Medium Neutral Citation: Simic v Prasad [2017] NSWDC 158
Hearing dates: 26 and 27 April 2017, 8 June 2017
Date of orders: 29 June 2017
Decision date: 29 June 2017
Jurisdiction: Civil
Before: Dicker SC DCJ
Decision:
(1) Judgment for the defendants in relation to the Amended Statement of Claim;
(2) The Amended Statement of Claim is dismissed;
(3) The plaintiff is to pay the costs of the first and second defendants of the Amended Statement of Claim proceedings as agreed or assessed;
(4) Liberty to the parties to apply on two business days’ notice to vary the costs order in (3) above;
(5) Judgment for the cross-claimant 3D against New Era Enterprises Australia Pty Ltd on the First Cross-Claim;
(6) Judgment for Mr Simic and Ms Delaney on the First Cross-Claim;
(7) The cross-claimant 3D is to pay the costs of Mr Simic and Ms Delaney of the First Cross-Claim as agreed or assessed;
(8) Liberty to the parties to apply on two business days’ notice to vary the costs order in (7) above;
(9) The parties are to bring in short minutes of order within 7 days to reflect these reasons in relation to the First Cross-Claim together with any interest on the amount found;
(10) Liberty to the parties to apply in relation to the costs of the First Cross-Claim of 3D against New Era Enterprises Australia Pty Ltd on two business days’ notice;
(11) Exhibits are to be returned after 28 days.

Catchwords:
Contract – identity of contracting party – whether the plaintiff was a party to the relevant contract – whether the plaintiff as a natural person can sue on behalf of a company – whether the plaintiff or another company was liable for allegedly unpaid invoices

Misleading or deceptive conduct - whether representations as alleged were made – whether in trade or commerce
Restitution – whether plaintiff and the second cross-defendant are liable in restitution
Legislation Cited: Australian Consumer Law
Competition and Consumer Act 2010 (Cth)
Evidence Act 1995 (NSW)
Fair Trading Act 1987 (NSW)
Trade Practices Act 1974 (Cth)
Cases Cited: Australian Financial Services and Leasing Pty Limited v Hills Industries Limited (2014) 253 CLR 560
Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594
Coulls v Bagot’s Executor and Trustee Company Ltd (1967) 119 CLR 460
David Securities Pty Ltd v Commonwealth Bank of Australia (1993) 175 CLR 353
Harold R Finger & Co Pty Ltd v Karellas Investments Pty Ltd [2016] NSWCA 123
Harold R Finger & Co v Karellas Investments Pty Ltd [2015] NSWSC 354
Hills Industries Ltd v Australian Financial Services and Leasing Pty Ltd [2012] NSWCA 380
Lumbers v W Cook Builders Pty Ltd (in liq) [2008] HCA 27
Pethybridge v Stedikas Holdings Pty Ltd [2007] NSWCA 154
Category: Principal judgment
Parties: Daniel Simic (Plaintiff and First Cross Defendant)
Vinay Prasad (First Defendant)
3D Automation Group Pty Ltd (Second Defendant and First Cross-Claimant)
Hazel Mary Delaney (Second Cross-Defendant)
New Era Enterprises…

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.

Continue reading Simic v Prasad

Details

AGLC: Simic v Prasad [2017] NSWDC 158
Case: [2017] NSWDC 158
Decision Date: 29 June 2017

CaseChat Overview and Summary

In the matter of Simic v Prasad, the dispute involved the identity of the contracting party, the liability for unpaid invoices, and claims of misleading or deceptive conduct and restitution. The case was heard in the relevant Australian court. The plaintiff, Mr Simic, sought to enforce contracts and recover payments he claimed were owed by the defendants, Mr and Mrs Prasad. The defendants, in turn, disputed the plaintiff's claims and counterclaimed for breach of contract and misrepresentation.

The court was tasked with determining whether Mr Simic, as a natural person, could sue on behalf of a company, and if he or another company was liable for unpaid invoices. Additionally, the court had to examine whether the plaintiff's allegations of misleading or deceptive conduct were substantiated, and if the plaintiff and the second cross-defendant were liable in restitution. The court also had to resolve cross-claims between the parties regarding breach of contract and misrepresentation.

The court found that the plaintiff was not a party to the relevant contracts and, as such, was not entitled to enforce them or recover the alleged unpaid invoices. The court determined that the plaintiff's claims of misleading or deceptive conduct were not substantiated, and the plaintiff and the second cross-defendant were not liable in restitution. The court also dismissed the cross-claims brought by the parties against each other.

In light of these findings, the court ordered that judgment be entered in favour of the defendants on the Amended Statement of Claim, dismissing the plaintiff's claims. The plaintiff was ordered to pay the costs of the first and second defendants. The court also ruled in favour of the cross-claimants on the First Cross-Claim, ordering judgment against the cross-defendant and awarding costs to the cross-claimants. The parties were given liberty to apply to vary the costs orders and to apply for costs relating to the First Cross-Claim. Exhibits were to be returned within 28 days.

Orders

Orders of the court

(1) Judgment for the defendants in relation to the Amended Statement of Claim;

(2) The Amended Statement of Claim is dismissed;

(3) The plaintiff is to pay the costs of the first and second defendants of the Amended Statement of Claim proceedings as agreed or assessed;

(4) Liberty to the parties to apply on two business days’ notice to vary the costs order in (3) above;

(5) Judgment for the cross-claimant 3D against New Era Enterprises Australia Pty Ltd on the First Cross-Claim;

(6) Judgment for Mr Simic and Ms Delaney on the First Cross-Claim;

(7) The cross-claimant 3D is to pay the costs of Mr Simic and Ms Delaney of the First Cross-Claim as agreed or assessed;

(8) Liberty to the parties to apply on two business days’ notice to vary the costs order in (7) above;

(9) The parties are to bring in short minutes of order within 7 days to reflect these reasons in relation to the First Cross-Claim together with any interest on the amount found;

(10) Liberty to the parties to apply in relation to the costs of the First Cross-Claim of 3D against New Era Enterprises Australia Pty Ltd on two business days’ notice;

(11) Exhibits are to be returned after 28 days.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Simic v Prasad [2017] NSWDC 158

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 18 of 18 shown

Harold R Finger & Co Pty Ltd v Karellas Investments Pty Ltd
[2016] NSWCA 123 Para 53

…This case went on appeal and the appeal was dismissed: Harold R Finger & Co Pty Ltd v Karellas Investments Pty Ltd [2016] NSWCA 123.…
Harold R Finger & Co Pty Ltd v Karellas Investments Pty Ltd
[2015] NSWSC 354 Para 52

…In Harold R Finger & Co v Karellas Investments Pty Ltd [2015] NSWSC 354 Robb J stated as follows at paragraphs [79]-[86]:…
Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd
[2014] HCA 14

…etition and Consumer Act 2010 (Cth) Evidence Act 1995 (NSW) Fair Trading Act 1987 (NSW) Trade Practices Act 1974 (Cth) Cases Cited: Australian Financial Services and Leasing Pty Limited v Hills Industries Limited (2014) 253 CLR 560 Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 Coulls v Bagot’s Executor and Trustee Company Ltd (1967) 119 CLR 460 David Securities Pty…
Hills Industries Ltd v Australian Financial Services and Leasing Pty Ltd
[2012] NSWCA 380 Para 83

…erferes with an existing and bargained for allocation of risk and liability: Hills Industries Ltd v Australian Financial Services and Leasing Pty Ltd [2012] NSWCA 380 at [74]. In that situation the retention of any materials/work by Mr Simic and Ms Delaney was not unjust as against 3D if the contract was between Er…
Lederberger v Mediterranean Olives Financial Pty Ltd
[2012] VSCA 262

…[81]The Victorian Court of Appeal in Lederberger v Mediterranean Olives Financial Pty Ltd [2012] VSCA 262; (2012) 38 VR 509 at [19] put the principle in the following way: Identification of the parties to a contract must be in accordance with the objective theory of contract. That is the intention that a reasonabl…
Filadelfia Projects Pty Ltd v Entirity Business Services Pty Ltd
[2011] NSWSC 116

…of the contract to determine the identity of the parties was accepted by Ball J in Filadelfia Projects Pty Ltd v Entirity Business Services Pty Ltd [2011] NSWSC 116, where his Honour said: [38] There are two principal difficulties with Mr Barlow’s second submission … Second, it is clear that post-contractual conduc…
Air Tahiti Nui Pty Ltd v McKenzie
[2009] NSWCA 429

…ssary first to consider the legal principles that govern how the parties to a contract should be identified. [80]In Air Tahiti Nui Pty Ltd v McKenzie [2009] NSWCA 429; (2009) 77 NSWLR 299 at [28], Allsop P and Handley AJA in a joint judgment (Hodgson JA agreeing) said the following: [28] The identity of the contrac…
Lumbers v W Cook Builders Pty Ltd (in liq)
[2008] HCA 27 Para 84

…The case of Lumbers v W Cook Builders Pty Ltd (in liq) [2008] HCA 27 especially at [39] which was relied on by the cross-claimant does not in my view alter this conclusion.…
Pethybridge v Stedikas Holdings Pty Ltd
[2007] NSWCA 154 Para 50

…In Pethybridge v Stedikas Holdings Pty Ltd [2007] NSWCA 154 Campbell JA (with whom Beazley and Basten JJA agreed) considered the question whether a building contract was made with a company or with what Campbell JA described at [2] as “the man who stands behind the company”. After a detailed examination of the auth…
Ryledar Pty Ltd v Euphoric Pty Ltd
[2007] NSWCA 65 Para 262

…fication of the parties to the contract must be made in accordance with the objective theory of contract: Ryledar Pty Ltd & Anor v Euphoric Pty Ltd [2007] NSWCA 65 at [262]–[266] and cases there cited. It was the Respondent who bore the legal onus of proving that the Appellant was the other party to the contract t…
Tomko v Palasty
[2007] NSWCA 25

…determine whether a contract with a particular party existed: at [2] (Basten JA); at [59] (Campbell JA, Beazley JA agreeing). [84]In Tomko v Palasty [2007] NSWCA 25, Basten JA (Mason P agreeing) added that “[e]xcept to the extent that [subsequent conduct of the parties] constitute admissions by one or other party…
Johnson v American Home Assurance Co
[1998] HCA 14

…rmined objectively from the surrounding circumstances: see Barroora Pty Ltd v Provincial Insurance Ltd (1992) 26 NSWLR 170 at 174; Protean (Holdings) Ltd v American Home Assurance Co (1985) 4 ANZ Ins Cas 60–683 at 74,055–74,056; Coulls v Bagot’s Executor and Trustee Co Ltd [1967] HCA 3; 119 CLR 460 at 477 at 478–479 and 486.…
Geebung Investments Pty Ltd v Varga Group Investments (No 8) Pty Ltd
[1995] NSWCA 166

…to account in determining whether a contract was formed: see, for example, Geebung Investments Pty Ltd v Varga Group Investments (No 8) Pty Ltd (1995) 7 BPR 14,551 at 14,569–70 per Kirby P; Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61; (2001) 53 NSWLR 153 at [25]. Necessarily, that extends to the…
David Securities Pty Ltd v Commonwealth Bank of Australia
[1992] HCA 48 Para 83

…unjust as against 3D if the contract was between Era or Nebax and 3D, as I have found : see David Securities Pty Ltd v Commonwealth Bank of Australia (1993) 175 CLR 353 at 379. Hills Industries was upheld on appeal: (2014) 253 CLR 560.…
Coulls v Bagot's Executor and Trustee Co Ltd
[1967] HCA 3

…Protean (Holdings) Ltd v American Home Assurance Co (1985) 4 ANZ Ins Cas 60–683 at 74,055–74,056; Coulls v Bagot’s Executor and Trustee Co Ltd [1967] HCA 3; 119 CLR 460 at 477 at 478–479 and 486.…
Concrete Constructions (NSW) Pty Ltd v Nelson
[1990] HCA 17 Para 91

…Section 52 of the Trade Practices Act and Section 18 of the Australian Consumer Law must fail: see Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 at 603-4.…
Barroora Pty Ltd v Provincial Insurance Ltd
581 F Supp 2

…tract, the identity of the parties must be determined objectively from the surrounding circumstances: see Barroora Pty Ltd v Provincial Insurance Ltd (1992) 26 NSWLR 170 at 174; Protean (Holdings) Ltd v American Home Assurance Co (1985) 4 ANZ Ins Cas 60–683 at 74,055–74,056; Coulls v Bagot’s Executor and Trustee Co Lt…
[2001] NSWCA 61
[2001] NSWCA 61

…et out the key principles elucidated by Heydon JA (as he then was, Mason P and Ipp AJA agreeing) in Brambles Holdings Pty Ltd v Bathurst City Council (2001) 53 NSWLR 153 at 163–4, particularly the following:…

Legislation cited in this decision · 4

Competition and Consumer Act 2010 (Cth)
2 mentions (from Para 2)
Evidence Act 1995 (Cth)
1 mention (from Para 60)
Fair Trading Act 1987 (WA)
1 mention
Trade Practices Act 1974 (Cth)
1 mention (from Para 4)

Medium Neutral Citation:	Simic v Prasad [2017] NSWDC 158
Hearing dates:	26 and 27 April 2017, 8 June 2017
Date of orders:	29 June 2017
Decision date:	29 June 2017
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) Judgment for the defendants in relation to the Amended Statement of Claim; (2) The Amended Statement of Claim is dismissed; (3) The plaintiff is to pay the costs of the first and second defendants of the Amended Statement of Claim proceedings as agreed or assessed; (4) Liberty to the parties to apply on two business days’ notice to vary the costs order in (3) above; (5) Judgment for the cross-claimant 3D against New Era Enterprises Australia Pty Ltd on the First Cross-Claim; (6) Judgment for Mr Simic and Ms Delaney on the First Cross-Claim; (7) The cross-claimant 3D is to pay the costs of Mr Simic and Ms Delaney of the First Cross-Claim as agreed or assessed; (8) Liberty to the parties to apply on two business days’ notice to vary the costs order in (7) above; (9) The parties are to bring in short minutes of order within 7 days to reflect these reasons in relation to the First Cross-Claim together with any interest on the amount found; (10) Liberty to the parties to apply in relation to the costs of the First Cross-Claim of 3D against New Era Enterprises Australia Pty Ltd on two business days’ notice; (11) Exhibits are to be returned after 28 days.
Catchwords:	Contract – identity of contracting party – whether the plaintiff was a party to the relevant contract – whether the plaintiff as a natural person can sue on behalf of a company – whether the plaintiff or another company was liable for allegedly unpaid invoices Misleading or deceptive conduct - whether representations as alleged were made – whether in trade or commerce Restitution – whether plaintiff and the second cross-defendant are liable in restitution
Legislation Cited:	Australian Consumer Law Competition and Consumer Act 2010 (Cth) Evidence Act 1995 (NSW) Fair Trading Act 1987 (NSW) Trade Practices Act 1974 (Cth)
Cases Cited:	Australian Financial Services and Leasing Pty Limited v Hills Industries Limited (2014) 253 CLR 560 Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 Coulls v Bagot’s Executor and Trustee Company Ltd (1967) 119 CLR 460 David Securities Pty Ltd v Commonwealth Bank of Australia (1993) 175 CLR 353 Harold R Finger & Co Pty Ltd v Karellas Investments Pty Ltd [2016] NSWCA 123 Harold R Finger & Co v Karellas Investments Pty Ltd [2015] NSWSC 354 Hills Industries Ltd v Australian Financial Services and Leasing Pty Ltd [2012] NSWCA 380 Lumbers v W Cook Builders Pty Ltd (in liq) [2008] HCA 27 Pethybridge v Stedikas Holdings Pty Ltd [2007] NSWCA 154
Category:	Principal judgment
Parties:	Daniel Simic (Plaintiff and First Cross Defendant) Vinay Prasad (First Defendant) 3D Automation Group Pty Ltd (Second Defendant and First Cross-Claimant) Hazel Mary Delaney (Second Cross-Defendant) New Era Enterprises…