Brand & Media v Aeropack Australia

Brand and Media v Aeropack (2007) 212 FLR 357; [2007] NSWSC 854 CASES CITED : Swain v Waverley Municipal Council (2005) 220 CLR 517 The Australian Gas Light Co v Valuer General (1940) 40 SR (NSW) 126

PARTIES : Brand and Media Pty Limited (Plaintiff) Aeropack Australia Pty Limited (Defendant)

SOLICITORS : K Dowd (Plaintiff in person) S Catalano (Defendant in person)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

13906/2008 - BRAND AND MEDIA PTY LIMITED v AEROPACK AUSTRALIA PTY LIMITED

JUDGMENT (Appeal decision of Local Court Magistrate - identity of contracting party) 1 HER HONOUR: By summons filed 30 July 2008, the plaintiff seeks an order that the judgment of his Honour Magistrate Price dated 3 July 2008 be set aside and a rehearing ordered. 2 The plaintiff is Brand and Media Pty Limited (Brand and Media) who was the defendant in the Local Court proceedings. Mr Dowd is the sole director of Brand and Media. The defendant is Aeropack Australia Pty Limited (Aeropack) who was the plaintiff in the Local Court proceedings. Mr Catalano is the director of Aeropack. The second defendant in the Local Court proceedings was Brand Base Pty Limited (Brand Base). Mr Dowd is also a director of Brand Base. Up to March 2007 Brand and Media and Brand Base had their offices at the same address at Jones Bay Wharf at Pyrmont. Brand and Media relied on the affidavit of Kieron John Dowd sworn 9 September 2008. For convenience, in the judgment, I shall refer to the parties by name. Mr Dowd and Mr Catalano appeared in both the Local Court and this Court. They were unrepresented on both occasions. 3 At the outset, it may be helpful to make some brief comments concerning the remedy pursued by the plaintiff. Section 73 of the Local Courts Act 1982 permits a party who is dissatisfied with a judgment as being erroneous on a point of law to appeal to this Court. The onus lies on the plaintiff to demonstrate that there has been an error of law. There are many decisions as to what constitutes a question of law (as opposed to a question of fact). 4 Although not specifically pleaded, it seems that the plaintiff was seeking leave pursuant s 74 of the Local Courts Act. The onus lies with the plaintiff to demonstrate that there has been an error of law or that leave should be granted on a mixed question of law and fact. 5 Section 75 of the Local Courts Act provides that this Court may determine an appeal either (a) by varying the terms of the judgment or order, or (b) by setting aside the judgment or order, or (c) by setting aside the judgment or order and remitting the matter to the Court for determination in accordance with the Supreme Court's directions, or (d) by dismissing the appeal. 6 In Swain v Waverley Municipal Council (2005) 220 CLR 517, the Chief Justice at [2] reiterated that in the common law system of civil justice, the issues between the parties are determined by the trial process. The system does not regard the trial as merely the first round in a contest destined to work its way through the judicial hierarchy until the litigants have exhausted either their resources or their possibilities of further appeal.

Grounds of Appeal 7 Brand and Media appeals from the whole of the decision of his Honour Magistrate Price made on 3 July 2008 on the grounds that the Magistrate made a mistake in his judgment and that particular and crucial evidence was not considered. Mr Dowd has filed an affidavit. Paragraphs 6 to 18 are submissions and are headed "Errors of fact". I have read them carefully. I have also read the transcript and statements that were marked as exhibits. Essentially, Mr Dowd has cavilled the Magistrate's findings when they do not accord with Brand and Media's evidence. For present purposes, I think it is helpful if I refer to a passage from The Australian Gas Light Co v Valuer General (1940) 40 SR (NSW) 126 (at 137 & 138) as it defines what constitutes an error of law. The statements can be summarised as follows:

(1) The question of what is the meaning of an ordinary English word or phrase as used in the statute is one of fact not law. This question is to be resolved by the relevant tribunal itself by considering the word in its context with the assistance of dictionaries and other books, and not by expert evidence: although evidence is receivable as to the meaning of technical terms and the meaning of a technical term is a question of law.

(2) The question of whether a particular set of facts comes within the description of such a word or phrase is one of fact.

(3) A finding of fact by a tribunal of fact cannot be disturbed if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its finding and there is evidence capable of supporting its inferences.

(a) if there is no evidence to support its inferences, or

(b) if the facts inferred by it and supported by the evidence are incapable of justifying the finding of fact based upon those inferences, or

(c) if the tribunal has misdirected itself in law. 8 Thus, if the facts inferred by the tribunal from the evidence before it are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law. If, however, the facts so inferred are capable of being regarded as either within or without the description, according to the relative significance attached to them, a decision either way by a tribunal of fact cannot be disturbed by a superior court which can determine only questions of law. 9 Of course, in these current proceedings before this Court, leave can be granted where there is a mixed question of law and fact.

Local Court proceedings 10 On 29 October 2007, Aeropack commenced proceedings against Brand and Media Pty Ltd as first defendant and Brand Base Pty Ltd as second defendant. Aeropack sought to recover from the defendants the amount of $35,756.61, plus interest and costs relating to dealings associated with the manufacture of specific aerosol spray cans. There were two issues for determination before the Magistrate. They are, firstly, with which corporate entity did Aeropack have dealings; and secondly, what were the terms and conditions of trade attaching to those dealings. 11 The Magistrate made a finding that Brand and Media was the contracting party. Judgment was entered that Brand and Media Pty Ltd pay to Aeropack the sum of $35,756 and interest calculated from 29 October 2007.

The Magistrate's decision 12 The Magistrate, in his extempore reasons, stated: "The evidence satisfies this court, on balance, of a number of things. Firstly, that at its initial meeting were approached by specifically Mr Dowd to Aeropack that he produce the business card identifying himself as the managing director of Brand and Media. All emails between Aeropack and the defendant were Brand and Media. Whilst invoices were paid by Brand Base, and there is no evidence as to why the account records changed from Brand Base to Brand and Media, nonetheless, this court accepts that the dealings were between the entities, Aeropack Australia Pty Ltd and Brand and Media Pty Ltd. As to the orders or ordering process, this court accepts that: (a) Mr Sherry on behalf of Aeropack prepared the quotation documents; (b) in conjunction with Mr Dowd, made alterations in pencil or ink to that document. The court specifically finds and accepts that Mr Dowd's attention was drawn to the note appearing at the foot of the page. This court is not able to find definitively that Mr Dowd or his company was provided with a copy of the document. Mr Sherry says that he was; Mr Dowd says that he was not, and he cannot find a copy in his company records. What is more telling is the thread or theme in the exchanges of emails, specifically the quotation being on a 25,000 run, the balance of the order, when might they expect the balance to be filled, et cetera. Equally, there is no evidence that at any junction Mr Dowd challenged this material, certainly not until receipt of the invoice in August. The tenor of emails and more specifically the meetings in his office with Mr Le Huray could only but lead to the conclusion that everything hinged on successful discussions/ negotiations with the Coles Group. Nowhere can it be found that Mr Dowd raised this matter with the plaintiff, but sought to placate them with his endeavours to resolve his contractual difficulties with Coles. There is no issue that the invoice remains unpaid. The court finds that Brand and Media was the contracting party. It was aware of the terms of trade, more especially where the dealings related to this unique or otherwise unsaleable product, and they were quoted on a production run of 25,000 of each of the nominated products. " 13 As I understand it, the main thrust of Brand and Media's complaint is that all the invoices bar the last one were addressed to Brand Base and the goods were delivered to Brand Base's warehouse yet the Magistrate decided that Brand and Media was the contracting party. 14 There is correspondence between Ray Sherry, the business manager of Aeropack, addressed to "Brand and Media" dated 19 and 20 October 2004, a quotation issued 28 October 2004 addressed to Mr Kieron Dowd, Brand and Media, dated 28 October 2004 for Hair Spray Strong Hold 200g, Hair Spray Extra Strong Hold 200g, Flexible Hold Mousse. Some of Aeropack's invoices were addressed to Brand Base, others were addressed to Brand and Media. 15 Mr Le Huray, an employee of Aerospace, when asked (at t 9-10) why the invoices suddenly changed to Brand and Media when previously they were invoiced to Brand Base and all orders received were clearly placed by Brand Base and all goods were delivered to Brand Base, replied: "I'm aware of what's being suggested and obviously two companies that are related, the debt is incurred by one, not the other. I don't really understand the dynamics. What I can say is that we met on the first occasion in Aeropack's office in Wetherill Park with yourself, your partner if I recall and a gentleman representing Coles. You produced a business card with Brand and Media on that. We transacted business with the company called Brand and Media. As far as I'm concerned most of our dealings would have been with Brand and Media. If there were any other invoices on a separate company it would have been because you requested us to do so or simply our people may have made an error. That's possible. We're only human." 16 Mr Dowd submitted that he did not send any emails to Aeropack claiming to be from Brand and Media, but the Magistrate accepted that the "address bar" on the email exchanges was proof that the emails had come from Brand and Media. Mr Dowd stated that he explained to the Magistrate that the address bar is the server used and not the company who has sent the email. For example, he says that if he had sent the email from his other email account hairprod@bigpond.com.au, this did not mean that he was sending an email on behalf of Telstra. However, emails spanning 3 December 2004 to 17 May 2006 are styled, "From: Brand & Media" and then the address bar appears [mailto:catchall@brandandmedia.com]. The sender is clearly Brand and Media. 17 Mr Dowd attached significance as to who tendered a business card into evidence. He says that he did so yet the Magistrate stated that Aeropack did and this was wrong. Whether Brand and Media put Ex 2 (a business card) into evidence or Aeropack did is not of any consequence. In any event, Mr Sherry annexed a photocopy of that business card in his statement dated 15 March 2007, which was admitted into evidence. Mr Dowd also took issue when he was asked during cross examination if he had seen a quote. He said, "I saw it across a table, yes". But in his decision the Magistrate stated, "He does confirm he was shown a quote." Mr Dowd says that he did not confirm that he was shown a quote, he confirmed that he had seen it across a table. Mr Dowd has now explained that the quote was upside down on the other side of the table and he could not read it. 18 Mr Dowd referred to an earlier decision, Brand and Media v Aeropack (2007) 212 FLR 357; [2007] NSWSC 854 where Hammerschlag J set aside a statutory demand. At [34] his Honour stated: "34 I do not consider that substantial injustice would be caused by allowing the demand to stand when the plaintiff would have come to Court in any event, because it denies that the demand is directed to the appropriate entity. The defect is one which, in my view, would not, if it were alone, provide the basis for setting aside the demand: Ketrim Pty Ltd v AS&L Pty Ltd [2004] NSWSC 1046." 19 That judgment was delivered, before these proceedings in the Local Court were heard. At that stage there had not been judicial determination as to who was the contracting party, as is now the case. 20 So far as quantum is concerned, Mr Dowd admitted that he ordered 25,000 units of each product on "5 April" (t 23). Mr Dowd denied that he ordered a further print run of 25,000. He gave evidence that Brand and Media only ordered a print run of 12,500. The amount claimed is for the cans left in stock. As to who this amount is made up, is set out in the invoice 15099 dated 25 August 2006. On this issue, Mr Sherry, for Aeropack, gave evidence that he prepared the quotes and gave them to Mr Dowd (t 28.21) then both Mr Dowd and Mr Sherry put changes onto the agreement on their own paperwork. 21 So far as the unused cans are concerned, Mr Sherry who has been in the trade for 20 years gave the following evidence (at t 39.36): "I prepare them and I always meet with the customer to discuss the um, all the information or the data as per the data required by the customer to make sure that we're on the same page which means the same products to same specifications and also understand in this case, it was aerosol cans that if we crimp x amount of cans, that the can will be taken up within a certain period of time of 6 months otherwise, if any cans are looked over or any packaging thereof, which is unique to the product is passed on to the customer and invoiced." 22 Finally, Brand and Media pointed out what it considered were defects in the statement of claim but those complaints seem to be directed to portions of the statement of claim that Brand and Media does not agree with. Those portions were put in issue by the defence of Brand and Media. This is the correct use of pleadings. 23 In my view, the preponderance of evidence establishes that the contracting party was Brand and Media and it was open to the Magistrate to decide that the contracting party was Brand and Media. There was evidence to support the finding as to quantum. The appeal raises issues of fact. Brand and Media are not entitled to reargue factual matters in the hope that the result is better this time around. There is no error of law. Nor should leave be granted for a question of mixed fact and law. The appeal is dismissed. The summons filed 30 July 2008 is dismissed. 24 Costs are discretionary. Costs normally follow the event. The plaintiff is to pay the defendant's costs as agreed or assessed.

(4) The plaintiff is to pay the defendant's costs as agreed or assessed. **********

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