Trazblend v Simon Mathews Aviation

[2006] FMCA 452

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TRAZBLEND v SIMON MATHEWS AVIATION & ANOR [2006] FMCA 452

TRADE PRACTICES – Whether the second respondent was a person involved in the first respondent’s contravention of the Trade Practices Act 1984 (Cth) – whether the defence of the first respondent should be struck out – whether a claim arises under the Corporations Act 2001 (Cth).

Trade Practices Act 1984 (Cth), s.82(1)
Corporations Act 2001 (Cth)

Applicant: TRAZBLEND PTY LIMITED

First Respondent:

Second Respondent:

SIMON MATHEWS AVIATION PTY LTD

ACN 093 712 406

SIMON PETER MATHEWS 

File Number: SYG 2416 of 2005

Judgment of: Raphael FM

Hearing date: 30 March 2006

Date of Last Submission: 30 March 2006

Delivered at: Sydney

Delivered on: 30 March 2006

REPRESENTATION

Counsel for the Applicant: G. Stilanov

ORDERS

1. The second respondent’s defence struck out.

2. Verdict and judgment for the applicant against the second respondent.

3. The second respondent to pay the applicant damages of $87,025.

4. The second respondent to pay the applicant interest upon the said sum at the prescribed rate from 12 April 2005, being the date when the arrangements were determined by the applicant, until judgment.

5. The second respondent is to pay the applicant’s costs according to Part 21, Rule 21.02(2) (b) and Schedule 1 of the Federal Magistrates Court Rules.

6. This judgment is stayed for 14 days during which time the second respondent may file an application and affidavit in support for orders setting aside these orders, such application forthwith after filing to be served upon the applicant.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2416 of 2005

TRZBLEND PTY LIMITED

Applicant

And

SIMON MATHEWS AVIATION PTY LTD ACN 093 712 406

First Respondent

SIMON PETER MATHEWS
Second Respondent

REASONS FOR JUDGMENT

1. In these proceedings an original application was filed in the Federal Court on 22 July 2005 to which the second respondent entered a notice of appearance on 9 August 2005, the first respondent being a company in administration. On 26 August 2005 the second respondent filed a response.  On 10 August 2005 the matter was transferred into this court by Madgwick J. On 4 October 2005 Short Minutes of Order were entered by consent providing for certain further and better particulars to be responded to and others to be requested.  There was also provision for discovery. On 23 November 2005 Federal Magistrate Barnes made further orders requiring responses to the request for further and better particulars and for discovery and placed the matter into my list on 25 January at 9.30.  On that day I made orders including an order that the applicant file and serve an amended statement of claim on or before 8 February 2006 and that the second respondent file and serve its defence by 22 February.  Other consequential orders relating to the filing of affidavits were made.  An amended application was filed on 8 February but no response to that was provided by the second respondent.

2. On 22 March the matter came before me again when the second respondent did not appear.  I noted that the second respondent, wrongly named the second applicant, had not complied with order (2) of my orders of 25 January 2006 to serve his defence and I made an order that this be done by 29 March 2006.  I stood the matter over till today and noted that in the event that the second respondent did not comply with order (1) the applicant could apply on 30 March for orders dismissing the second respondent's defence and for judgment for damages to be assessed without further notice of the application to the second respondent.

3. On 30 March 2006 the matter came before me.  The applicant was represented.  The second respondent did not appear.  The second respondent's solicitor has ceased to act in the matter and a copy of the order which I made on 22 March 2006 was sent to the applicant by the court on that day.  The letter has not been returned.  It seems to me that the most likely occurrence in relation to the case is that the second respondent has determined through lack of finances or otherwise to abandon any defence to these proceedings.

4. In the circumstances I dismiss the defence that has already been filed and have had regard to the affidavit of Max Dumbier filed on 7 March 2006.  That affidavit indicated that Mr Dumbier was a director of the applicant company, negotiated with the second respondent as a director of the first respondent for the purchase of a Cessna 208B Grand Caravan 2002 model aircraft.  Mr Dumbier deposes to the fact that he had discussions with Mr Mathews concerning a trade-in for that aircraft and that on 22 March 2005 he signed an aircraft purchase agreement. On 22 March 2005 he paid Mr Mathews the sum of $87,025 in respect of the purchase price for a Cessna aeroplane.  Mr Dumbier says that he relied on representations made by Mr Mathews that he would accept the Navajo applicant’s aircraft as a trade-in for the new Cessna and it was on that basis that he paid the $87,025 towards the purchase price of the new plane.  When the new plane was unable to be purchased because Mr Mathews and his company had not sold the Navajo the deal collapsed and Mr Mathews was left holding the applicant's $87,025. The correspondence which is annexed to Mr Mathews' affidavit indicates that the Navajo aircraft was accounted for on the basis that it was a trade-in, which is the arrangement to which Mr Dumbier deposed and in respect of which he says the representations were given.  In the amended application he sets how the sum of $87,025 is made up being $35,000 deposit for the new Cessna and $52,025 being money paid and associated with the pre-purchase inspection.

5. In the absence of any evidence filed on behalf of the respondent I am satisfied that the applicant entered into the arrangements with the first respondent on the basis deposed to in his affidavit and that the second respondent was a person involved in the first respondent's contravention of the Trade Practices Act 1984 (Cth) and a person against whom the applicant is entitled to recover damages under s.82(1) of the Act.  The applicant has also pleaded contraventions of the Corporations Act 2001 (Cth). No evidence has been provided to me which would enable me to make any finding in that regard and I do not do so.

6. In the circumstances the orders which I make are as follows:

   1)The second respondent’s defence struck out.

   2)Verdict and judgment for the applicant against the second respondent.

   3)The second respondent to pay the applicant damages of $87,025.

   4)The second respondent to pay the applicant interest upon the said sum at the prescribed rate from 12 April 2005, being the date when the arrangements were determined by the applicant, until judgment.

   5)The second respondent is to pay the applicant’s costs according to Part 21, Rule 21.02(2) (b) and Schedule 1 of the Federal Magistrates Court Rules.

   6)This judgment is stayed for 14 days during which time the second respondent may file an application and affidavit in support for orders setting aside these orders, such application forthwith after filing to be served upon the applicant.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:  3 April 2006