Simeone Financial Services v Flynn - [2019] SADC 96

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Application for Review)
SIMEONE FINANCIAL SERVICES v FLYNN
[2019] SADC 96
Reasons of His Honour Auxiliary Judge Clayton
12 July 2019
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA
Application to review the decision of a magistrate who gave judgment for the plaintiff in a minor civil claim for the cost of work done.
Held: There is no reason to disturb the decision of the magistrate. Order ex abundante pursuant to MCR 23 joining Antonio Simeone as a party to clarify any possible confusion as to the identity of the defendant.
Decision affirmed.
Magistrates Court (Civil) Rules 2013 r 23, applied.

SIMEONE FINANCIAL SERVICES v FLYNN
[2019] SADC 96

Ms Flynn has claimed the sum of $3157.50 from Simeone Financial Services for bookkeeping services which are described in 4 invoices dated 11 April 2017, 19 April 2017, 25 April 2017 and 1 May 2017. The invoices particularised the work including the hours during which the work was carried out. The charges were calculated at the rate of $50 per hour, although the hourly rate is not shown on any of the invoices.
In the Defence the defendant said:
“These 4 invoices mentioned in the plaintiff’s particulars were not contracted as per the advised and required procedure stipulated clearly to the plaintiff and to the other contractors also mentioned in the particulars and as such payable.”
Following the delivery of the invoices and up until the time the Defence was lodged the defendant never challenged the fact that the work had been carried out. The Defence did not deny that the work had been carried out.
The claim was heard by a magistrate who, in ex tempore reasons dated 26 June 2018, noted that the defendant’s reason for not paying the 4 invoices was the defendant’s assertion that the invoices were not in accordance with the required procedure. The defendant’s case was that a new procedure was intended to replace the previous practice of charging at an hourly rate which had existed since February 2016.
The defendant told the magistrate that he had moved to fixed-price arrangements with his clients and that he wished to have greater control over the cost of contract bookkeeping services in a way that would enable him to control the cost to his business. Ms Flynn gave evidence before the magistrate that she attended meetings at which the change in procedure was discussed but she never agreed to the change in procedure. Other witnesses corroborated that evidence of the plaintiff.
The plaintiff gave evidence to the magistrate that following the meetings where the defendant had proposed changes, she continued to work on an hourly rate basis. She said that although Mr Simione did not like continuing on the hourly rate basis he acknowledged that work would be done as long as the time was recorded and he could review the time before making payment on the invoices.
The magistrate found that there was no evidence of any agreed change to the bookkeeping services. His Honour observed that Mr Simeone wished to change the method of contracting and operating bookkeeping services by his own unilateral decision but that Mr Simeone could not point to any agreement for the change to be implemented, or that there was any agreement that the invoices would not be paid unless they had previously been the subject of a mutually agreed price and scope of works.
His Honour found that it was not correct for a party to seek to unilaterally change the operations of an informal arrangement such as existed between the plaintiff and the defendant. His Honour found that the plaintiff had performed the work which is the subject of the invoices. His Honour observed there was no contrary evidence and that the work had been done consistently with an established procedure.
His Honour concluded that the defendant was not able to rely on the suggestion that he wished to stipulate a new procedure as a defence to payment in the face of the invoices and the fact that the work was done to the benefit of Mr Simeone’s business and his clients. His Honour entered judgement for the plaintiff in the amount of $3464 being amount of the claim plus court fees.
An Application to Review a Minor Civil Decision should be made within 21 days. The defendant did not apply until 28 February 2019 when he lodged an application and also sought an extension of time. The applicant is described on the application “Antonio Simeone of Simeone Bookkeeping and Ledgers Pty Ltd [Contractor] and Simeone Pty Ltd. as the practice service company”.
The grounds of appeal listed in the application are:
1. Simeone Financial Services is a business name and not a legal entity.
2. Witness for the plaintiff appeared at trial. Defendant was not appropriately advised that there would be a witness.
3. Affidavits of Michael Pomponio and Amanda Hibbert presented at trial not appropriately notified or made available before trial to the defendant.
4. Verbal contracts and variations are legally binding under appropriate circumstances.”
The defendant did not dispute that the work which is the subject of the invoices was carried out.
At the commencement of the review I granted the necessary extension of time and the review proceeded.
The evidence and exhibits before the magistrate were admitted into evidence on the review and both Ms Flynn and Mr Simeone gave supplementary evidence. Mr Simeone put Ms Flynn to proof on all aspects of her claim.
Ms Flynn gave her evidence in a calm and objective fashion. She was a good witness and provided no reason to doubt any of the evidence which she gave.
On the other hand, Mr Simeone was a poor witness. He was nervous and very excitable. After making allowance for his disturbed condition the evidence which he gave on the fundamental aspects of the dispute was contrary to the evidence of the other witnesses and the objective evidence and defies common sense. I am not prepared to accept any of the evidence of Mr Simeone unless it is independently corroborated.
I have considered material presented by Mr Simeone in an attempt to establish his “integrity”. I have no doubt that Mr Simeone has done much community work over several decades. In a judgement delivered in 2014 a magistrate said that the evidence of Mr Simeone in the case “was largely uncontroversial” and that “he did his best to assist the Court and spoke honestly and in a most professional manner.” In the present case I must assess the reliability and credibility of Mr Simeone by reference to the evidence before this court.
On the hearing of the review the following issues arose:
1. Did Ms Flynn perform the work which is the subject of the invoices.
2. Was Ms Flynn entitled to be remunerated at the rate of $50 per hour.
3. Who is the proper defendant.
Notwithstanding the fact that all of these issues had not been raised before the magistrate and they were not raised by the grounds of appeal I have considered all of the defences raised by Mr Simeone.
The proper defendant
Mr Simeone in tendered a document setting out the organisational structure of “Simeone Accounting and Financial Services Group” as at 6 March 2017.[1] The description at the top of the document states:
“Simeone Accounting and Financial Service Group
Incorporating Simeone Accounting Pty Ltd, Simeone P/L ABN 87 008 102 921 AFSL 247480
Accountants, Bookkeepers, Business Advisors Financial Services Advisors and Brokers and Administrative Service Providers.
[1] Exhibit A1
Mr Simeone is described as “Director, Practice Principal and Compliance Manager” and as “Principal Adviser”.
The organisational structure identified 7 separate divisions including “Bookkeeping and Ledgers” where Ms Flynn is described as “Bookkeeper and Supervisor” above 2 other bookkeepers.
The defendant named in the Claim, the Defence and the title to the magistrate’s extempore judgement, “Simeone Financial Services”, is not referred to in that document.
The Applicant for the review is “Antonio Simeone of Simeone Bookkeeping and Ledgers Pty Ltd [contractor] and Simeone Pty Ltd as the practice service company.”
The services which are the subject of the claim were performed in April and May 2017. The minor civil action was commenced on 2 July 2017. An extract of Business Name Details presented by Mr Simeone records that the business name “Simeone Financial Services” was cancelled on 31 May 2018, about one month prior to the hearing in the magistrates court on 26 June 2018. Mr Simeone did not advise the magistrate that the registration of “Simeone Financial Services” had been cancelled.
In his evidence to this Court Mr Simione did not provide any explanation for the cancellation of the business name. He said:
“The Simeone practice has been offering integrated services to our clients since 15 August 1976 I am the principal adviser to clients and collaborate with internal and/or external financial services specialists for the benefit of our clients.” [2]
[2] Transcript p 17
Mr Simeone said he had a 3-pronged submission and the following exchange took place:
“Now from a procedural point of view I’d like to put before your Honour that the defendant is Simeone Financial Services which is a trading name, and not-
His Honour: Who is the proprietor of the trading name?
Mr Simeone: It is no longer in existence.
His Honour: Who was the proprietor of the trading name?
Mr Simeone: I’m not able to advise you. I think it might have been Simeone Pty Ltd. I’m looking for a document that may assist your honour if I may. I’ll show it to Debbie.
His Honour: Are you telling me that you don’t know who the proprietor of your business name was?
Mr Simeone: The business name?
His Honour: Yes.
Mr Simeone: I believe I can, with some certainty, say that it was Simeone Pty Ltd.
His Honour: well, the defendant in these proceedings is Simeone Financial Services. You say the proprietor of that business name was-
Mr Simeone: Simeone Pty Ltd.
His Honour: Yes, was it a registered business name?
Mr Simeone: Yes.[3]
[3] Transcript p 31-20 2 P 32-6
The evidence of Ms Flynn was:
“His Honour: Now Mr Simeone has suggested that it was the company with whom you had the arrangement, not himself personally.
Ms Flynn: I had written on my original application to the magistrates Court the full name being Antonio Simeone, care of Simeone Financial Services and he paid on that name… The trading name is him himself. But he’s got on his trading name is him himself. But he’s got on his sheet that he submitted as A1 (the exhibit) the structure of Simeone Accounting Financial Services, he has got himself as a director, practice, principal and compliance manager. So he is the owner as far as I am concerned and who I dealt with.[4]
[4] Transcript p 42-12
Each of the 4 invoices which are the subject of the claim was addressed to Simeone Financial Services.
The magistrates Court record of the claim shows the name of the defendant as “Simeone Financial Services”. The particulars read:
Failure to pay for outstanding invoices owned for contracted bookkeeping/BAS services performed for Simeone Financial Services clients on weekly basis… Mr Simeone has refused to pay outstanding amount despite work being completed and lodged for him as agreed on an hourly basis and that these clients are also paying fees to Mr Simeone for this contracted work. Duties were completed as agreed with supporting records of work undertaken and forecasted tasks on software (ACT) provided by Mr Simeone. I have attended multiple meetings agreed to be paid by Mr Simeone along with work tasks for his clients and his personal office/administration. Please note there are other contractors in the same position of being unpaid and together myself and these contractors no longer work for Mr Simeone and are seeking resolve.”
The Defence was filed on behalf of “Simeone Financial Services”.
The evidence of Ms Flynn to which I have referred and the endorsement on the claim indicate that Ms Flynn believed that she was dealing with Mr Simeone. While Mr Simeone tendered the business name record relating to the cancellation of the name “Simeone Financial Services” there is no reliable evidence before the court as to who the proprietor of the business name was.
At the conclusion of Mr Simeone’s submissions I suggested to Mr Simeone that he was at least an agent for an undisclosed principal and pointed out that the Application for Review was made by himself, Antonio Simeone.[5] The following exchange occurred:
His Honour: Who was the principal of the business?
Mr Simeone: What you mean principal, who was the owner of the business name? I’ve always been the principal for 43 years it’s in the evidence.[6]
[5] Transcript p 138 - 1
[6] Transcript p 38-23
The heading to the Affidavits of Amanda Hibbert and Michael Pomponio name the defendant to the claim as “Tony Simeone”.
The identity of the correct defendant is not clear but all parties, including Mr Simeone in in the Application to Review the Decision, treated Mr Simeone as the defendant. Ms Flynn believed that Mr Simeone was the person she dealt with.[7]
[7] Transcript P 42-19
Rule 23 of the Magistrates Court (Civil) Rules 2013 provides:
(1) The misjoinder or non-joinder of parties will not defeat an action, but the court must ensure that all necessary parties are joined to enable the court to determine all questions involved in the action.
(2) The court may direct that a person who has an interest in proceedings be joined as a party if it is satisfied that it will avoid multiplicity of proceedings and will not cause the existing parties unreasonable expense or delay.
On the basis of the evidence I find that at all material times Mr Simeone was either the contracting party himself or that he was acting as agent for an undisclosed principal and for that reason he incurred personal liability.
In order to avoid any confusion I direct pursuant to Rule 23 that Antonio Simeone be joined as the defendant in these proceedings, if he personally is not the defendant already.
Did Ms Flynn carry out work which is the subject of the invoices.
Ms Flynn gave evidence, which I accept, that she carried out the work which is listed in the 4 invoices. She recorded the work of the defendant’s software. She said there was no question of whether the work had been completed. The work was performed in Mr Simeone’s premises in his view, she had meetings with Mr Simeone and there was interaction with him.
In the magistrates court hearing the question of whether Ms Flynn did the work was not an issue.[8] The evidence of Ms Flynn was supported by the 2 affidavits tendered before the magistrate.
[8] Transcript p 14-29
The evidence of Ms Flynn was:
“I’ve given evidence to the court to show the recordings that is only available on software in his office to say that I attended those dates. I don’t have an external access to that software to make any entries to say not. In fact, on the last invoice it’s even got that I had a meeting with Tony on 26/4. It was a meeting for the team Tony present and I had to down there. That’s on my invoice number 75. So he was fully aware that I was in the office. We are not talking about a big company here, it’s a small space, a shared board meeting, he is right next door and the doors are always open and there are always discussions about client or a concern or anything that had worked on. So where. At no stage I asked to leave, I wasn’t told that I wasn’t going to be paid, I wasn’t told that the agreement we had had been terminated, I was invited back into these meetings and he saw me working and lodging clients work.[9]
[9] Transcript p 44-4
Ms Flynn said that Mr Simeone charged his own clients for the work that she performed.[10]
[10] Transcript p 44-35
I accept all the evidence of Ms Flynn. I find that Ms Flynn carried out the work which is described in each of the 4 invoices.
In his evidence to this court Mr Simeone initially denied that Ms Flynn carried out the work shown in invoices. He acknowledged that the matter had not been raised before the magistrate.[11] Later he modified his position to say that there was doubt as to whether Ms Flynn had carried out the work[12] and that he had no way of knowing.[13]
[11] Transcript p 12 – 19 ff
[12] Transcript p 14-11
[13] Transcript p 36-33
I find that evidence is untruthful. Mr Simeone witnessed the work being carried out and the work was recorded on his software. It is significant that Mr Simeone in never complained that the work had not been carried out at the time when he received the invoices, in his defence, or at the hearing before the magistrate.
I find that the evidence of Mr Simeone on this topic not only demonstrates a lack of candour but is untruthful. It demonstrates an unwillingness to acknowledge any fact which may support the claim of Ms Flynn.
The method of remuneration for the work.
Up until February 2017 Ms Flynn had been paid $50 per hour for her work.
I accept that in February 2017 Mr Simeone had a meeting with the contract bookkeepers at which he told them that the division was “haemorrhaging” funds and he proposed that Ms Flynn charge on an hourly basis. She acknowledged that meetings had taken place in February 2017 at which it was suggested that the arrangement might be changed but the bookkeepers said that they couldn’t do it.[14]
[14] Transcript p 41-15
Ms Flynn said that the outcome of the meeting in February was that the bookkeepers were to continue to work so that the work of the defendant’s clients was done and the bookkeepers would record everything they did on the defendant’s ACT software. She said:
“He continued to ask us to come to meetings, divisional meetings or meetings, and we would spend hours in the room listening to Mr Simeone and his tasks and the request of how we are going to document our work. They constantly changed and so-but we were told that going to be paid. He’s always been late payer… Mr Simeone said that we would be paid for our work… In February…” [15]
[15] Transcript p 43-8
Mr Simeone was asked what Ms Flynn would have been entitled to if she was to be remunerated for her work on the basis that he had proposed. He evaded giving an answer.
I find that Ms Flynn was entitled to be remunerated at the rate of $50 per hour as had been the case prior to the meeting in February 2017. I find that the decision of the magistrate on this topic was correct.
Other issues
There is no merit in grounds 2 and 3 of the Application to Review a Minor Civil Decision. If Mr Simeone had suffered any prejudice by reason of the matters complained of, which has not been established, that prejudice could have been remedied on this review.
Ground 4 of the Application to Review a Minor Civil Decision raises a trite legal proposition. The magistrate correctly found that the evidence did not establish a variation to the contract.
Conclusion
The decision of the magistrate was correct. There will be an order affirming that decision.
There will also be an order that Mr Simeone pay witness fees to Ms Flynn for 3 hours on Friday, 5 July 2019, 2 hours on Monday, 8 July 2019 and 2 hours on Tuesday, 9 July 2019 a total of 7 hours at $50 an hour that is $350.