GJG Importers Australia P/L v Bluegame P/L

[2005] QCA 460

SUPREME COURT OF QUEENSLAND

CITATION:

GJG Importers Australia P/L v Bluegame P/L & Ors [2005] QCA 460

PARTIES:

GJG IMPORTERS AUSTRALIA PTY LIMITED
ACN 086 555 811
(plaintiff/respondent)
v
BLUEGAME PTY LTD ACN 055 518 020 (deregistered)
(first defendant)
COLIN RONALD BLOOMER
(second defendant/first appellant)
DARREN RONALD BLOOMER
(third defendant/second appellant)

FILE NO/S:

Appeal No 4632 of 2005
DC No 4556 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

9 December 2005

DELIVERED AT:

Brisbane

HEARING DATE:

28 November 2005

JUDGES:

de Jersey CJ, Keane JA and Mackenzie J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal dismissed
2. Appellants to pay the respondent's costs of the appeal to be assessed on the standard basis

CATCHWORDS:

BAILMENTS - IN GENERAL - WHAT IS BAILMENT - PARTICULAR CASES - WHEN CREATED - where the two appellants were the directors of a company that entered into an agreement with the respondent to distribute slush-ice making machines - where the appellants' company distributed a number of the respondent's machines to third parties pursuant to this agreement - where the respondent terminated the distribution agreement and required the appellants to return the machines - where the appellants denied any continuing obligation to return the machines that had already been placed with third parties - where the appellants had admitted an allegation made on the pleadings at trial that they had taken possession of the machines "as bailees, pursuant to the agreement" - whether the distribution agreement that had been entered into between the parties meant that the appellants were liable to the respondent as bailees for the return of the machines

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, applied

COUNSEL:

The first appellant appeared on his own behalf and on behalf of the second appellant
R Fryberg for the respondent

SOLICITORS:

The first appellant appeared on his own behalf and on behalf of the second appellant
Daniel Towne & Associates for the respondent

1. JERSEY CJ:  deI have had the advantage of reading the reasons for judgment of Keane JA.  I agree with the orders proposed by His Honour, and with his reasons. 

1. KEANE JA:  The appellants are directors of a company, Bluegame Pty Ltd ("Bluegame"), which carried on the business of selling hospitality equipment under the name LTS Supplies.  Early in 2000, the respondent, GJG Importers Australia Pty Ltd ("GJG"), appointed Bluegame as the Queensland distributor of its Elenka Granita frozen drink products.  This distributorship agreement envisaged that GJG would supply both slush-ice making machines and flavouring products to Bluegame. In August 2000, the distribution agreement was terminated by GJG and the parties became embroiled in litigation. 

1. The dispute between the parties centred on whether or not it was the responsibility of the appellants and Bluegame to return the slush-ice making machines once the agreement between the parties had come to an end.  The appellants and Bluegame contended they had no such responsibility while GJG asserted they did.  Despite Bluegame denying any responsibility to return the machines, GJG was still able to recover three of them at its own expense.  There was also a contest as to the obligations of the appellants and Bluegame in relation to non-payment for flavouring products allegedly supplied by GJG.

1. The dispute proceeded to a trial, at which the appellant Mr Colin Bloomer represented himself and Bluegame.  It does not appear that Mr Colin Bloomer sought to appear at trial on behalf of the second appellant, Mr Darren Bloomer.  While Mr Darren Bloomer did not appear at the trial, the learned trial judge does not appear to have entered judgment against him in default of appearance.  Rather, his Honour gave judgment against each defendant on the basis of the evidence adduced at the trial.  Mr Darren Bloomer's interests were essentially the same as those of Mr Colin Bloomer and there has been no suggestion that any prejudice was suffered by him as a result of the learned trial judge proceeding to deliver judgment against him in his absence.

1. The learned trial judge resolved the issues in dispute at trial in favour of GJG.  His Honour gave judgment against each of the defendants for $35,628.70, together with interest in the sum of $15,263.33.  The total judgment, inclusive of interest, was for $50,892.03.[1]  This sum represented the replacement cost of the machines, the unpaid debt and the cost of recovering the three machines which GJG was able to recover.

   [1]GJG Importers Australia Pty Ltd v Bluegame & Ors [2005] QDC 107; DC No 4556 of 2002, 12 May 2005.

1. The principal factual issue at trial was whether the distribution agreement between GJG, on the one hand, and Bluegame and the appellants on the other, included certain written standard terms and conditions which GJG alleged were incorporated into the distribution agreement as a result of discussions between Mr de Souza, on behalf of GJG, and Mr Colin Bloomer, on behalf of Bluegame and the appellants.

1. These terms were of importance in the determination of the case.  They provided for the supply by GJG to Bluegame of slush ice-making machines for installation by Bluegame at the premises of Bluegame's customers.  They also provided that, should GJG terminate the distribution agreement, the right to possession of the installed machines would immediately revert to GJG.  These terms also provided that Mr Colin Bloomer and Mr Darren Bloomer would be jointly and severally liable, along with Bluegame, for the performance of the obligations assumed by Bluegame under the distribution agreement.

1. This issue of fact as to the incorporation of these terms in the agreement made between parties was resolved by the learned trial judge on the basis that he preferred the evidence of Mr de Souza to that of Mr Colin Bloomer.[2] 

   [2]GJG Importers Australia Pty Ltd v Bluegame & Ors [2005] QDC 107; DC No 4556 of 2002, 12 May 2005 at [9] - [13].

1. Applying the principles laid down by the High Court to govern appellate review of findings of fact at first instance,[3] I can see nothing in the material provided on this appeal which would justify this Court taking a different view of the proper resolution of this dispute of fact which turns on the judge's assessment of the credibility of the witnesses.  There is nothing to suggest that the conclusion reached by the learned trial judge in this regard was "glaringly improbable" or "contrary to compelling inferences".[4]

   [3]Fox v Percy [2003] HCA 22 at [24] - [31]; (2003) 214 CLR 118 at 126 - 129.

   [4]Fox v Percy [2003] HCA 22 at [29]; (2003) 214 CLR 118 at 128.

1. Rather, it may be noted that, in the defence filed on 14 February 2003, the appellants and Bluegame admitted an allegation made in GJG's statement of claim that they took possession of 11 of GJG's slush-ice machines "as bailees, pursuant to the agreement".[5]  This admission affords, to say the least, significant support for the inference that Mr Colin Bloomer's discussions with Mr de Souza must have contemplated that both Mr Colin Bloomer and Mr Darren Bloomer would accept liability with Bluegame for the performance of Bluegame's obligations under the distribution agreement.  It also confirms that Bluegame and the appellants had taken possession of the machines, and acknowledged that they had done so, as bailees for GJG.

   [5]See Statement of Claim dated 19 November 2002 in matter number 4556 of 2002 at [13]; and Defence and Counter-Claim dated 14 February 2003 in matter number 4556 of 2002 at [1].

1. Further, it may also be noted that the defence also admitted an allegation in the statement of claim that the agreement between the parties included a letter dated 16 January 2000 from GJG to Bluegame.  This letter was signed by both Mr Colin Bloomer and Mr de Souza.  It contained, inter alia, the statement that "[t]he directors of [Bluegame] are responsible for the machines and products supplied".[6]  This letter was not signed by Mr Darren Bloomer, but there was no suggestion at trial or on appeal that Mr Colin Bloomer had signed this letter, or had negotiated generally with GJG, without the authority of Mr Darren Bloomer.

   [6]See Statement of Claim dated 19 November 2002 in matter number 4556 of 2002 at [7(a)] and Defence and Counter-Claim dated 14 February 2003 in matter number 4556 of 2002 at [2].

1. On appeal, Mr Bloomer sought to argue that those customers in whose premises Bluegame installed GJG's slush-ice making machines were solely responsible to GJG as bailees of the machines to the exclusion of the defendants.  But this argument fails to appreciate the effect of the agreement which the learned trial judge found had been made between GJG and the defendants.  Mr Bloomer's argument also proceeds on the assumption, which is erroneous in point of law, that only a person who retains goods in his or her possession can be liable as the bailee of those goods to the bailer.  Sub-bailment by a bailee does not, of course, necessarily relieve a bailee of his or her liabilities as such.[7]  Mr Bloomer could not point to any evidence to show that it was understood by the parties that the obligations of Bluegame and its directors would come to an end once the machines had been distributed to third parties.[8]  As a result, those obligations remained on foot.

   [7]This subject is discussed in detail in N E Palmer, Bailment (2nd ed, 1991) at 1346 - 1350.

   [8]Cf James v Bradley [1980] WAR 11 at 17.

1. In these circumstances, I am of the opinion that the appellants' contention that they were not liable to GJG as bailees for their failure to return the slush-ice making machines must be rejected.

1. As to the assessment of the value of the machines, the learned trial judge accepted that GJG was entitled to recover the cost of replacing the machines which the appellants and Bluegame had failed to redeliver.  The cost of replacement was found to be $29,376.[9]  No basis was shown for a contention that his Honour's approach was erroneous or that his conclusions were not open to him. 

   [9]GJG Importers Australia Pty Ltd v Bluegame & Ors [2005] QDC 107; DC No 4556 of 2002, 12 May 2005 at [17].

1. As to his Honour's determination of the unpaid debt for flavouring products supplied by GJG to Bluegame in the sum of $5,356.23, once again the learned trial judge acted upon the evidence of Mr de Souza.[10]  The cost of recovering the machines which GJG was able to recover was found to be $896.50.[11]  The appellants have not made any attempt to demonstrate that the learned trial judge erred in reaching these conclusions.

   [10]GJG Importers Australia Pty Ltd v Bluegame & Ors [2005] QDC 107; DC No 4556 of 2002, 12 May 2005 at [18].

   [11]GJG Importers Australia Pty Ltd v Bluegame & Ors [2005] QDC 107; DC No 4556 of 2002, 12 May 2005 at [19].

Conclusion and orders

1. No basis has been shown for overturning the decision of the learned trial judge.

1. The appeal should be dismissed and the appellants should be ordered to pay the respondent's costs of the appeal to be assessed on the standard basis.

1. MACKENZIE J:  I agree that the appeal should be dismissed, with costs, for the reasons given by Keane JA.