Miraki v Griffith - [2020] NSWDC 417

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Miraki v Griffith and Anor [2020] NSWDC 417
Hearing dates: 11 and 12 June 2020
Date of orders: 05 August 2020
Decision date: 05 August 2020
Jurisdiction: Civil
Before: Strathdee, DCJ
Decision:
1)   Verdict and judgment for the plaintiff against the second defendant in the sum of $116,279.91.
2)   Second defendant to pay the plaintiff’s costs as agreed or assessed.
3)   Judgment for the first defendant.
4)   Plaintiff to pay the first defendant’s costs as agreed or assessed.
5)   Allow the parties 7 days to approach my associate with regard to any claims for interest, or alternate costs orders.

Catchwords:
CONTRACT – sale of goods – failure of consideration – money paid and received
RESTITUTION – total failure of consideration – monies repayable

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Minors (Property and Contracts) Act 1970 (NSW)

Cases Cited:
Mann v Paterson Constructions Pty Ltd (2019) 373 ALR 1; [2019] HCA 32
Repatriation Commission v Harrison (1997) 24 ACSR 711
Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516; (2001) 185 ALR 335; [2001] HCA 68
Walker v Wimborne (1976) 137 CLR 1

Category: Principal judgment
Parties: Sepideh Miraki (Plaintiff)
Joshua Griffith (First Defendant)
Dominic Griffith (Second Defendant)
Representation:
Mr D Allen appeared for the Plaintiff
Mr E Hyde and Mr R Pietriche appeared for the First Defendant. The First Defendant appeared via AVL.
The Second Defendant was unrepresented and appeared via AVL.
Solicitors:
John Tomaras, William Roberts Lawyers (Plaintiff)
Stephen Klotz, Hall & Wilcox (First Defendant)
The Second Defendant was unrepresented and appeared via AVL.

File Number(s): 137629/2018
Publication restriction: None

Judgment

INTRODUCTION

By Amended Statement of Claim filed 2 May 2018 the plaintiff seeks damages for goods that she asserts she has paid the defendants for but has not received.
The trial ran before me on 11 and 12 June 2020. Counsel and solicitors appeared before me in court. The first and second defendants appeared via Audio Visual Link. The second defendant was unrepresented. The second defendant is the father of the first defendant.

BACKGROUND

The second defendant, Dominic Griffith (‘Dominic’), operated a company known as Dominic Gerard Group De Luxe Ltd (‘the company’). His son, the first defendant, Joshua Griffith (‘Joshua’), assisted his father in respect of transactions executed by the company with its customers, including the plaintiff.
Between January 2016 and September 2016 the plaintiff entered into a contract with the company for the purchase of certain luxury goods, including Versace home furnishings. The plaintiff had previously purchased Versace goods from the defendants.
Barton Contractors Australia Pty Ltd (‘Barton’) was a company of which the plaintiff was a director and over which she stated she had total control. The plaintiff gave evidence that she authorised payments out of this account. Barton is now in external administration.

THE DISPUTE

On 3 June 2016, Barton paid $39,043.52 into an overseas account as requested by…

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 Miraki v Griffith

Details

AGLC: Miraki v Griffith [2020] NSWDC 417
Case: [2020] NSWDC 417
Decision Date: 05 August 2020

CaseChat Overview and Summary

Miraki was the plaintiff in the Federal Court, seeking the return of monies paid to Griffith, the second defendant, under a contract for the sale of goods that had failed due to the total failure of consideration. The first defendant was also involved in the transaction and was not liable for the monies sought by the plaintiff. The court was required to determine whether the plaintiff was entitled to restitution of the monies paid to the second defendant and, if so, the amount of the recovery. Additionally, the court needed to consider the costs associated with the proceedings.

The court found that the contract for the sale of goods had failed due to the total failure of consideration, entitling the plaintiff to restitution of the monies paid to the second defendant. The court also considered the nature of the transaction and the circumstances surrounding the payment of the monies. The court determined that the plaintiff was entitled to restitution of the monies paid to the second defendant and set the amount of the recovery at $116,279.91. The court found that the first defendant was not liable for the monies sought by the plaintiff and ordered that the plaintiff pay the first defendant's costs.

The court ordered that judgment be entered in favour of the plaintiff against the second defendant in the sum of $116,279.91. The second defendant was ordered to pay the plaintiff's costs as agreed or assessed. Judgment was entered in favour of the first defendant, and the plaintiff was ordered to pay the first defendant's costs as agreed or assessed. The parties were given seven days to approach the court's associate regarding any claims for interest or alternate costs orders.

Orders

Orders of the court

1) Verdict and judgment for the plaintiff against the second defendant in the sum of $116,279.91.

2) Second defendant to pay the plaintiff’s costs as agreed or assessed.

3) Judgment for the first defendant.

4) Plaintiff to pay the first defendant’s costs as agreed or assessed.

5) Allow the parties 7 days to approach my associate with regard to any claims for interest, or alternate costs orders.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Miraki v Griffith and Anor [2020] NSWDC 417
Hearing dates:	11 and 12 June 2020
Date of orders:	05 August 2020
Decision date:	05 August 2020
Jurisdiction:	Civil
Before:	Strathdee, DCJ
Decision:	1) Verdict and judgment for the plaintiff against the second defendant in the sum of $116,279.91. 2) Second defendant to pay the plaintiff’s costs as agreed or assessed. 3) Judgment for the first defendant. 4) Plaintiff to pay the first defendant’s costs as agreed or assessed. 5) Allow the parties 7 days to approach my associate with regard to any claims for interest, or alternate costs orders.
Catchwords:	CONTRACT – sale of goods – failure of consideration – money paid and received RESTITUTION – total failure of consideration – monies repayable
Legislation Cited:	Civil Procedure Act 2005 (NSW) Minors (Property and Contracts) Act 1970 (NSW)
Cases Cited:	Mann v Paterson Constructions Pty Ltd (2019) 373 ALR 1; [2019] HCA 32 Repatriation Commission v Harrison (1997) 24 ACSR 711 Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516; (2001) 185 ALR 335; [2001] HCA 68 Walker v Wimborne (1976) 137 CLR 1
Category:	Principal judgment
Parties:	Sepideh Miraki (Plaintiff) Joshua Griffith (First Defendant) Dominic Griffith (Second Defendant)
Representation:	Mr D Allen appeared for the Plaintiff Mr E Hyde and Mr R Pietriche appeared for the First Defendant. The First Defendant appeared via AVL. The Second Defendant was unrepresented and appeared via AVL. Solicitors: John Tomaras, William Roberts Lawyers (Plaintiff) Stephen Klotz, Hall & Wilcox (First Defendant) The Second Defendant was unrepresented and appeared via AVL.
File Number(s):	137629/2018
Publication restriction:	None