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Miraki v Griffith [2021] NSWCA 263
“You got the money, now get me my luxury goods!”
___
A commenced proceedings against R1, a father, and R2, a son who was a minor at the relevant time, to recover payments made for luxury brand name furniture and accessories that were never delivered: [45]
At first instance, A succeeded against R1, but lost against R2: [46]
A and R1 had an established commercial relationship: [48]
There was some complexity in this case, though, as both R1 and R2 - arguably - held themselves out as agents of each other and a Co that did not then exist and was not a party: [50]
Further, the payments were not actually made by A, but by a Co they were a former director of and which was under external administration: [12], [62]
(If it had been necessary to decide the question, the Court may have found A had not established they were the proper plaintiff to bring the claim: [40])
The first two payments were made into a New York account with the name of the non-existent Co: [3], [56]
Further payments were made into an account with R2’s name (but at the time when R2 was a minor): [58]
Evidence suggested R1 who had previously been imprisoned for drug offences was “very controlling” and treated R2’s bank account as his own: [69]
R2 tendered bank records which showed the money in his accounts was used almost entirely by R1 and for the business: [70]
R1 was not legally represented at the primary hearing and did not participate in the appeal: [74]
At first instance the Court found R1 was liable to repay the amounts A had caused to be paid, and that R2 was not liable due in part to being a minor: [80], [81]
A appealed.
There were complexities in A’s appeal that the CoA had to grapple with including whether R1 and R2 were agents of each other, “in business together” or agents of the non-existent Co: [83] - [92]
At first instance, R2’s evidence was accepted and the appeal made no effective challenge to that position: [102], [103]
R1 had made many admissions in his defence and (though not in the form of admissible evidence) said during the hearing that he took “full responsibility”: [105], [108]
A failed to mount an effective challenge to the finding that the business was R1’s and R2 merely acted at R1’s direction: [111]
Relevantly, as both were sued, the COA noted that R1 did not cross-examine R2: [115]
A’s appeal on the basis R2 received a benefit of the payments failed. He was a “mere conduit” for funds paid for R1’s benefit: [127], [132]
A’s appeal was dismissed with costs: [145]
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By James d'Apice
5
22 ratings
“You got the money, now get me my luxury goods!”
___
A commenced proceedings against R1, a father, and R2, a son who was a minor at the relevant time, to recover payments made for luxury brand name furniture and accessories that were never delivered: [45]
At first instance, A succeeded against R1, but lost against R2: [46]
A and R1 had an established commercial relationship: [48]
There was some complexity in this case, though, as both R1 and R2 - arguably - held themselves out as agents of each other and a Co that did not then exist and was not a party: [50]
Further, the payments were not actually made by A, but by a Co they were a former director of and which was under external administration: [12], [62]
(If it had been necessary to decide the question, the Court may have found A had not established they were the proper plaintiff to bring the claim: [40])
The first two payments were made into a New York account with the name of the non-existent Co: [3], [56]
Further payments were made into an account with R2’s name (but at the time when R2 was a minor): [58]
Evidence suggested R1 who had previously been imprisoned for drug offences was “very controlling” and treated R2’s bank account as his own: [69]
R2 tendered bank records which showed the money in his accounts was used almost entirely by R1 and for the business: [70]
R1 was not legally represented at the primary hearing and did not participate in the appeal: [74]
At first instance the Court found R1 was liable to repay the amounts A had caused to be paid, and that R2 was not liable due in part to being a minor: [80], [81]
A appealed.
There were complexities in A’s appeal that the CoA had to grapple with including whether R1 and R2 were agents of each other, “in business together” or agents of the non-existent Co: [83] - [92]
At first instance, R2’s evidence was accepted and the appeal made no effective challenge to that position: [102], [103]
R1 had made many admissions in his defence and (though not in the form of admissible evidence) said during the hearing that he took “full responsibility”: [105], [108]
A failed to mount an effective challenge to the finding that the business was R1’s and R2 merely acted at R1’s direction: [111]
Relevantly, as both were sued, the COA noted that R1 did not cross-examine R2: [115]
A’s appeal on the basis R2 received a benefit of the payments failed. He was a “mere conduit” for funds paid for R1’s benefit: [127], [132]
A’s appeal was dismissed with costs: [145]
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