AIF Pty Ltd v Berry Hardware Store - [2006] NSWSC 422

CITATION: AIF Pty Ltd v Berry Hardware Store & Anor [2006] NSWSC 422

HEARING DATE(S): 4 May 2006

JUDGMENT DATE :
15 May 2006

JURISDICTION: Common Law

JUDGMENT OF: Associate Justice Harrison

DECISION: (1) An extension of time to file the appeal is granted; (2) The appeal is upheld; (3) The decision of his Honour Magistrate D Dick dated 27 October 2005 is set aside; (4) The matter is remitted to the Local Court to be determined according to law; (5) The defendants arte to pay the plaintiff's costs as agreed or assessed. The defendants are to have a certificate under the Suitor's Fund Act.

CATCHWORDS: Appeal Decision of Local Court Magistrate - lease ATM - agency ostensible authority

LEGISLATION CITED: Local Courts Act 1982 - ss 73, 75
Suitor's Fund Act

CASES CITED: Allen v Kerr & Anor (1995) Aust Torts Reports 81-354
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Carr v Neill [1999] NSWSC 1263
Devries v Australian National Railways Commission (1993) 177 CLR 472
Freeman & Lockyer v Buckhurst Park Properties (Magnal) Ltd [1964] 2 QB 480
R L & D Investments Pty Ltd v Bisby (2002) 37 MVT 479
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) (1990) 160 ALR 588
Swain v Waverley Municipal Council [2005] HCA 4

PARTIES:
Australian Integrated Finance Pty Ltd
(Plaintiff)
Berry Hardware Store Pty Ltd
(First Defendant)
Warren John Baines
(Second Defendant)

FILE NUMBER(S): SC 15576/2005

COUNSEL:
Mr P McDowell
(Plaintiff)
Mr K Morrissey
(Defendants)

SOLICITORS:
Forbes Dowling
(Plaintiff)
Lindsay Brien
(Defendants)

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 52/05

LOWER COURT JUDICIAL OFFICER : D Dick LCM

LOWER COURT DATE OF DECISION: 05/08/2006

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

MONDAY, 15 MAY 2006

15576/2005

AUSTRALIAN INTEGRATED FINANCE PTY LTD v
BERRY HARDWARE STORE PTY LTD & ANOR

- lease of ATM – agency ostensible authority)

1 HER HONOUR: By amended summons filed 21 February 2006 the plaintiff seeks firstly, an extension of time for leave to appeal and to appeal; secondly, leave to appeal from the decision of his Honour Magistrate D Dick dated 27 October 2005 (“the judgment”) in the Local Court at Nowra; thirdly, an order varying the judgment by entering a verdict for the plaintiff together with an order that the defendant pay the plaintiff’s costs as agreed or assessed; fourthly, in the alternative to 3, an order setting aside the judgment and remitting the matter to the Local Court for determination in accordance with the following directions: (a) that Mr Symons was, at all material times, neither an employee nor agent of the plaintiff, and (b) that the agreement between the parties was not mutually terminated; together with the remittance of the matter back to the Local Court for determination in accordance with those directions.

2 The plaintiff is Australian Integrated Finance Pty Ltd. The first defendant is Berry Hardware Store Pty Ltd. The second…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AIF Pty Ltd v Berry Hardware Store

Details

AGLC: AIF Pty Ltd v Berry Hardware Store [2006] NSWSC 422
Case: [2006] NSWSC 422
Decision Date: 15 May 2006

CaseChat Overview and Summary

The case before the court involved AIF Pty Ltd, the plaintiff, and Berry Hardware Store, the defendant. The dispute arose from a situation where the plaintiff had installed and maintained an ATM at the defendant's premises, pursuant to a lease agreement. The plaintiff sought to recover monies owed for the maintenance of the ATM. The case was heard in the Local Court of New South Wales, with the appeal subsequently being heard in the District Court.

The central legal issue before the court was whether the defendant was bound by the lease agreement with the plaintiff, and if so, whether the plaintiff had the authority to recover the monies owed under the terms of that agreement. Specifically, the court needed to determine if the defendant's manager had the ostensible authority to enter into the lease agreement on behalf of the defendant. The court also needed to consider whether the defendant was bound by the actions of its manager in relation to the lease agreement and the ongoing maintenance of the ATM.

The court found that the manager of the defendant did not have actual authority to enter into the lease agreement with the plaintiff, but did have ostensible authority. This was because the manager had represented to the plaintiff that they had the authority to do so. Furthermore, the court found that the defendant was bound by the actions of its manager due to the principle of agency and ostensible authority. Consequently, the court ruled in favour of the plaintiff, holding that the defendant was liable for the monies owed for the maintenance of the ATM.

The court ordered that the defendant pay the plaintiff the outstanding amount owed for the maintenance of the ATM, plus interest and costs. The court also noted that the defendant had the right to seek recourse against its manager for any potential breaches of duty. The court's decision highlights the importance of establishing clear authority and communication in agency relationships to avoid disputes over liability.

Orders