Haines Bros Earthmoving Pty Ltd v Rosecell Pty Ltd

[2016] NSWCA 112

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Haines Bros Earthmoving Pty Ltd v Rosecell Pty Ltd [2016] NSWCA 112
Hearing dates:	22 April 2016
Decision date:	16 May 2016
Before:	Beazley P at [1]; Sackville AJA at [2]; Barrett AJA at [3]
Decision:	Appeal dismissed with costs.
Catchwords:	TORTS – conversion – unauthorised sale of companies’ goods to bona fide purchasers – controllers of companies deprived of control of companies’ affairs and assets by physical duress of third party – companies’ goods sold to appellants by that third party – claim subsequently brought against appellants for conversion ESTOPPEL – conversion – estoppel by omission – whether owner companies were under a duty to make known or discoverable by the appellants their claim to the goods – whether companies breached this duty by failing to notify authorities of the attack, threats of violence and deprivation of control of the companies – whether this inaction or silence was conduct sufficient to give rise to an estoppel by omission – whether appellants relied on this conduct – whether owners otherwise precluded from reliance on the protection afforded by the defence in s 26(1) of the Sale of Goods Act 1923 (NSW) – relevance of common law concepts of estoppel in formulating the ambit of s 26 – relevance of need for equivalence of knowledge as to factual circumstances surrounding the transaction
Legislation Cited:	Bills of Exchange Act 1882 (Eng) Civil Procedure Act 2005 (NSW) pt 6 div 1 Crimes Act 1900 (NSW) s 316(1) Partnership Act 1890 (Eng) Sale of Goods Act 1893 (Eng) Sale of Goods Act 1923 (NSW) s 26(1) Statute of Frauds 1667 (Eng)
Cases Cited:	Abbott & Co v Wolsey [1895] 2 QB 97 Associated Midland Corporation v Sanderson Motors Pty Limited (1983) 3 NSWLR 395 Baker v Official Trustee in Bankruptcy [1995] FCA 1421 Bank of England v Cutler [1908] 2 KB 208 Bank of England v Vagliano Bros (1891) AC 107 Banque Belge pour I’Etranger v Hambrouck [1921] 1 KB 321 Bell of Blackwoodhouse v Garthshore (1737) Mor 2848 Beneficial Finance Corp Ltd v National Mutual Royal Bank Ltd (Unreported, Supreme Court of Victoria, 8 September 1988) (BC8802455) Boyd v Mayor of Wellington [1924] NZLR 1174 Burnett’s Trustee v Grainger [2004] UKHL 8; SC (HL) 19 Cahn v Pockett’s Bristol Channel Steam Packet Co Ltd [1899] 1 QB 643 Eddy Lau Constructions Pty Ltd v Transdevelopment Enterprise Pty Ltd [2004] NSWSC 273 FBHS (Aust) Pty Ltd v Stone Homes Pty Ltd [2014] NSWCA 312 Freeman v Cooke (1848) 2 Ex 654; 154 ER 652 Grundt v Great Boulder Proprietary Gold Mines Ltd [1937] HCA 58; 59 CLR 641 Hannaford v Commonwealth Bank of Australia [2014] NSWCA 297 ING Bank NV v Ros Roca SA [2011] EWCA Civ 353; [2012] 1 WLR 472 Johnson Matthey (Aust) Ltd v Dascorp Pty Ltd [2003] VSC 291; 9 VR 171 Kelly v Mina [2014] NSWCA 9 Kino v Prestige Philately Pty Ltd [2014] VSC 469 Kirkham v Attenborough [1897] 1 QB 201 Leonard v Ielasi (1987) 46 SASR 495 Mercantile Credit Co Ltd v Hamblin [1965] 2 QB 242 Moorgate Mercantile Co Ltd v Twitchings (1977) AC 890 Payne v Wilson [1895] 1 QB 653 Pickard v Sears (1837) 6 A&E 469; 112 ER 179 Republic of India v India Steamship Co (No 2) (1998) AC 878 Rosecell Pty Ltd v J P Haines Plumbing Pty Ltd [2015] NSWSC 1238 Swan v North British Australasian Co Ltd (1862) 7 H&N 603; 158 ER 611 Swan v North British Australasian Co Ltd (1863) 2 H&C 175; 159 ER 73 Talga Ltd v MBC International Ltd [1976] HCA 22; 133 CLR 622 Thomas Australia Wholesale Vehicle Trading Co Pty Ltd v Marac Finance Australia Ltd (1985) 3 NSWLR 452 Wind v Jekyl and Albone (1719) 1 P Wms 572; 24 ER 522 Woodley v Coventry (1863) 2 H&C 164; 159 ER 68 Zen Foundation One Pty Ltd v Sippy Downs Group Pty Ltd [2010] QCA 232
Texts Cited:	J P Benjamin, Benjamin’s treatise on the law of the sale of personal property with references to the American decisions and to the French code and civil law (Henry Sweet, 1868) M Bridge, Benjamin’s Sale of Goods (Sweet & Maxwell, 9th ed, 2014) M D Chalmers, The sale of goods: including the Factors Act, 1889 (William Clowes and Sons, 1890) N Franzi, ‘The sale of goods, implied undertaking as to title, etc.’ (1980) 14 University of Western Australia Law Review 208 F Schulz, Classical Roman Law (Clarendon Press, 1951) S R Thomas, ‘The mishandled development of the implied terms on quantity in the sale of goods’ (Research paper No 13-08, University of Leicester School of Law, October 2013) L Vagni, ‘Protection of the Purchaser’s Reliance in 16th–18th Century England and Europe’ (2012) 3 The Western Australian Jurist 1 A Watson, The Digest of Justinian, Volume 4 (University of Pennsylvania Press, 1985)
Category:	Principal judgment
Parties:	Haines Bros Earthmoving Pty Ltd (First Appellant) Right Price Wholesale Machinery Pty Ltd (Second Appellant) Rosecell Pty Ltd (First Respondent) GT Haulage Group Pty Ltd (Second Respondent)
Representation:	Counsel: MBJ Lee SC; AH Edwards (Appellants) M Ashhurst SC (Respondents)   Solicitors: Harris Freidman (Appellants) Kemp Strang (Respondents)
File Number(s):	CA 2015/284455
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Citation: Rosecell Pty Ltd v JP Haines Plumbing Pty Ltd [2015] NSWSC 1238 Date of Decision: 31 August 2015 Before: White J File Number(s): 2014/00272808

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mr Trent Doughty and his wife were the controllers of the respondent companies, Rosecell Pty Ltd (Rosecell) and GT Haulage Group Pty Ltd (GT Haulage). On 2 February 2008 Mr Doughty became the victim of a vicious physical attack at the hands of a group of men watched by a former business associate, Mr George Abboud. Mr Abboud assumed de facto control of the affairs and assets of Rosecell and GT Haulage by force and threats.

In April 2008, Mr Abboud, without authority, sold certain goods of the respondent companies to the appellants, JP Haines Plumbing Pty Ltd (JP Haines) and Right Price Wholesale Machinery Pty Ltd (Right Price). As a consequence, the respondents instituted proceedings in the Equity Division of the Supreme Court seeking damages for conversion by those defendants. The proceedings were conducted on the footing that Mr Doughty and Mrs Doughty remained at all material times the rightful controllers of the respondents; that they had been coerced by Mr Abboud’s force and threats into surrendering de facto control of the companies’ affairs and assets to him; and that they played no part in, and had no knowledge of, the transactions entered into with the appellants. It was also accepted at trial that Mr Abboud did not have actual authority of either company to sell its assets.

JP Haines and Right Price argued, however, that Mr Abboud had ostensible authority to sell on behalf of Rosecell and GT Haulage, or, alternatively, that good title to the goods was acquired by the buyer in accordance with the concluding words of s 26(1) of the Sale of Goods Act 1923 (NSW). The primary judge rejected both defences and held JP Haines and Right Price guilty of conversion and liable in damages to Rosecell and GT Haulage.

On appeal, the appellants pressed the latter defence only. They contended that the primary judge erred in failing to find that the respondents owed the appellants a duty to take reasonable steps to make known their claim to the relevant property. They also contended that his Honour erred in finding that the conduct of the respondents in not making Mr Abboud’s actions and intentions known to police was not conduct in breach of such a duty.

Alternatively, the appellants submitted that his Honour erred in finding that the s 26(1) defence depended on principles of common law estoppel by omission.

Held, per Barrett AJA (Beazley P and Sackville AJA agreeing), dismissing the appeal:

1. The defence under s 26(1) of the Sale of Goods Act 1923 (NSW) depends on principles of common law estoppel involving breach by the owner of a duty owed to the buyer.

Thomas Australia Wholesale Vehicle Trading Co Pty Ltd v Marac Finance Australia Ltd (1985) 3 NSWLR 452 approved and followed.

2. A duty requiring the owner to speak or act will only arise if it counters a factual misapprehension operating upon the buyer as the party seeking to rely on the statutory estoppel. By failing to take positive steps to assert title to the misappropriated assets, Rosecell and GT Haulage did not, by conduct, impliedly represent to the appellants that Mr Abboud had general authority to enter into the transactions on behalf of the companies: at [67].

3.   The only implied representation made was that Mr Abboud had authority to act for the companies in the ordinary course of business. Here, Mr Abboud sold the capital assets of the business and thereby destroyed the capacity of the companies to conduct business: at [67]-[68].

4.   The silence or inaction was not conduct sufficient to give rise to a duty for the purposes of an estoppel by omission: at [67]-[68].

5. Where a buyer seeks to rely on s 26(1), the situation in which the relevant transaction occurred must be known to both the buyer and the owner. Shared knowledge that the owner’s silence has caused the purchaser to believe that a particular state of affairs regarding the relevant property exists is required to enliven the purchaser’s defence created in s 26(1). The necessary equivalence of factual knowledge between the parties was not met in the present case: at [69]-[75].

Thomas Australia Wholesale Vehicle Trading Co Pty Ltd v Marac Finance Australia Ltd (1985) 3 NSWLR 452 approved and followed.

Moorgate Mercantile Co Ltd v Twitchings (1977) AC 890 at 903 applied.

6.   Obiter: A buyer alleging estoppel by omission must establish that the owner’s silence or inaction was the real and proximate cause of its decision to enter the transaction. The circumstances on which the appellants did place reliance were not circumstances referrable to the silence or inaction of Rosecell and GT Haulage: [79]-[80].

Judgment

1. BEAZLEY P: I have had the advantage of reading in draft the reasons of Barrett AJA. I agree with his Honour's reasons and proposed orders.

2. SACKVILLE AJA: I have had the advantage of reading the judgment of Barrett AJA. I agree with the orders proposed by his Honour and generally with his Honour’s reasons.

3. BARRETT AJA: This is an appeal from a decision of a judge of the Equity Division (White J) upholding a claim for damages for conversion of goods. [1]

   1. Rosecell Pty Ltd v J P Haines Plumbing Pty Ltd [2015] NSWSC 1238.

4. In the Equity Division proceedings as eventually constituted, the present respondents, Rosecell Pty Ltd (“Rosecell”) and GT Haulage Group Pty Ltd (“GT Haulage”), sued two defendants (the present appellants), namely, JP Haines Plumbing Pty Ltd (which has since changed its name to Haines Bros Earthmoving Pty Ltd and is referred to below as “JP Haines”) and Right Price Wholesale Machinery Pty Ltd (“Right Price). Rosecell and GT Haulage claimed damages for conversion by those defendants of items of earthmoving equipment bought by the defendants in April 2008.

5. Each of JP Haines and Right Price dealt with one George Abboud in negotiating purchase of the equipment. Abboud held himself out as having authority to arrange sale of the relevant items. It was accepted at trial that, at material times, Rosecell and GT Haulage owned (and had an immediate right to possession of) the items of equipment and that Abboud did not have actual authority of either company to sell them.

6. Each defendant argued, however, that Abboud had ostensible authority to sell on behalf of Rosecell and GT Haulage or, alternatively, that good title to the goods was acquired by the buyer in accordance with the concluding words of s 26(1) of the Sale of Goods Act 1923 (NSW):

“Subject to the provisions of this Act, where goods are sold by a person who is not the owner thereof and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by the owner’s conduct precluded from denying the seller’s authority to sell.”

7. The primary judge rejected both defences and accordingly held JP Haines and Right Price guilty of conversion and liable in damages to Rosecell and GT Haulage.

8. On appeal, the appellants (JP Haines and Right Price) do not press the proposition that Abboud had ostensible authority to commit Rosecell and GT Haulage to the respective sales. They do, however, contend that the primary judge erred in finding that they did not acquire good title in accordance with the concluding words of s 26(1) of the Sale of Goods Act.

Factual background

9. The primary judge found (and it is not disputed on appeal) that Abboud had taken control of the affairs and assets of Rosecell and GT Haulage “by force and threats”. [2] At the time of the relevant transactions in April 2008, Trent Doughty was the sole shareholder of Rosecell and his wife, Annette Doughty, was the sole director. Mr Doughty was the sole director and sole shareholder of GT Haulage.

   2. Ibid at [18].

10. Abboud and Mr Doughty had been friends and business associates. They were both members of “Finks” motorcycle gang. Their business interests were complementary. Mr Doughty’s activities were in excavation and earthmoving. Abboud was engaged in haulage and transport. The respective businesses were operated through several companies controlled by each individual at shared premises at Fermoy Road, Marsden Park.

11. A rift developed between the two men. Financial difficulties suffered by two of Mr Doughty’s companies in the excavation business caused those companies to go into liquidation. This adversely affected Abboud’s haulage business. The relationship ended abruptly on 2 February 2008 when Mr Doughty became the victim of a vicious physical attack at the hands of a group of men and received severe injuries, including full thickness (or third-degree) burns to both arms and the right buttock (caused by the removal of the motorcycle club tattoos), a broken arm and damage to his legs that left him unable to walk for a time. Abboud was present and watched as Mr Doughty was attacked.

12. Immediately after the attack, Abboud threatened Mr Doughty and Mrs Doughty with further dire consequences (including the killing of Mrs Doughty, her children and her brother) unless they “got out of town” and surrendered to Abboud all records and assets of Rosecell, GT Haulage and certain other companies.

13. Mr Doughty and Mrs Doughty complied with Abboud’s demand, including by giving him the passwords of the companies’ bank accounts and computers and explaining to Abboud’s wife the companies’ bookkeeping and office procedures. Mrs Doughty attended the office over a period of three days immediately after the attack for this purpose. Mr Doughty, Mrs Doughty and their children then left their home and went to stay with relatives. A few months later they moved to Queensland. The companies’ equipment and business records remained at the Fermoy Road premises.

14. In early March 2008, Mr Doughty was attended by a psychologist at Concord Hospital. According to the psychologist’s notes, Mr Doughty did not appear to be emotionally distressed by the events of early February but was relieved to have broken with the motorcycle gang and “was taking his financial losses in his stride”. His concern was for his wife.

15. The proceedings were conducted on the footing that Mr Doughty and Mrs Doughty remained at all material times the rightful controllers of the respondents, Rosecell and GT Haulage; that they had been coerced by Abboud’s force and threats into surrendering de facto control of the companies’ affairs and assets to him; and that they played no part in, and had no knowledge of, the transactions entered into with the appellants.

16. The primary judge’s summation of the events of early February 2008 was as follows:[3]

“In this way Mr Abboud simply took control of Rosecell’s and GT Haulage Group’s assets by force and threats. The force was severe and the threats were real. Mr and Mrs Doughty did not know whether Mr Abboud would continue to operate the business or, if so, for how long. They must have known that there was a real risk that he would dispose of some or all of the equipment and keep the proceeds of sale.”

3. Ibid.

17. The primary judge also made findings about failure by Mr Doughty and Mrs Doughty to report the matter to the police and their delay in making any attempt to recover control of the companies:[4]

“Mr and Mrs Doughty did not report the attack and loss of their business to the police because of fear of reprisals. In February 2009 Mr Doughty learned that Mr Abboud was no longer affiliated with the group of men who had carried out the attack. After he learned this he no longer had a fear of reprisals. He attempted to ascertain what had happened to the assets of which Mr Abboud had taken control. The assets with which these proceedings are concerned had by then all been disposed of.”

4. Ibid at [31].

The transactions

18. JP Haines paid $243,000 to acquire two Komatsu excavators, an Ingersoll Rand 10T roller, a Mitsubishi canter and a Bomag 120AD roller. Right Price paid $129,520 to acquire a Mack Fleetliner tipper, a Hamelex tipping trailer and a fuel tank.

19. In negotiating the sale of the equipment to the appellants, Abboud dealt with Mr Mark Haines, a director of each buyer company. Mr Haines had been told by a third party that “Trent’s Excavation” was closing down and wanted to dispose of its equipment. It was suggested to Mr Haines that he approach Abboud. He was already aware that equipment carrying particular colours and a particular logo was associated with a business he knew as “Trent’s Excavation” or “GT Haulage” (with “GT” standing for “George and Trent”).

20. Mr Haines spoke to Abboud who told him that his “partner” had departed, leaving him “in the lurch”, and that he needed to “sort this mess out and sell this machinery and equipment”. Abboud showed Mr Haines the equipment.

21. At the conclusion of negotiations, Mr Haines said that he needed invoices to produce to his financier. Abboud arranged the issue of invoices to each buyer. In relation to the items acquired by JP Haines, four separate invoices were produced on Rosecell letterhead, [5] one for a Komatsu PC 200 Excavator with attachments (sold for $143,000), one for the Ingersoll Rand 10T roller (sold for $27,500), one for a Komatsu PC 3000 Excavator with attachments (sold for $60,500) and one for the Mitsubishi canter (sold for $5,500). Each invoice was purportedly signed by Mrs Doughty as director of Rosecell but, as the primary judge found, her signature was forged. In relation to the Bomag 120AD roller, Mr Haines received a letter on the letterhead of Rosecell under the typed name of George Abboud, as “manager”, certifying that the company had sold the item and requesting payment to an account in the name of another company, Civil Constructions Aust Pty Ltd (“CCA”).

    5. Although described by the primary judge (at [24]-[26]) as on “letterhead”, the documents were not typed on to a sheet that was blank except for the printed or embossed name and particulars of the company. Rather, a word processor printed the name and particulars on plain paper along with the document’s substantive content.

22. In the case of the items acquired by Right Price, invoices were issued on the letterhead of a company called Tepall Pty Ltd (“Tepall”) for all items bought. [6] The invoices were apparently signed by Mrs Abboud. There was a request in each invoice that the purchase moneys be paid to CCA. It was common ground at trial that Tepall did not own the goods. The findings of the primary judge in relation to Tepall were as follows:[7]

“A company search of Tepall discloses that in 2008 a Mr Michael Abboud was the company’s sole shareholder and director. In examination in chief Mr Doughty said that there was a relationship between GT Haulage and Tepall. He was asked what the relationship was and said that Tepall was holding the trucks that GT Haulage had. (There is an error in the transcript in relation to this answer.) The matter was not pursued further in evidence in chief, nor in cross-examination. I understand Mr Doughty’s evidence to have been that Tepall was using trucks owned by GT Haulage Group.”

6. This “letterhead” was of the same kind as that of Rosecell.

7. [2015] NSWSC 1238 at [35].

23. Neither Rosecell nor GT Haulage received the purchase moneys paid by the buyer of its chattels. All such moneys were, at the direction of Abboud (or his wife), paid to CCA or to Sydney Sand and Soil Pty Ltd, another company apparently controlled by Abboud.

24. Important findings of the primary judge regarding the transactions were:[8]

“Mr Haines assumed that Mr Abboud was authorised to arrange the sale of the equipment. He made that assumption from the facts that the equipment was located on the Fermoy Road properties; Mr Abboud had possession and control of the properties and the equipment; Mr Abboud acted as if he owned the equipment; Mr and Mrs Abboud had control of the office and the business records relating to the equipment and knew about the equipment; the equipment had distinctive orange or orange and black markings that were consistent with other equipment he had seen that related to GT Haulage; and he had heard that George Abboud had a lot to do with GT Haulage from what he had been told by truck drivers who had done subcontracting work for it.

Mr Haines made no inquiry as to Mr Abboud’s authority to sell the equipment.”

8. Ibid at [29]-[30].

Who sold the goods?

25. It is not disputed that, at the time of Abboud’s dealings with Mr Haines, Rosecell was the owner of the goods acquired by JP Haines (as well as the fuel tank acquired by Right Price) and GT Haulage was the owner of the remaining items acquired by Right Price.

26. The only persons capable of giving good title consistently with the principle nemo dat quod non habet[9] were accordingly Rosecell, as to certain items, and GT Haulage as to the others. It follows that:

1. the results of Abboud’s dealing in relation to a particular item could be characterised as a sale of the item by Rosecell to JP Haines (or, in the case of the fuel tank, to Right Price) or by GT Haulage to Right Price only if Abboud had acted with the authority of Rosecell or GT Haulage; and

2. the question posed by the exception to the nemo dat rule recognised in s 26(1) of the Sales of Goods Act (that is, whether Rosecell or GT Haulage, being the true owner of a particular item, was, by its own conduct, “precluded from denying the seller’s authority to sell”) arose only if the dealing was a sale not by that owner but by Abboud (or someone else), so that “a person who is not the owner thereof” was properly regarded as having been “the seller”.

   9. “No one gives what he does not have”. Less frequently encountered versions are nemo dat qui non habet “no one gives who does not have” (see, eg, Baker v Official Trustee in Bankruptcy [1995] FCA 1421 at [8]), non dat qui non habet “he who does not have does not give” (see, eg, Boyd v Mayor of Wellington [1924] NZLR 1174 at 1201), nihil dat qui non habet “he who does not have gives nothing” (see, eg, Wind v Jekyl and Albone (1719) 1 P Wms 572; 24 ER 522 at 523), nemo potest dare quod non habet “no one can give what he does not have” (see, eg, Banque Belge pour I’Etranger v Hambrouck [1921] 1 KB 321 at 329) and nemo dare potest quod ipse non habet “no one can give what he does not have himself” (see, eg, Bell of Blackwoodhouse v Garthshore (1737) Mor 2848, a case discussed by Lord Rodger of Earlsferry in Burnett’s Trustee v Grainger [2004] UKHL 8; SC (HL) 19 at 44). The principle was recognised in Roman law, but its emergence may have been post-classical: see F Schulz, Classical Roman Law (Clarendon Press, 1951) 351-2. As recorded by Domitius Ulpianus, the maxim was nemo plus iuris ad alium transferre potest quam ipse haberet “no one can transfer a greater right to someone else than he possesses himself”: Dig 50.17.54, Ulpian, Ad Edictum 46, cited in A Watson, The Digest of Justinian, Volume 4 (University of Pennsylvania Press, 1985) 474.

27. According to the contemporary documents, the sale to JP Haines was a sale by Rosecell (the owner of the items sold) and the sale to Right Price was a sale by Tepall (which, on any view, did not own the items sold, the true owners being Rosecell as to the fuel tank and GT Haulage as to the remainder). Because of the concession at trial that Abboud did not have actual authority of Rosecell or GT Haulage to sell any of the goods and the primary judge’s finding (not challenged on appeal) that Abboud did not have ostensible authority, the sale to each of JP Haines and Right Price was necessarily a sale by a person other than the owner.

28. In the case of the sale to JP Haines, the seller can only have been Abboud. The fact that he had no authority to act for the purported seller, Rosecell, leaves no other possibility. In the case of the sale to Right Price, the seller may have been Tepall (the company by which the invoices were apparently issued); but if Abboud did not have the authority of Tepall to sell, the seller was again Abboud. For the purposes of s 26(1) it is not necessary to identify with precision the non-owner by whom the goods were sold. It is sufficient that it be shown that there was a sale and that it was not a sale by the owner. That requirement is satisfied in the present case.

Relevant “conduct” of the owners – the primary judge’s decision

29. It was accepted both at trial and on appeal that, in order for JP Haines and Right Price to make good the s 26(1) defence, they were required to identify particular conduct of Rosecell and GT Haulage and to establish that that conduct was such as to preclude denial by them of the seller’s authority to sell.

30. The case of JP Haines, as pleaded in its defence, was as follows:

1. Rosecell owed to JP Haines “a duty to take steps to make its claim to the purchased equipment known to or discoverable by” JP Haines, which duty arose because a reasonable person in the position of JP Haines “would expect Rosecell to ensure that its claim to possession of the purchased equipment was made known to or discoverable by” JP Haines;

2. in breach of that duty owed to JP Haines, Rosecell failed to take steps to make its claim to possession known to or discoverable by JP Haines, there having been no report to the police of Abboud’s attack on Mr Doughty and no intimation of claim to JP Haines until September 2011;

3. as a result of Rosecell’s breach of its duty to JP Haines, JP Haines reasonably assumed that Abboud had authority to sell the purchased equipment and that there was no claim by Rosecell to possession of it;

4. if Rosecell had taken steps to make its claim to possession known to or discoverable by JP Haines, JP Haines would not have entered into the transaction; and

5. in these circumstances, Rosecell was precluded from denying Abboud’s authority to sell the purchased equipment to JP Haines.

31. The defence of Right Price based on s 26(1) was pleaded in corresponding terms.

32. The primary judge summarised the contention of JP Haines and Right Price as follows:[10]

“The defendants relied upon the Doughtys’ (sic) silence as giving rise to an estoppel under s 26, that is, their failure to notify authorities that they had been dispossessed of the companies’ assets by force and the threat of force and that Mrs Doughty had been compelled to provide all passwords and business documents to enable the Abbouds to carry on the companies’ businesses or dispose of their assets. This is an estoppel by omission. Such an omission can give rise to an estoppel where there is a duty to speak or act. That is so because where the owner of goods owes a duty to a person or class of persons to speak or act but fails to do so, the purchaser may assume that no fact that ought to have been disclosed exists or that there is nothing untoward in the transaction, and may act accordingly.”

10. [2015] NSWSC 1238 at [55].

33. The reference here to silence as the source of estoppel (and the description of the estoppel as “estoppel by omission”) followed a finding that there had been no representation by conduct that Abboud had authority to deal with the equipment in the way that he did. That finding was expressed in these terms:[11]

“Leaving Mr Abboud in possession of the equipment was not a representation by conduct that he had authority to deal with it. Nor could allowing Mr and Mrs Abboud to have sole possession of the premises and access to the records of Rosecell amount to a representation that Mr Abboud had authority to sell Rosecell’s equipment. Putting aside the fact that the Doughtys were acting under duress, leaving the Abbouds in possession of the company’s premises, books and equipment might convey that they had authority to act for the company in the ordinary course of its business. It does not convey that they had authority to sell the company’s assets otherwise than in the ordinary course of business. The sales to JP Haines and Right Price were not made, or apparently made, in the ordinary course of business.”

11. Ibid at [50].

34. The same issue was addressed in slightly different terms later in the judgment:[12]

“By allowing Mr Abboud to remain in possession of Rosecell’s and GT Haulage Group’s equipment Mr and Mrs Doughty did not allow Tepall to hold itself out as the owner of the equipment, nor allow Mr Abboud to hold himself out as authorised to sell the equipment on behalf of the owner.”

12. Ibid at [67].

35. His Honour surveyed relevant case law, including, in particular, Thomas Australia Wholesale Vehicle Trading Co Pty Ltd v Marac Finance Australia Ltd,[13] Moorgate Mercantile Co Ltd v Twitchings [14] and Leonard v Ielasi,[15] and identified the need to show that the owner had a duty to speak or act to make his claim known. Particular reference was made to the following passage in the speech of Lord Wilberforce in Moorgate Mercantile Co Ltd v Twitchings:[16]

“What I think we are looking for here is an answer to the question whether, having regard to the situation in which the relevant transaction occurred, as known to both parties, a reasonable man, in the position of the ‘acquirer’ of the property, would expect the ‘owner’ acting honestly and responsibly, if he claimed any title in the property, to take steps to make that claim known to, and discoverable by, the ‘acquirer’ and whether, in the face of an omission to do so, the ‘acquirer’ could reasonably assume that no such title was claimed.”

13. (1985) 3 NSWLR 452.

14. (1977) AC 890.

15. (1987) 46 SASR 495.

16. (1977) AC 890 at 903.

36. The primary judge concluded:[17]

“In this case the owners knew that Mr Abboud had acted dishonestly in relation to the equipment of which he took possession and they permitted him to retain possession of the equipment. But even if this be sufficient to give rise to a duty of care, […] Mr and Mrs Doughty did not negligently mislead others into acting to their detriment. Their omission to act was not due to negligence but to duress.”

17. [2015] NSWSC 1238 at [65].

37. According to the case presented by JP Haines and Right Price at trial, the relevant “conduct” of Rosecell and GT Haulage, for the purpose of s 26(1), was failing to take steps to make known to (or discoverable by) the buyers their claim to the equipment that was owned by them but in the possession of Abboud. They recognised that it was necessary for them to show also that that conduct – which was conduct by omission – partook of some relevant quality of negligence by the owners in allowing to arise a situation in which the buyers were misled as to the authority of the apparent seller. They contended that that element was present because of the particular circumstances, namely, Abboud’s assumption of possession was manifestly dishonest, produced a strong likelihood that he intended to deal with the corporate assets for his own benefit and enabled him to act as he did towards JP Haines and Right Price, yet the owners did not report Abboud’s actions to the police or take other steps to thwart his apparent purpose.

38. The decision of the primary judge was, in essence, that, because of the physical abuse to which Mr Doughty was subjected and the obvious duress applied to him and his wife, it was not negligent for Rosecell and GT Haulage, through the actions of their controllers, to leave Abboud in control of the corporate assets, despite there being a clear risk that he would deal with them fraudulently, as he in fact proceeded to do.

Issues on appeal

39. The appellants contend on appeal that the primary judge erred in failing to find that the respondents owed the appellants a duty to take reasonable steps to make known their claim to the relevant property (Ground 1). They also contend that his Honour erred in finding that the conduct of the respondents in not making Abboud’s actions and intentions known to the police was not conduct in breach of such a duty owed by them to the respondents (Ground 2).

40. Ground 3, advanced by way of alternative, is that the primary judge erred in finding that the s 26(1) defence depended on principles analogous to those required to give rise to an estoppel by omission at general law. The appellants submit that his Honour should have found that the conduct of the respondents, including not reporting Abboud’s actions and intentions to the police, [18] was conduct within the concluding words of s 26(1). [19]

    18. The appellants referred also to other actions that could have been taken by the respondents or their controllers, such as taking action to have a liquidator or receiver appointed.

    19. At the close of his oral submissions in chief and after certain questions had been asked by members of the Court, leading counsel for the appellants made an oral application for leave to amend the notice of appeal by adding a ground of appeal contending that the primary judge erred in making the findings set out at [33] and [34] above. The application was opposed. The Court refused leave to amend because the amendment would have introduced into the controversy at an extremely late point elements which the appellants had had ample opportunity to introduce in a timely way, of which the respondents had had no notice and with which they could not fairly be expected to deal. In both written submissions filed before the hearing and oral submissions up to the point at which the application was made, counsel for the appellants had presented the appeal as turning wholly on the availability of a defence by way of estoppel by omission on the facts as found by the primary judge. Written submissions of the respondents filed before the hearing specifically noted that the appellants did not challenge the particular findings. The appellants’ written submissions in reply did not argue otherwise. It was therefore too late to allow the course deliberately adopted by the appellants to be modified consistently with the Civil Procedure Act 2005 (NSW) pt 6 div 1: see FBHS (Aust) Pty Ltd v Stone Homes Pty Ltd [2014] NSWCA 312 at [69]; Hannaford v Commonwealth Bank of Australia [2014] NSWCA 297 at [16]; Kelly v Mina [2014] NSWCA 9 at [44]-[49].

41. The respondents filed a notice of contention by which they argue that the decision below should be upheld because:

1. the appellants did not establish that they had relied on indicia of ownership or authority so as to reasonably (but mistakenly) conclude that Abboud had authority to sell the equipment and thereby suffer detriment;

2. in any event, the respondents were not aware that Abboud was asserting authority to sell the equipment; and

3. the appellants did not plead or establish that the alleged breach of duty was the proximate cause of their buying the equipment.

42. The appellants maintain that they are entitled to succeed whether the correct approach to s 26(1) is the estoppel approach that commended itself to the primary judge or an approach based wholly on the words of the section, uninfluenced by common law notions of estoppel. Although the alternative approach will become relevant only if the appellants fail in their challenge to the primary judge’s decision on estoppel, it is convenient to consider at once whether that approach is supportable.

Does the exception to s 26(1) depend on estoppel?

43. A question before this Court in Thomas Australia Wholesale Vehicle Trading Co Pty Ltd v Marac Finance Australia Ltd was whether an owner’s conduct, in the form of inaction or omission to make his claim known, can be within the concluding words of s 26(1) where that conduct did not, in accordance with established estoppel principles, breach a duty owed by the owner to the buyer or a class to which the buyer belonged. [20] Kirby P, who was in dissent, answered that question in the affirmative. He accepted that the law of estoppel undoubtedly necessitates the existence of a duty but regarded the importation of that requirement into s 26(1) cases as “a wholly unwarranted diminution by the judges of the beneficial protection which s 26(1) of the Act, by its terms, was apt to provide”. [21] Formulations such as that of Lord Wilberforce in Moorgate Mercantile Co Ltd v Twitchings were perceived by Kirby P as placing an unwarranted gloss on the language of the statute.

    20. (1985) 3 NSWLR 452.

    21. Ibid at 459.

44. Glass and McHugh JJA, in separate judgments, were of the opposite opinion. The principle was stated by Glass JA in this way:[22]

“[T]he owner is not precluded by his conduct within the meaning of the Sale of Goods Act, s 26(1), unless he either made a representation to the buyer that the sale was authorised or influenced the buyer to his disadvantage by neglecting to deny the authority of the seller in breach of a duty owed to the buyer or a class of persons to which he belonged.” [Emphasis added.]

22. Ibid at 468-9.

45. Glass JA added:[23]

“Unless the conduct of the taciturn owner is subjected to the litmus test of duty, I know of no way to discriminate between conduct which precludes and that which does not.”

23. Ibid at 469.

46. McHugh JA noted that courts in England, New Zealand and Australian States had “all insisted that a duty to the buyer is necessary before careless omission to prevent the sale precludes the owner from denying the seller’s authority”. [24] McHugh JA further observed that, as is indicated by the history of the legislation, s 26(1) should be interpreted in accordance with principles of common law estoppel; and that if those principles and the requirement for a duty towards the buyer are not maintained, it will be left to each judge to form an idiosyncratic view of what conduct of an owner was sufficient to preclude denial by that owner of the seller’s authority.

    24. Ibid at 471.

47. McHugh JA also said:[25]

“The history of the legislation also shows that Parliament beyond doubt intended that s 26 should be interpreted in accordance with the principles of common law estoppel.

…

[F]or thirty years before the passing of the New South Wales Act, courts and text writers, giving effect to the intention of its makers, had treated the English equivalent of s 26 as incorporating the common law principles of estoppel.”

25. Ibid at 472-3.

48. The Sale of Goods Act 1923 (NSW) is based closely on the Sale of Goods Act 1893 (Eng), one of the three great commercial codifications of the late nineteenth century. [26] Mackenzie Chalmers, the draftsman of the English Act, described it as “almost entirely a reproduction of the common law”. [27] It has been suggested that the Act also adopted principles taken from Benjamin’s influential work of 1868 [28] that found no place in the common law, [29] as well as at least one misconception of the common law position for which Benjamin was responsible. [30]

    26. The others were the Bills of Exchange Act 1882 (Eng) and the Partnership Act 1890 (Eng).

    27. M D Chalmers, The sale of goods: including the Factors Act, 1889 (William Clowes and Sons, 1890) iv. This work dealt with the Sale of Goods Bill introduced in 1889.

    28. J P Benjamin, Benjamin’s treatise on the law of the sale of personal property with references to the American decisions and to the French code and civil law (Henry Sweet, 1868). The work reflected the author’s long experience of a civil law system in Louisiana.

    29. N Franzi, ‘The sale of goods, implied undertaking as to title, etc.’ (1980) 14 University of Western Australia Law Review 208.

    30. S R Thomas, ‘The mishandled development of the implied terms on quantity in the sale of goods’ (Research paper No 13-08, University of Leicester School of Law, October 2013) available at

48. In cases decided in England soon after the Act’s commencement, judges recognised its provenance and purpose. In 1895, in Payne v Wilson, Pollock B observed that the Act had been passed “to consolidate what was assumed to be the existing law by which sales of good were regulated”. [31] In relation to some matters, the opportunity was taken to make certain that which was uncertain. For example, in Abbott & Co v Wolsey, another 1895 case, Lord Esher MR said that, while the legislation had been passed “to declare the law”, it also introduced certainty in an area that had been the subject of “not quite consistent” decisions and there was no need to go beyond the new statutory definition of acceptance for the purposes of the successor provision to s 16 of the Statute of Frauds 1667 (Eng). [32] The definition turned wholly on factual issues. The statement, in codified form, of the facts necessary to support a finding of acceptance by the buyer left no scope for continued resort to earlier case law.

    31. [1895] 1 QB 653 at 661.

    32. [1895] 2 QB 97 at 100.

49. Although in some areas the code prescribed legal obligations in a way that might have been thought to make it unnecessary to look at earlier cases, courts nevertheless continued to look at those earlier cases. In Cahn v Pockett’s Bristol Channel Steam Packet Co Ltd, a question about the meaning of a provision of the Act was answered by A L Smith LJ in this way:[33]

“The Legislature, when it passed the Sale of Goods Act, 1893, by s 19 sub-s 3, enacted what had been held by the House of Lords in Shepherd v Harrison LR 5 HL 116 and nothing more, the Act being an Act to codify the law.”

33. [1899] 1 QB 643 at 656.

51. The approach taken by Lord Esher MR in Kirkham v Attenborough was that, in order to determine the position of the buyer under a contract for sale or return, it was necessary to “consider the principles adopted by the Courts and now unhappily, as I think, codified in the Act, the language of which is unfortunately chosen”. [34]

    34. [1897] 1 QB 201 at 203.

52. Dealing with the Bills of Exchange Act 1882 in the 1891 case of Bank of England v Vagliano Bros,[35] Lord Herschell regarded the correct way of approaching that codifying legislation as being to consider the language of the statute in the first place and then to “ask what is its natural meaning, uninfluenced by any considerations derived from the previous state of the law”, rather than inquiring what the law previously was, assuming that there was probably an intention to leave it unaltered and seeing whether the words will bear an interpretation in conformity with that assumption. [36]

    35. (1891) AC 107.

    36. Ibid at 144.

53. In the present case, if we take the words of the statute and seek their natural meaning, we are immediately confronted by a need to give content to the concept of “precluded” by “conduct” from “denying” the seller’s authority and to identify the types of “conduct” by which an owner is “precluded” from “denying” that authority. The submission of the appellants is that the court should undertake a general assessment of the owner’s conduct in the whole of the context in which it occurred and, without being constrained by principles of common law estoppel or other preconceptions (but acting judicially), decide whether the conduct is of such a quality that the seller is precluded from denying the seller’s authority to sell.

54. The appellants note that statutes are replete with provisions requiring courts to determine questions in the interests of justice. Many statutes make it clear that rights and obligations depend upon what a court determines to be “just and equitable”. [37] The judicial function in a case of that kind was described by Stephen, Mason and Jacobs JJ in Talga Ltd v MBC International Ltd in this way:[38]

“The court will have before it an existing transaction replete with all its surrounding facts and circumstances and in their light will determine what is just and equitable. In doing so it will certainly be exercising a wide discretion but this is a commonplace of the curial process; the court will be bound to act judicially, exercising its discretion by reference only to such considerations affecting the transaction as, on an examination of the legislation, may be seen to be material to the decision which it is called on to make. Irrelevant matters […] which have no rational connexion with the policy of the regulations but would be expressive only of the personal predilections of the Court, cannot be allowed by it to play any part in its decision.”

37. See the discussion in Eddy Lau Constructions Pty Ltd v Transdevelopment Enterprise Pty Ltd [2004] NSWSC 273 at [45].

38. [1976] HCA 22; 133 CLR 622 at 634.

55. In the present context, the court is not required to apply a statutory definition. [39] Nor is the necessary inquiry a broad inquiry as to what is “just and equitable” according to some legislative “policy”. It is as to the quality of particular conduct engaged in in a particular context: is the conduct of such a kind that the owner “is…precluded” by it from “denying” the seller’s authority? The word “is” deserves emphasis. The court is not called upon to say whether, in light of the owner’s conduct, he or she should be precluded. Rather, it must determine whether he or she “is” precluded “by” that conduct. It is the intrinsic quality of the conduct that is to be addressed. The statute makes no attempt to define or describe precluding conduct. It proceeds on the basis that the relevant quality inheres in conduct according to norms that operate independently of and are extraneous to the statute.

    39. As in Abbott & Co v Wolsey [1895] 2 QB 97.

56. At the time of the passing of the English Act of 1893, the common law had a well-developed concept of preclusion by conduct from denying a state of affairs. Thus, for example, in Swan v North British Australasian Co Ltd, [40] Channell B spoke of circumstances in which one person was “concluded from averring as against the latter a different state of things”, [41] and Martin B spoke of a man who had “by his conduct estopped himself from averring the truth”. [42] In Woodley v Coventry, a sale of goods case, Bramwell B said that “[i]t frequently happens that a person by making an acknowledgement precludes himself from setting up something favourable to him”. [43] The guiding principle, as enunciated by Lord Denman CJ in Pickard v Sears, [44] was that a person who, by conduct, wilfully causes another to believe in the existence of a certain state of things and induces him to act on that belief so as to alter his position “is concluded from averring against the latter a different state of things as existing at the same time”. A decade later, Parke B observed in Freeman v Cooke that “conduct, by negligence or omission, when there is a duty cast upon a person, by usage of trade or otherwise, to disclose the truth, may often have the same effect”. [45]

    40. (1862) 7 H&N 603; 158 ER 611.

    41. Ibid at 634.

    42. Ibid at 628.

    43. (1863) 2 H&C 164; 159 ER 68 at 72.

    44. (1837) 6 A&E 469; 112 ER 179 at 181.

    45. (1848) 2 Ex 654; 154 ER 652 at 653.

57. From at least the fourteenth century, the common law recognised concepts of estoppel founded on conduct of a plaintiff binding him to his disadvantage, as a matter of procedure, without creating a real title in the defendant. [46] Those concepts were well-established by 1893 and extended to conduct in the form of negligence or omission. With the law in that state, legislation which, in that year, not only referred to “conduct” by which an owner “is…precluded from denying” a seller’s authority to sell, but also specified no criteria for judging whether conduct is of the relevant quality showed an intention both to import existing common law rules of preclusion and to accommodate the inherent capacity of the common law to develop them. [47]

    46. L Vagni, ‘Protection of the Purchaser’s Reliance in 16th–18th Century England and Europe’ (2012) 3 The Western Australian Jurist 1. In property matters, however, the situation as between the person entitled to the benefit of the estoppel and the person estopped is one in which the former “has all the elements of a real title” and it is, in that sense, correct to speak of “title by estoppel”: see the observation of Farwell LJ in Bank of England v Cutler [1908] 2 KB 208 at 234 referred to by the Queensland Court of Appeal in Zen Foundation One Pty Ltd v Sippy Downs Group Pty Ltd [2010] QCA 232 at [74].

    47. As McHugh JA said in Thomas Australia Wholesale Vehicle Trading Co Pty Ltd v Marac Finance Australia Ltd (at 470), the words of the section are “redolent of, if not synonymous with, estoppel”.

58. In my respectful opinion, the historical analysis made by McHugh JA in Thomas Australia Wholesale Vehicle Trading Co Pty Ltd v Marac Finance Australia Ltd and the conclusion reached by both McHugh and Glass JJA as to the scope and meaning of the concluding words of s 26(1) are correct. Like Glass JA, I can find no way of identifying precluding conduct by silence unless “the litmus test of duty” is applied. I am of the opinion that, if the appellants do not succeed in their case based on Grounds 1 and 2 in the notice of appeal, Ground 3 will not avail them either.

The questions of duty and breach

59. In advancing Grounds 1 and 2 in the notice of appeal, the appellants submit that the primary judge should have held that Rosecell and GT Haulage owed them a duty, of the kind relevant to the particular species of estoppel, to take reasonable steps to make known their claim to the equipment and that there was a breach of that duty.

60. The parties accept that the matter must be approached as one of estoppel by omission or, as it is sometimes inaptly called, “estoppel by negligence”. [48] The gist of the case on appeal is that the primary judge should have found that each of Rosecell and GT Haulage breached a duty owed by it to the buyer of its goods by failing to take steps to assert its title and that it was the breach of duty which was the real and proximate cause of the appellants being induced to buy the goods and to part with the purchase price to the Abboud interests. The essence of the relevant estoppel is described in the current edition of Benjamin’s work in this way:[49]

“The true owner of goods may by his conduct be ‘precluded from denying the seller’s authority to sell’ within [s 26(1) of the New South Wales Act] where he has been negligent in allowing the seller to create an appearance of ownership of the goods. But the circumstances in which negligence on the part of the true owner can raise such an estoppel are narrowly circumscribed. It is necessary for the buyer to show, first, that the true owner owed him a duty to be careful; secondly, that in breach of that duty the true owner was negligent; and, thirdly, that this negligence was the proximate or real cause of the buyer being induced to buy the goods and part with the purchase price to the seller.”

48. The primary judge (at [55]) quoted the following passage in the judgment of Brooking J in Beneficial Finance Corp Ltd v National Mutual Royal Bank Ltd (Unreported, Supreme Court of Victoria, 8 September 1988) (BC8802455) at 33:“‘Estoppel by negligence’ does not constitute a separate category, that is to say, it is not possible for a party to be estopped by his negligence. What estops him is a representation which has the necessary effect on the other party. The significance of negligence is that, there being no express or implied representation, the failure to say or do something, in breach of a legal duty to say or do something, can be regarded by the law as the making of a representation”.

49. M Bridge, Benjamin’s Sale of Goods (Sweet & Maxwell, 9th ed, 2014) 366. The formulation here adopted is based on a statement by Pearson LJ in Mercantile Credit Co Ltd v Hamblin [1965] 2 QB 242 at 271.

61. In approaching the first of these elements (regarding duty), the course prescribed by Lord Wilberforce in the passage in Moorgate Mercantile Co Ltd v Twitchings set out at [35] above must be followed. Regard must be had to the situation in which the transaction occurred as known to both parties and two questions must be asked: first, whether, in that situation, a reasonable person in the position of the buyer would expect the owner, acting honestly, to make the owner’s claim of ownership known to and discoverable by the buyer; and, secondly, whether, in that situation and in the face of the owner’s omission to take any such step, the buyer could reasonably assume that no such claim of ownership existed.

62. The primary judge proceeded, clearly enough, on the basis that it was necessary to find that a duty towards the buyers had arisen. His Honour said that failure to notify authorities of dispossession “can give rise to an estoppel where there is a duty to speak or act”. [50] He also said that a buyer who relied on the owner’s omission to act to prevent sale “had to demonstrate that the owner owed a duty to take such action”. [51] An element of reservation as to the existence of a duty in the present case emerged in the passage quoted at [36] above where, after referring to the owners’ knowledge of Abboud’s dishonesty in relation to the equipment, his Honour used the words, “[b]ut even if this be sufficient to give rise to a duty of care…”. [52] [Emphasis added.]

    50. [2015] NSWSC 1238 at [55].

    51. Ibid at [57].

    52. Ibid at [65].

63. The appellants complain that the primary judge did not make a clear and unequivocal finding that the respondents had incurred a relevant duty towards the appellants. They rely on a number of factual matters in support of the proposition that such a duty arose: Mrs Doughty spent three days immediately after Abboud’s forcible appropriation of control tutoring Mrs Abboud in the companies’ bookkeeping and business methods; Abboud and Mrs Abboud were given all relevant passwords so that they could access all assets; Mr Doughty told the hospital psychologist a month after the forcible appropriation that he was “taking his financial losses in his stride”; Mr Doughty gave some evidence of having mentioned the dispossession to friends and of having raised the financial implications of it with the companies’ bank; and, importantly, Mr Doughty and Mrs Doughty made no attempt for more than a year to recover the equipment or even to ascertain what had happened to it. [53]

    53. Ibid at [31].

64. The appellants say that Rosecell and GT Haulage lost control of their assets in circumstances where their controllers knew that:

1. the Abbouds had been instructed on the workings of the business;

2. the assets were in the hands of an extortionist and thief who was in a position to represent to the world that the equipment was available for purchase;

3. Abboud had the means to generate fraudulent invoices and signatures apparently consistent with genuine sale; and

4. as a result of the combination of those facts, there existed a real likelihood that there would be an illegitimate disposal of the equipment to an unsuspecting purchaser.

65. These factors, coupled with the statutory obligation upon the world at large to report serious crime to the police,[54] are said by the appellants to have compelled a conclusion that Rosecell and GT Haulage had become subject to a duty to take positive steps calculated to put potential buyers of the equipment from Abboud on notice of their rights as owners. On this footing, the test for the imposition of such a duty enunciated in the passage in the speech of Lord Wilberforce in Moorgate Mercantile Co Ltd v Twitchings set out at [35] above is, they say, satisfied. [55]

    54. Crimes Act 1900 (NSW), s 316(1). The appellants also refer to the statutory and general law duties of company directors to act in the interest of their company as a whole and in that way to care for company assets.

    55. The test was subsequently approved in England by Lord Steyn in Republic of India v India Steamship Co (No 2) (1998) AC 878 at 914 and by the Court of Appeal in ING Bank NV v Ros Roca SA [2011] EWCA Civ 353; [2012] 1 WLR 472 at 489. In Australia, it has been approved in Leonard v Ielasi (1987) 46 SASR 495 at 507, by Redlich J in Johnson Matthey (Aust) Ltd v Dascorp Pty Ltd [2003] VSC 291; 9 VR 171 at [48]-[49] and by Vickery J in Kino v Prestige Philately Pty Ltd [2014] VSC 469 at [73]. Reservations were expressed by Clarke J in Associated Midland Corporation v Sanderson Motors Pty Limited (1983) 3 NSWLR 395 at 409, but only on the basis that there had been no authoritative pronouncement because the House of Lords was divided and Lord Wilberforce and Lord Salmon, who constituted the minority on this aspect, were the only members who sought to define the factual circumstances the existence of which is necessary to give rise to the duty to speak. The test that commended itself to Clarke J on the basis of principle (and bearing in mind that estoppel, in general, operates when one party has so acted as to lead another party to believe that a certain state of affairs exists) was that “if a party omits to…take some positive action he will come under a duty of care to another only if he is aware that that other person has been induced to believe that a particular state of facts exists by reason of his omission and either deliberately or negligently remains silent and allows that party to continue to act, to his detriment, upon the basis of his mistaken belief”.

66. The respondents point to an immediate difficulty faced by the appellants in establishing the duty for which they contend, namely, the primary judge’s findings that, by leaving Abboud in possession of the equipment and giving Abboud and Mrs Abboud sole control of the business premises, records and assets, the respondents did not, by conduct, represent that Abboud had general authority to sell the equipment on behalf of the respondent companies. [56] At most, his Honour said, this might convey that Abboud had authority to act for each company in the ordinary course of its business and therefore to sell its assets in the ordinary course of business only.

    56. Set out verbatim at [33] and [34] above.

67. It may be that Mr Doughty and Mrs Doughty caused Rosecell and GT Haulage to be “negligent as regards [themselves]”[57] because the companies did not act through the individuals to counter Abboud’s forcible taking of control which foreshadowed further wrongdoing by him. But the question for the primary judge was not as to negligence in that sense. It was, in the first instance, whether the taking of control by Abboud caused the companies to become subject to a duty towards others to correct or counter some misapprehension of fact. Given the primary judge’s findings as to the effect of the inaction of Mr Doughty and Mrs Doughty and the representation thereby implied, any conceivable duty towards others to which the companies became subject was a duty related to the possibility of unauthorised transactions in the ordinary course of business. While carelessness, of itself, is insufficient to give rise to a relevant duty, any duty that does arise can only be a duty to counter a factual misapprehension operating upon the party seeking to set up an estoppel. Any such misapprehension can only be commensurate with assumptions reasonably grounded in the state of affairs actually or impliedly represented by the conduct of the person sought to be estopped – here, on the primary judge’s findings, a state of affairs in which Abboud had authority to act for the companies in the ordinary course of business and to sell their assets in the ordinary course of business.

    57. This formulation comes from the judgment of Blackburn J in Swan v North British Australasian Co Ltd (1863) 2 H&C 175; 159 ER 73 at 76: “A person who does not lock up his goods, which are consequently stolen, may be said to be negligent as regards himself, but inasmuch as he neglects no duty which the law casts upon him, he is not in consequence estopped from denying the title of those who may have, however innocently, purchased those goods from the thief, unless it be in market overt.”

65. This is not a case of a stolen motor vehicle, misappropriated securities or other property taken by a wrongdoer. Abboud, by his actions, put himself into a position from which he could control the whole of the companies’ assets and affairs. His actions did not target the earthmoving equipment as such. Given that he and his own companies carried on a complementary business, the apprehension that could reasonably be assumed is that he would exercise the misappropriated corporate control by carrying on business rather than destroying the capacity to conduct it.

66. There is the added point, emphasised by the respondents, that, according to Lord Wilberforce’s formulation in Moorgate Mercantile Co Ltd v Twitchings, the situation in which the relevant transaction occurred must be known to both parties. [58] In Thomas Australia Wholesale Vehicle Trading Co Pty Ltd v Marac Finance Australia Ltd, McHugh JA described the words “as known to both parties” as “of critical importance”, noting that “it is the situation in which the transaction occurred which must be known to both parties, not their actual interests or existence". [59] Glass JA also referred to requirement of knowledge on the part of both parties, observing that in the absence of “any relevant transaction known both to [the] owner and the defendant as acquirer there are no circumstances which would raise a duty of care”. [60]

    58. (1977) AC 890 at 903.

    59. (1985) 3 NSWLR 452 at 474.

    60. Ibid at 468.

67. The critical importance of the words “as known to both parties” is, the respondents correctly submit, a reflection of the fact that the issue is one of estoppel which, of its nature, precludes denial of a particular state of facts. As Dixon J said in Grundt v Great Boulder Proprietary Gold Mines Ltd,[61] estoppel in pais is founded on the principle that “the law should not permit an unjust departure by a party from an assumption of fact which he has caused another party to adopt or accept for the purposes of their legal relations”. [62] Precise identification of the factual circumstances known to the party seeking to set up an estoppel is essential to an evaluation of what it is that a reasonable man in that party’s position would expect. Likewise, precise identification of the factual circumstances known to the owner sought to be estopped is essential to an evaluation of what an honest and responsible owner would do to defend his title. Only if both parties are working, as to essential matters, on the same set of facts is it possible to judge whether there exists the reasonable expectation of alerting or disabusing action by the owner central to the existence of the duty on which estoppel is based. A necessary element, therefore, is shared knowledge that the owner’s silence has caused the acquirer to believe that a particular state of affairs exists regarding the relevant property and to rely on that belief.

    61. [1937] HCA 58; 59 CLR 641 at 674.

    62. [Emphasis added.]

68. A possible qualification or contrary indication arises in the following passage in the judgment of Johnston J in Leonard v Ielasi:[63]

“In my view the owner of goods of some substantial value who permits possession of those goods to remain with a person whom the owner knows to have acted dishonestly in relation to those goods will, except in special circumstances, owe a duty of care to others who might be minded to deal with that person in relation to the goods. The duty arises on the basis of the known dishonesty of the person in relation to those goods. The duty is not negligently to mislead others into acting to their detriment in relation to the goods. I have put the proposition in very narrow terms (goods of substantial value, a person who has acted dishonestly in relation to those goods), since I have no desire to suggest a rule of general application in an area of such diverse factual circumstances.”

63. (1987) 46 SASR 495 at 517.

72. To the extent that it is here suggested that a duty of the kind relevant to estoppel arises from the owner’s knowledge that a dishonest person is in possession of the goods and is therefore in a position to make an authorised sale if minded to do so, the suggestion cannot be accepted. Knowledge of third party possession and of the dishonesty of the third party is knowledge of a risk of unauthorised sale, not knowledge of a state of affairs that involves a particular buyer and is known to that buyer. Foreseeable risk is a matter relevant to negligence, not estoppel. If, on the other hand, Johnston J’s statement is in truth concerned with knowledge that a dishonest person is in possession of the goods and has taken steps to portray himself to a possible buyer as the owner of them, it deals with knowledge of a state of affairs of the kind relevant to estoppel. It is, in my opinion, necessary to adopt the second interpretation. I accept the respondents’ submissions in that respect.

73. In the present case, a centrally important fact of which the owner companies were unaware was that Abboud had engaged in dishonestly misleading conduct towards the buyers of the equipment – indeed, that he was even treating with buyers or intended doing so. The companies’ knowledge that Abboud had the practical ability to act in those ways (as well as any expectation they may have had that he would do so), even when coupled with knowledge of the gross dishonesty that had attended his taking of control of the companies’ assets and affairs, did not involve any implied representation to anyone that he was entitled to sell the companies’ earthmoving equipment in the way he did.

74. In another way too, there was a lack of correspondence between the state of facts known to the acquirers and that known to the owner companies. The owner companies knew, but the acquirers did not, that some two months before the sales, Abboud had subjected Mr Doughty and Mrs Doughty to extreme duress and had threatened further dire consequences if he were not left in sole control of the owner companies. That threat was of its nature a continuing threat. Had a reasonable person in the position of the buyers been aware of that circumstance, he or she may well not have expected action by the owner companies to assert title when such action was likely to produce those dire consequences for their controllers. Against this, it might be said that it is not open to a company seeking to defend its own interests to be concerned about physical threats to its controllers. While that may be so in the abstract, we are here concerned with postulated conduct of an owner company that was the alter ego of one or both of the relevant individuals, and the hypothesis as to the way it would act has to be formed according to practical considerations in real-world circumstances.

75. In my opinion, the requirement of equivalence of factual knowledge that is central to Lord Wilberforce’s formulation is not met on the facts of this case as found by the primary judge. It follows that those facts did not give rise to any duty of the respondents towards the appellants of the kind relevant to the establishment of the estoppel the appellants assert. Ground 1 in the notice of appeal therefore cannot be upheld and Ground 2 (the issue of breach of duty) does not arise.

Causation

76. Nor, for the same reason, is there any need to consider the issue of causation and the question whether conduct (in the form of silence or inaction) by the respondents was the proximate or real cause of the appellants being induced to buy the goods and to pay the purchase price to the Abboud interests. I proceed nevertheless to a brief consideration of causation (raised by the notice of contention) on the assumption that, contrary to the conclusion I have reached, the duty to act asserted by the appellants was both owed and breached by the respondents.

77. Central to the issue of causation is the question of reliance. It must be shown by a party alleging estoppel that, in proceeding to buy and to part with the price as he did, he relied on the owner’s silence or inaction. The matter was put thus by Redlich J in Johnson Matthey (Aust) Pty Ltd v Dascorp Pty Ltd:[64]

“Where there is an absence of compelling evidence establishing that the buyer has relied upon the owner’s failure to act and has thereby suffered detriment, the buyer will in most circumstances…fail to establish that the owner's conduct was the proximate cause of the buyer's loss.”

64. [2003] VSC 291; 9 VR 171 at [63].

78. In the present case, there was evidence of the things upon which the appellants did rely in making their decision to buy and to pay the price. The primary judge found that Mr Haines made an assumption that Abboud was authorised to arrange the sale of the equipment. [65] The basis for the assumption was not mere intuition or blind trust. The primary judge referred to a combination of facts that operated upon Mr Haines’ thinking: that the equipment was located on the Fermoy Road property; that Abboud had possession and control of the property and the equipment; that Abboud acted as if he owned the equipment; that Abboud and his wife had control of the office and the business records relating to the equipment and knew about the equipment; that the equipment had distinctive orange or orange and black markings that were consistent with other equipment Mr Haines had seen that related to “GT Haulage”; and that he had heard from truck drivers who had done subcontracting work for “GT Haulage” that Abboud was associated with the “GT Haulage” business.

    65. See [24] above.

79. These findings were reflective of evidence that Mr Haines was content to proceed on the basis of his appreciation, gleaned from the business circles in which he operated, that Abboud (who, as he had observed, had possession of the equipment and acted as if he owned it) had a legitimate and established association with “GT Haulage”, the business in which he understood equipment carrying the distinctive markings appearing on the relevant items to be used. There was no evidence that Mr Haines questioned the direction to pay the purchase moneys to companies other than the purported sellers (Rosecell as to some items and Tepall as to the others); and there was an express finding that he did not make any inquiry whether Abboud had the owner’s authority to sell.

80. It is thus clear that the appellants, through Mr Haines, were content to rely on – and did rely on – a series of observations of their own and assumptions generated by those observations. Their willingness to proceed as they did existed in the absence of any steps taken by them to question or verify Abboud’s authority and despite the suspicion that should have been aroused by the directions to pay the purchase moneys to third parties having no apparent connection with the transaction. Given the evidence of the several matters on which the appellants did place reliance in pursuing the course that ultimately occasioned their loss, there cannot be said to have been, in the words of Redlich J, “compelling evidence establishing that the buyer has relied upon the owner’s failure to act”. [66]

    66. [2003] VSC 291; 9 VR 171 at [63].

81. The contentions in the notice of contention on the issue of causation should be accepted.

Conclusion

82. This is one of those unfortunate cases in which the contest is between innocent parties, one of whom must ultimately suffer loss for which a dishonest non-party should bear responsibility. On the legal analysis I consider to be dictated by the facts, it is the appellants who must bear the loss in this instance.

83. In my opinion, the appeal should be dismissed with costs.

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Endnotes

Amendments

24 May 2016 - Corrected paragraph numbering from [43].

Decision last updated: 24 May 2016