Jade Holdings Pty Ltd v Barry Cannock

[1998] TASSC 21

21/1998

PARTIES:  JADE HOLDINGS PTY LTD
  v
  BARRY CANNOCK

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  1049/1997
DELIVERED:  20 March 1998
HEARING DATE/S:  17 February 1998
JUDGMENT OF:  The Master

CATCHWORDS:

Procedure - Interlocutory application - Set aside judgment in default of appearance - Agency - Apparent authority - Justiciable issue - Rules of the Supreme Court, O14, r10.

Aust Dig Procedure [67]

REPRESENTATION:

Counsel:
           Plaintiff:  M R Docking
           Defendant:  C R Doherty
Solicitors:
           Plaintiff:  Abetz Curtis & Docking
           Defendant:  Toomey Maning & Co

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  21/1998
Number of pages:  2

Serial No 21/1998
File No 1049/1997

JADE HOLDINGS PTY LTD v BARRY CANNOCK

REASONS FOR JUDGMENT  THE MASTER

20 March 1998

The defendant has applied to set aside a judgment obtained against him on 26 September 1997.  The judgment was regularly entered in the sum of $9,595.25, together with costs of $275.

Affidavits of the defendant, Barry Cannock, and Rodney William Hardy were read and the deponents were cross-examined upon them.

The defendant said that upon receipt of the writ he telephoned the plaintiff's solicitors and that after a conversation with someone in that office, he followed it with a letter to them denying liability and alleging that Mr Rodney Hardy had incurred the debt.  Mr Hardy also wrote at that time to the plaintiff's solicitors acknowledging that he was liable for the debt.  The defendant had no response to his letter and believed that in the circumstances no further action would be taken against him in these proceedings.  As a result he did not enter an appearance to the writ.  On 12 December 1997, he received notice that a writ of execution had been issued against him and he then instructed his solicitors to make this application which was filed on 24 December 1997.

In these circumstances I am satisfied that the defendant should not be barred from proceeding with this application on the ground of delay.

As to the question of whether a justiciable issue existed between the parties, it is necessary to consider the evidence given by Mr Cannock and Mr Hardy under cross-examination.  The defendant, over a period of some years, had lent Mr Hardy a substantial amount of money in certain business ventures.  Mr Hardy operated a number of taxis which had been obtained by the defendant under "Bailment Agreements" with the plaintiff and then operated by Mr Hardy under "Licence Rental Agreements" with the defendant.  The evidence discloses that Mr Hardy was the person who took the Agreements to be executed by Mr Ng, a director of the plaintiff.  The evidence discloses that Mr Hardy had frequent dealing with Mr Ng in relation to these matters, whereas Mr Cannock said that he had very little contact with Mr Ng, if any.

With this background, on or about 26 November 1996, Mr Hardy handed Mr Cannock a draft Agreement with the plaintiff for the purchase of fuel from the plaintiff.  The document, which is Annexure "BC13" to Mr Cannock's affidavit and which is headed "Fuel Purchase Agreement", was addressed to Barry Cannock in which he agreed to buy fuel from the plaintiff under the terms set out in the Agreement.  It is clear from the evidence that both Mr Ng and Mr Cannock were aware that the fuel required was for the use of the taxis operated by Mr Hardy.  Mr Hardy obtained the Agreement from Mr Ng, who would not contract with him because of his financial situation, and took it to Mr Cannock who signed the Agreement and dated it, "26/11/96".

Mr Cannock said that on the morning following its execution, he advised Mr Hardy that he had rescinded the Agreement and that it was not to be given to Mr Ng.  Despite this, Mr Hardy said that he took the signed Agreement to Mr Ng, without advising Mr Cannock that he had done so.  Mr Cannock did not alert Mr Ng of his recission of the Agreement and Mr Hardy obtained supplies of fuel for his taxies under the Agreement.

Mr Hardy made some payments off the fuel account with the plaintiff, but fell into arrears and it was not until August 1997 that Mr Cannock became aware of the debit in the account for which the plaintiff subsequently commenced these proceedings.

Upon the whole of the evidence adduced upon its application, I am left in no doubt that Mr Hardy was acting as Mr Cannock's agent under the Fuel Purchase Agreement with the plaintiff.  The agreement appeared to Mr Ng to be a valid one under which fuel was to be supplied to Mr Hardy and in respect of which he had no notice of recission.  Mr Hardy was acting under the ostensible or apparent authority of the defendant.  The law governing the rights of the parties following the determination of an agent's apparent authority has been well settled since 1840 (see Bowstead on Agency, 15th edn, Article 129).  Where notice of the revocation of the agent's authority by the principal is not given to the third party, then the principal remains liable to the third party and the principal is then left to his rights against the agent.

I am mindful, in reaching this conclusion, of the approach which has been adopted in the exercise of the discretion whether or not to set aside a judgment (see Evans v Bartlam [1937] AC 473 at 481 - 482 and National Mutual Life Association of Australasia Ltd v Century Motors Pty Ltd A64/1984).

In this instance, the substance of the evidence relating to the defendant's defence has been adduced and, in my view, it would only lead to delay and unnecessary costs for a trial to be held.

As a result, the application is dismissed.