International Alpaca Management Pty Ltd v Ensor - [1995] FCA 1054

C A T C H W O R D S

CONTRACT - questions of ownership and right to possession of imported alpacas - proper construction of agreements - whether property passed prior to payment of the purchase price under the agreements - whether evidence that payments required under agreements were made - whether respondent entered into (secret) "reserved" contract in "good faith" and "without notice" of appellant's claim to title in the alpacas so as to obtain beneficial title to certain alpacas.

SALE OF GOODS - importation of alpacas - passing of property - title by estoppel by virtue of s.26(1) of the Sale of Goods Act - sale by seller in possession - whether respondent entered into "reserved" contract in "good faith" and "without notice" of appellant's claim to title in the alpacas so as to obtain beneficial title under s.28(1) of the Sale of Goods Act - whether actual, not constructive, notice of previous sale - whether the circumstances, looked at objectively, constitute notice is a question of fact and degree to be determined in the particular circumstances of the case - whether later buyer acted in "good faith" or, measured objectively, not honestly.

Sale of Goods Act 1923 (NSW), ss.5(2), 22, 23, 26(1), 28(1)

Cases Considered:

Appellate Court: proper inference to be drawn from facts
Warren v Coombes (1979) 142 CLR 531

Passing of property
The Colonial Insurance Co of New Zealand v. The Adelaide Marine Insurance Co [1886] 12 AC 128
McDougall v. Aeromarine of Emsworth Ltd [1958] 1 WLR 1126
R.V. Ward Ltd v Bignall [1967] 1 QB 534
Federal Commissioner of Taxation v. McConochie (1960) 102 CLR 561

Title by estoppel
Big Rock Pty. Ltd. v Esanda Finance Corp. Ltd. (1992) 10 WAR 259

"Good faith" and "without notice"
In re Gomersall [1875] 1 Ch D 137
The London Joint Stock Bank v Charles James Simmons [1892] AC 201
Jared v Clements [1902] 2 Ch. 399; [1903] 1 Ch. 428

2.

Heap v Motorists' Advisory Agency Ltd [1923] 1 KB 577
Pacific Motor Auctions Pty. Ltd. v Motor Credits (Hire Finance) Ltd. [1965] AC 867
Worcester Works Finance v Cooden Engineering Co Ltd [1972]
1 QB 210
Feuer Leather Corporation v Frank Jonstone & Sons [1981] Com.LR 251
Robinson Motors Pty. Ltd. v Fowler (1982) Qd.R 374
Forsythe International (UK) Ltd. v Silver Shipping Co Ltd [1994] 1 WLR 1334
Royal Brunei Airlines v Tan (P.C.) [1995] 2 AC 378
Woodchester Equipment Leasing Company Ltd. v Capital Belts Ltd., Court of Appeal, 12 April 1995, unreported

INTERNATIONAL ALPACA MANAGEMENT PTY LTD & ORS v.
BEN K.E. ENSOR & ORS

No. G 490 of 1995

Davies, Beaumont & Carr JJ.
Sydney
24 November 1995

IN THE FEDERAL COURT    )
OF AUSTRALIA           )
NEW SOUTH WALES        )
DISTRICT REGISTRY      )    No. G 490 of 1995
GENERAL DIVISION       )

B E T W E E N: INTERNATIONAL ALPACA
MANAGEMENT PTY LTD

First Appellant
TEXTILE FINANCE LIMITED
Second Appellant
COOLAROO ALPACA GENERAL

PARTNER PTY…

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: [1995] FCA 1054
Decision Date: 24 NOVEMBER 1995

CaseChat Overview and Summary

The Federal Court of Australia heard an appeal in International Alpaca Management Pty Ltd v Ensor. The case involved a dispute over the ownership and right to possession of 100 alpacas. The first appellant, International Alpaca Management Pty Ltd (IAM), claimed to be the beneficial owner of the alpacas and sought an order for their immediate possession. The respondents, Ben K.E. Ensor and Garrymere Farms Limited, argued that they were entitled to the ownership and possession of the alpacas. The central legal issue was whether property in the alpacas had passed to IAM before Ensor entered into a "reserved" contract with Alpac Chile Limitada (ACL). The court found that property in the alpacas had passed to IAM under the agreements executed on 20 February 1992 and 24 May 1992. The court also held that Ensor did not act in "good faith" and "without notice" of the previous sale to IAM as required by section 28(1) of the Sale of Goods Act 1923 (NSW). As a result, the appeal was allowed, and the orders made at first instance were set aside. The court declared that IAM was the beneficial owner of the alpacas until 30 June 1992, after which the second appellant, Textile Finance Limited, became the beneficial owner. The third appellant, Coolaroo Alpaca General Partner Pty Limited, was entitled to their immediate possession. The respondents' cross-claim was dismissed, and they were ordered to pay the appellants' costs.

Orders