DROMAIUS Australia Limited (Receiver & Manager Appointed) in Liquidation v Meager
[1999] WADC 64
•3 SEPTEMBER 1999
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: DROMAIUS AUSTRALIA LIMITED (RECEIVER & MANAGER APPOINTED) IN LIQUIDATION -v- MEAGER [1999] WADC 64
CORAM: CHARTERS DCJ
HEARD: 3 SEPTEMBER 1999
DELIVERED : Delivered Extemporaneously on 3 SEPTEMBER 1999 typed from tape and edited by Trial Judge.
FILE NO/S: CIV 2226 of 1997
BETWEEN: DROMAIUS AUSTRALIA LIMITED (RECEIVER & MANAGER APPOINTED) IN LIQUIDATION (008 238 313)
Plaintiff
AND
RUSSELL MEAGER
Defendant
Catchwords:
Contract - Agency - Turns on its own facts
Legislation:
Sales of Goods Act 1995
Result:
Judgment for the plaintiff in the sum of $54,960.17
Representation:
Counsel:
Plaintiff: Mr S Melville
Defendant: In Person
Solicitors:
Plaintiff: Gibson & Gibson
Defendant: In Person
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
CHARTERS DCJ : The plaintiff is a company now in receivership which was involved in the production and sale of emu products and during the period in question, that is, 1995 and 1996, the defendant was a member of the committee of the group known as Australian Emu Abattoir Suppliers Group Inc, to which I shall refer as "the group". For part of that time he was president of the group.
The plaintiff's claim against the defendant is that the defendant purchased on his own account a number of consignments of emu products and those emu products were directed to be shipped to various consignees. The plaintiff claims a balance of the account over the period that is recorded within the invoices which stands at $54,960.17. The defendant does not now challenge the calculation of the sum claimed as the balance of the account but claims that whilst he placed the orders, the orders were placed by him as agent for the group. His defence is, he did not purchase them on his own account.
The orders were placed by the defendant with the plaintiff in almost every instance by telephone and invoices were rendered by the plaintiff at first (that is on two occasions on 7 January 1995) to the group and thereafter and for the period in question to the defendant care of the group. I accept the evidence of Miss Keller that the invoices were sent at the request of the defendant - and this is quite plain - to the address he gave which was, as it turns out, his own business address.
Where payments were made for the purchases these were paid by the defendant - he paid between $78,000 and $175,000 from his own funds. Each shipment was consigned to the consignee, the customer, by order of the plaintiff. The evidence is somewhat unclear what was actually paid in total by the consignees and to whom the funds were sent but in the document, exhibit E, that the plaintiff calls the "Card Inquiry", the defendant was credited with payments that were made. The defendant received payments but his evidence was vague about the manner of the payments.
There are two substantial orders placed by the defendant - one for skins totalling $114,000 on 7 December 1995 - invoice number 763 and one for oil totalling $38,400 on 20 May 1996 - invoice number 849.
The defendant opened a number of business names, it appears three business names, in the course of a day during 1996, businesses of his which were to trade in ostrich and emu products, and, the plaintiff notes, it was at a time he was a committee member of the group.
I accept the evidence of a solicitor, Mr Darbyshire, that when pressed for payment, the defendant told him in a conversation on 25 March 1997 that he was trying to figure out how to pay two invoices. One for oil for $32,000 was unsold. He had purchased $120,000 worth of skins personally and owed $22,000.
The concession points at least to a partial involvement by the defendant personally in the purchase of the products.
In a number of respects I regarded the defendant's evidence as unsatisfactory. His claim that he paid for the products from his own funds on behalf of the group is entirely inconsistent with the group's financial documents which show that during the year ending June 1996 the group barely traded and that conforms with the defendant's note to Ilbery Barblett on a letter dated 7 April 1997, exhibit K, that the group "has had no trading for approx 1½ years". 1996 was a year when the bulk of the orders were placed by the defendant with the plaintiff. The defendant's evidence was that by reason of his payments on behalf of the group the latter was indebted to him. This is not reflected in the group's accounts.
The defendant's evidence that he offered to return products of the group without the authority of the group is improbable. This was a time when the defendant was under personal financial pressure and the evidence is consistent more with the defendant having involved himself personally in the venture than involving the group.
The accounts of the group are not satisfactorily explained. The defendant's evidence that the products traded were not intended to result in any profit to the group is most improbable during the period the group traded and is inconsistent with the group's trading account for the year ending June 1995. The trading then was at a low level, although, curiously, income shown as "marketing fees" ($144,000) and "marketing expenditure" ($120,000) were high.
It is a matter of note that the defendant signed the certificate for the statement of Annual General Meeting annexing the accounts for the years ending 30 June 1995 and 30 June 1996.
The minutes of meetings of the group do not record the appointment of the defendant to buy products as agent for the group.
The total payments of the defendant made through his private company of some $78,000 (on one view of the evidence, as much as $175,000) from his superannuation fund strongly suggest that the defendant was indeed trading on his own account.
The evidence points overwhelmingly to the defendant having traded on his own account personally and not as agent for the group.
I find in the result that the plaintiff has proved that the defendant traded on his own account with the plaintiff in respect of the period in question and that there is owing by the defendant to the plaintiff the sum claimed of $54,960.17.
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