Racovolis v Gibson

[2009] VCC 32

IN THE COUNTY COURT OF VICTORIA Revised

(Not) Restricted

AT MELBOURNE
COMMERCIAL LIST

GENERAL DIVISION

Case No. CI-08-02582

RACOVOLIS AMALGAMATED FISH AGENTS PTY LTD	Plaintiff
v
MAX WILLIAM GIBSON and LORRAINE DAWN GIBSON	Defendants

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JUDGE:	HIS HONOUR JUDGE ANDERSON
WHERE HELD:	Melbourne
DATE OF HEARING:	4 February 2009
DATE OF JUDGMENT:	4 February 2009
CASE MAY BE CITED AS:	Racovolis v Gibson
MEDIUM NEUTRAL CITATION:	[2009] VCC 0032

REASONS FOR JUDGMENT

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Catchwords: Goods sold and delivered – Liability of joint proprietor of business.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Foster	Matthew Shaw & Associates
For the Second Defendant	In person
HIS HONOUR:

1           Lorraine and Max Gibson registered the business name “Gibson Seafood Transport” in January 1998. They were the joint proprietors of the business. The business name was re-registered in December 2000, January 2004 and December 2006.

2 supply of fish. Mr Gibson had dealings from about 1998 with the plaintiff. The

The business of Gibson Seafood Transport operated in the transport of fish and the West Melbourne. Mr and Mrs Gibson lived in Sydney. Mr Gibson carted fish from Sydney to Melbourne at the request of the plaintiff. In order to use the spare capacity on the return trips, he started carting fish from Melbourne to supply customers in Sydney.

3 trading account in March 2008 of $130,696. The plaintiff served both Mr and

The plaintiff claims on the basis of goods sold and delivered for the balance of a disputed by Mrs Gibson. She says that it was her husband’s debt and not hers, and that from December 2006 she no longer carried on business with Mr Gibson as Gibson Seafood Transport.

4           The accounts for the supply of fish from the plaintiff to Mr Gibson were issued in the name of Mr Max Gibson and only in March 2008 were they reissued in the name of Gibson Seafood Transport. The plaintiff says that notwithstanding the name of the invoice, at all times the plaintiff dealt with the business, Gibson Seafood Transport, of

which both Mr and Mrs Gibson were the proprietors.

5           There are two issues for determination in proceeding:

a.

whether the goods were sold and delivered at the request of Mr Gibson for Mrs Gibson was also a proprietor;

b. whether something happened in about December 2006 which altered the relationship and any liability Mrs Gibson may have had concurrently with Mr Gibson.

6           The evidence discloses that:

a.	Mr Gibson operated through the business name, Gibson Seafood Transport. He drove the truck and arranged for the purchase and sale of fish. Mrs Gibson carried out administrative and accounting tasks for the business.
b.	When freight services were provided to the plaintiff, they were provided by the business, invoiced by the business and payments were made by the plaintiff to the business and paid into the business’s bank account.
c.	The business bank account was with the Westpac Bank and it was styled “Lorraine Gibson and Max Gibson trading as Gibson Seafood Transport”. This was the only bank account of the business.
d.	All payments made for fish supplied by the plaintiff to Mr Gibson were made by cheque from the bank account.
e.	In December 2006 Mr Gibson suffered a heart attack and since that time has had serious health issues. He continued to make some purchases from the plaintiff after that date. Some payments were made to the plaintiff.
f.	In January 2008 Mrs Gibson had correspondence with the plaintiff about the amount outstanding. The debt was not disputed although Mrs Gibson did not personally accept responsibility for it. Further payments in reduction of the debt were made from the business bank account.
g.	The main assets of the business were a prime mover and trailer. The prime mover was acquired by the business in 2002 and sold in about November 2007. The proceeds of the sale, approximately $51,000, were deposited in the business bank account on 26 November 2007.
h.

The trailer was purchased by Mr Gibson with finance from the Commonwealth Mrs Gibson and her son. The trailer was sold in early 2008 for about $15,000.

i.           After November 2007 a number of ATM withdrawals were made from the bank account. It is not clear whether the withdrawals made by Mrs Gibson were made for her benefit or to meet expenses associated with the care of her husband.

j. In December 2006 (or shortly thereafter) Mrs Gibson said she cancelled the business’s ABN number. She did not inform the plaintiff that she had done this and she made no change to the registration of the business name.

7           Mr Ian Scroggie, the plaintiff’s general manager and former finance manager, gave evidence of his dealings with both Mr Gibson and Mrs Gibson in relation to financial matters concerning the business. Mr Scroggie was aware of the way in which the

business was conducted by both Mr and Mrs Gibson with the plaintiff and, in particular, the fact that Gibson Seafood Transport invoiced transport charges to the plaintiff and the plaintiff’s invoices for fish sales were always paid from the business account. The plaintiff had offered assistance to Mr Gibson in about 2006 in the preparation of an application for compensation to help him leave the industry. Mr Scroggie was aware that the prime mover was an asset of the business of Gibson Seafood Transport and that the transport of fish was the core business operated by Mr Gibson.

8

Mrs Gibson trading as Gibson Seafood Transport. In the circumstances, the fact that the invoices were issued in only the name of Mr Gibson did not alter the responsibility of both the proprietors of the business, Gibson Seafood Transport. Mrs Gibson did nothing after December 2006 which would affect the relationship both she and Mr Gibson had with the plaintiff. The debt was joint and several and Mrs Gibson had

In my view, the plaintiff dealt with Mr Gibson for and on behalf of both himself and Mr Gibson.

9           There will be judgment for the plaintiff against the second defendant for the amount of $130,696, together with interest and costs.

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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 4 February 2009.

Dated: 4 February 2009

Caroline Dawes

Associate to His Honour Judge Anderson