragraph 1 of the Second Further Amended Statement of Claim states that the Plaintiff “brings this action in its capacity as trustee of the (family trust)”, and not on behalf of the partnership.
Election
Counsel for Comlease, Mr Dal Cin, submitted that he should not be required to make an election as to whether his client…

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.

Continue reading Kleio Pty Ltd v Comlease AFG Ltd

Details

AGLC: Kleio Pty Ltd v Comlease AFG Ltd [2009] SADC 147
Case: [2009] SADC 147
Decision Date: 17 December 2009

CaseChat Overview and Summary

Kleio Pty Ltd brought this action against Comlease AFG Ltd and IRS for breach of contract and for misleading and deceptive conduct. The plaintiff carried on a supermarket business in partnership with Dimone Pty Ltd and Temalo Pty Ltd. The partnership was created by a written agreement dated 7 August 1997. The plaintiff alleges that in September 1997, a contract was entered into between the partnership and Comlease for the "rental with maintenance" of a computerised point-of-sale system for the business. The plaintiff further alleges that Comlease breached the contract in various ways. It also alleges, in the alternative, breaches of a written rental agreement dated 4 February 1998, and misleading and deceptive conduct by IRS as agent for Comlease, and by Comlease on its own behalf.

The first defendant argued that the plaintiff has no case to answer because it does not have standing to sue in its own name. The second defendant submitted that it should not be required to make an election as to whether it proposes to call evidence before its submission is entertained. The court considered the legal issue of whether the plaintiff has standing to bring the action in its own name. It concluded that the principle that a partner may bring an action to recover partnership property only when the partner sues in the name of the partnership, or joins the other partners as defendants if they decline to join as plaintiffs, is a procedural rather than substantive principle. The court found that there is some evidence from which it can be inferred that the former partners in the business, Temalo and Dimone, had left the partnership and assigned their rights and interests arising from the partnership to the plaintiff prior to the institution of these proceedings. Therefore, the submission that Comlease has no case to answer on the basis of the hiatus in the evidence is rejected. The court reserved the right to give expanded reasons for this ruling if necessary.

The final orders of the court were that the submission of no case to answer be rejected, and that Comlease be required to make an election as to whether it proposes to call evidence before the court decides to entertain its submission on the strength of the evidence.

Orders