Melreef Pty Ltd v Glenn - [2015] WASCA 111

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: MELREEF PTY LTD -v- GLENN [2015] WASCA 111

CORAM: MARTIN CJ
NEWNES JA
MURPHY JA

HEARD: 5 FEBRUARY 2015

DELIVERED : 3 JUNE 2015

FILE NO/S: CACV 66 of 2014

BETWEEN: MELREEF PTY LTD
Appellant
AND
LAURENCE ANTHONY GLENN
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :STAUDE DCJ
Citation  :MELREEF PTY LTD -v- GLENN [2014] WADC 75
File No  :APP 103 of 2013

Catchwords:

Contract - Inferred contract - Respondent/vendor delivered cattle to appellant for agistment pursuant to contract of sale prior to property in cattle passing to purchaser - Whether inferred agreement respondent would pay for agistment - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr D Bedenham
Respondent: In person

Solicitors:

Appellant: Birman & Ride
Respondent: In person

Case(s) referred to in judgment(s):

Bell Group Ltd (in liq) v Westpac Banking Corporation (2008) 70 ACSR 1; [2008] WASC 239
Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153
Integrated Computer Services Pty Ltd v Digital Equipment Corporation (Aust) Pty Ltd (1988) 5 BPR 11
Melreef Pty Ltd v Glenn [2014] WADC 75
Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359

REASONS OF THE COURT: This is an appeal from a decision of Staude DCJ, who dismissed the appellant's appeal from a decision of Magistrate Cockram in the Magistrate's Court. The magistrate had dismissed the appellant's action against the respondent for fees which the appellant claimed were owing to it for the agistment of the respondent's cattle.

Background

The respondent was a cattle producer who traded as Corunna Downs Station.
The appellant carried on the business of agisting cattle, primarily cattle that were being held for export. Its business included, where the cattle it received were the subject of a contract of sale, weighing the cattle to enable the contract price to be determined. It carried on business at the Hedland Export Depot (also known as the 'South Hedland Yards') (the Depot) at which it received the cattle. When cattle were delivered to the appellant it weighed them as they arrived and then placed them in the agistment area awaiting export by the owner.
At the material time, Mr Leeds, a self‑employed commission agent engaged by Elders Rural Services Australia Ltd (Elders), was sourcing cattle from Elders' clients for export by Halleen Australasian Livestock Traders Pty Ltd (Halleen).
On 16 July 2009, Mr Leeds attended the property of the respondent to inspect cattle with a view to their purchase. He selected the cattle he wanted and completed a standard‑form Elders' agreement. The agreement (the sale agreement) provided for the sale by the respondent to Halleen of 243 short horn steers for export (the 'contract cattle'), to be delivered the same day to the Depot, which was the designated 'Delivery Location' under the sale agreement. Under the sale agreement, the respondent agreed to pay weighing fees of $1.25 per head and was to be paid $1.20 per kg live weight.
The sale agreement further provided, among other things, that:
(a)delivery of the cattle shall be taken by the buyer at the Delivery Location on the delivery date (cl 3.1);
(b)the buyer must pay Elders the purchase price of the cattle on delivery (cl 4.1);
(c)Elders Rural Services acted as del credere agent and would pay the purchase price (less its commission and charges) to the respondent within 'the customary payment period' after the delivery date (cl 4.5);
(d)property in the contract cattle passed to Elders upon payment by it of the purchase price (less its commission and charges) to the respondent. Title and property in the cattle would only pass to the buyer upon full payment by the buyer of the purchase price to Elders and until such time the buyer held the cattle as bailee (cl 4.7).
The agreement was signed by the respondent, and by Mr Leeds 'for and on behalf of Elders Rural Services Australia Limited'. Mr Leeds also wrote his name under the printed inscription 'for and on behalf of the Buyer'. It was not in issue that Mr Leeds did not have authority to contract with the respondent on behalf of Halleen.
Mr Leeds asked the respondent to deliver the contract cattle to the Depot. Mr Leeds then telephoned the appellant's manager, Mr Lawless‑Pyne, to say that he had purchased cattle from the respondent and they would be coming into the Depot. The respondent subsequently delivered the contract cattle and a further 315 head of cattle to the Depot. He told Mr Lawless‑Pyne that the contract cattle had been sold to Halleen through Elders. Following their delivery, the cattle were drafted, weighed and penned by the appellant. The contract cattle were penned separately from the other 315 head of cattle delivered by the respondent.
When he delivered the contract cattle to the Depot, the respondent completed part A of a National Vendor Declaration and Waybill (NVD) for 121 head of cattle and another for 125 head. In each he made a declaration as 'the owner or person responsible for the husbandry of the cattle' as to the truth of the contents of part A of the NVD. Each of those NVDs stated that the cattle were consigned to Halleen.
On 4 August 2009, the respondent was paid the sum of $67,902.78 for the contract cattle pursuant to the sale agreement.
On 29 August 2009 the appellant sent an invoice to the respondent in the sum of $28,650.07 for agistment services. The invoice related to both the contract cattle and the additional 315 head of cattle the respondent had delivered. The respondent wrote to the appellant disputing his liability for the agistment services in respect of the contract cattle. The appellant then sent a fresh invoice to the respondent in the sum of $9,076.10 for the 315 head of cattle, which the respondent paid.
More than a year later, on 16 November 2010, the appellant sent an invoice to the respondent in the sum of $20,335.98 for agistment services in respect of the contract cattle, adjusted by an amount of $762.01 which the appellant said it had previously undercharged the respondent.
The respondent denied liability for those charges and the appellant commenced proceedings in the Magistrates Court. It was not in issue in the proceedings that the appellant had rendered the services to which the charges in the 16 November 2010 invoice related. The question was whether the respondent had agreed to pay for those services. It was common ground that there was no express agreement. The appellant's case was that such an agreement was to be inferred from the conduct of the parties.
On 27 November 2013, Magistrate Cockram dismissed the appellant's claim. The magistrate concluded that such an agreement could not be inferred. His Honour found, in effect, that the respondent's statement to Mr Lawless‑Pyne that the contract cattle had been sold through Elders to Halleen was inconsistent with an inferred agreement that the respondent would pay for the appellant's agistment services. His Honour considered it was to be inferred from the respondent's statement to Mr Lawless‑Pyne that the respondent would not be paying for the services.
The appellant appealed to the District Court. There were four grounds of appeal, all of which were rejected, but only one point is relevant for present purposes. That was the appellant's contention, in effect, that the magistrate erred in finding that the respondent's statement to Mr Lawless‑Pyne that the contract cattle had been sold to Halleen was inconsistent with an inferred agreement to pay for the appellant's services. The primary judge rejected that contention, finding that by his conduct the respondent had made it clear to the appellant that the respondent would not be paying for the appellant's services in respect of the contract cattle [40]. The appeal was dismissed: Melreef Pty Ltd v Glenn [2014] WADC 75.
The appellant now appeals to this court.

The grounds of appeal

The grounds of appeal were that the primary judge erred in law in:
1.holding that the magistrate's findings of fact were a sufficient basis for concluding, on an objective analysis, that the respondent did not intend to contract with the appellant;
2.concluding that the magistrate attached appropriate weight to all relevant facts and that, in any event, none of those facts would 'invalidate the inference drawn by the learned magistrate' that the respondent did not intend to contract with the appellant.

The disposition of the appeal

The grounds of appeal can be dealt with together. Neither, in our opinion, has any substance and the appeal can be disposed of quite shortly.
In order to succeed on the appeal it is necessary for the appellant to show that the primary judge should have found that the magistrate was in error in concluding there was no inferred agreement that the respondent would pay the appellant's agistment fees in respect of the contract cattle. It is not enough for the appellant to show that an alternative finding was open to the magistrate on the facts. As the Full Federal Court pointed out in Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359:
The court must be satisfied that the judgment of the trial judge is erroneous and it may be so satisfied if it reaches the conclusion that the trial judge failed to draw inferences that should have been drawn from the facts established by the evidence. The court is unlikely to be so satisfied if all that is shown is that the trial judge made a choice between competing inferences, being a choice the court may not have been inclined to make but not a choice the trial judge should not have made [369].
A contract may be inferred from the acts and conduct of parties, as well as or in the absence of their words, where the conduct of the parties, viewed in the light of surrounding circumstances, shows a tacit understanding or agreement. The question in such a case is whether, viewed as a whole and objectively from the point of view of reasonable persons on both sides, the dealings show a concluded bargain: see Integrated Computer Services Pty Ltd v Digital Equipment Corporation (Aust) Pty Ltd (1988) 5 BPR 11,110, 11,117 ‑ 11,118; Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153 [74] ‑ [77], [81]. But, as Owen J pointed out in Bell Group Ltd (in liq) v Westpac Banking Corporation (2008) 70 ACSR 1; [2008] WASC 239 [2661], it is clear that inferring a contract from conduct will not be done lightly.
The following facts were not in issue on the appeal:
1.On 16 July 2009, Mr Leeds, acting on behalf of Elders as del credere agent, entered into an agreement with the respondent to purchase the contract cattle, purportedly on behalf of Halleen as purchaser;
2.Under the sale agreement, the buyer took delivery of the contract cattle at the Depot and Mr Leeds arranged for the respondent to deliver them to the Depot;
3.Mr Leeds telephoned Mr Lawless‑Pyne and said he had purchased cattle from the respondent which would be coming into the Depot;
4.The respondent subsequently delivered the contract cattle to the Depot and told Mr Lawless‑Pyne that the contract cattle had been sold through Elders to Halleen;
5.The relevant NVDs stated that the contract cattle had been consigned to Halleen;
6.The contract cattle were put into separate pens from the other cattle that the respondent delivered at the same time.
It was submitted by the appellant's counsel that the conduct of the respondent was not of the unambiguous nature required to displace the rule that ordinarily a person who orders goods or services is taken to be accepting liability to pay for them. The submission was advanced, as we understood it, on the basis that by delivering the cattle to the Depot the respondent implicitly requested the agistment services.
The submission proceeds upon a false premise. It was not incumbent upon the respondent to rebut a presumption that by delivering the cattle to the Depot he was accepting liability for the agistment services. The proper question was whether, viewed as a whole and objectively from the point of view of reasonable persons on both sides, the conduct of the parties showed an agreement that the respondent would pay for the agistment services. Of course, where a person has ordered goods or services and has not said or done anything to indicate that they do not accept liability to pay for them, such an agreement might readily be inferred. That, however, is not this case. In this case, it was evident from what was said to Mr Lawless‑Pyne by both Mr Leeds and the respondent that the respondent had entered into an agreement to sell the contract cattle to Halleen or Elders, and that by delivering the contract cattle to the Depot the respondent was giving up possession of them under that agreement. That is hardly a propitious basis for a contention that it is to be inferred the respondent was accepting liability to pay for their agistment.
Counsel for the appellant also submitted that the magistrate had failed to give sufficient weight to the fact that the respondent was the owner of the cattle when they were delivered to the Depot. We do not accept that. That fact was relevant, but not decisive, and it was only one of the circumstances that had to be taken into account.
In our view, on the facts it was clearly open to the magistrate to conclude, as he did, that there was no inferred agreement that the respondent would pay for the appellant's services. The primary judge did not err in dismissing the appeal from the magistrate's decision.
We would add that it is unnecessary to resolve whether Elders or Halleen is liable to the appellant for the agistment fees. That question was not explored at trial and is irrelevant to the disposition of the appeal.

Conclusion

We would dismiss the appeal.