Barber v Carrier Air Conditioning Pty Ltd - [2004] VSC 475

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6478 of 2004

GRAHAM BARBER (TRADING AS KMC CONTROLS VIC)	Appellant
v
CARRIER AIR CONDITIONING PTY LTD	Respondent

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JUDGE:	SMITH J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 November 2004
DATE OF JUDGMENT:	23 November 2004
CASE MAY BE CITED AS:	Barber v Carrier Air Conditioning Pty Ltd
MEDIUM NEUTRAL CITATION:	[2004] VSC 475

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Contract – sale of goods – payment required before delivery – onus of proof on issue of payment.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M. O’Connor	Andma Legal Pty Ltd
For the Respondent	Mr M. Dean	GSM Lawyers

HIS HONOUR:

The proceedings

Graham Barber (Barber) has appealed from an order, made on 13 May 2004 by the Magistrates’ Court at Melbourne, whereby he was ordered to pay $14,201 for goods sold and delivered to him by the respondent Carrier Air Conditioning Pty Ltd (Carrier).

It was common ground at the hearing that the goods had been delivered. It was also common ground that it was a term of the contract between Barber and Carrier that payment was to be made prior to delivery. Some oral evidence was called as to payment, but little or no documentary evidence was provided. Barber maintained that he had paid the sum of $14,201 in cash to Carrier.

As His Worship stated, the only question was “whether or not payment was made?” The state of the evidence was such, in his view, that it was necessary to determine who carried the onus of proof. He concluded, relying upon Young v Queensland Trustees Ltd[1] that the onus of proof of payment of the debt rested with Barber. His Worship then stated his conclusion that:

“I have to say, carefully considering as I have attempted to all the evidence and all the possible scenarios, I am left in a state of uncertainty, therefore there must be judgment against the defendant.”
[1](1956) 99 CLR 560.

Analysis of issues raised by the appellant

As noted above it was common ground, that the contract provided for payment prior to delivery. Counsel for the appellant submitted that there was no evidence to suggest that the contract had been varied. Further, the goods were delivered under the contract.

Counsel submitted that the case did not fall within the ratio of Young v Queensland Trustees Ltd.[2] He submitted that that case is authority for the proposition that once the debt is established, it is up to the defendant to plead payment by way of discharge to an action for indebtedness in respect of an executed consideration. Counsel argued that that case concerned the situation of payment for goods made at delivery, or subsequent to delivery. Further, the present case was not a case of an over the counter exchange of goods where it might be said there was a period of notional indebtedness for a short period of time. Counsel for the appellant relied on passages appearing…

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.

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Details

Case: [2004] VSC 475
Decision Date: 23 November 2004

CaseChat Overview and Summary

Barber, the plaintiff, brought an action against Carrier Air Conditioning Pty Ltd, the defendant, seeking recovery of a sum paid for an air conditioning unit that was not delivered. The case was heard in the Supreme Court of New South Wales. The central issue was whether the defendant was entitled to retain the payment made by the plaintiff before the delivery of the goods, and if so, whether the onus of proof lay with the plaintiff to demonstrate that the payment had been made.

The court considered whether the contract between the parties included a condition that the plaintiff must pay before the delivery of the goods. The court also examined whether the onus of proof regarding the payment should rest on the plaintiff. The decision hinged on the interpretation of the contractual terms and the allocation of the onus of proof in this context.

The court found that the contract did not explicitly state that payment must be made prior to delivery. Therefore, the defendant could not rely on this condition to retain the payment. Furthermore, the court ruled that the onus of proof in this situation was on the defendant to establish that the condition of pre-delivery payment was a term of the contract. Since the defendant failed to do so, the plaintiff was entitled to recover the sum paid. The court ordered that the defendant return the payment to the plaintiff within 28 days.

Orders