TRADESMAN TECHNOLOGIES PTY LTD -v- AMEDURI [No 2] [2013] WASCA 252 (29 October 2013)

TRADESMAN TECHNOLOGIES PTY LTD -v- AMEDURI [No 2] [2013] WASCA 252 (29 October 2013) - WASCA 2013 case summary — Zoe

[85]

On the face of the document the language and terms of the Loan Agreement indicated it was an agreement to lend a sum of money between the parties as persons in their private capacity and not in their corporate roles.
If the Loan Agreement was a business arrangement between Mr Ameduri on behalf of Allpack and Mr Cotellessa on behalf of Tradesman I would have expected to see some reference to that in the document. I would not have expected Mrs Ameduri to be a party to the Loan Agreement as she had nothing to do with the business arrangements of Tradesman or Allpack. I do not accept Tradesman's submission that Mrs Ameduri had a significant interest in Allpack because of her and Mr Ameduri's positions with Milthorpe Nominees Pty Ltd which was the trustee of their family discretionary trust. Milthorpe Nominees Pty Ltd held 466 shares of 1000 shares in Traffic Investor Group Pty Ltd which was a 100% shareholder of The Traffic Group Pty Ltd which was a 100% shareholder of Allpack.
The simple language and clear terms of the Loan Agreement reflected the way the parties gave their evidence and as such the language and terms of the document would have been understood by them.
The terms and conditions of the Continuing Supply Agreement, as outlined in the Amended Statement of Claim, were too complicated for Mr Cotellessa to have expressed or explained in that way.
There was no reason for Mrs Ameduri to have advanced any money if she understood Allpack owed Tradesman a substantial amount of money for outstanding invoices at the time and repayment of the $150,000 was contingent upon Allpack being up to date with payment of all outstanding invoices to Tradesman.
If repayment of the loan was contingent upon Allpack being up to date with payment of all outstanding invoices to Tradesman I would have expected Mr Cotellessa to have insisted upon a condition along those lines.
I do not accept Tradesman's submission 'there was simply no commercial reason why Mr Cotellessa would have taken a $150,000 loan from Mr and Mrs Ameduri unless repayment was conditional upon payment of invoices rendered by Tradesman to Allpack. Only a 'you scratch my back and I will scratch your back' arrangement makes sense. Although Mr Cotellessa's evidence was that he did not need the $150,000 he used it for cash flow.
No textual ambiguity was revealed in the Loan Agreement so as to allow any parol evidence to be adduced which could supplement or replace the terms of the Loan Agreement. No terms could be asserted which were inconsistent with the Loan Agreement.
The language and terms of the Loan Agreement supported the evidence of Mr Ameduri and Mrs Ameduri.

[101]

(a) On or about 20 or 21 May 2009 Mr Ameduri represented to Mr Cotellessa that if Allpack did not pay Tradesman outstanding invoices for traffic products supplied by Tradesman to Allpack after the Continuing Supply Agreement was entered into then Mr Ameduri would make that payment. The representation was a representation with respect to a 'future matter' within the meaning of s 51A of the Trade Practices Act 1974 (Cth) (Trade Practices Act). Section 51A(2) and s 51AC(12) of the Trade Practices Act applied to the representation. In reliance upon the representation Tradesman continued to supply traffic products on credit to Allpack during and after May 2009 and until about December 2009. In reliance upon the representation Tradesman continued to abide by the Restricted Supply Agreement by not contracting to supply traffic products to competitors of Allpack during the period from on or about 20 or 21 May 2009 and until about January/ February 2010.

(b) During July 2009 Mr Ameduri represented to Mr Cotellessa that if Allpack did not pay Tradesman outstanding invoices for traffic products supplied by Tradesman to Allpack after the Continuing Supply Agreement was entered into then Mr Ameduri would make that payment. The representation was a representation with respect to a 'future matter' within the meaning of s 51A of the Trade Practices Act. Section 51A(2) and s 51AC(12) of the Trade Practices Act applied to the representation. In reliance upon the representation Tradesman continued to supply traffic products on credit to Allpack during and after July 2009 and until about December 2009. In reliance upon the representation Tradesman continued to abide by the Restricted Supply Agreement by not contracting to supply traffic products to competitors of Allpack during the period from July 2009 and until about January/February 2010.

(c) During September 2009 Mr Ameduri represented to Mr Cotellessa that Allpack would soon have the financial capacity to pay Tradesman the outstanding invoices for traffic products supplied by Tradesman to Allpack after the Continuing Supply Agreement was entered into. The representation was a representation with respect to a 'future matter' within the meaning of s 9 of the Fair Trading Act 1987 (WA) (Fair Trading Act). Section 9(2) of the Fair Trading Act applied to the representation. In reliance upon the representation Tradesman continued to supply traffic products on credit to Allpack during and after September 2009 and until about December 2009. In reliance upon the representation Tradesman continued to abide by the Restricted Supply Agreement by not contracting to supply traffic products to competitors of Allpack during the period from September 2009 and until about January/ February 2010 [96(a) - (c)].

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TRADESMAN TECHNOLOGIES PTY LTD -v- AMEDURI [No 2] [2013] WASCA 252 (29 October 2013)

Legislation Cited (3)

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