Zreika v Client Management Systems Australia Pty Ltd - [2017] FCCA 169

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZREIKA v CLIENT MANAGEMENT SYSTEMS AUSTRALIA PTY LTD

[2017] FCCA 169

Catchwords:
CONSUMER LAW – Whether the Respondent contravened s.18 of Schedule 2 – Australian Consumer Law, to the Competition and Consumer Act 2010 because it engaged in misleading and deceptive conduct – common law claim of negligence – application dismissed.

Legislation:

Competition and Consumer Act 2010 (Cth), ss.18,19, 232, sch.2
Privacy Act 1988 (Cth), pt.5, 18G, 18J
Trade Practices Act 1974 (Cth), ss.52, 65A

Cases cited:

Australian Competition and Consumer Commission v Turi Foods Pty Ltd (No.4) [2013] FCA 665
Dale v Veda Advantage Information Services and Solutions Ltd [2009] FCA 305

White v Baycorp Advantage Business Information Services Ltd [2006] NSWSC 441

Applicant:

ZIAD ADEL ZREIKA

Respondent:

CLIENT MANAGEMENT SYSTEMS AUSTRALIA PTY LTD

File Number:

MLG 2278 of 2015

Judgment of:

Judge Jones

Hearing date:

17 October 2016

Date of Last Submission:

17 October 2016

Delivered at:

Melbourne

Delivered on:

2 February 2017

REPRESENTATION

Counsel for the Applicant:

Mr Black

Solicitors for the Applicant:

Coopers Lawyers

Counsel for the Respondent:

Mr Baker

Solicitors for the Respondent:

J. King Legal

ORDERS

The proceeding be dismissed.
Costs be reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2278 of 2015

ZIAD ADEL ZREIKA

Applicant

And

CLIENT MANAGEMENT SYSTEMS AUSTRALIA PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction

The facts of this matter can be summarised as follows:
a)the Applicant conducts a business as a plasterer/renderer and formerly operated as a sole trader under the business name Silk Touch Rendering;
b)the Applicant opened a credit account with Archiclad Pty Ltd (“Archiclad”), a supplier of building materials;
c)the Applicant accrued a debt to Archiclad in the amount of $2,815.82;
d)the Respondent “conducts a risk management, credit management and legal debt recovery business”[1];
e)the Respondent entered into a Deed (“the Deed”) with Archiclad on 1 December 2012 to undertake receivables management services as its agent from time to time. The services including collecting and overdue debt locating and making phone calls to the debtor, undertaking appropriate legal action and other action to recover a debt;[2]
f)pursuant to this deed the Respondent was instructed by Archiclad to initially recover the debt and subsequently to place a default on the Applicant;[3]
g)by correspondence dated 3 September 2013, the Respondent informed the Applicant that if the Applicant failed to pay the debt of $2,815.52, together with amounts of $77.05 interest and $433.88 collection charges, by 11 September 2013, Archiclad have instructed the Respondent to commence legal proceedings to recover the amount due. The Respondent also informed the Applicant that if this action continues, “a default may be lodged with Veda Advantage which will remain on your credit file for a period of 5 years and may impact your future ability to obtain credit”;[4]
h)on 6 February 2014, the Respondent reported the Applicant’s default on the Veda Advantage Information Services and Solutions Ltd (“Veda”) database. The report was listed on the commercial credit information of that part of 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.

Keep reading for free

Create a free CaseChat account to read Zreika v Client Management Systems Australia Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] FCCA 169
Decision Date: 2 February 2017

CaseChat Overview and Summary

In the matter of *Zreika v Client Management Systems Australia Pty Ltd*, the applicant, Mr Zreika, sought to enforce an alleged oral agreement against the respondent, Client Management Systems Australia Pty Ltd. The dispute concerned the terms of Mr Zreika's employment and the alleged entitlement to a share of profits or a bonus. The case was heard in the Federal Court of Australia.

The primary legal issue before the Court was whether an enforceable oral contract existed between Mr Zreika and Client Management Systems Australia Pty Ltd, and if so, what were the terms of that agreement, particularly concerning remuneration beyond a base salary. The Court was required to determine if the parties had reached a consensus on all essential terms necessary to constitute a binding agreement for a profit share or bonus.

Judge Jones found that while discussions regarding potential profit sharing or bonuses had occurred, there was no clear and unequivocal agreement on the essential terms. Specifically, the Court noted the absence of agreement on the method of calculating profits, the percentage or amount of any share, and the conditions precedent to payment. Consequently, the Court concluded that no legally binding oral contract for profit sharing or a bonus had been formed. The Court held that the onus was on Mr Zreika to establish the existence of such an agreement, and this onus had not been discharged.

The Court therefore dismissed Mr Zreika's claim for an entitlement to a share of profits or a bonus.

Orders