who is the respondent?

[nose]

I made a purchase from a person and when asked to pay was asked to make bnk cheque out to :
S.D.& M.E. SMITH, I did that . They later issued a receipt headed S.D. & M.E. SMITH with an ABN number and name of property " Warrin" Coonamble NSW.
Upon checking the ABN , the number does not match the S.D.&M.E SMITH name , it is instead is registered as M.E. & S.D Smith family partnership entity.
The original cheque I paid to S.D.& M.E. SMITH is in fact a PTY LTD under a different ABN to that they issued on receipt.
I need to clarify who is the respondent as I have a brought a case to Tribunal and the member has picked up the issue of whether I have brought proceedings against the right respondent.
At the moment I have 2 names as respondent, one being one person in that PTY LTD entity , the other their daughter whom I dealt in purchase as she was acting as their agent and took monies from me , showed me the product , and delivered the product to me, so I had all dealings with her.
So, should I:
1. Seek to amend the respondent to take out the daughter as she was not in the name of the payment ?
2. Seek to change the respondent to S.D & M.E SMITH PTY LTD as that is the initials of the cheque I was asked to pay them with and did that ?
3. leave as is , both mother and daughter, and add the S.D. & M.E. SMITH PTY LTD to the respondents?

Appreciate advice as am self representing,

 

[Rod]

If it was me self-repping and I was unclear, I'd add both entities to the claim and try and sort it out at the tribunal. The best way of working out who you are dealing with is to look at who you dealt with for the product and/or contract, and who banked the money. The receipt may not give the answer you need.

 

[nose]

Thanks Rod.
As it was a bank cheque I don't know who banked the receipt as such.
I do know who advertised the product for sale, and I then dealt with including handing the payment cheque to her at her request made out to the names she asked for., and that her mother I met once was the co-owner with her as she told me. The mother then asked at the hearing that she wanted her husband to be added as a respondent. The thing is that the member made a big deal at the hearing to make sure that I have determined whom the correct respondent is as he can dismiss the case if I don't have the correct respondent. I now have a chance to submit fresh evidence so should I just add the S.D.& M.E. SMITH as respondent to the already recorded respondents, as I made the bank cheque out to them ? I still have the stub in evidence of that . I just don't want to risk getting the case dismissed due to that issue as the real core of the matter we haven't even got to yet.

If it was me self-repping and I was unclear, I'd add both entities to the claim and try and sort it out at the tribunal. The best way of working out who you are dealing with is to look at who you dealt with for the product and/or contract, and who banked the money. The receipt may not give the answer you need.

 

[Clancy]

Rod is correct.

I get this kind of trouble allot in my job. We trade with the building Industry which is renown for being dodgy, and in cases where we have applied for winding up, we have had defendants try and say we are chasing the wrong entity based on the ABN tricks they have set up, and then we have had to start all over again. however, since the introduction of the phoenix laws, things have suddenly quietened down on the ABN trickery front.

 

[nose]

Rod is correct.

I get this kind of trouble allot in my job. We trade with the building Industry which is renown for being dodgy, and in cases where we have applied for winding up, we have had defendants try and say we are chasing the wrong entity based on the ABN tricks they have set up, and then we have had to start all over again. however, since the introduction of the phoenix laws, things have suddenly quietened down on the ABN trickery front.

 

[Rod]

You don't have to add the husband. Leave that to the other side to work out.

re: Following the money. I believe, though not sure, you can request the bank to say into which account the money landed. If they won't willingly tell you, request a subpoena and hand that to the bank. Alternatively, as part of discovery, ask the other party to provide evidence of where the money was deposited (ie bank statement).

 

[Ruby Tuesday]

A good start would be to get a paid company searches from ASIC on both entities. That way you can figure out the relationship of the parties. The search fee is about $20 but will give you alot more detail than the free ABN searches online.

You haven't really explained the initial relationship, i.e whether there's any contract or terms etc. so it is hard to make a comment on which parties you have a claim against.