Play Australia Pty Ltd v Papadimitriou - [2014] VSC 608

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

S CI 2012 2480

PLAY AUSTRALIA PTY LTD (ACN 107 938 170)	Plaintiff
v
JOHN PAPADIMITRIOU	First Defendant
AYMAN ABDOU	Second Defendant
328NHF PTY LTD (ACN 144 975 986) (in liquidation)	Third Defendant

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JUDGE:	DALY AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	1, 2 and 3 April 2014; 5, 6, 7, 12 and 19 May 2014
DATE OF JUDGMENT:	11 December 2014
CASE MAY BE CITED AS:	Play Australia Pty Ltd v Papadimitriou
MEDIUM NEUTRAL CITATION:	[2014] VSC 608

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TRADE PRACTICES – Action for damages for alleged misleading and deceptive conduct – Former business partners – Representations made regarding the capabilities and financial standing of defendants – Representations made regarding property development – No liability for misleading or deceptive conduct –Fair Trading Act 1999 (Vic) s 159 – Wrongs Act 1958 (Vic) Part IV – Proceeding dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr L E P Magowan	Armytage Corporate Lawyers Pty Ltd
For the First and Second Defendants	Mr N Jones	Blue Rock Law
For the Third Defendant	No appearance

HER HONOUR:

Introduction

In this proceeding, the plaintiff, Play Australia Pty Ltd (‘Play Australia’), brings a claim for damages against the first and second defendants, arising out of an investment made by it in the third defendant in July 2010. The first and second defendants, Mr John Papadimitriou and Mr Ayman Abdou (‘defendants’) were alleged to have engaged in misleading or deceptive conduct by making certain representations to Mr Andrew Moussi, the sole director of the plaintiff, to induce him to make an investment of $250,000 in the third defendant which in turn would invest in a multi‑unit apartment development in Frankston (‘development project’). The development project never proceeded, the third defendant went into liquidation, and the plaintiff lost its investment in its entirety.

For the reasons which follow, the plaintiff has failed to establish that the defendants, or either of them, are liable for misleading or deceptive conduct, and the proceeding shall be dismissed.

The Parties

Mr Andrew Moussi is the sole director and shareholder of the plaintiff. He is an experienced IT professional, and, through the plaintiff, has provided software testing and project management services to the ANZ Bank for a number of years. At the time of the trial he was 40 years old.

Mr Moussi’s best friend is Dr Ambrosius (Bruce) Kambouris. Dr Kambouris is, among many other things, an industrial chemist and inventor. Mr Moussi and Dr Kambouris have been friends for approximately 20 years, and have embarked upon a number of business ventures together, including an olive farm, a wine label, and a liquor store. Dr Kambouris’ inventions include, among other things, ‘Botanical Water’, a by-product of the fruit and vegetable processing industry, and ‘KeepaFresh’, a form of food packaging made from vegetable waste.

It was through the process of seeking to commercialise the inventions referred to above that Dr Kambouris, and subsequently Mr Moussi, met the…

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.

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Details

Case: [2014] VSC 608
Decision Date: 11 December 2014

CaseChat Overview and Summary

In the matter of Play Australia Pty Ltd v Papadimitriou, the plaintiff sought damages from the defendants for alleged misleading and deceptive conduct in relation to their business partnership and a property development project. The case was heard in the Supreme Court of Victoria, where the plaintiff argued that the defendants had misrepresented the capabilities and financial standing of their business and made misleading statements about the viability of the property development. The defendants denied the allegations and counterclaimed for defamation. The central legal issues in the case were whether the defendants had engaged in misleading or deceptive conduct and, if so, whether the plaintiff had suffered damages as a result. The court had to consider the relevant provisions of the Fair Trading Act 1999 (Vic) and the Wrongs Act 1958 (Vic), as well as case law on the interpretation and application of these statutes.

The court found that the defendants had not engaged in misleading or deceptive conduct and dismissed the plaintiff's claim. The court found that the representations made by the defendants were not misleading or deceptive and that the plaintiff had not suffered any damages as a result of the defendants' conduct. The court also found that the defendants had not defamed the plaintiff and dismissed the counterclaim. The court's decision was based on a thorough analysis of the evidence and applicable law, and it was ultimately concluded that the plaintiff had not established its case. The proceeding was dismissed with costs.

No final orders were made as the proceeding was dismissed.

Orders