Metroll SA Pty Ltd v Powerpark Systems Pty Ltd - [2021] NSWDC 102

District Court

New South Wales

Medium Neutral Citation: Metroll SA Pty Ltd v Powerpark Systems Pty Ltd [2021] NSWDC 102
Hearing dates: 3-4 March 2021; 8 March 2021
Date of orders: 31 March 2021
Decision date: 31 March 2021
Jurisdiction: Civil
Before: Dicker SC DCJ
Decision:
(1) Judgment for the plaintiff against the second defendant.
(2) The parties are to bring in agreed Short Minutes of Order reflecting these reasons within seven days.
(3) If agreement cannot be reached on Short Minutes of Order, liberty is granted to approach the Associate to Dicker DCJ to relist the matter on three business days’ notice.
(4) The parties should attempt to agree an appropriate costs order for the proceedings. If agreement cannot be reached, liberty is granted to approach the Associate to Dicker DCJ on three business days’ notice to relist the matter for argument as to costs.

Catchwords:
CONTRACT – alleged manufacture and sale of goods said to be ordered on behalf of the first defendant company – alleged supply of part of the goods ordered – guarantee allegedly given by the second defendant director – whether second defendant liable pursuant to the alleged guarantee for goods said to have been ordered on behalf of the first defendant – identity of contracting parties
AGENCY – authority of alleged agent to order goods on behalf of the first defendant – whether actual authority (express or implied) – whether ostensible authority
COMPANY LAW – authority of sole director and secretary – whether holding out by director that agent had authority to order goods on behalf of the first defendant company

Legislation Cited:
Corporations Act 2001 (Cth)

Cases Cited:
Ankar Pty Ltd v National Westminster Finance (Aust) Ltd (1987) 162 CLR 549
Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising & Addressing Co Pty Ltd [1975] HCA 49; (1975) 133 CLR 72
Croucher v Cachia [2016] NSWCA 132
Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; [2017] HCA 12
Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7
Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd (1964) 2 QB 480
Left Bank Investments Pty Ltd v NgunyaJarjum Aboriginal Corporation [2020] NSWCA 144
Macquarie International Health Clinic Pty Ltd v Sydney Local Health District [2020] NSWCA 161
Management Services Australia Pty Ltd t/as Peak Performance PM v PM Works Pty Ltd [2019] NSWCA 107
Northside Developments Pty Ltd v Registrar-General [1990] HCA 32; (1990) 170 CLR 146
Sangha v Baxter [2009] NSWCA 78

Category: Principal judgment
Parties: Metroll SA Pty Ltd (Plaintiff)
Powerpark Systems Pty Ltd (in Liquidation) (First Defendant)
Jeremy Richard Rowe (Second Defendant)
Representation:
Counsel:
H Woods (Plaintiff)
No appearance for first defendant
R D Marshall SC and J Byrne (Second Defendant)
Solicitors:
Kanji & Co Solicitors (Plaintiff)
Keypoint Law (Second Defendant)

File Number(s): 2019/00133756
Publication restriction: No

Judgment

These proceedings relate to a claim by the plaintiff, Metroll SA Pty Ltd (“Metroll” or “Metroll SA”) against the second defendant, Mr Jeremy Richard Rowe, pursuant to a guarantee and indemnity allegedly provided by Mr Rowe to Metroll regarding the indebtedness of Powerpark Systems Pty Ltd (in liquidation), the first defendant, to Metroll for goods manufactured by Metroll allegedly at the request of the first defendant in 2018 relating to two projects in South Australia at the Elizabeth Shopping Centre and the Castle Plaza Shopping Centre. The plaintiff claims that it manufactured at the request of the first defendant steel purlins and related parts to be used in covered car parking areas which were aimed to support solar panels to provide electricity to the shopping centres. The plaintiff claims that the purlins were manufactured and delivered by it as required for the Elizabeth Shopping Centre site and were manufactured by it for the Castle Plaza Shopping Centre site but, in the latter case, were not delivered as payment was not received for them. The amount of the claim is $133,482.11.
Despite the relatively small sum involved, the proceedings raised for consideration a number of difficult factual and legal issues and involved a review of substantial documentation. There are a number of issues raised in the proceedings relating to the proper construction of a document entitled “Credit Account Application” which was executed by the second defendant on behalf of the first defendant and himself on or about 11 October 2018. The second defendant on the face of the Credit Account Application (“CAA”) provided a guarantee and indemnity in relation to the first defendant’s liability. The second defendant disputes that any of the goods in question were ordered with the authority of the first defendant, whether actual, usual or ostensible. The first defendant played no part in the proceedings as it is now in liquidation.

The pleadings

The proceedings were commenced by the plaintiff Metroll by Statement of Claim filed on 30 April 2019. This was amended by an Amended Statement of Claim filed 7 February 2020. In the Amended Statement of Claim, the plaintiff pleads in summary its claim as follows:

On or about 11 October 2018, the first defendant made an application for credit by a document being the CAA to the plaintiff. It is particularised that it was signed by the second defendant who was a director of the first defendant and was dated 11 October 2018;

On or about 12 October 2018, the plaintiff accepted the first defendant's application for credit and opened an account in the first defendant's name with account number PO2259;

As a result, on or about 12 October 2018, the plaintiff and the first defendant entered into a contract pursuant to which the plaintiff would manufacture and supply goods to the first defendant pursuant to the terms and conditions set out in the CAA;

Between 12 October 2018 and 31 October 2018, the first defendant placed nine orders with the plaintiff for the manufacture and supply of purlins to the Elizabeth Shopping Centre site. It is pleaded that in the same period the plaintiff manufactured the purlins pursuant to the orders placed by the first defendant and between 17 October 2018 and 31 October 2018, the plaintiff delivered the purlins to the Elizabeth Shopping Centre site;

On or about 12 October 2018, the first defendant placed an order with the plaintiff for the manufacture and supply of purlins to the Castle Plaza Shopping Centre site which were manufactured by the plaintiff on 19 October 2018. It is pleaded that at no stage did the plaintiff receive a request from the first defendant to cancel the order for the purlins for the Castle Plaza site. It is also pleaded that it was a term of the contract between the plaintiff and the first defendant that the first defendant could only cancel, vary or suspend an order (whether in whole or in part) if the plaintiff agreed in writing to such cancellation, variation or suspension. The plaintiff did not agree in writing or at all to the cancellation of the order for the Castle Plaza purlins as it did not receive a request to cancel the order;

Between 17 October 2018 and 5 November 2018, the plaintiff issued invoices to the first defendant for the price of the various purlins manufactured and the first defendant has failed to pay to the plaintiff the sum of $133,482.11 which is claimed by the plaintiff as a debt due;

It is pleaded that the second defendant, Mr Rowe, in consideration of the plaintiff agreeing to supply the goods to the first defendant on credit, guaranteed moneys owed by the first defendant. It is also pleaded that the plaintiff demanded from Mr Rowe the claimed amount owed by the first defendant on 1 April 2019 which has not been paid.

In an Amended Defence dated 17 September 2020, the second defendant raises various defences to the plaintiff's claim against him including:

The application was made to Metroll Queensland Pty Ltd and not to Metroll;

The plaintiff is not party to any contract arising by reason of the first defendant providing the CAA to the plaintiff;

The guarantee provided by Mr Rowe was to Metroll Queensland Pty Ltd and not to the plaintiff and the plaintiff was not entitled to the benefit of the guarantee;

The CAA was an application to open a cash account with Metroll Queensland and not the plaintiff. It is denied that there was a contract between the plaintiff and the first defendant to manufacture and supply goods pursuant to the CAA;

The second defendant was the sole director of the first defendant at all relevant times and was the only officer of the first defendant who was authorised to place orders for and on behalf of the first defendant. It is pleaded that the second defendant did not authorise and the first defendant did not otherwise place, any orders for the purlins for either the Elizabeth or Castle Plaza Shopping Centre sites. It is said that the second defendant did not know that the orders had been placed and could not cancel the orders. It is also disputed that some of the goods claimed were delivered.

In a Reply filed 13 October 2020, the plaintiff in response to the Amended Defence, sets out the alleged history between the plaintiff and the defendants relating to the purlins and pleads:

The second defendant was aware that he was dealing with Metroll as opposed to Metroll Queensland because he paid through the first defendant for a punch and die made for the first defendant by Metroll;

The CAA was returned by the first defendant, signed by the second defendant on his behalf and on the first defendant's behalf;

The CAA provided that it was directed to Metroll Queensland Pty Ltd and each related body corporate from which the customer orders goods or services and Metroll was a related body corporate of Metroll Queensland Pty Ltd;

The plaintiff manufactured purlins for both sites as a result of orders made by the first defendant to the plaintiff with confirmations of the orders being sent to the first defendant's email address;

Having regard to the fact that neither defendant had asserted from August 2018 to about September 2020 that the CAA was with Metroll Queensland and not the plaintiff, it is pleaded that the first and second defendants are estopped from denying that the application for credit was made by the first defendant to the plaintiff and that the guarantee was provided by the second defendant to the plaintiff;

It is also asserted that Scott Fitzgerald and Daniel Chapman had actual or alternatively apparent or ostensible authority to place orders on behalf of the first defendant;

It is accordingly claimed that the second defendant is liable for the amount sought pursuant to the guarantee.

Affidavit evidence – affidavits relied upon

The plaintiff read and relied upon the following affidavits:

Affidavits dated 18 December 2019, 7 July 2020, 18 August 2020, 4 November 2020 and 22 February 2021 of Mr Chad Porter. Mr Porter is and was at all relevant times the Branch Manager of the plaintiff, Metroll; and

Affidavit of Edward Murphy dated 29 October 2020. Mr Murphy is an information technology expert employed in the group of companies of which the plaintiff is one company.

The second defendant read and relied upon an affidavit affirmed by him dated 13 May 2020.

Background facts

As indicated above, there was considerable documentation in evidence before the court including emails, which formed part of annexures or exhibits to the affidavits referred to. The affidavits and the documents in evidence establish a number of factual matters which need to be set out. Unless otherwise indicated, the following constitute the court’s factual findings in the matter.
The first defendant, Powerpark Systems Pty Ltd, which is now in liquidation, was registered in 2011. At all relevant times, the second defendant was the sole director and secretary of the first defendant. This is permissible under s 201A of the Corporations Act.
Metroll Queensland Pty Ltd was registered in 1978. The vast majority of the shares in Metroll Queensland Pty Ltd were registered in the name of its holding company, Pacific Industrial Corporation SA.
Metroll was registered in 2007. All shares in Metroll were held by Pacific Industrial Corporation SA, the same holding company as Metroll Queensland Pty Ltd.
In 2018, Powerpark Australia Pty Ltd entered into contracts with Energy Solutions Pty Ltd trading as Beon Energy Solutions (“Beon”) to provide a solar carport structure for the holding of solar panels in galvanised steel structures to be placed above car park spaces in a number of shopping centres in South Australia. The structures were made of carbon steel fabricated by the first defendant to support a network of purlins to be obtained from a supplier: Rowe affidavit paragraphs 3-6. The plaintiff was a manufacturer of steel purlins in South Australia.
A Mr Daniel Chapman was the head of sales at the first defendant but was not a director of the first defendant: Rowe affidavit paragraph 38.
A Mr Scott Fitzpatrick was a subcontractor at certain of the shopping centre sites. It appears that he had been contracted to install the purlins on the steel structures to be supplied by the first defendant once they had been delivered at the relevant sites.
On 19 December 2017, Mr Chapman of the first defendant requested an employee of the first defendant to arrange an email address for Mr Fitzpatrick: “[email protected]”. A user account was in due course created for Mr Fitzpatrick by a design/project consultant at the first defendant in about February 2018. Thereafter, Mr Fitzpatrick either used the Powerpark email address or an email address at his own company: “scott@pvsxxx”. In his affidavit, Mr Rowe states that at no time did the first defendant engage any person, including Mr Fitzpatrick, to represent it or to be its agent in relation to ordering any products, including purlins, in connection with the two projects. Mr Rowe also states that he never authorised Mr Fitzpatrick to have an email address representing that he worked at or for the first defendant: Rowe affidavit paragraphs 35-38.
In evidence were emails between Mr Fitzpatrick and Mr Chapman in August 2018 which establish that the project was a large one, with Mr Fitzpatrick providing details of the program for the establishment of the structures at the relevant sites: Exhibit C pages 52-81. This included a budget estimate from Mr Fitzpatrick at PV Structures to Mr Chapman at the first defendant relating to the cost of PV Structures erecting the shade structure installation in the sum of $1,542,400 plus GST. In his oral evidence, Mr Rowe accepted that the project was a very large one for the first defendant.
Despite paragraph 37 of Mr Rowe’s affidavit in which he states that he never authorised Mr Fitzpatrick to have an email address “representing that he worked at or for the first defendant”, there were in evidence various emails from Mr Fitzpatrick using the email address “[email protected]” copied to Mr Chapman and Mr Rowe. One of these was an email dated 27 August 2018 to Mr Porter of the plaintiff. This email supports the fact that there were discussions between Mr Fitzpatrick and Mr Porter under an email entitled “Powerpark Projects Team” relating to the purlin requirements for the Elizabeth and Castle Plaza project sites. It is clear that the first defendant needed holes drilled or punched into any purlins supplied to fit the relevant structures. There is no evidence that at any time, the second defendant, Mr Rowe, informed Mr Chapman or Mr Porter of Metroll that Mr Fitzpatrick had no authority to act for the first defendant in its dealings with Metroll. It would be expected that if Mr Rowe was of this view, he would have promptly made this clear to Mr Fitzpatrick and/or Mr Chapman when he saw relevant emails relating to the first defendant’s purlin needs and also informed Mr Porter accordingly.
Metroll, at the relevant time, manufactured and supplied steel building products including roofing, cladding, rainwater, structural and fencing products including purlins. Whilst most products were manufactured to a standard thickness and profile, lengths and punching details were based on customers’ specifications. As stated, at the relevant time Mr Chad Porter was the Branch Manager in South Australia for Metroll. At the time, Metroll supplied products on a cash basis or on credit and if a customer wished to open a credit account with Metroll it was required to complete a CAA provided by Metroll. At the relevant time, the CAA was a paper document comprising four pages of a single document printed on A3 paper and folded into a booklet.
In his first affidavit dated 18 December 2019, Mr Porter sets out conversations which he says he had with Mr Rowe and Mr Fitzpatrick in late August 2018 in relation to the supply of purlins by Metroll. The discussions included that the first defendant required purlins with holes which were drilled or punched. Mr Porter referred in his conversation with Mr Rowe to the need for the first defendant to purchase a custom-made punch and die.
It seems that there was a discussion between Mr Porter and Mr Rowe in relation to the need for the first defendant to complete a CAA and as Mr Rowe had some future projects around Australia, Mr Porter recommended that a national account be set up rather than simply an account with Metroll SA. Mr Porter states that he contacted Mr Paul Jensen, one of Metroll’s National Business Development Managers, and asked him to send an account application to Mr Rowe: Porter 7 July 2020 affidavit paragraph 9. I accept that evidence.
In evidence was an email from Mr Jensen to Mr Rowe dated 31 August 2018 to the email address “[email protected]” which was copied to Mr Porter and Mr Chapman attaching a CAA addressed to “Metroll Queensland Pty Ltd and each related body corporate from which the Customer orders goods or services”. The document was of four pages in length with a guarantee and indemnity on the second page.
In the September-October 2018 period, there were a number of emails between Mr Porter and either Mr Rowe or Mr Fitzpatrick relating to the manufacture by the plaintiff of a punch and die for the purlins or the purlins themselves. In my view, it is clear from the emails that the second defendant Mr Rowe was aware that Mr Fitzpatrick had an extensive involvement in relation to plans for the first defendant's role in obtaining the purlins from the plaintiff: see for example email dated 5 September 2018 (the reference to “Scott” in the email I find likely to be a reference to Mr Fitzpatrick). In an email dated 6 September 2018 from Mr Fitzpatrick to Mr Porter which was copied to Mr Rowe, Mr Fitzpatrick attached a “first order spreadsheet” as to what was needed for purlins at the Castle Hill site. Again, there is no evidence that Mr Rowe disputed Mr Fitzpatrick's involvement or authority to act on behalf of the first defendant. This matter will be considered further below.
The second defendant Mr Rowe ordered from the plaintiff the required punch and die to make holes in purlins. This was after the receipt by Mr Rowe from Mr Porter of a quote for the punch and die which indicated that the name of the Metroll entity providing the quote was “Metroll SA Pty Ltd”. In due course, on 11 October 2018 Mr Rowe sent an email to Mr Porter indicating that payment was made by the first defendant to Metroll for the custom made punch and die. The Metroll account credited was the one indicated in the quote as being in the account name of “Metroll SA Pty Ltd”.
On 21 September 2018, Mr Fitzpatrick from his Powerpark email address sent an email to Mr Porter copied to Mr Rowe with the subject “Castle and Elizabeth Order 1” relating to purlins. This was sent so that Mr Porter would know the quantities involved but required confirmation. Again, there is no evidence that Mr Rowe disputed Mr Fitzpatrick's authority to make the orders of purlins on behalf of the first defendant. The email had an attached document with extensive details relating to the purlins required for the projects for both Elizabeth and Castle Plaza. The attachment referred to “Order 1 requirements” for each site.

On 28 September 2018, Mr Fitzpatrick from his Powerpark email address forwarded an email to Mr Porter copied to Mr Chapman and Mr Rowe with the subject “Final revised orders for first order at Elizabeth and Castle” with the following message: “Hi Chad, final revision good to go for the first orders at Elizabeth and Castle Plaza”. There is no evidence that Mr Chapman or Mr Rowe disputed Mr Fitzpatrick's authority to send the email under the sign off description above Mr Fitzpatrick’s name of “Powerpark Projects Team”. The attachment referred to purlins required for Castle Plaza “on or before Wednesday 5th of October” and for Elizabeth “on or before Wednesday 19th”.
There is an email dated 9 October 2018 from Mr Porter to Mr Rowe relating to the subject “Castle Plaza & Elizabeth purlin orders” stating:

“Scott is just checking the punching details, once he has done that we are ready to proceed with the orders for both Castle Plaza & Elizabeth.
For us to proceed I either need the completed account application form or payment.
I've attached the quote for both projects as well as the punch & die”.

Annexed were quotes for the purlins and the die. The terms on quotes were “cash with orders”. I accept that the reference to “Scott” in the email was a reference to Mr Fitzpatrick.
There is an email dated 11 October 2018 from Mr Fitzpatrick at his Powerpark email address to Mr Porter copied to Mr Rowe, Mr Chapman and Mr Ryan at PV Structures relating to punching details concerning the sites. The email includes “Just spoke to Jem, account form will be with you this afternoon”. I find that this is a reference to the CAA.
On 12 October 2018, an email was sent from Ms Hanley from “PowerPark Admin” at the email address “[email protected]” to Mr Jensen and Mr Porter copied to Mr Rowe with the subject “Cash Only Account – Form”. Mr Rowe relies on the subject heading in this email as showing that what was intended was purely a cash account and not a credit account. However, that is inconsistent with the CAA document completed. No evidence was given by Ms Hanley in the proceedings.
The document forwarded by Ms Hanley is headed “Credit Account Application to Metroll Queensland Pty Ltd and each related body corporate from which the Customer orders goods or services”. The customer was “Powerpark Systems” which I find to be a reference to the first defendant with the details of “Proprietors, Partners, Directors” being Mr Rowe. The CAA was signed by Mr Rowe on behalf of the first defendant pursuant to s 127(1) of the Corporations Act 2001 (Cth).
The CAA signed by Mr Rowe had four pages. The first page executed by Mr Rowe on behalf of the first defendant was not dated. The second page of the CAA provided a guarantee and indemnity by Mr Rowe which was dated 11 October 2018. The guarantee and indemnity included the following:

“In consideration of the Company (being Metroll Queensland Pty Ltd and each related body corporate that supplies goods or services to the Customer) at my/our request (which I/we hereby make) agreeing to supply and/or to continue to supply the Customer and at my/our express request forbearing to sue for any monies now owing to the Company by the Customer I [Jem Rowe] (“the Guarantors”) hereby JOINTLY AND SEVERALLY GUARANTEE to which Company the due and punctual payment of all monies owing or remaining unpaid to the Company by the Customer as follows:
1. The Guarantors will pay to the Company on demand without deduction or set-off, all monies now payable or may in the future be payable by the Customer including without limitation all interest, administration, collection and legal costs of recovery of such monies, and the Company need not first take recovery proceedings against the Customer.”

The guarantee and indemnity was signed by Mr Rowe with Ms Hanley as the witness. Pages 3 and 4 of the document were the terms and conditions of sale of the CAA which are referred to on page 1 in the following way:

“I/We acknowledge receipt of the Terms and Conditions of Sale of the Company specified on pages 3 and 4. I/We agree that notwithstanding any other document, terms and conditions, and/or anything else except a written agreement signed by me/us and the Company any sale and delivery of goods and services to me/us shall be upon these Terms and Conditions of Sale and no other except for such terms as are implied by or under any law and which cannot be excluded.”

Reference will be made to other aspects of the CAA later in these reasons when dealing with some of the arguments raised by the second defendant.
On 16 October 2018, Mr Porter sent an email to Mr Fitzpatrick with the subject “Castle Plaza Purlins” indicating that he was going on annual leave and that the “Castle Plaza purlins are being manufactured this week, ready for call up. Just let Rob know when you need them”.
There is an email dated 17 October 2018 from Mr Hayden Webb, described as Site Manager at the Elizabeth site under the heading of “Beon Energy Solutions”, the entity with which the first defendant had its contract, to various persons giving an update in relation to the Elizabeth site which included as follows:

“Zone 2 - Structures continued today and purlins were delivered to site today. We will start to install purlins tomorrow and at this stage it looks like we will be moving into zone 3 Monday to start the structure install”.

On 18 October 2018, Mr Ryan Ford from the email address “ryan@pvsxxx” forwarded to a Jay Hook at Metroll an email under the heading “Elizabeth Order 2” containing an order for the Elizabeth City Centre site which was stated to need to arrive on site on “Tuesday morning at 6:30am”. The following was added in the email “Please bill Powerpark”. There was annexed an order relating to purlins for the Elizabeth site with the annotation “required on site on or before Monday 22^nd of”. On the face of it, it is unclear what role Mr Ford played at the site other than his title on the email of “Projects Supervisor PV Structures”.
There is an email from Mr Rowe to Mr Hook at Metroll dated 26 October 2018 referring to an error apparently in relation to the hole punches on the purlins.
On 29 October 2018, Mr Fitzpatrick from the email address at Powerpark sent an email to Mr Porter copied to various persons including Mr Ford and Mr Chapman in relation to the Castle Plaza purlins. The email attaches orders for the Elizabeth site. It provides: “Can you get back to me to let me know that you have received this and that the order can be processed in time”. See also paragraph 45 and pages 33-47 of Exhibit CP1 to Mr Porter's 18 December 2019 affidavit.
On 29 October 2018, Mr Porter sent an email to Mr Fitzpatrick, copied to various persons including Mr Ford and Mr Chapman, relating to the Castle Plaza purlins saying that the order was being placed in the system and asking Mr Scott when he required the Castle Plaza purlins. This email also was in response to Mr Fitzpatrick's 29 October 2018 email sent at 10.22am referred to above ordering further purlins. Mr Fitzpatrick sent an email to Mr Porter on 29 October 2018 at 2:04pm, copied to Mr Chapman and Mr Hook of Metroll, stating: “Castle’s still a work in progress mate. Potentially a few more weeks over there (if anything pre-Christmas) while we concentrate on banging some structures out at Elizabeth first”.
In paragraph 57 of his 18 December 2019 affidavit, Mr Porter states that he regarded the email as indicating that there were some delays on the Castle Plaza project but he did not consider the email to indicate that the Castle Plaza project would not go ahead. In paragraph 58 of the same affidavit he states that at no stage was he advised not to manufacture the purlins required for the Castle Plaza order or that the Castle Plaza project would not proceed. In paragraph 59 he states that after enquiries he is satisfied that no-one at Metroll was advised not to manufacture the purlins required for the Castle Plaza order nor that the Castle Plaza project would not proceed. He states that Powerpark has not requested delivery of the Castle Plaza order which Metroll continues to have stored in its yard.
It should be noted that the CAA signed by Mr Rowe indicated the email address for the first defendant for the purposes of the CAA to be “[email protected]”. Mr Rowe's email address was “[email protected]”. The website address for the first defendant was in fact “ The email from Ms Hanley was sent from “[email protected]”. Accordingly, it would appear that the email address on the CAA was incorrect. This was later supported by the oral evidence of Mr Murphy who was called on behalf of the plaintiff.
Accordingly, when Metroll forwarded its confirmations, invoices and accounts to the first defendant they were forwarded to the wrong email address being “[email protected]”. In evidence was a large amount of email correspondence to this address seeking payment. Eventually a letter of demand was forwarded by mail. When enquiries were made by the first defendant relating to the invoices which were not received, they were forwarded on 18 March 2019 to the correct email address indicating that the total amount owing was $133,482.11. An employee of the first defendant indicated in an email also sent on 18 March 2019 that she was entering the invoices and stated the following: “We will just need to validate with the site and then we will organise payment”. A later email dated 21 March 2019 indicated that the emails were forwarded to Mr Rowe, the second defendant. Mr Rowe denies receiving the invoices from this employee. He later did receive them. Letters of demand followed from the solicitors for the plaintiff to the first defendant.
Mr Porter also sent text messages to Mr Rowe in relation to payment. Mr Rowe requested more information. By email dated 15 May 2019, Mr Rowe indicated that there was a dispute and that some goods were not delivered.
As stated, Mr Rowe in his 13 May 2020 affidavit indicated that at no time did the first defendant engage any person including Mr Fitzpatrick to represent it or to be its agent in relation to ordering any products including purlins in connection with the project. It is asserted that no authority was given to Mr Fitzpatrick. It is also stated that Mr Chapman was not a director of the first defendant. Mr Rowe states that as far as he was aware, no one had ordered purlins from the plaintiff. It was only when he visited the Elizabeth site in late November 2018 that he discovered that purlins had been delivered and installed on parts of the structure. Mr Rowe repeats in paragraph 42 that at no time did he or the first defendant authorise Mr Fitzpatrick to order purlins from the plaintiff. In paragraph 66 Mr Rowe states that the first defendant had never owned or had control of the email address “[email protected]”. He also asserts that he did not provide the plaintiff with such an email address. That is inconsistent with the email address on the CAA signed by Mr Rowe. It is also noted that in her email dated 12 October 2018 which was copied to Mr Rowe, Ms Hanley asked if she has filled the form out correctly with the CAA indicating the email address of the first defendant being “[email protected]”. Accordingly, Mr Rowe had the CAA forwarded to him and thus had the means of knowledge to correct the email address inserted in the CAA.

The affidavits and the oral evidence of the witnesses

Mr Edward Murphy

The plaintiff read an affidavit of Mr Edward Murphy affirmed 29 October 2020. Mr Murphy is employed by the Kanji Group of Companies as its Chief Technology Officer. The Kanji Group of Companies includes Metroll. Mr Murphy annexes to his affidavits email logs for email communications sent by all computer systems in the Metroll network to the “[email protected]” email address between October 2018 and November 2018. Mr Murphy states that a review of the email logs indicates that at no time was an email sent to the email address of “[email protected]” which was undelivered.
In his oral evidence, Mr Murphy confirmed that the email address “powerpark.com” may be an email address in Norway and confirmed that from the various documents which are Exhibit 1. He agreed that if the email address of the first defendant was “powerpark.com.au” that the email sent to “powerpark.com” would not arrive at that email address. He also accepted that in the log there were some emails which were sent to the email address “[email protected]”.

Mr Chad Porter

Mr Porter, as set out above, affirmed five affidavits in the proceedings.
In his first affidavit dated 18 December 2019, Mr Porter stated that he was the Branch Manager at the relevant time employed by Metroll and had been employed in that position since 13 July 2015. As Branch Manager for Metroll, he was responsible for all of the day-to-day operations of Metroll.
In paragraphs 6 and following of his first affidavit, Mr Porter sets out Metroll's practice for the supply of goods on credit. Metroll also supplied goods on a cash basis. He gives evidence that if a customer wishes to open a credit account with Metroll it must complete a CAA provided by Metroll. The way a CAA is opened and Metroll’s practices relating to a customer ordering products are set out in paragraphs 17-28 of his affidavit.
From paragraph 29 in his first affidavit, Mr Porter sets out details of initial telephone conversations with the second defendant Mr Rowe and with Mr Fitzpatrick. In the conversation with Mr Rowe, Mr Rowe gave him some details of the Elizabeth and Castle Plaza Shopping Centre projects and the need of the first defendant for purlins with special punching. Mr Porter refers to various emails which he received from Mr Fitzpatrick attaching the purlin requirements of the first defendant. He also gives evidence of the ordering of the punch and die by Mr Rowe and the payment for it.
Mr Porter in his affidavit sets out the details of the CAA forwarded to Metroll by Ms Hanley of the first defendant. He states in paragraph 43 of his first affidavit that on or about 12 October 2018, Metroll opened an account in the name of Powerpark with an allocated number. He notes that the particular CAA was used because Mr Rowe had advised him during discussions that Powerpark would be constructing projects all around Australia and a national account would be most suitable.
In paragraphs 36-40 and 45 and following, Mr Porter gives evidence about the orders for the supply of products which he states came from Powerpark and the invoices issued for those orders. He also gives evidence of the failure by the first defendant to pay for the products and the various demands made to it. The total value of the invoices from Metroll to Powerpark is stated in paragraph 74 of his affidavit to be $133,482.11. In paragraph 75 he states that Powerpark has not paid the invoices.
In Mr Porter's second affidavit dated 7 July 2020, Mr Porter responds to the affidavit of Mr Rowe. In paragraph 9, Mr Porter rejects Mr Rowe’s versions of conversations relating to Mr Rowe's desire to set up a cash account. However, Mr Porter accepts that Mr Rowe said words to the effect that he would normally pay upfront for the goods but due to the scale of the project he wished to set up an account to help with cash flow. Mr Porter said he stated to Mr Rowe that he would need to complete an account application. Due to the fact that Mr Rowe stated that he had some future projects around Australia, Mr Porter recommended a national account so that the first defendant would not need to complete a new credit application each time it dealt with another branch of Metroll. Mr Porter said that he then contacted Mr Jensen, one of Metroll's National Business Development managers, and asked him to send an account application to Mr Rowe.
Mr Porter in paragraph 10 and following gives evidence of his discussions with Mr Rowe relating to the purchase by the first defendant of a punch and die tool to create the hole sizes required by the first defendant in the purlins the plaintiff was to supply. Mr Porter annexes various emails from Mr Rowe including where he provided Mr Rowe with a quote from Metroll for the punch and die. Mr Rowe on behalf of the first defendant paid for the punch and die into the bank account of the South Australian Metroll company. Mr Porter also gives evidence of receiving a copy of an email from Ms Hanley dated 12 October 2018 with the completed CAA.
In paragraph 17, Mr Porter states that he understood from various conversations with Mr Rowe and Mr Fitzpatrick that the first defendant was subcontracting Mr Fitzpatrick to organise the installation of the support structures which included the purlins. In paragraph 19 of his second affidavit, Mr Porter states that the first time he became aware that Mr Rowe was asserting that Powerpark had not place the orders with the plaintiff was in his (Mr Rowe’s) affidavit and the Amended Defence dated 13 May 2020. In paragraph 20 of his second affidavit Mr Porter refers to various emails which he received from Mr Fitzpatrick from the email address “[email protected]” or which was sent to the email address “[email protected]”.
Mr Porter then gives evidence of the various orders which he received for purlins for the two projects.
In paragraph 26 of his second affidavit, Mr Porter states that he was never informed by Mr Rowe or anyone else from Powerpark that it had changed its contract with the head contractor Beon and would not now be supplying purlins. In paragraph 27, he refers to various conversations with Mr Rowe over the telephone about payment during which he (Mr Rowe) did not dispute the debt to the plaintiff.
Mr Porter affirmed an affidavit dated 18 August 2020. In this third affidavit Mr Porter exhibits a colour version of the CAA as it was received by the plaintiff from Ms Hanley. He also refers to various confirmations and invoices emailed by the plaintiff to Powerpark. These appear to have been sent to the email address on the CAA which was not the email address of the first defendant. Mr Porter also annexes photographs of the purlins manufactured by the plaintiff for the Castle Plaza project that remain at Metroll’s site in South Australia.
Mr Porter affirmed a fourth affidavit dated 4 November 2020. In paragraph 3 of the fourth affidavit, Mr Porter notes that the payment for the punch and die by Mr Rowe was made into the account of Metroll SA.
Mr Porter also exhibits the transmission protocol register for Metroll confirming the sending of the emails containing order confirmations, tax invoices and statements to the email address on the CAA which was not the correct email address of the first defendant. See also paragraphs 9-10 of the fourth affidavit.
Mr Porter affirmed a fifth affidavit dated 22 February 2021. He annexes company searches for Metroll Queensland and Metroll to his affidavit.

Oral evidence of Mr Porter

In his oral evidence, Mr Porter confirmed that the various emails sent or copied to him which were sent or copied also to Mr Rowe were sent or copied to the email address for Mr Rowe of “[email protected]”. These emails became Exhibit A in the proceedings. In his affidavit, Mr Rowe stated that this was his email address.
Mr Porter also confirmed in his oral evidence in chief that the photographs attached to his third affidavit of purlins for the Castle Plaza site which were manufactured by the plaintiff remained stored at Metroll’s premises at Salisbury in South Australia. He stated that the purlins could not be used for anything else as they were custom-made. Later in his cross-examination, Mr Porter stated that Metroll had spoken to Beon, the head contractor at the site, but they said that they could not use the purlins manufactured by the plaintiff. Mr Porter said that they had special holes made in the purlins and the purlins had been individually manufactured to meet the ordered requirements. He said that there were holes punched all through the purlins to suit the orders. I am satisfied from this evidence that the purlins manufactured for the first defendant cannot be used for other sites.

In his cross-examination, Mr Porter rejected the proposition that a customer who wished to order goods from Metroll had to fill out a CAA. He said this was not necessarily the case and a customer could pay for the goods first through either EFTPOS or with cash or on 30 day terms. Mr Porter accepted that the plaintiff was initially not able to manufacture and deliver orders for the Castle Plaza site as the CAA had not been signed by the first defendant and the plaintiff was waiting on it: see paragraph 38 of his first affidavit. Mr Porter agreed that he told Mr Rowe that a form needed to be filled out by him.
Mr Porter agreed that in a conversation with Mr Rowe, Mr Rowe had some reservations about obtaining credit and that he said to him that it was not normally his practice to do so but added that the size of the project and cash flow issues meant that credit was needed. He accepted that Mr Rowe had stated that he did not want to apply for credit but he needed to do so for these projects. Mr Porter rejected the proposition that Mr Rowe only sought credit to be extended by the plaintiff for a small amount but said that he mentioned credit only being extended for a couple of weeks. He agreed that Mr Rowe may have said that he was concerned in having anything more than a small amount of credit because the credit could blow out. Mr Porter stated that the credit limit on the account of the first defendant was $100,000 although this was not referred to in his affidavit. He agreed that he did not tell Mr Rowe of the credit limit or Mr Fitzpatrick as it was company policy not to discuss internal credit limits with the customers.
Mr Porter was taken to the email from Ms Hanley of the first defendant dated 12 October 2018 which was copied to Mr Jensen, Mr Porter and Mr Rowe and which had as the subject “Cash Only Account – Form”. He agreed that this email had attached to it the completed CAA. It was put to him that because of the conversation which he had had with Mr Rowe about credit that it was not a surprise to him that the document subject was “Cash Only Account”. Mr Porter stated that the first defendant did not need to fill out the CAA if payments were to be made by cash. He stated that the purpose of the CAA was to provide credit. If a customer wished to pay cash they did not need a credit account.
Mr Porter was then taken to the order placed by Mr Rowe with the plaintiff for the punch and die with the terms on the quote “cash with order”: Exhibit CP2 page 17. Mr Porter stated that money was transferred by the first defendant to Metroll’s account in payment. He denied a conversation with Mr Rowe in November 2018 in which Mr Rowe had said in the context of the winding up application against the first defendant that it was a “good thing” that the plaintiff did not give the first defendant credit. Initially, Mr Porter said that despite being aware of the winding up application he continued to extend credit to the first defendant as he believed the excuse for the winding up application given by Mr Rowe that the application was fraudulent but later amended his evidence in re-examination to say that the last order from the first defendant was at the beginning of November 2018.
Mr Porter agreed that an invoice was sent out by Metroll once an order had been placed, in this case to the email “[email protected]”: see Exhibit CP1 at page 119. He also agreed that the first order was made by Mr Fitzpatrick on 28 September 2018 (Exhibit CP1 page 24) even though the CAA credit account was not opened until 12 October 2018 for the first defendant. It was put to Mr Porter that he did not send the CAA to Mr Fitzpatrick which he agreed to. He said it was sent to Mr Rowe: however, he gave evidence that Mr Rowe had told him to deal with Mr Fitzpatrick on a day-to-day basis in organising the purlins. He agreed that this conversation was not referred to in his affidavits but denied that Mr Rowe did not say that.
I have some difficulty in accepting this evidence. This would have been such a significant conversation as it would have resulted in Mr Rowe giving authority to Mr Fitzpatrick. It is highly likely that Mr Porter would have included it in his affidavits if it had occurred.
Mr Porter was asked a number of questions about Metroll’s policies relating to deliveries. He stated that in the vast majority of cases the Metroll policy was followed. He stated that with 80% of deliveries no-one was on the site to take delivery. The company preferred to have someone sign for the delivery but otherwise backup photos of the delivery were desired. He agreed that now and then there was neither a signed receipt nor photos of the delivered goods. Usually the delivery driver also signed to indicate that the delivery had occurred. An example of the signature for the delivery was Exhibit CP2 page 114, although Mr Porter was not aware whose signature it was. While accepting that 100% of deliveries were not always shipped on the date for shipment indicated in a delivery advice, Mr Porter stated that he worked at the Metroll premises on a day-to-day basis and he could not recall any deliveries for the first defendant being returned by Metroll’s drivers. In my view, this is significant evidence in support of the fact that the deliveries claimed in relation to the Elizabeth site were delivered as claimed by the plaintiff. However, Mr Porter agreed that he had not himself taken the photographs of the delivered goods.
Although he was initially unable to identify the photograph of the goods in a shopping trolley at Exhibit CP1 page 68, in re-examination Mr Porter gave evidence that these were joining plates which he ordered himself and checked that they were correct.
In relation to the delivery advice signed by “Ryan” at Exhibit CP2, Mr Porter stated that he assumed this was a person called Ryan at PV Structures.
When asked by the court why Mr Porter believed Mr Ryan Ford of PV Structures had authority to order purlins for the first defendant (Exhibit CP1 page 33), Mr Porter said he did not put the order through but he recalled that he was dealing with Mr Ford as well as Mr Fitzpatrick on the site. Mr Porter said that he only dealt with either Mr Fitzpatrick or Mr Rowe in relation to orders for the first defendant. He gave evidence that he had met Ryan Ford in the presence of Mr Fitzpatrick when they had come to meet with him at the start of the project before goods had been ordered. Mr Porter said that as far as he was aware, neither Mr Hook nor Mr Chadha who were employees of Metroll had queried Mr Fitzpatrick's ability to order on behalf of the first defendant.
Initially, Mr Porter gave evidence that the order confirmations were not referred to in his affidavits but in re-examination he identified that the order confirmations were annexed as Annexure “C” to his fourth affidavit dated 4 November 2020 and had been forwarded by Metroll to the email address “[email protected]”. Mr Porter said that the confirmation of the order was sent when Metroll had processed the order.
Mr Porter was asked about his dealings with Mr Rowe in April 2019 when the plaintiff asserted that the first defendant owed money to it. He agreed that Mr Rowe had requested copies of the invoices and orders placed and that he had Mr Rowe’s personal email address but they were initially sent to “[email protected]”. It should be noted that this is the email address indicated on the CAA signed by Mr Rowe. Mr Porter was not aware whether anyone had telephoned Mr Rowe in relation to the overdue account prior to May 2019.
In re-examination, Mr Porter confirmed that the email relating to the first order (Exhibit CP1 page 24) had led to the invoice with a date of order 12 October 2018 which is at Exhibit CP1 page 119. The confirmation relating to this order was annexed to Mr Porter's fourth affidavit and is referred to in paragraph 8 of that affidavit. This was confirmation 413086 (first page of Annexure C to Mr Porter's fourth affidavit). The confirmation was forwarded on 12 October 2018 even though the order was made on 28 September 2018, as Metroll was waiting for the signed CAA form from Mr Rowe. Mr Porter said the confirmations were sent to the email address on the CAA form being “[email protected].”
Mr Porter impressed the court as an honest witness who was doing his best to answer the questions asked of him correctly and fully. Overall, despite occasional lapses in memory which were corrected in re-examination, I accept him as a witness of truth. He made concessions where appropriate. I do not, however, accept his evidence that Mr Rowe had stated to him that Mr Porter should deal with Mr Fitzpatrick on a day-to-day basis in relation to organising the purlins from the plaintiff. This conversation would have been a crucial conversation which, if stated, would have been referred to in Mr Porter's affidavits which it was not. For this reason, despite me forming the view that Mr Porter was a generally honest witness, some care should be taken in considering his oral evidence, particularly if it is inconsistent with contemporaneous documents.

Mr Rowe

As indicated above, Mr Rowe affirmed and relied upon an affidavit dated 13 May 2020.
In his affidavit, Mr Rowe gives some detail in relation to the contractual arrangements concerning the building of the solar panel car shade structures at Elizabeth Shopping Centre and Castle Plaza Shopping Centre in Adelaide in South Australia. The first defendant's involvement at the sites was to supply the steel structures which, with the purlins which were to be supplied by Metroll, would support the solar panels. Mr Rowe states in his affidavit that in July or August 2018 he contacted both Metroll and Lysaght, two dominant purlin manufacturers in Australia, to obtain quotes and this resulted in him dealing with Mr Porter at Metroll.
Mr Rowe in paragraphs 9 and following of his affidavit, sets out his business practice of very rarely allowing the opening of credit accounts for any of his businesses, with any limits being small. In paragraphs 14 to 16 of his affidavit, Mr Rowe claims that he said to Mr Porter that he wished to have dealings with the plaintiff on a cash basis with payments upfront and no debt to be created of the project. In paragraph 18 of his affidavit, he refers to the subject heading in the 12 October 2018 email from Ms Hanley at the first defendant being the heading “Cash Only Account - Form”.
Having seen Mr Rowe and Mr Porter being cross-examined on this issue, I reject Mr Rowe’s evidence on this matter and prefer the evidence of Mr Porter. Whilst I accept that Mr Rowe informed Mr Porter that he did not like credit and preferred to pay in cash, Mr Rowe accepted in his evidence that this was a very large project for the first defendant, much larger than it had dealt with before. Having regard to the CAA ultimately signed by Mr Rowe, I am satisfied that he was aware that it was a credit application and that he sought the credit application because of the size of the project and cash flow issues which would be involved in the project. The subject heading in the 12 October 2018 email from Ms Hanley did not reflect the CAA which was signed. I also reject the contents of paragraph 23 of Mr Rowe’s affidavit and prefer the evidence of Mr Porter that this conversation did not occur. Such a conversation is inconsistent with the CAA signed by Mr Rowe and the extent of the project which the first defendant was involved in.
In paragraphs 35 and following in his affidavit, Mr Rowe refers to Mr Scott Fitzpatrick and his involvement on the sites. Mr Rowe denies authorising any person including Mr Fitzpatrick to represent the first defendant in ordering any products including purlins in connection with the projects or authorising Mr Fitzpatrick to have an email address representing that he worked at or for the first defendant. Mr Rowe claims in paragraph 39 of his affidavit that as far as he was aware no-one had ordered purlins from the plaintiff. He said he only became aware of this when he visited the Elizabeth site in around late November 2018 and discovered that purlins had been delivered and installed on parts of the structures. Mr Rowe said that he was working on a fulltime basis concentrating on the construction of the steel components in order to keep up with the demands and requirements of Beon, the contractor on the site: paragraph 43 of his affidavit. Mr Rowe refers to a conversation with Mr Fitzpatrick after he had received copies of the plaintiff’s invoices for the orders to the effect that not all purlins had been delivered on site and that Mr Fitzpatrick had cancelled the order for the Castle Plaza purlins: paragraph 44.
In paragraph 58 of his affidavit, Mr Rowe gives evidence that he visited the project site (presumably at Elizabeth) in February 2019 and took photos of the progress of the overall construction, noting that steel components had been erected with some of the structures having purlins erected on them.
In paragraphs 60 and following, Mr Rowe deals with his dealings with Mr Porter relating to the alleged outstanding invoices and Mr Rowe questioning what the invoices were: paragraph 63. In paragraph 66, Mr Rowe emphasises that the first defendant has never owned or had control of the email address “[email protected]” which was referred to in the CAA signed by him. In paragraph 71, Mr Rowe asserts that the project was completed with all purlins having been installed and delivered by “other parties”.
In his oral evidence in chief, Mr Rowe denied that he informed Mr Porter that Mr Fitzpatrick could order goods on the first defendant's account.
In cross-examination, when asked whether he was familiar with a cash account and a credit account, Mr Rowe claimed that he had never applied for a credit account or an overdraft. This is inconsistent with the CAA signed by him. The document is, in my view, clear on its face, and I do not accept that Mr Rowe believed it was an application solely to open a cash account with the plaintiff. This is particularly the case where trade references were supplied on page 1 of the CAA. If Mr Rowe had believed it was a cash account application only, there would appear to have been no reason for him to have signed the guarantee and indemnity on page 2 of the CAA. When asked whether he was concerned at signing a guarantee, Mr Rowe said that he did not realise it was a guarantee when he signed it and he did not give it his attention. I reject this evidence. Mr Rowe's signature is immediately below the word “Guarantor”. Page 2 of the CAA is headed “Guarantee and Indemnity”. The word “Guarantor” above his signature is in bold. In my view, it is inconceivable that Mr Rowe did not notice that he was signing a guarantee and indemnity at the time and was not aware of it. As stated, if there was no guarantee and indemnity there would have been no need to sign page 2 of the CAA.
During his cross-examination, Mr Rowe appeared to distance himself from Mr Fitzpatrick and stated that Mr Daniel Chapman of the first defendant approached Mr Fitzpatrick not him. However, he stated that Mr Chapman only took over responsibility for the sales at the Elizabeth and Castle Plaza sites not the project itself. Mr Rowe said that he never engaged PV Structures of which Mr Fitzpatrick was a director for the site. However, Mr Rowe conceded that at no stage did he tell Mr Fitzpatrick not to deal with the first defendant through Mr Chapman as Mr Chapman had no authority to deal with him.
Mr Rowe stated that he did not recall a conversation with Mr Porter about it being best for the first defendant to set up a national account as it had some future projects around Australia.
In my view, a conversation to this effect occurred and this explains why the CAA form was forwarded by Mr Jensen of Metroll to Mr Rowe and, when returned, was copied to Mr Jensen who was a National Manager. It explains why Mr Rowe did not simply deal with the South Australian office of Metroll. In his evidence, Mr Rowe accepted that he had received the CAA form from Mr Jensen. I reject Mr Rowe's evidence that when he signed the CAA he did not know that the application was for credit from the plaintiff and that he was guaranteeing the first defendant's obligations.
Mr Rowe was asked a number of questions about emails from Mr Fitzpatrick where the email concluded “Scott Fitzpatrick Powerpark Projects Team”: see emails dated 27 August 2018, 6 September 2018, 21 September 2018, 28 September 2018 and 11 October 2018. Mr Rowe claimed that he did not notice this at the end of the emails. I reject that evidence. Whilst it is possible that this may not have been noticed by him on one or perhaps even two occasions, I find it highly unlikely that Mr Rowe would not have noticed it on all the emails and, if his evidence was correct about not authorising Mr Fitzpatrick, would not have taken immediate steps to limit his involvement. It is also to be noticed that in his email dated 15 May 2019 after he received the invoices from the plaintiff, Mr Rowe never raised any issue as to the authority of Mr Fitzpatrick. I reject his evidence that he did not think to say this at the time.
In the email to Mr Rowe dated 9 October 2018 from Mr Porter, Mr Porter refers to “Scott” who was “checking the punching details” and that once he had done that “we are ready to proceed with the orders for both Castle Plaza & Elizabeth”. I find that Mr Rowe must have known that the reference to Scott was a reference to Mr Fitzpatrick. This email is also significant because it attached the quote from Metroll for the supply of the purlins for both projects as well as for the punch and die which was in due course ordered by Mr Rowe. Mr Rowe appeared to accept in his oral evidence that the price per lineal metre for the purlins had been agreed with Metroll if the goods were ordered from them. I reject Mr Rowe's evidence that from the emails copied to him from Mr Fitzpatrick, he did not know that purlins were being manufactured by the plaintiff. This explains Mr Rowe’s email of 26 October 2018 to Mr Hook at Metroll. If he was not aware that the plaintiff was involved in the manufacturing of the purlins, he would not have needed to tell Mr Hook to “Stop everything there is a screw up”.
In re-examination, Mr Rowe gave evidence about a screenshot from his telephone which did not replicate the “Powerpark Projects Team” email footer from Mr Fitzpatrick in the latter’s 27 August 2018 email: see Exhibit 2.
Overall, I did not find Mr Rowe to be an impressive witness. I have referred to a number of areas where I do not accept his evidence. In my view, it was clear to Mr Rowe that in signing the CAA he was seeking credit and he was giving a guarantee to the plaintiff in relation to any liability of the first defendant to it. The email correspondence also clearly satisfies me that Mr Rowe was fully aware of Mr Fitzpatrick's involvement on behalf of the first defendant in ordering purlins from the plaintiff.

Applicable contractual principles

At issue in these proceedings is the proper construction of the CAA of four pages. The following general principles relating to contractual construction are relevant.
In Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7, the majority of the High Court stated the following at paragraph [35]:

“[35] Both Verve and the Sellers recognised that this court has reaffirmed the objective approach to be adopted in determining the rights and liabilities of parties to a contract. The meaning of the terms of a commercial contract is to be determined by what a reasonable businessperson would have understood those terms to mean. That approach is not unfamiliar. As reaffirmed, it will require consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract. Appreciation of the commercial purpose or objects is facilitated by an understanding “of the genesis of the transaction, the background, the context [and] the market in which the parties are operating”. As Arden LJ observed in Re Golden Key Ltd, unless a contrary intention is indicated, a court is entitled to approach the task of giving a commercial contract a businesslike interpretation on the assumption “that the parties ... intended to produce a commercial result”. A commercial contract is to be construed so as to avoid it “making commercial nonsense or working commercial inconvenience”.”

In Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; [2017] HCA 12 the majority of the High Court stated as follows at paragraphs [16]-[17]:

"[16] It is well established that the terms of a commercial contract are to be understood objectively, by what a reasonable businessperson would have understood them to mean, rather than by reference to the subjectively stated intentions of the parties to the contract. In a practical sense, this requires that the reasonable businessperson be placed in the position of the parties. It is from that perspective that the court considers the circumstances surrounding the contract and the commercial purpose and objects to be achieved by it.
[17] Clause 4 is to be construed by reference to the commercial purpose sought to be achieved by the terms of the lease. It follows, as was pointed out in the joint judgment in Electricity Generation Corporation v Woodside Energy Ltd, that the court is entitled to approach the task of construction of the clause on the basis that the parties intended to produce a commercial result, one which makes commercial sense. It goes without saying that this requires that the construction placed upon cl 4 be consistent with the commercial object of the agreement."

See also Management Services Australia Pty Ltd t/as Peak Performance PM v PM Works Pty Ltd [2019] NSWCA 107 at [59] per Sackville AJA (with whom Bathurst CJ and Gleeson JA agreed).
In Macquarie International Health Clinic Pty Ltd v Sydney Local Health District [2020] NSWCA 161, Bathurst CJ (with whom Bell P and McCallum JA agreed) stated as follows in paragraph 229:

“229. The principles surrounding the construction of commercial contracts are well established. In Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 at [35] the plurality (French CJ, Hayne, Crennan and Kiefel JJ) stated, “The meaning of the terms of a commercial contract is to be determined by what a reasonable businessperson would have understood those terms to mean”. The Court stated that “it will require consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract”: see also Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 at [46]- [49]; Simic v NSW Land and Housing Corporation (2016) 260 CLR 85; [2016] HCA 47 at [78]; Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; [2017] HCA 12 at [16]; Victoria v Tatts Group Limited (2016) 90 ALJR 392; [2016] HCA 5 at [51]. As was pointed out by Gleeson CJ in McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579; [2000] HCA 65 at [22], commercial contracts should be given a businesslike interpretation and that requires attention to the language used by the parties, the commercial circumstances which the document addresses and the objects which it is intended to secure.”

Accordingly, the following principles are to be applied:

The meaning of the terms of a commercial contract is to be determined by what a reasonable business person would have understood those terms to mean;

The process of construction will require consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract; and

A commercial contract should be given a businesslike interpretation.

Similar principles are applied to guarantees. It is only after the application of these principles to a guarantee where there still remains an ambiguity or doubt, that such ambiguity or doubt as to construction is to be resolved in favour of the guarantor: Ankar Pty Ltd v National Westminster Finance (Aust) Ltd (1987) 162 CLR 549 at 561.

Submissions of the parties

The parties both relied on written submissions and also made oral submissions.
The second defendant, in general summary, submitted as follows:

The contract formed by the CAA was between Metroll Qld Pty Ltd and Powerpark Systems Pty Ltd not Metroll SA and Powerpark Systems. The guarantee given by Mr Rowe was not given to Metroll. The words “and each related body corporate” on page 1 of the CAA did not refer to the Corporations Act and thus its meaning was not incorporated. The heading on page 1 refers to Metroll Qld. If the Corporations Act term is not incorporated then the term is vague. As page 2 incorporates a guarantee then any doubt should be construed in favour of the guarantor: Ankar Pty Ltd v National Westminster Finance (Aust) Ltd (1987) 162 CLR 549 at 561. The identity of the creditor is a fundamental part of a guarantee. See second defendant’s written submissions paragraphs 10-15.

Accordingly, there was no privity of contract between Metroll and the first defendant and thus Metroll cannot sue the first defendant or the second defendant on the guarantee, only Metroll Qld can sue.

The estoppel in the Reply, paragraph 1AA(v) is not established. The application in the CAA was made to Metroll Qld not Metroll. The guarantee was provided to Metroll Qld not Metroll. There was thus no contract between Metroll and the first defendant. The parties did not conduct their relations on the basis that the contract was between Metroll and the first defendant. There was no obligation on Mr Rowe to correct any impression formed by Metroll as to Mr Fitzpatrick’s authority. The order confirmations and invoices were sent to the wrong email address. Written submissions paragraphs 16-23. The email at Exhibit C page 146 is very unclear as to its meaning.

Mr Porter’s evidence that Mr Rowe told him that Mr Fitzpatrick had authority to deal with Metroll should be rejected as it was not in his affidavits and had been rejected by Mr Rowe;

The evidence did not support actual or ostensible authority being granted by Mr Rowe on behalf of the first defendant to Mr Fitzpatrick. Mr Rowe was merely copied into some emails and had no duty to inform anyone of Mr Fitzpatrick’s position. Being silent was not enough to clothe Mr Fitzpatrick with ostensible authority. No emails were copied to Mr Rowe after 12 October 2018. Written submissions paragraphs 24-35.

The plaintiff, in general summary, submitted as follows:

There was privity of contract between Metroll SA and the first defendant. First, the phrase “and each related body corporate” would be construed by a reasonable businessperson as including the Corporations Act definition of related bodies corporate in s 50. Secondly, if that is rejected, the phrase would in the context of the prior dealings between Mr Rowe and Mr Porter, including the punch and die order and payment, be construed as a reference to Metroll. Both Metroll and Metroll Qld have the word “Metroll” in the name. The payment for the punch and die was made by Mr Rowe to Metroll not Metroll Qld. Mr Porter was from Metroll. The project was in South Australia to Mr Rowe’s knowledge. The quotes attached to the 9 October 2018 email from Mr Porter refer to Metroll SA (Exhibit C page 114 and following especially at 116, 118 and 119). The only evidence is that in relation to purlins Mr Rowe dealt with Metroll SA. These submissions also deal with the guarantee argument relying on Ankar. Surrounding circumstances can be looked at in the case of a guarantee. See plaintiff’s written submissions paragraph 73.

Further, the CAA was not a deed executed by two parties. It was an agreed document setting out the terms to be applied to orders made by the first defendant.

Although the reference to the conversation alleged by Mr Porter with Mr Rowe in his oral evidence was not referred to in his affidavits, Mr Porter impressed as a reliable witness who made concessions where appropriate. His evidence should be accepted.

The clear history of the emails copied to Mr Rowe led to the conclusion that Mr Fitzpatrick had actual or ostensible authority to make the orders on behalf of the first defendant. This conclusion is reinforced by the emails sent above the email footer “Powerpark Projects Team” by Mr Fitzpatrick. See the emails at Exhibit C pages 89, 105, 110, 114, 119, 121 and 122 in particular and the references to “Scott” and “Jem”. The prices used in the email and attachments at pages 114-119 were used in later invoices. The fact Mr Rowe did not receive copied emails after 12 October 2018 is irrelevant as he had granted authority to Mr Fitzpatrick to order purlins on behalf of the first defendant by this time.

The Screenshot of Exhibit 2 of Mr Rowe’s phone is not conclusive as to the footer. Mr Rowe at no stage gave evidence that he did not look at emails on his computer which would have had the footer “Powerpark Projects Team.”. Mr Rowe’s evidence that he did not notice the footer on Mr Fitzpatrick’s emails should be rejected.

The first order was divided into three orders including the Castle Plaza order. See paragraph 22D of Mr Rowe’s second affidavit.

The emails sent to Mr Rowe were sent to the correct email address for him: see Exhibit A and the second page of Exhibit 2.

At no time in the period March-May 2019 did Mr Rowe query Mr Fitzpatrick’s authority. That is because he knew Mr Fitzpatrick was acting with the first defendant’s authority.

The national CAA was used because Mr Rowe referred to other future projects. There was a Metroll SA CCA. Mr Porter’s evidence should be preferred to Mr Rowe’s evidence as to these conversations.

Consideration

Credit of the witnesses

I have already set out above my findings as to the credit and reliability of Mr Porter and Mr Rowe. I have substantially but not totally accepted Mr Porter. A court can accept only part of a witness’s evidence: Sangha v Baxter [2009] NSWCA 78 at [155]-[156]; Croucher v Cachia [2016] NSWCA 132 at [129].

Authority to sign the CAA and grant authority to third parties

Section 127 of the Corporations Act 2001 (Cth) provides as follows:

“127 Execution of documents (including deeds) by the company itself
(1) A company may execute a document without using a common seal if the document is signed by:
(a) 2 directors of the company; or
(b) a director and a company secretary of the company; or
(c) for a proprietary company that has a sole director who is also the sole company secretary—that director.
Note: If a company executes a document in this way, people will be able to rely on the assumptions in subsection 129(5) for dealings in relation to the company.

(2) A company with a common seal may execute a document if the seal is fixed to the document and the fixing of the seal is witnessed by:
(a) 2 directors of the company; or
(b) a director and a company secretary of the company; or
(c) for a proprietary company that has a sole director who is also the sole company secretary—that director.
Note: If a company executes a document in this way, people will be able to rely on the assumptions in subsection 129(6) for dealings in relation to the company.

(3) A company may execute a document as a deed if the document is expressed to be executed as a deed and is executed in accordance with subsection (1) or (2).
(4) This section does not limit the ways in which a company may execute a document (including a deed).”

In relation to the CAA, this was signed by Mr Rowe for Powerpark Systems Pty Ltd pursuant to s 127(1) of the Corporations Act. The company search material in evidence establishes that Mr Rowe at the relevant time was the sole director and sole company secretary of Powerpark Systems Pty Ltd, a proprietary company. Accordingly, Powerpark Systems could execute the CAA without using a common seal through his signature: s 127(1)(c) of the Corporations Act.
Mr Rowe as the sole director of Powerpark Systems Pty Ltd could exercise all the powers of the company: Corporations Act, s 198A(2). He could sign the CAA on behalf of the company and grant authority on behalf of the company to third parties.

Liability of the second defendant under the guarantee

I have found that the CAA was entered into by the first defendant Powerpark Systems Pty Ltd on or about 12 October 2018 and that therefore it was liable for all orders made with authority.
The guarantee and indemnity on page 2 of the CAA was signed by Mr Rowe. The guarantee is in unexceptional terms. In particular, Clause 1 of the guarantee sets out the obligation of the guarantor being Mr Rowe. I have not accepted Mr Rowe’s evidence that he was not aware that he was signing a guarantee. In my view, it is apparent from the document itself and from the fact that he signed the CAA twice, with page 2 relating only to the guarantee and indemnity.
Accordingly, in my view the second defendant is liable for any orders made by the first defendant. Was, however, the plaintiff Metroll a party to the CAA?
The CAA was addressed to “Metroll Queensland Pty Ltd and each related body corporate from which the Customer orders goods or services (“the Company”)”. I am satisfied from a review of the CAA that the “Customer” under the CAA was the first defendant with the second defendant as the guarantor.
The plaintiff submits that the contract in the CAA as formed by the first defendant ordering goods on credit and the plaintiff manufacturing and/or supplying the goods in all the circumstances was a contract between the first defendant and Metroll and not Metroll Queensland Pty Ltd having regard to the context of the place where the work was to take place and from which the goods were to be ordered.
The second defendant submits that the contract was with Metroll Queensland Pty Ltd and not Metroll.
In my view, the submissions of the plaintiff should be preferred on this matter. In my view, a reasonable business person would have understood the CAA in the surrounding circumstances known to the parties and the commercial purpose or objects to be secured by the contract to be referring to the South Australian Metroll company being the plaintiff.
First, the second defendant who was the sole director of the first defendant at the time was aware that Metroll was the relevant company under the CAA through his order of the punch and die, the quote which he received for it and the payment of moneys by him into the account of Metroll not Metroll Qld. These surrounding circumstances in my view clearly would have indicated to a reasonable business person that the contract for any order of goods including the purlins was with Metroll. Mr Rowe only dealt with Mr Porter who was the branch manager in South Australia. The contracts were for the supply of goods by the first defendant in South Australia: Exhibit C pages 42 and 49. Purlins were needed for the completed structures. The email dated 27 August 2018 from Mr Fitzpatrick to Mr Porter which was copied to Mr Rowe was sent to the email address “cp@adelaidexxx”.
Secondly, the reference to “each related body corporate” in the CAA would in my view to a reasonable business person reviewing the CAA indicate a related body corporate under company law, including the Corporations Act 2001 (Cth).
Metroll Queensland Pty Ltd and Metroll were subsidiaries of Pacific Industrial Corporation SA. In s 9 of the Corporations Act, unless the contrary intention appears:

“holding company” in relation to a body corporate means a body corporate of which the first body corporate is a subsidiary;

“related body corporate” in relation to a body corporate means a body corporate that is related to the first mentioned body by virtue of s 50 of the Corporations Act; and

“subsidiary” in relation to a body corporate means a body corporate that is a subsidiary of the first-mentioned body by virtue of Division 6.

Having regard to the definitions of “subsidiary’ in s 46 of the Corporations Act and “related bodies corporate” in s 50 of the Corporations Act, Metroll Queensland and Metroll are related to each other. They are related bodies corporate because they are both subsidiaries of the same holding company within the Corporations Act. Thus, Metroll is a party to the CAA with the defendants.
Further, apart from the Corporations Act provisions, the term “related body corporate” in the CAA should be construed in all the circumstances as referring to Metroll. Both Metroll and Metroll Qld have “Metroll” in their name. I have accepted that there was a conversation between Mr Porter and Mr Rowe about the desirability of having a national Metroll account. The email first sending the CAA came from Mr Jensen, the National Business Development Manager for “Metroll”: Exhibit C page 82. Mr Porter from Metroll asked for “the completed account application form or payment”: Exhibit C page 114. All these matters point to “related body corporate” in the CAA meaning at least Metroll.
Accordingly, in my view when reviewed in the surrounding circumstances, the CAA was objectively intended by the parties to be between the first defendant and the plaintiff with the second defendant providing a guarantee and indemnity to the plaintiff as set out on page 2 of the CAA.
In the light of this finding it is unnecessary to consider the estoppel argument raised by the second defendant.

The granting of authority to others by Mr Rowe on behalf of the company

In Left Bank Investments Pty Ltd v Ngunya Jarjum Aboriginal Corporation [2020] NSWCA 144, Gleeson JA (with whom Bathurst CJ and Bell P agreed) quoted a number of principles stated in Northside Developments Pty Ltd v Registrar-General [1990] HCA 32; (1990) 170 CLR 146. At paragraphs 55-60 of Left Bank, Gleeson JA stated as follows:

“Authority
55. In Northside Developments at 171-172, Brennan J said of the capacity of a person’s acts or omissions to bind a company:
A company, being a corporation, is a legal fiction. Its existence, capacities and activities are only such as the law attributes to it. The acts and omissions attributed to a company are perforce the acts and omissions of natural persons. A company is bound by an act done when the person who does it purports thereby to bind the company and that person is authorized to do so or the doing of the act is subsequently ratified. ... Authority for the purpose is derived either directly from the constitution of the company or from some antecedent act (typically, a resolution of the governing body) which is itself binding on the company.

56. Brennan J then addressed the concepts of actual and ostensible authority in conventional terms at 172:
As between a company and a party who deals with it, a company is bound by an act purporting to bind it not only when the person who does the act has the company's authority to bind it by that act but also when that person is held out by the company as having that authority and the party dealing with the company relies on that person's ostensible authority.

57. His Honour continued at 172 observing that the foundation of ostensible authority is estoppel, as Diplock LJ pointed out in Freeman & Lockyer v Buckhurst Park Properties at 503, and that these principles equally apply to authority to bind a company by acts done purportedly on behalf of a company, citing Armagas Ltd v Mundogas SA at 732.
58. Earlier in Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising & Addressing Co Pty Ltd [1975] HCA 49; (1975) 133 CLR 72 at 78; [1975] HCA 49, the High Court accepted the principles stated by Diplock LJ in Freeman & Lockyer v Buckhurst Park Properties at 503:
An ‘apparent’ or ‘ostensible’ authority, on the other hand, is a legal relationship between the principal and the contractor created by a representation, made by the principal to the contractor, intended to be and in fact acted upon by the contractor, that the agent has authority to enter on behalf of the principal into a contract of a kind within the scope of the ‘apparent’ authority, so as to render the principal liable to perform any obligations imposed upon him by such contract. To the relationship so created the agent is a stranger. He need not be (although he generally is) aware of the existence of the representation but he must not purport to make the agreement as principal himself. The representation, when acted upon by the contractor by entering into a contract with the agent, operates as an estoppel, preventing the principal from asserting that he is not bound by the contract. It is irrelevant whether the agent had actual authority to enter into the contract.

59. Diplock LJ also observed at 503 that the commonest form of representation by a principal was by permitting the agent to act in the management or conduct of the principal’s business.
60. It is well-established that the representation as to authority which creates the apparent or ostensible authority must be made by some person who has actual authority from the corporation to make such a representation: Freeman & Lockyer v Buckhurst Park Properties at 505; Crabtree-Vickers at 78; Northside Developments at 160 (Mason CJ), 172 and 174 (Brennan J), 198-199 (Dawson J).”

Here, the only director of Powerpark Systems Pty Ltd at all relevant times was Mr Rowe. There was no evidence that his powers were restricted in his office as director by the company’s constitution. Accordingly, he had the full authority of the company by virtue of that office to enter contracts on behalf of Powerpark Systems with the plaintiff.
Powerpark Systems could only at the relevant time act through its officers. The only relevant officer was Mr Rowe.
There is no clear evidence in the present case that Mr Rowe expressly gave actual authority to any person including Mr Fitzpatrick to enter into contracts with Metroll on behalf of Powerpark Systems Pty Ltd. Although Mr Porter gave oral evidence to that effect, the crucial conversation of which he gave evidence was not reflected in his affidavits and I have rejected, above, that such a conversation occurred. There is also no evidence that Mr Rowe himself made expressly all the orders in question in these proceedings.
The question which arises for consideration is whether Powerpark Systems through Mr Rowe gave implied actual authority or ostensible authority to either Mr Fitzpatrick or Mr Ryan Ford to make the orders on behalf of Powerpark Systems Pty Ltd.
It is clear law that a person without actual authority but only ostensible authority cannot clothe a third party with ostensible authority: Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising & Addressing Co Pty Ltd [1975] HCA 49; (1975) 133 CLR 72. In Crabtree-Vickers, the High Court accepted the general principles stated by Diplock LJ in Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd (1964) 2 QB 480.
A number of emails relating to ordering purlins from the plaintiff were sent by Mr Fitzpatrick to the plaintiff and copied to Mr Rowe. See the emails dated 27 August 2018, 28 September 2018, 9 October 2018 and 11 October 2018. In addition, a number of emails were copied to Mr Rowe by Mr Fitzpatrick with the description “Powerpark Projects Team” in the footer below his email reference.
What is the effect of these emails in relation to authority? There is no evidence that at any time Mr Rowe informed anyone including anyone from the plaintiff that Mr Fitzpatrick did not have the power to make orders on behalf of Powerpark Systems.
Was implied actual authority to make orders on behalf of the first defendant granted by Powerpark Systems through Mr Rowe to Mr Fitzpatrick and/or Mr Ford by virtue, inter alia, of these emails? In Left Bank, Gleeson JA stated the following at paragraphs 63-67:

“63.  Implied authority is an aspect of actual authority. Actual authority requires a consensual agreement between the principal and agent and arises where a principal grants, and an agent accepts, authority for the agent to perform specific tasks on behalf of the principal: Equitcorp Finance Ltd (in liq) v Bank of New Zealand (1993) 32 NSWLR 50 at 132 (Clarke and Cripps JJA). Notwithstanding the absence of an express agreement, the parties “may conduct themselves in such a way that it is proper to infer that the relevant authority has been conferred on the agent”: Equiticorp Finance at 132; Gerard Cassegrain & Co Pty Ltd v Cassegrain (2013) 87 NSWLR 284; [2013] NSWCA 453 at [32] (Beazley P).
64.  The authority impliedly granted by the principal to the agent must be such as could be validly granted by express agreement, and in the context of a company, must be an authority whose existence is contemplated by the company’s memorandum and articles of association: Equiticorp Finance at 133. As Brennan J noted in Northside Developments at 173, this latter point was made by Diplock LJ in Freeman & Lockyer v Buckhurst Park Properties at 504-505.
65.  In Hely-Hutchinson v Brayhead Ltd [1968] 1 QB 549, Lord Wilberforce said at 586-587 that the implication of authority does not stop with the mere fact of the person holding the office, such as in that case director and chairman of the company, and that it is legitimate to consider what the actual circumstances of the relationship between the person and the board of directors may show.
66.  Clarke and Cripps JJA similarly remarked in Equiticorp Finance at 134 that whether authority is to be implied and, if so, the scope of such authority, is to be found in a close analysis of the evidence upon which the case for implication relies.
67.  There is an anterior question which needs to be addressed in a case like the present. An agent cannot have implied actual authority to inform an offeror that an offer has been accepted when no decision has been made by the principal to accept that offer: Crabtree-Vickers Pty Ltd at 77-78. There, the question was whether Peter McWilliam, who had authority to obtain quotations for the purchase of certain printing machines, had implied authority to communicate to those who gave quotes whether their quotes were accepted or not accepted. In rejecting the argument that it was only necessary to show that Peter McWilliam had actual authority to communicate decisions Gibbs, Mason and Jacobs JJ explained at 77:
This argument, so far as it relates to actual authority, is self-contradictory. Such a person may impliedly have such actual authority when the decision to purchase has been properly made but he can have no actual authority to inform an offeror that the offer has been accepted when no decision has been made by the principal to accept that offer. At the most, such a person might have ostensible authority and the submission should be considered under that question.”

Applying these principles to the facts of the present case, I am not satisfied on the evidence that Mr Fitzpatrick or Mr Ford had implied actual authority to make the orders and resulting contracts on behalf of Powerpark Systems. As stated by Gleeson JA, an agent cannot have implied actual authority to inform an offeror that an offer has been accepted when no decision has been made by the principal to accept that offer. Although in the absence of an express agreement, the parties may conduct themselves in a way by which it is proper to infer that the relevant authority has been conferred on the agent, I am not satisfied in all the circumstances that a decision had been actually made by Powerpark Systems through Mr Rowe to make the orders referred to. There are no emails in evidence establishing such decisions. In my view, the inference that such decisions were made cannot properly be drawn from the factual circumstances which emerge from the evidence. It particularly cannot be drawn in the case of Mr Ryan Ford who played a far more limited role than Mr Fitzpatrick as I have referred to above. Mr Fitzpatrick copied a number of important emails to Mr Rowe with many of these being above the heading “Powerpark Projects Team”. Although Exhibit 2 does not have this footer, Mr Rowe merely said that he did not notice it on the relevant emails from Mr Fitzpatrick. He did not say that the footer was not replicated on his computer.
Did Mr Fitzpatrick or Mr Ford have ostensible authority to bind Powerpark Systems in making orders for purlins on its behalf? In my view, the failure by Mr Rowe in all the circumstances in the light of the emails which were copied to him from Mr Fitzpatrick and were directed to or copied to Mr Porter of the plaintiff, to inform the plaintiff that Mr Fitzpatrick had no authority to place orders on behalf of Powerpark Systems amounted to the holding out by Powerpark Systems through Mr Rowe of Mr Fitzpatrick as having the authority to make the orders on behalf of the first defendant. Similarly, Mr Rowe permitting Mr Fitzpatrick to send the emails also amounted to a grant of ostensible authority to him by the first defendant to order purlins on behalf of the first defendant. On all the facts, I accept that representatives from the plaintiff relied on the authority of Mr Fitzpatrick. However, in my view the evidence does not extend to ostensible authority being granted to Mr Ryan Ford.
Accordingly, if not from after the email dated 27 August 2018 from Mr Fitzpatrick to Mr Porter copied to Mr Rowe but certainly immediately after the 28 September 2018 email from Mr Fitzpatrick to Mr Porter copied to Mr Rowe, Powerpark Systems held out that Mr Fitzpatrick had its authority to make orders for the purlins and related parts on behalf of the first defendant. At no time did Mr Rowe on behalf of the first defendant raise any issue as to Mr Fitzpatrick's authority until 2019 after the invoices were forwarded to Mr Rowe.
A number of the emails referred to the involvement or interaction of Mr Fitzpatrick and Mr Rowe: see Exhibit C pages 87 (reference to “Scott”); 89 (reference to accommodating “Jem’s need”); 105 (“getting Jem’s die”); 114 (reference to “Scott is just checking”); 121 (reference to “Just spoke to Jem”). These emails support the finding of the clothing by the first defendant through Mr Rowe of Mr Fitzpatrick with ostensible authority to order purlins and related goods from the plaintiff on behalf of the first defendant.
In addition, in my view from these emails the plaintiff could assume that Mr Fitzpatrick had authority as agent of Powerpark Systems to make the orders under s 129(3) of the Corporations Act.
As stated, in my view there was clear reliance by Metroll on the authority of Mr Fitzpatrick to make the orders on behalf of the first defendant. This reliance extended to making the goods to satisfy the orders.

What orders for goods from the plaintiff are the defendants bound by?

I have found that the CAA was objectively intended by the parties to be between the plaintiff and the first defendant with a guarantee provided to the plaintiff by the second defendant, Mr Rowe. I have found that Mr Fitzpatrick had ostensible authority to make orders on behalf of the first defendant. When orders were placed an offer was made on behalf of the first defendant and accepted when the plaintiff accepted the order.
What orders were made within ostensible authority?
The first issue is whether the Elizabeth site purlins and related goods were delivered by the plaintiff to the site as alleged. I am satisfied that the materials were delivered as claimed by the plaintiff. The evidence which satisfies me of this includes:

The material in paragraphs 22A to 22W of Mr Porter's second affidavit dated 7 July 2020, including the delivery advices referred to and exhibited;

Mr Porter's evidence that none of the purlins reflected in the delivery advices were returned by drivers to the plaintiff's premises undelivered;

Various photographs of purlins at the Elizabeth site which were part of the evidence including purlins placed on the structures manufactured by the first defendant. There was no evidence that any other manufacturer other than the plaintiff manufactured purlins for the Elizabeth site. See also the photographs exhibited to Mr Porter’s second affidavit referred to in paragraphs 22L, 22S and 25;

Mr Rowe’s oral evidence that when he attended the Elizabeth site unannounced at the end of 2018 he saw purlins at the site including purlins used on the first defendant’s structures. See also paragraph 24 of Mr Rowe’s affidavit and the photos at Exhibit JRR 5 showing purlins on the ground and on the structures.

I am satisfied on all the evidence that the Castle Plaza purlins were ordered by the first defendant and were not delivered and remain at the plaintiff's premises for delivery. See also paragraph 22F of Mr Porter’s second affidavit.
I now turn to consider the various orders and the liability of the second defendant for the orders made:

Orders 1 and 1A – invoices 413086 and 413086AA. I am satisfied on the evidence that the first order was placed by Mr Fitzpatrick by email dated 28 September 2018 with ostensible authority on behalf of the first defendant. Accordingly, the first defendant was liable for the goods delivered by the plaintiff as reflected in invoices 413086 and 413086AA. See Porter second affidavit paragraphs 22A-22D. The prices per lineal metre for the purlins and for the bolts and nuts and joining plates had previously been quoted in the documents attached to the 9 October 2018 email from Mr Porter to Mr Rowe. I allow $21,739.54 and $440 against the second defendant;

Order 2 – Castle Plaza order – invoice 413087. I accept the evidence of Mr Porter that the 28 September 2018 order by Mr Fitzpatrick on behalf of the first defendant was split into two orders with the latter order being order 413087 for Castle Plaza. See Porter second affidavit paragraphs 22B and 22E-22G. The purlins for this order were manufactured by the plaintiff on 19 October 2018 and remain at the plaintiff's premises as the first defendant has never requested their delivery. There was some suggestion in the evidence that this order had been cancelled or put on hold by Mr Fitzpatrick. See also Amended Defence paragraph 9.5 (although it is difficult to see how Mr Fitzpatrick had authority to place an order on hold as pleaded if, as alleged by the second defendant, he had no authority to make the order in the first place). However, there is no evidence that the plaintiff agreed in writing to such a cancellation of an order: see Clause 7(ii) (second appearing) on page 3 of the CAA or that the order was put on hold before the purlins were in fact manufactured by the plaintiff. Accordingly, in my view the first defendant was liable for invoice 413087 issued by the plaintiff on 30 October 2018 in the amount of $38,610.16. I allow $38,610.16 against the second defendant;

Order 3 – invoice 413443. There is no evidence that Mr Fitzpatrick or Mr Rowe gave the verbal order said to have been made on 18 October 2018 referred to in paragraph 22H of Mr Porter's 7 July 2020 affidavit. I have found that Mr Ryan Ford did not have ostensible authority. Accordingly, I find that the first defendant was not liable for Order 3 being invoice 413443 and therefore the second defendant is also not liable for this amount of $668.80;

Order 4 – invoice 413480. This order was made by Mr Ford: Porter second affidavit paragraph 22J. I am not satisfied that Mr Ford had the relevant authority to order on behalf of the first defendant. Accordingly, I find that the first defendant was not liable for invoice 413480 in the amount of $32,172.77 as I am not satisfied that anyone with authority made the order. Therefore, the second defendant is also not liable for this amount;

Order 5 – invoice 413942. Having regard to the material at paragraphs 22M-22N of Mr Porter’s second affidavit, I am satisfied that the order was made by Ms Hanley of Powerpark on behalf of Mr Rowe and with his authority. The 26 October 2018 email from her was copied to Mr Rowe. This email has to be seen in the context of the earlier emails from Ms Hanley and Mr Rowe. In the light of this, I am satisfied that invoice 413942 in the amount of $2,127.12 is an invoice for which the first defendant was liable. The second defendant is therefore also liable for this amount;

Order 6 – invoice 414042 run 20. This order was made by Mr Fitzpatrick on 29 October 2018: see paragraphs 22O-22Q of Mr Porter's second affidavit and Mr Fitzpatrick's 29 October 2018 email to Mr Porter. In my view, it does not matter that this email is not copied to Mr Rowe as Mr Fitzpatrick had already been granted ostensible authority to make purlin orders for the first defendant from the plaintiff. Accordingly, the first defendant was liable for Order 6 and invoice 414042 in the amount of $11,005.54. The second defendant is therefore also liable for this amount;

Order 7 – invoice 414070 run 21. As this relates to the 29 October 2018 email order from Mr Fitzpatrick, I am satisfied that the first defendant is liable for this order because of Mr Fitzpatrick's ostensible authority. Accordingly, the first defendant was liable for invoice 414070 in the amount of $11,265.01. The second defendant is also liable for this amount;

Order 8 – invoice 414120 run 22. This also relates to Mr Fitzpatrick's order in his email dated 29 October 2018. I am satisfied that the first defendant was liable for this order due to Mr Fitzpatrick's ostensible authority. Accordingly, the first defendant was liable in the amount of $10,741.49. The second defendant is therefore also liable for this amount;

Order 9 – invoice 414210 – Elizabeth re-order. This also relates to Mr Fitzpatrick's 29 October 2018 email being the Elizabeth site re-order. I am satisfied the order was made by Mr Fitzpatrick with authority from the first defendant. Accordingly, I find that the first defendant was liable for invoice 414210 in the amount of $4,711.68. The second defendant is therefore liable for this amount.

The “[email protected]” address

I am satisfied from the evidence that the correct email address of the first defendant at the relevant time was “ and not “ I accept the first sentence in paragraph 66 of Mr Rowe’s 13 May 2020 affidavit to this effect. It is also consistent with various emails from Ms Hanley and Mr Rowe. The entity with the address “ seems to be connected to a computer game site possibly in Norway: see Exhibit 1.
However I do not accept the second sentence in paragraph 66 of Mr Rowe’s affidavit to the effect that he did not provide the plaintiff with such an email address”. Whilst it is true that Ms Hanley provided the completed CAA to Mr Jenson and Mr Porter with the incorrect email address it was copied to Mr Rowe. There is no evidence that he corrected the incorrect email address. It appears that he confirmed the authority of Ms Hanley to provide the completed CAA to Metroll.

Determination

Having found that the second defendant is liable for the amounts owed to the plaintiff in a number of the orders, in my view there is no apparent reason why the second defendant should not be liable for the plaintiff's costs of the proceedings. However, I will not finally determine that issue without giving the parties the opportunity to make submissions.
For the above reasons, the court makes the following orders:

Judgment for the plaintiff against the second defendant.

The parties are to bring in agreed Short Minutes of Order reflecting these reasons within seven days.

If agreement cannot be reached on Short Minutes of Order, liberty is granted to approach the Associate to Dicker DCJ to relist the matter on three business days’ notice.

The parties should attempt to agree an appropriate costs order for the proceedings. If agreement cannot be reached, liberty is granted to approach the Associate to Dicker DCJ on three business days’ notice to relist the matter for argument as to costs.

**********

Decision last updated: 01 April 2021

Medium Neutral Citation:	Metroll SA Pty Ltd v Powerpark Systems Pty Ltd [2021] NSWDC 102
Hearing dates:	3-4 March 2021; 8 March 2021
Date of orders:	31 March 2021
Decision date:	31 March 2021
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) Judgment for the plaintiff against the second defendant. (2) The parties are to bring in agreed Short Minutes of Order reflecting these reasons within seven days. (3) If agreement cannot be reached on Short Minutes of Order, liberty is granted to approach the Associate to Dicker DCJ to relist the matter on three business days’ notice. (4) The parties should attempt to agree an appropriate costs order for the proceedings. If agreement cannot be reached, liberty is granted to approach the Associate to Dicker DCJ on three business days’ notice to relist the matter for argument as to costs.
Catchwords:	CONTRACT – alleged manufacture and sale of goods said to be ordered on behalf of the first defendant company – alleged supply of part of the goods ordered – guarantee allegedly given by the second defendant director – whether second defendant liable pursuant to the alleged guarantee for goods said to have been ordered on behalf of the first defendant – identity of contracting parties AGENCY – authority of alleged agent to order goods on behalf of the first defendant – whether actual authority (express or implied) – whether ostensible authority COMPANY LAW – authority of sole director and secretary – whether holding out by director that agent had authority to order goods on behalf of the first defendant company
Legislation Cited:	Corporations Act 2001 (Cth)
Cases Cited:	Ankar Pty Ltd v National Westminster Finance (Aust) Ltd (1987) 162 CLR 549 Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising & Addressing Co Pty Ltd [1975] HCA 49; (1975) 133 CLR 72 Croucher v Cachia [2016] NSWCA 132 Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; [2017] HCA 12 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd (1964) 2 QB 480 Left Bank Investments Pty Ltd v NgunyaJarjum Aboriginal Corporation [2020] NSWCA 144 Macquarie International Health Clinic Pty Ltd v Sydney Local Health District [2020] NSWCA 161 Management Services Australia Pty Ltd t/as Peak Performance PM v PM Works Pty Ltd [2019] NSWCA 107 Northside Developments Pty Ltd v Registrar-General [1990] HCA 32; (1990) 170 CLR 146 Sangha v Baxter [2009] NSWCA 78
Category:	Principal judgment
Parties:	Metroll SA Pty Ltd (Plaintiff) Powerpark Systems Pty Ltd (in Liquidation) (First Defendant) Jeremy Richard Rowe (Second Defendant)
Representation:	Counsel: H Woods (Plaintiff) No appearance for first defendant R D Marshall SC and J Byrne (Second Defendant) Solicitors: Kanji & Co Solicitors (Plaintiff) Keypoint Law (Second Defendant)
File Number(s):	2019/00133756
Publication restriction:	No