DOUGLAS v SUPER DIVISION DEMOLITION [1997] NSWCA 94

DOUGLAS v SUPER DIVISION DEMOLITION

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER, POWELL and GROVE JJA

2 May 1997, 2 May 1997

[1997] NSWCA 94

Failure to order accounts below — amount of profit unproved — claim fails

Meagher JA This appeal is brought by Mr Douglas, disappointed plaintiff from a judgment of Windeyer J. His case is that he and a certain company called Super Division Demolition (see Theos & Sons Proprietary Ltd) the first respondent, were carrying on a business of garbage dumping on terms that the plaintiff would be entitled to a 50 per cent share of the profits.

Mr Chris Theos, the second respondent and Mr Peter Theos, the third respondent were directors of the first respondent. In broad terms, the appellant Mr Douglas alleges that the first respondent did not comply with its contractual obligations and paid him much less than 50 per cent of the profits. In addition he alleged that the second and third respondents siphoned off in some manner monies which should have come to him

The difficulty he found himself in is that he pursued his claim on the basis that he should recover a specific sum. He'd disdained an order for accounts and the tragic thing is that we have no power to order that accounts be taken. At the trial, there was no way he could quantify the claim he was making. He had some but not much of an idea about the income of the business. He had virtually no idea of its outgoings. The amount of the profit to which he was entitled therefore remained unproved.

The alleged misconduct of the second and third defendants was also not proved. Mr Douglas certainly had difficulties. Most of the information which he wanted was in the possession of the respondents. The first respondent was de-registered. The second respondent was in Greece and all the defendants seemed to be unreliable. Nevertheless the fact is he by his counsel chose to run his case in a particular way and he failed. He has now appealed to us conducting his own case in person because it would seem that either or both his counsel and his solicitors, whom he expected to represent him today have deserted him.