by adamjedgar  16/10/2018  163 Page Views
2 Comments  Commercial law, litigation, contracts, IP, property law
hi guys,
i am new to this forum.
I run a small business (bobcat/excavator hire), and I hope the explanation of my situation below is satisfactory...im no lawyer obviously.

Background

About 4 months ago i undertook a job for a concretor in NSW.

The amount of the work i completed was billed in two parts $1100 (which was paid after about a month of beggings and pleadings),

and a further $4600 value of work completed a couple of months later.

3 months after invoicing for the last works, and after 3 letters (the 3rd being a final reminder) and email dialogue between myself, him and his mother (the company director), i managed to get $2200 payment with an excuse in an email that he was only able to transfer a maximum of that much per day and would complete the remainder the following day (which has not happened).

I note that the most recent payment of $2k was made by the son accessing his mother's personal account using a banking app on his mobile phone and not the pty ltd company (i have a screenshot of the transaction...shows even how much charge his mobile phone had at the time the transaction was made).

In searching registration records i have now realised:

1. the concretor is not a director of the company, or included in its registration documents i have downloaded from ASIC

2. The company was registered in November last year

3. His concretors license is not attached to the company (according to dept fair trading it is illegal for this company to undertake residential building works because it is essentially unlicensed)

4. He is also a sole trader and had a registered trading name similar to the company name i was told to invoice, however that business name was deregistered about 2 years ago


It appears that the registration of the company was completed just prior to them undertaking a rather large concreting job with a large building company here in NSW.

In the course of completing the concreting for this building company, the concretor made a huge mistake requiring the removal of 70 cubic meters of concrete (13 patio slabs on 13 units in the development) at his own cost. The building company paid for the replacement materials and half of the fresh install labour only. I was engaged to rock break out the old slabs at the concretors own expense.


All communication since that payment has ceased from this business and the concretor.

Question

My understanding is, normally when one is owed money from invoices to a company, one must name the pty ltd company as the defendant.

Due to the above information can i name all 3 entities below as defendants due to the nature of their involvement in this mess?

1. the concretor and son - a sole trader (abn current) and licensed tradesperson,
2. the mother - sole company director + secretary
3. the pty ltd company - contracting to undertake residential building work without a license whom i was told verbally to invoice