Legal Research
Cases
Pethybridge v Stedikas Holdings Pty Ltd

Pethybridge v Stedikas Holdings Pty Ltd

Link copied

Case Copied 27 June 2007 37 min read

Contents

On this page

Reported Decision: (2007) Aust Contract Reports 90-263

New South Wales

Court of Appeal

CITATION: DENNIS PETHYBRIDGE v STEDIKAS HOLDINGS PTY LTD [2007] NSWCA 154

HEARING DATE(S): 23 April 2007

JUDGMENT DATE:
27 June 2007

JUDGMENT OF: Beazley JA at 1; Basten JA at 2; Campbell JA at 3

DECISION: (1) Appeal allowed.; (2) Set aside the judgment and orders made on 24 March 2006 in matter 9804 of 2001 in the District Court of New South Wales.; (3) Order that the said District Court proceedings be dismissed with costs.; (4) Respondent to pay costs of the Appellant of the appeal.; (5) Respondent to have a certificate under the Suitors Fund Act 1951, if qualified.

CATCHWORDS: CONTRACTS – general contractual principles – parties – identification of parties – where contract made with a business – where registered proprietor of business name not carrying on business under that business name – where company owned by registered proprietor of business name carried on business under that business name – whether contract made with registered proprietor of business name or with company that carried on business under that business name – where statute provides prima facie presumption that business is carried on by registered proprietor of business name – statutory presumption that business is carried on by registered proprietor of business name rebuttable by evidence – identification of parties to a contract to be determined in accordance with the objective theory of contract – Business Names Act 1962 (NSW) - CONTRACTS – general contractual principles – parties – identification of parties – whether subsequent communications relevant to determining identity of parties

LEGISLATION CITED: Business Names Act 1962 (NSW)
Partnership Act 1915 (Vic)
Suitors Fund Act 1951

CASES CITED: Re ABC Plastik Pty Ltd (1975) 1 ACLR 446
Aikman v Brown (Trading as Capital Travel Service) (1973) 1 ACTR 121
Aitkin Transport Pty Ltd v Voysey [1990] 1 Qd R 510
Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61
Bridges & Salmon Ltd v The Swan (Owner); Marine Diesel Service (Grimsby) Ltd v The Swan (Owner) (The Swan) [1968] 1 Lloyd’s Rep 5
El-Mir v Risk [2005] NSWCA 215
H J Lyons & Sando Limited [1963] SASR 29
Independent Timber Importers v Mercantile Mutual Insurance (2002) 12 ANZ Ins Cas 61-543; [2002] NSWCA 304
Ingram v Little [1961] 1 QB 31
Re Johnson & Anor; Ex parte Greendale Engineering and Cables Pty Ltd (1968) 11 FLR 335
Lewis v Averay [1972] 1 QB 198
Magill v National Australia Bank Ltd (2001) Aust Contract R 90-131; [2001] NSWCA 221
Parsons and Rochella v Vance (App. 7/1984; unreported)
Press v Mathers [1927] VLR 326
Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002) 186 ALR 289
Ryledar Pty Ltd & Anor v Euphoric Pty Ltd [2007] NSWCA 65
Walker v Andrew (2002) 20 ACLC 1476; [2002] NSWCA 214

PARTIES: Dennis Pethybridge - Appellant
Stedikas Holdings Pty Limited - Respondent

FILE NUMBER(S): CA 40219/06

COUNSEL: B A Coles…

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.

Keep reading for free

Create a free CaseChat account to read Pethybridge v Stedikas Holdings Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2007] NSWCA 154
Decision Date: 27 June 2007

CaseChat Overview and Summary

The dispute in *Pethybridge v Stedikas Holdings Pty Ltd* concerned the identification of the correct party to a contract. The appellant, Mr Pethybridge, had entered into an agreement with a business operating under the name "Stedikas Holdings". The central question was whether the contract was made with Mr Stedikas, the registered proprietor of the business name, or with Stedikas Holdings Pty Ltd, a company owned by Mr Stedikas which actually conducted the business under that name. The matter came before the Court of Appeal of New South Wales.

The court was required to determine whether the contract was with the individual registered proprietor of the business name or with the company that carried on business under that name. This involved considering the effect of the *Business Names Act 1962* (NSW), which creates a prima facie presumption that a business is carried on by the registered proprietor of its name, and whether this presumption could be rebutted by evidence. Furthermore, the court had to consider whether subsequent communications between the parties were relevant to determining the identity of the contracting party.

The Court of Appeal applied the objective theory of contract, which dictates that the identity of the parties is to be determined by what a reasonable person would understand from the parties' words and conduct. The court found that the statutory presumption under the *Business Names Act* was rebuttable and that the evidence demonstrated the business was in fact carried on by the company, not the individual proprietor. Therefore, the contract was with the company. The court allowed the appeal, set aside the judgment of the District Court, and ordered that the proceedings be dismissed with costs.

Orders

Orders of the court

(1) Appeal allowed.;

(2) Set aside the judgment and orders made on 24 March 2006 in matter 9804 of 2001 in the District Court of New South Wales.;

(3) Order that the said District Court proceedings be dismissed with costs.;

(4) Respondent to pay costs of the Appellant of the appeal.;

(5) Respondent to have a certificate under the Suitors Fund Act 1951, if qualified.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	DENNIS PETHYBRIDGE v STEDIKAS HOLDINGS PTY LTD [2007] NSWCA 154
HEARING DATE(S):	23 April 2007
JUDGMENT DATE:	27 June 2007
JUDGMENT OF:	Beazley JA at 1; Basten JA at 2; Campbell JA at 3
DECISION:	(1) Appeal allowed.; (2) Set aside the judgment and orders made on 24 March 2006 in matter 9804 of 2001 in the District Court of New South Wales.; (3) Order that the said District Court proceedings be dismissed with costs.; (4) Respondent to pay costs of the Appellant of the appeal.; (5) Respondent to have a certificate under the Suitors Fund Act 1951, if qualified.
CATCHWORDS:	CONTRACTS – general contractual principles – parties – identification of parties – where contract made with a business – where registered proprietor of business name not carrying on business under that business name – where company owned by registered proprietor of business name carried on business under that business name – whether contract made with registered proprietor of business name or with company that carried on business under that business name – where statute provides prima facie presumption that business is carried on by registered proprietor of business name – statutory presumption that business is carried on by registered proprietor of business name rebuttable by evidence – identification of parties to a contract to be determined in accordance with the objective theory of contract – Business Names Act 1962 (NSW) - CONTRACTS – general contractual principles – parties – identification of parties – whether subsequent communications relevant to determining identity of parties
LEGISLATION CITED:	Business Names Act 1962 (NSW) Partnership Act 1915 (Vic) Suitors Fund Act 1951
CASES CITED:	Re ABC Plastik Pty Ltd (1975) 1 ACLR 446 Aikman v Brown (Trading as Capital Travel Service) (1973) 1 ACTR 121 Aitkin Transport Pty Ltd v Voysey [1990] 1 Qd R 510 Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61 Bridges & Salmon Ltd v The Swan (Owner); Marine Diesel Service (Grimsby) Ltd v The Swan (Owner) (The Swan) [1968] 1 Lloyd’s Rep 5 El-Mir v Risk [2005] NSWCA 215 H J Lyons & Sando Limited [1963] SASR 29 Independent Timber Importers v Mercantile Mutual Insurance (2002) 12 ANZ Ins Cas 61-543; [2002] NSWCA 304 Ingram v Little [1961] 1 QB 31 Re Johnson & Anor; Ex parte Greendale Engineering and Cables Pty Ltd (1968) 11 FLR 335 Lewis v Averay [1972] 1 QB 198 Magill v National Australia Bank Ltd (2001) Aust Contract R 90-131; [2001] NSWCA 221 Parsons and Rochella v Vance (App. 7/1984; unreported) Press v Mathers [1927] VLR 326 Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002) 186 ALR 289 Ryledar Pty Ltd & Anor v Euphoric Pty Ltd [2007] NSWCA 65 Walker v Andrew (2002) 20 ACLC 1476; [2002] NSWCA 214
PARTIES:	Dennis Pethybridge - Appellant Stedikas Holdings Pty Limited - Respondent
FILE NUMBER(S):	CA 40219/06
COUNSEL:	B A Coles…