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[2003] VSC 475
mixed. Judgment for the plaintiff (De Jong) against the second-named defendant (Angelo Veis) for $175,111.18 plus interest; judgment for the first-named defendant (O J Four Pty Ltd) against the plaintiff (De...
De Jong sued for unpaid invoices for lily bulbs. Defendants argued the buyer was another company (Gramfam) or O J Four. The court looked objectively at who De Jong dealt with: order confirmations, invoices, witness testimony and a 29 April 2003 note pointed to contracts with Angelo Veis personally. Payments from O J Four's bank account did not prove O J Four was the contracting buyer. The judge entered judgment for De Jong against Angelo Veis for $175,111.18 plus interest and dismissed the claim against O J Four.
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1,384 words · generated 12/08/2026
De Jong Lelies Australia Pty Ltd (De Jong) sued O J Four Pty Ltd and Angelo Veis for $272,389.50 being the price for lily bulbs supplied between August 2002 and April 2003. By the time of trial the parties had narrowed the contest. The plaintiff conceded part of its claim and the issue of defective bulbs and any counterclaim was excised from the trial. The remaining live issue was the identity of the purchaser: whether De Jong had contracted with Gramfam 26 Pty Ltd (a company asserted to be the trustee/operating company), O J Four Pty Ltd (a company owning the farm land and which paid many invoices), or with Mr Angelo Veis personally.
No linked legislation citations have been extracted yet.
Evidence showed a mixed pattern: early dealings and several confirmations and invoices were addressed to Mr Veis; some documents included O J Four; payments after the end of 2001 were made from O J Four's bank account; Gramfam appeared in evidence as a company involved in the underlying business operations but De Jong's witnesses denied any knowledge of Gramfam during the trading. Byrne J heard the witnesses, assessed credibility and the objective documentary record, and concluded that the contracts for sale were made with Mr Veis personally. Judgment was entered for De Jong against Mr Veis for $175,111.18 plus interest; the claim against O J Four was dismissed (Byrne J [12]–[15]).
The judge applied an objective test: identify the contracting party by examining the dealings between the parties and infer, on an objective basis, who a reasonable bystander would take to be the purchaser (Byrne J [12]). The decision turned on the contemporaneous documents and the witness evidence:
Byrne J assessed credibility, accepting van Egdom's evidence that De Jong had not been informed of Gramfam and rejecting Mr Veis' account that he had told De Jong the business was conducted by Gramfam (Byrne J [13]). Because De Jong made no contract with Gramfam and had not been told Gramfam was the appropriate contracting entity, the Gramfam defence failed. The judge therefore concluded contracts were with Mr Veis personally (Byrne J [14]).
The judgment does not cite or discuss other authorities in the provided text. It applies a well-established, practical principle for determining the contracting party: the identity is determined objectively from the course of dealings, documents and the reasonable inferences that flow from those facts (Byrne J [12]). That is described and applied rather than reformulated as a novel rule.
Before this decision, the general approach in contract disputes about identity was already to look to objective manifestations (documents, who placed orders, invoices, correspondence, and conduct of the parties). After this judgment, the decision reinforces that principle in the context of commercial supply transactions: contemporaneous business documents and direct dealing are persuasive; payment by a third-party corporate account is not, alone, determinative. The decision emphasises the pragmatic inquiry: what did the supplier reasonably understand and act upon (Byrne J [12], [13], [14]).
Passage (Byrne J [12]): "My task is to determine the identity of the purchaser of the bulbs. This I must do from an examination of the relevant dealings between the contracting parties and to infer from these dealings on an objective basis who the reasonable bystander might take to be the purchaser."
Passage (Byrne J [14]): "For the most part, the De Jong order confirmations and invoices point in the same direction. The fact that O J Four made payments for the bulbs does not lead to the contrary result."
Passage (Byrne J [13]): "I accept the evidence of Mr van Egdom... De Jong was told nothing. It made no contract with Gramfam so that the primary defence of the defendants must fail."
Passage (Byrne J [15]): "There should be judgment for the plaintiff against the secondnamed defendant in the sum of $175,111.18 together with interest. There should be judgment for the firstnamed defendant against the plaintiff."
This decision is instructive where a supplier pursues payment and the alleged buyer claims another entity was the contracting party. The key triggers include:
Where the supplier's contemporaneous documents and the supplier's own witness interactions point to an individual, and the supplier can show it had no knowledge of an alternative entity, courts will treat the objective record as decisive. Payment by a corporate account will not, without more, establish that the payer was the contracting purchaser (Byrne J [6], [8], [10], [12], [13], [14]).
The provided judgment contains no discussion of subsequent consideration in later decisions. Within this judgment the approach is applied as a practical evidentiary and credibility exercise. Any subsequent treatment of the case by later courts or its citation history is not contained in the judgment text and therefore is not addressed here.
From the text of the judgment the following issues remain open or are not addressed in this trial:
Final note: This write-up summarises and analyses the reasoning contained in Byrne J's judgment in De Jong Lelies Australia Pty Ltd v O J Four Pty Ltd & Anor [2003] VSC 475 (28 November 2003) using the judgment text. It is general legal information, not legal advice. I can make mistakes. Before you act on this, rely on it, or use any draft based on it, get a qualified Australian lawyer to check.
[2003] VSC 475
1 When the trial of this proceeding finally got underway after two days of preliminary applications, the issues emerged as four in number and simple of resolution. The plaintiff, De Jong Lelies Australia Pty Ltd ("De Jong"), is an importer and dealer in plants including lily bulbs. It sues the defendants, O J Four Pty Ltd ("O J Four") and Angelo Veis for $272,389.50 as the price of bulbs sold to one or other of them between August 2002 and April 2003. The defences of the defendants, as they finally emerged, were as follows:
* The purchaser was neither of the defendants; it was Gramfam 26 Pty Ltd ("Gramfam"), a company controlled by Mr Veis and a trustee of the Gramfam Veis Family Trust. Alternatively, it was said that the purchaser was Mr Veis, and not O J Four.
* On 29 April 2003, at a time when Mr Veis had sold his flower farm to Thuoc Van Tran, it was agreed between the plaintiff and Mr Veis that Mr Tran should be responsible for seven invoices totalling $84,208.80, leaving the balance of account, totalling $175,111.18 payable by him or his company upon settlement of the sale. The purchasers of the farm, for their part, agreed to pay to De Jong the $84,208.80 by instalments, $40,000 on the date of settlement of the farm purchase and the balance at the rate of $5,000 per fortnight thereafter. In fact, they have kept to this payment regime and have made payments totalling $75,000.
* If the 29 April 2002 agreement be not effective to discharge the defendants from their liability to the plaintiff to the extent of $84,208.80, they should be given credit for the $75,000 paid by Mr Tran.
* Finally, certain Starfighter bulbs which were part of the purchase from De Jong were defective so that the defendants suffered losses of the order of $130,000 as a consequence. They should be entitled to set-off or counterclaim this loss.
2 It was agreed by the parties that this final matter should not be the subject of this trial. I am to determine only the claim and the first three defences.
3 Furthermore, in the light of the evidence which emerged at the trial, counsel for De Jong conceded the second defence. The consequence of this concession is that De Jong is entitled to recover only $175,111.18 from the purchaser for the bulbs sold, plus interest. This, too, meant that the third defence ceased to have any significance. The sole remaining issue is the identity of the purchasers.
4 On 1 November 1996 the business name "Unique Blooms" was registered in the name of Mr Veis and his wife, Ann Veis. According to the ASIC search its business was that of breeding, generating and merchandising flowers and plants at 2260 South Gippsland Highway, Five Ways. Mr Veis said, and I accept, that he sold cut flowers under this business name. He told me that he commenced to purchase lily bulbs from De Jong in late 1999 or early 2000 and he did so in his own name on behalf of a business which he then operated as trustee for the A & A Veis Family Trust at 2260 South Gippsland Highway. De Jong was incorporated on 19 June 2000 and I conclude from this that the earliest purchases were made after that date. This is confirmed by Paul van Egdom the manger of De Jong's operations in Australia who said that De Jong has traded in Australia only since the year 2000. Mr Veis said that the early accounts were rendered in his name. No documents were produced as to these early transactions. Mr van Egdom the principal witness of De Jong commenced with its Australian operation only in 2001 so that he had no direct knowledge of the early trading. He did not challenge Mr Veis' evidence as to the early dealings and I accept it as correct. I accept that De Jong dealt with Mr Veis as purchaser at that time. The fact that he may have been purchasing for the A & A Veis Family Trust was not disclosed to De Jong and may, therefore, be put to one side.
5 Mr Veis said that, approximately three or four years ago he was replaced by Gramfam as trustee of the A & A Veis Family Trust. Again, no documents evidencing the fact or date of the transfer of the trusteeship were produced. It seems very likely, however, that the period of Mr Veis' trusteeship and, therefore, of his purchase from De Jong must have been very short. Gramfam was incorporated in 1998 and assumed its present name on 18 January 2000 so that its replacement as trustee must date from after that date. It was this company, he said, which conducted the business of Unique Blooms and was the purchaser of the De Jong bulbs the subject of the claim.
6 Mr van Egdom said that his first dealings on behalf of De Jong were with Mr Veis and that they were on the basis of "oral agreements". No details of these agreements were provided. It seems that, following these oral agreements, De Jong was accustomed to confirm the order for each year's crop of bulbs. There were in evidence four of these order confirmations dated 24 April 2002 and 28 October 2002 for the 2001 crop and 29 October 2002 for the 2002 crop, all of which were addressed to Mr Veis. The final confirmation, also dated 29 October 2002 and for the 2002 crop, is addressed to "Angelo Veis O J Four".
7 O J Four was incorporated on 19 January 1999. According to Mr Veis it is the trustee of another discretionary trust known as the Angelo Veis Family Trust and is the owner of the land at 2260 South Gippsland Highway. A search at the Titles Office shows that it became registered as owner of the land on 15 March 2000. Mr van Egdom said that he was told by an officer of the Customs and Quarantine Agency that the company to which the bulbs in question were to be delivered under quarantine was O J Four and that he was led by this to assume that this was the company under which Mr Veis traded and which became the customer of De Jong. It seems that this notification was given to him on 7 February 2002. Nevertheless, the order confirmations to which I have referred showed that for some eight months after that date he continued to address his documentation to Mr Veis.
8 The De Jong invoices do not shed much more light on this matter. The subject matter of the claim is described in 25 invoices which are dated variously between 20 August 2002 and 16 April 2003, of which 17 are addressed to Mr Veis and the remainder to him and O J Four. Those which include O J Four as addressee are dated between 4 November 2002 and 22 November 2002. The succeeding 13 invoices which are dated on or after 9 December 2002 are all addressed to Mr Veis alone.
9 There is no evidence as to the name of the customer for this account appearing in De Jong's accounting records.
10 All payments from the end of 2001 for bulbs delivered were drawn on the bank account of O J Four and those before that were paid by Mr Veis personally.
11 Mr Veis said that, at all material times, the land at 2260 South Gippsland Highway was owned by O J Four and the business was owned by Gramfam. He said that the land and business was sold in 2003 to Mr Tran, the land by O J Four and the business, known as Unique Blooms, by Gramfam. He produced also a BAS statement of the business for the period April to June 2003 in the name of Gramfam, in support of his contention that the business of Unique Blooms was in fact owned by Gramfam notwithstanding that it remained registered in the names of himself and his wife.
12 My task is to determine the identity of the purchaser of the bulbs. This I must do from an examination of the relevant dealings between the contracting parties and to infer from these dealings on an objective basis who the reasonable bystander might take to be the purchaser. It may well be that the business was in fact conducted by Gramfam. Indeed, the evidence strongly suggests that this was the case. I am, however, concerned with what passed between the parties.
13 Mr Veis said that he paid the accounts from the O J Four bank account because Gramfam did not itself have an account. He said, too, that he told this to Mr van Egdom, that he requested Mr van Egdom to send accounts to Gramfam and that he told him repeatedly that the business was run by Gramfam. Mr van Egdom denied this. He said that in May 2003 he was unaware of the existence of a company called Gramfam. The first he heard of Gramfam, he said, was when it was mentioned in June 2003 in an affidavit of Mr Veis filed in support of an application in the Federal Court to set aside a statutory notice of demand. As to this conflict, I accept the evidence of Mr van Egdom. Having seen the two witnesses, I am satisfied that, whatever be the true position as to the ownership of the business conducted, De Jong was told nothing. It made no contract with Gramfam so that the primary defence of the defendants must fail.
14 As to the further question which of the defendants was the purchaser, I find that, viewed objectively, the burden of the evidence shows that the contracts for the sales of the bulbs were made, not with O J Four, but with Mr Veis personally. Mr van Egdom's evidence strongly suggests this. For the most part, the De Jong order confirmations and invoices point in the same direction. The fact that O J Four made payments for the bulbs does not lead to the contrary result. My conclusion is confirmed by the evidence of Marcel Kroezen, a director of De Jong who gave evidence from Holland. He recounted a conversation with Mr Veis on 8 April 2003 in which Mr Veis spoke of a payment to be made by himself. It is further confirmed by the terms of the note dated 29 April 2003 where the "Final Balance for Angelo Veis" is stated and signed for by Mr Veis personally.
15 The De Jong proofs were otherwise made out. I conclude, therefore, that, subject to any question of defective bulbs, there should be judgment for the plaintiff against the secondnamed defendant in the sum of $175,111.18 together with interest. There should be judgment for the firstnamed defendant against the plaintiff.
De Jong Lelies Australia Pty Ltd
O J Four Pty Ltd [2003] VSC 475
Judgment for the plaintiff (De Jong) against the second-named defendant (Angelo Veis) for $175,111.18 plus interest; judgment for the first-named defendant (O J Four Pty Ltd) against the plaintiff (De Jong). The claim against O J Four was dismissed.