Martin v Wiltshire Family Investments Pty Ltd

[2011] VCC 558

IN THE COUNTY COURT OF VICTORIA Revised

(Not) Restricted

AT MELBOURNE
COMMERCIAL LIST

GENERAL DIVISION

Case No. CI-10-02360

DANIELA MARTIN	Plaintiff
v.
WILTSHIRE FAMILY INVESTMENTS PTY	Defendants
LTD & ORS

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JUDGE:	His Honour Judge Anderson
WHERE HELD:	Melbourne
DATE OF HEARING:	13 May 2011
DATE OF JUDGMENT:	13 May 2011 (Revised 16 May 2011)
CASE MAY BE CITED AS:	Martin v Wiltshire Family Investments Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2011] VCC 558

REASONS FOR JUDGMENT

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Catchwords:  Contract – Agreement to record commercially releasable recording of musical compositions – Representations inducing the plaintiff to enter the agreement – Misleading and deceptive conduct – Unconscionable conduct – s. 51AC and s. 52 Trade Practices Act 1974.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr M. Sharpe	Zaitman & Associates
For the Defendants	No appearance
0

COUNTY COURT OF VICTORIA	-1
250 William Street, Melbourne
HIS HONOUR:

1           The proceeding was listed for trial today. The defendants did not appear. Yesterday, an application made on behalf of the defendants to vacate the trial date was refused.

2           The plaintiff’s claim against the first defendant is for breach of contract. It was alleged that an agreement was reached in August 2007 by which the first defendant agreed to produce audio recordings of the plaintiff’s brother, Adam Martin, performing seven of his own musical compositions. The agreement is evidenced by a production deal memo between the first defendant and the plaintiff. Pursuant to the recording agreement, the plaintiff paid to the first defendant the total sum of $55,000. The first defendant produced some demonstration recordings but did not produce the recordings it contracted to produce. The plaintiff says that the demonstration recordings that were produced were incomplete and not of sufficient quality to have any value to her.

3           In the circumstances, the plaintiff claims that she is entitled to recover damages in the sum of $55,000, being the sum she agreed, and in fact paid to the first defendant. At the time the recording agreement was negotiated, there was discussion between the parties during which the plaintiff was informed that ordinarily the first defendant would charge $10,000 for each track produced to the required standard but that in the case of the plaintiff, the first defendant would substantially reduce the cost to the plaintiff of producing the musical recordings. In the circumstances, I am satisfied that if the plaintiff were required to obtain recordings which met the standard agreed between the parties, the cost to her would be at least $55,000.

4 The claim against the second defendant is made pursuant to the Trade Practices Act. It is alleged that the second defendant, as a director of the first defendant, made representations to the plaintiff which induced her to enter into the recording agreement with the first defendant. It is said that those representations constituted misleading and deceptive conduct in breach of section 52 of the Act and that the second defendant was directly involved in the contravention of the Act and, thereby, became personally liable. Alternatively, the making of the representations are relied upon as unconscionable conduct in breach of section 51AC of the Act.

5           The representations alleged to have been made by the second defendant were that recordings would be produced of seven musical compositions of Mr Adam Martin to a standard so that they would be in commercially releasable form. Secondly, it was represented that well known musical artists would be involved in the recordings, including but not limited to the guitarist, Jack Jones. Finally, it was represented that the recordings would be delivered to the plaintiff by early October 2007. The demonstration recordings delivered do not meet the standard of being recordings in commercially releasable form promised by the second defendant on behalf of the first defendant and no well known musical artists were involved in the production of those demonstration records. Apart from those recordings, the first defendant did not deliver recordings of seven musical compositions of Mr Adam Martin.

6 I am satisfied on the basis of the evidence of the plaintiff that the conduct of the second defendant constituted misleading and deceptive conduct in contravention of section 52 of the Trade Practices Act. I am also satisfied that by reason of the circumstances including the relationship between the parties, the experience of the defendants in the recording industry and the relative inexperience of the plaintiff that the conduct of the second defendant in making the representations was unconscionable and in breach of section 51AC of the Act. In the circumstances, where the second defendant made the representations as a director of the first defendant, it is appropriate that both the first and second defendants should be liable in damages to the plaintiff and that an appropriate quantification of those damages would be the sum of $55,000.

7           In the defence to the claim, the defendants allege that the sum of $55,000 paid by the plaintiff was paid as to $27,500 pursuant to the recording agreement but that the second amount of $27,500, being the balance of the agreed sum of $55,000 was made pursuant to a joint venture agreement entered into between the plaintiff and the first defendant at a later date which was intended to replace the recording agreement. The defendants have not appeared today to pursue that defence. The plaintiff has denied that any joint venture agreement was concluded between the parties. In the absence of any evidence to the contrary, I am not satisfied that a joint venture agreement was concluded between the parties or that there is any other basis for the defendants to escape liability.

8           There will be judgment for the plaintiff against both defendants for $55,000 together with interest pursuant to statute from 2 September 2009 until today, being $9,679.25, total judgment $64,679.25. The defendants must pay the plaintiff’s costs of the proceeding, including any reserved costs, from 2 September 2009 until the transfer of the proceeding to this court on the appropriate Magistrates’ Court scale and after the transfer of the proceeding to this Court, on County Court Scale D. Certify counsel’s brief fee for the appearance today at $2,600.

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Certificate

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

Anderson delivered on 13 May 2011 (and revised on 16 May 2011).

Dated: 16 May 2011

Hannah Christensen

Associate to His Honour Judge Anderson