Goldberg v Jefferson Ford Pty Ltd [2000] VSC 46

5. The respondent, Jefferson Ford Pty Ltd, had as plaintiff issued proceedings in the Magistrates' Court on the 28th of December 1998 against two defendants. The first defendant was Ted Morgan (trading as West End Henley Motors) and the second defendant was Mr David Goldberg.

8. The proceedings were issued in the Frankston Magistrates' Court. At the request of Mr Goldberg they were on 7 May 1999 transferred for hearing to the Melbourne Magistrates' Court. At a pre-hearing conference at the Frankston Magistrates' Court on 19 February 1999 there was informal discovery provided by the respondent to the appellant (and the other defendant below). Defences had been filed on 21 January 1999 by the two defendants below and further and better particulars thereof filed by them on 18 March 1999. Ultimately the matter came on for hearing at the Melbourne Magistrates' Court on 20 July 1999. Judgment was given that day.

11. The appellant before me is Mr Goldberg, who has appeared in person and has most fully and capably made submissions and argued the case he wishes to present before me. To that end Mr Goldberg has been at the Bar table in order to assist him in marshalling his papers and to provide proper convenience to him.

14. There is no appeal by the first defendant below, Ted Morgan (trading as West End Henley Motors). The plaintiff below, Jefferson Ford Pty Ltd, being the respondent before me, is represented by Mr Klooger of counsel.

17. The claim below, which is set forth in nine paragraphs of particulars, is clear. The essential parts in relation to the first defendant below are as follows:

"3. In the month of August 1998 the Plaintiff at the request of the first defendant supplied and delivered goods and materials to the first defendant to the value of $4,593.05 for which the first defendant agreed to pay within the usual commercial terms, particulars of which have been delivered to the first defendant. 4. In breach of the agreement the first defendant has failed to pay for the said goods and materials supplied and delivered".

Likewise, the claim against the second defendant below (the appellant before me) Mr Goldberg, is clear. The relevant particulars of claim stated:

"5. Pursuant to a contract of guarantee between the second Defendant and the Plaintiff, the second Defendant personally guaranteed payment to the Plaintiff in respect of any obligation of the first Defendant and thereby agreed to bind himself to pay the Plaintiff on demand any sum which may become due to the Plaintiff by the first Defendant whenever the first Defendant shall fail to pay the same. 6. The guarantee was in writing signed by the second Defendant, and a copy of the same is in the possession of the Plaintiff's solicitors and may be inspected by appointment. 7. Despite demand the Defendants have failed to pay the Plaintiff the sum of $4,593.05 outstanding".

23. The defence filed on 21 January 1999 of the first defendant was that he did not order or receive the goods.

26. The defence filed on 21 January 1999 of the second defendant was that he did not order or receive the goods.

29. The evidence before the Magistrate below, again, was clear enough. Affidavits have been filed before me of Ms Thomas of the 13th of October 1999, Credit Controller of the respondent Jefferson Ford Pty Ltd, and of Mr Mark Taylor of the 30th of October 1999, Assistant Spare Parts Manager of the respondent. In the Court below, each of those persons gave evidence for the plaintiff (respondent). Mr Taylor produced the company documentary records created in the ordinary course of business detailing the relevant transactions including credits. The relevant guarantee by Mr Goldberg was produced. More on this shortly.

32. The appeal before me is on two grounds, being questions of law to be decided as formulated by the learned Master on the 25th of August 1999. They are:

"1. Did the learned Magistrate deny natural justice in permitting the Respondent to advance a case based on the Appellant's primary liability for the goods supplied, contrary to the case advanced on the pleadings and of which the appellant had no notice? 2. Could any reasonable Magistrate have concluded on the evidence before the court that both the Appellant and the first-named Defendant in the Magistrates' Court proceedings were primary (presumably primarily) liable for the goods supplied?"

36. There is a disputation in the affidavits between those that I have referred to and those of the appellant, Mr Goldberg, of the 11th and 23rd of August 1999 and the 10th of November 1999, each of which I have read.

39. In the affidavit of Ms Thomas of 13 October 1999, paragraph 6, she deposed that:

- she did not say that Mr Goldberg had an account with the respondent. - she did say that she did not know, nor was it of any concern, who made payment for parts sold on that account. - she did say that an account had been opened using a business name registered to Mr Morgan. - she did say that there were credits supplied to that account but also said that those credits had been taken into calculation in the amounts outstanding. - she did not "repeat again and again" that Mr Morgan never held an account with the respondent. - she did not say that no business name search had been conducted.

43. In paragraph 7 she deposed that the amounts of all outstanding invoices had been provided to the appellant by way of informal discovery at the pre-hearing conference in the Frankston Magistrates' Court on 19 February 1999 and on previous occasions. In his affidavit of 13 October 1999 Mr Mark Taylor deposed that the appellant's affidavit of 23 August 1999 "completely misstates the substance" of his (Mr Taylor's) evidence and that at no stage did Mr Taylor say that Mr Morgan did not have an account with the respondent and at no stage did he say that Mr Morgan had not received parts from the respondent. Mr Taylor gave evidence that parts were collected by the appellant using the business name "West End Henley Motors". The substance of the appellant's affidavits before me, striped of their verbiage, is that the respondent sued the wrong person because he, the respondent, ordered and collected goods not the first defendant.

46. So far as the factual disputation on the affidavits is concerned, on the one hand those of Ms Thomas and Mr Taylor, and on the other hand those of Mr Goldberg, they reveal a routine factual dispute and there is nothing which demonstrates to me that the Magistrate fell into any error. He had the witnesses before him and he had material upon which he was entitled as a matter of law to reach the conclusion he reached on the claim.

49. Before me, the appellant has essentially focused on two matters. As he is unrepresented, I have permitted a broader factual review than normally one would permit in a s. 109 appeal.

52. The first is that the account initially was in the name of Henley Motors, and not West End Henley Motors. To uphold such a submission would be a triumph of form over substance and I am unpersuaded that it is of any significance whatsoever.

55. The second point is that there is no evidence before the Magistrate that the first defendant below, Ted Morgan (trading as West End Henley Motors) himself collected the goods. Such evidence is not necessary for the proof of the claim. The physical identity of the person collecting goods is inconsequential as long as what is established is that the goods were delivered to the relevant party, in this case Ted Morgan (trading as West End Henley Motors). The persona himself or itself is inconsequential.

58. I turn to the questions posed by the Master for consideration. First, whether the Magistrate denied natural justice in permitting the respondent to advance a case different from that pleaded. The affidavit of Mr Morgan sworn the 4th of May 1999 - upon which the appellant relies and which was part of the court file, although filed for purposes antecedent to the final hearing on the 20th of July 1999 - deposed in paragraph 9:

"I verily believe that the claim has been issued not bona fide purposes on the bases of relevant evidence of a claim against me, but for vexation purposes or purposes which may constitute an abuse of the process of the Court. As there is no shred of evidence that I have anything to do with this claim brought against me by the plaintiff".

62. Despite the gravity of that allegation, Mr Morgan, who was present in court at the hearing before the learned Magistrate, did not give evidence. According to the affidavit of the appellant, Mr Morgan made submissions to the Magistrate but Mr Morgan did not take the step of going into the witness box and swearing or affirming and exposing himself to cross-examination or any other consequences of taking that step. Further, Mr Goldberg gave evidence but did not call Mr Morgan as his witness, even though Mr Morgan was present in court throughout.

65. It appears to me that the technical and wholly unmeritorious grounds which are now sought to be relied upon are part of an ongoing attempt to place before the court misleading and incomplete material, which material the Magistrate was unpersuaded by and, in my view, rightly so. It is clear that the Magistrate would have been entitled to find that the first defendant was acting in collusion with the second defendant. From what I have read of the papers, such a conclusion would have been warranted by the conduct of the parties in court and the material previously filed by them, including the handwritten defences each filed on 21 January 1999 and the affidavit of Mr Morgan of 4 May 1999 and by that revealed by the later affidavits of the appellant of 11 August 1999 and 23 August 1999. However, such a finding would be unnecessary to the finding of the Magistrate which was based upon the matters first pleaded. A finding of collusion - amply open - would not justify this court interfering with the Magistrate's decision or the process by which he reached his decision. Natural justice was not denied by the Magistrate. The answer to the first question is: No.

68. It has finally been put by Mr Goldberg that the guarantee which is the foundation, juridically, for the finding of the Magistrate in relation to him, was something that he was caused to sign without knowing what it was, and that the document that he signed, which he believed was an application for credit account, was later and not to his knowledge converted by the agent of the plaintiff, Ms Thomas, into a guarantee.

71. That is a particularly serious allegation involving, as it does, fraud, and then a later perjury by her. It has wholly failed to be made out. The document is headed with the very first word "Guarantee". It is signed by Mr Goldberg. Mr Goldberg plainly is a man of considerable intelligence and experience, and for him to submit that he did not know what he was signing is rejected by me. The answer to the second question posed is that the learned Magistrate on the evidence was entitled to find each defendant liable, the first defendant primarily and the second defendant as guarantor.

74. The consequence of my review of the material is:

(1) I am not satisfied that the Magistrate fell into any error in reaching the conclusions that he did on the evidentiary material before him;

(2) I am affirmatively satisfied that the Magistrate was correct in the conclusion that he reached;

(3) there was no denial of natural justice because the Magistrate was entitled to reach the conclusion he reached on the pleadings on the ground of goods sold and delivered to the first defendant and as to which the second defendant was guarantor;

(4) if the Magistrate then acted on the basis of concert, he would have been well entitled to do so;

(5) it was reasonable for the Magistrate to conclude as he did.

80. The appeal has not been made out. The Magistrate apparently granted solicitor/client costs to the plaintiff below and, given the conduct of the matter, I consider that conclusion also was wholly justified.

83. Accordingly, I dismiss the appeal. I grant the normal costs of the appeal to the respondent.

89. HIS HONOUR: I will grant a stay of one month to the appellant.