Nominal Defendant v. Price
[2007] QDC 258
•7 June 2007
DISTRICT COURT OF QUEENSLAND
CITATION:
Nominal Defendant v Price [2007] QDC 258
PARTIES:
NOMINAL DEFENDANT
Plaintiff
and
JASON ALAN PRICE
First Defendant
FILE NO/S:
No D3121 of 2001
DIVISION:
Civil Jurisdiction
PROCEEDING:
ORIGINATING COURT:
District Court, Brisbane
DELIVERED ON:
7 June 2007
DELIVERED AT:
Brisbane
HEARING DATE:
12 October 2006
JUDGE:
O’Sullivan DCJ
ORDER:
Judgment for the plaintiff against the first defendant
CATCHWORDS:
Motor vehicle accident; claim by Nominal Defendant; sale of interest in partnership
COUNSEL:
Mr G O’Sullivan for the plaintiff
First defendant self-represented
SOLICITORS:
WHD Lawyers for the plaintiff
The plaintiff claims against the first defendant the sum of $83,500 which it paid out to Betty McKnight following a motor vehicle accident on 9 February 1998, together with costs totalling $21,827.98. The first defendant is Jason Alan Price, who was self-represented at trial.
The first defendant does not contest that the vehicle which was being driven at the time was owned by P and J Price Motor Co (‘the business’). However, he denies he had an interest in that business because his interest was sold in late 1997, prior to the accident.
The evidence of Mr Chan
Mr Chan prepared a Partnership Deed evidencing a partnership between Paradise Consolidated (Phillip Price and Kerry Price) and Jason Alan Price dated 21 February 1997.
Mr Chan gave evidence that in early April 1998 Kerry Price telephoned and asked him to prepare a Dissolution of the Partnership. Kerry Price told him, “As you are aware there has been a conflict of ideas and attitudes within the partnership. It has amicably been decided to dissolve the partnership and each party go their own way.” He responded by saying that he needed further details.
In cross-examination, the first defendant asked Mr Chan whether he had a copy of a contract between Phillip Price and the first defendant signed in mid to late 1998 or 1999. The first defendant suggested to Mr Chan that in a conversation he had said that ‘after the bankruptcy all the paperwork had been destroyed’ or words to that effect. Mr Chan did not recall such a conversation.
Mr Chan gave evidence that because the Dissolution of Partnership was a “conceptual draft”, he did not provide a copy of it to the other parties and it “never went beyond the early stage”. Mr Chan gave evidence that once all the information had been provided, he intended to suggest to the first defendant he instruct his own solicitors, but it did not reach that stage.
Mr Chan gave evidence that he had searched his records to ascertain if there had been a file concerning a Contract of Sale between Phillip Price and the first defendant, and there was no such file.
The evidence of Phillip Price
Phillip Price gave evidence that he and the first defendant agreed to end the partnership because:
“We disagreed with one another or something to that effect. I can’t remember the reason we ended the partnership. We either didn't get on – I mean, we haven’t got on ever since, and I think probably we just got sick of one another, I should imagine, or something like that. Whether it was him with me or me with him I’m not sure, but I know we agreed to end the partnership.” (T90).
Phillip Price did not have any independent recollection of the means by which the partnership was legally dissolved. He said he had been told that ‘apparently Jason had given him a dollar to dissolve it’. His response to this was:
“I don’t remember that. If you said he give me one hundred thousand I’d probably remember that but a dollar, it doesn't make any – I’m not saying Jason ever said that because he’s got a whole lot better memory than I have. He’s a lot younger than what I am. So I don’t remember that at all. I’m not saying it never happened because probably, knowing Jason, it probably did. But you know, I don’t remember that.” (T92).
In cross-examination, the first defendant asked Phillip Price whether he recalled the first defendant and Nicky (his wife) coming around to Phillip Price’s house at Wideview Court and signing a contract, handing over a dollar and actually joking about the dollar, and shaking hands. Phillip Price’s response to this was:
“No, I don’t recall but I can recall you and Nicky coming around when we talked about dissolving the partnership. Yes, I can recall that. I can’t remember you giving me the dollar.” (T93).
Phillip Price was unable to recall a conversation where he told the first defendant that he could sell the company back to Phillip Price for a dollar, and walk away with no debts, no money, no profit, no nothing. Phillip Price said he did not recall that, nor was he able to recall that they shook hands and left on good terms.
Phillip Price was also unable to recall that a contract was witnessed by the sister of Kerry Price, nor that Kerry Price told the first defendant that he and his wife would be sent a copy of the contract.
The evidence of Kerry Price
Kerry Price gave evidence that P and J Price Motor Co was a partnership between Paradise Consolidated and Jason Price and was in the business of retailing second-hand cars. The partnership was set up early in 1997 and ceased in May 1998. She gave evidence that the first defendant was involved in the business until April 1998; she does not recall exactly what day.
From her notes at the time, she was able to say that the request for the Dissolution of the Partnership was made on 21 April 1998, for the dissolution to occur on 30 April 1998. She gave evidence that the dissolution was a collective decision between the first defendant, Phillip Price and herself, that “the partnership was better off dissolved” (T107). She recalls that she and Phillip Price went away on a holiday and Danny Arnott was left in charge and that was 21 April; Danny had not been with them very long – a few weeks. She said the first defendant was still involved in the business right up until the last couple of weeks before the business stopped operating in May.
Kerry Price gave evidence of a telephone conversation from the first defendant’s wife in early 1995 when:
“Effectively she wanted Phillip and myself to sign some form of document stating that Jason and her had nothing to do with the business from late 1997 … and I didn't know where it was coming from and I just effectively said to Nicky that ‘you know that’s not the case and why would I do that’ … she wasn’t very happy that I wasn’t prepared to do it … I just effectively said ‘you know – I’ve not told any stories or lies altered from the truth to date. I’m not going to start now … she effectively intimated and said they will catch up with you. I went ‘I beg your pardon?’ I wasn’t very impressed by it. I wasn’t very interested.” (T109).
Kerry Price gave evidence that: “I don’t remember anything about a contract for a dollar or anything to that effect.” (T111). In cross-examination, the first defendant put to Kerry Price that she was present when a contract was signed. Kerry Price had no recollection of that occasion “whatsoever”. She also said: “I can honestly say that that did not happen.” (T116). She could not recall the presence of her sister while the contract was being signed. She could not recall the handing over of a dollar and laughter about that.
Kerry Price said that to her knowledge the first defendant was never locked out of Ferry Road car yard and the locks were never changed, and this allegation was completely new to her.
Kerry Price gave evidence of the first defendant signing cheques in March, and of him signing a cheque for a telephone account for the car yard in January. She proffered a Super Car Market cheque dated 23 March 1998, signed by the first defendant.
The further evidence of Phillip Price
Phillip Price was recalled by leave, and gave evidence that he did not remember the locks of the car yard offices being changed. He said that Danny Arnott did not start working for them until March. He agreed that it was possible that the first defendant had told him that he intended to buy cars, but he did not recall when this was.
Phillip Price did not recall a conversation where it was agreed that the first defendant’s mobile phone was being paid in lieu of money that was owed by Danny Arnott to the first defendant.
The evidence of the first defendant
The first defendant gave evidence of the agreement between Phillip Price and himself, as follows:
“In late 1997 I had discussions with my father that Danny Arnott was coming to work for him and I didn't want to have anything to do with Danny because I knew of Danny’s problems. So my father came to me with an idea of selling my part of the business back to him for a dollar and this would leave me completely out of my debts, any profits, any shares. I was guarantor on his house on a business loan. It would pull me out of all of that because there was enough stock to cover all the business loan and everything like that and I would walk away. I just had to do a contract up and sell it, give the partnership back to him.
He (Phillip Price) said, ‘We are going to have to agree on a figure of a dollar or something like that to make it legal’.
Then after that he spoke with Kerry; a contract was done and myself and my wife Nicky went down to my Dad and Kerry’s place. Contract was signed and witnessed by myself, Nicky and Kerry, Phillip and a witness by Kerry’s – and witnessed by Kerry’s sister. The dollar was handed over. There was little joke about it. That was it.
I sort of hung around a bit because there were things that needed to be done, things that I had to sign for to take my name off, bits and pieces from what I could recall, and after that I went out and I bought cars from auctions in my own name with my own cheque book.”
When he was asked who handed the dollar to whom, the first defendant replied: “I can’t remember, your Honour.” (T136).
The first defendant said that he had no authority so far as employers using cars and taking cars.
The first defendant also said that he believed that the company had insurance on its vehicles.
The first defendant was asked in cross-examination whether he signed cheques after the time when he said he had sold his interest. He said, “Depending on the issue that the cheque was for because I was still owed a lot of money and I was still doing everything I was told to do to try and get something. I do not recall signing any cheques.” (T140). He said that he signed cheques only to benefit himself. Two cheques were put to him dated January 1998, and he was asked why he had signed those cheques. His reply was, “It would only be to get money to benefit myself. I was still on all accounts until mine and myself and Nicky my wife until our names were taken off because there was a $100,000 debt in that account in myself and Nicky’s name as well as Phillip and Kerry’s name Paradise Consolidated”. A cheque in the sum of $331.40 on 2 January 1998 was put to him. He said he had no idea why he was paid that. A cheque for $500 in January 1998 was put to him. He had ‘no idea’ about the reason for this cheque.
When pressed as to the exact terms of the agreement with his father, the first defendant was uncertain as to which business it described.
(a) He described the contents of the agreement as:
“I would sign all debts over, all stock over, anything to do with the business over, furniture, anything like that, and the loan, hundred thousand dollar loan, and then I would walk away with nothing. I would walk away no debts. I would walk away with absolutely nothing as though I was never there.” (T144).
(b) He could not recall whether or not the agreement was to take effect then;
(c)He said hands were shaken, and he had nothing else to do with the running of the business after the agreement, which was dated that day.
The first defendant was shown a document from Robert Bax and Associates, Exhibit 2E, which refers to a dissolution date of April 1998. It was put to him, “You have told him [Mr McGinness of Bax and Associates] that you believed that the dissolution of the partnership was occurring in April of 1998.” His response was: “No, absolutely not.” (T148). The first defendant was not able to explain why the letter would refer to a dissolution in April of 1998 if, in fact, there had been a sale in 1997. The first defendant said: “He may have got something from Mr Chan stating that it went from 1997 and it was resolved in 1998 in April, I don’t know.” (T149). He said that he clearly told Mr McGinness there was a contract done up covering Phillip Price and himself.
Submissions of the parties
In his closing address, counsel for the plaintiff submitted:
(a) Even if I were to accept what the first defendant says about not being a proprietor of the business as at February 1998, I would in any event not be satisfied on the balance of probabilities that the agreement alleged by the first defendant disposed of his interest in the business as at February 1998, for two reasons:
(i) The first defendant’s evidence about timing is entirely unsatisfactory, with confusion about when it occurred;
(ii) The evidence is unsatisfactory as to whether the written agreement spoken of by the first defendant did in fact dispose of his interest in the business;
(b)There would be no motive for Phillip Price and Kerry Price concocting that the business was dissolved in April of 1998, as opposed to the earlier time suggested by the first defendant.
(c)The letter from Bax and Associates refers to dissolution in April 1998 and invites an inference that this is what the first defendant told Mr McGinness, rather than Mr McGinness having heard it from Mr Chan.
Counsel for the plaintiff stressed that I must be satisfied, on the balance of probabilities, that the first defendant disposed of his interest in the business prior to 19 February 1998.
The first defendant submitted that I would be satisfied that he had disposed of his interest in the business at the time he signed the contract with Phillip Price, Kerry Price and himself.
Findings
I accept the submission of counsel for the plaintiff as set out above in paragraph [27].
I find that the first defendant and Phillip Price had a conversation about the business, but I am not satisfied on the balance of probabilities that this resulted in a valid and binding contract which disposed of the first defendant’s interest in the business prior to 9 February 1998.
I find that at the time of the accident it is more probable than not that the first defendant was an owner of the business.
Judgment
I give judgment for the plaintiff in the sum claimed, together with the costs of the action.
0
0
0