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Metroll SA Pty Ltd v Powerpark Systems Pty Ltd

Metroll SA Pty Ltd v Powerpark Systems Pty Ltd

Case [2021] NSWDC 102 31 March 2021

Unconscionable Conduct

Contract Law

Company Law

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Metroll SA Pty Ltd v Powerpark Systems Pty Ltd

Details

AGLC: Metroll SA Pty Ltd v Powerpark Systems Pty Ltd [2021] NSWDC 102
Case: [2021] NSWDC 102
Decision Date: 31 March 2021

CaseChat Overview and Summary

In this case, Metroll SA Pty Ltd sought to recover monies owed for goods they alleged they supplied to Powerpark Systems Pty Ltd, as well as a guarantee given by the second defendant, a director of the first defendant company. The dispute centred on whether the second defendant was liable under the guarantee for the goods that Metroll claimed were ordered on behalf of Powerpark. The court was also required to determine the identity of the contracting parties and the nature of any authority held by the alleged agent who ordered the goods.

The court considered whether the alleged agent had actual or ostensible authority to order the goods on behalf of Powerpark. Furthermore, it examined whether the second defendant, as the sole director and secretary of Powerpark, held out the agent as having the authority to order goods. The court concluded that the agent did not have actual authority to order the goods on behalf of Powerpark, either expressly or impliedly. However, the court found that the second defendant held out the agent as having authority, thus granting ostensible authority. Consequently, the second defendant was liable under the guarantee for the goods ordered by the agent.

Metroll was granted judgment against the second defendant for the amount owed for the goods, as well as interest and costs. The court ordered that the parties should attempt to agree on an appropriate costs order. If they could not reach an agreement, they were granted liberty to approach the Associate to Dicker DCJ to relist the matter for argument as to costs. Additionally, if the parties could not agree on the Short Minutes of Order, they were also granted liberty to approach the Associate to Dicker DCJ to relist the matter for relisting on three business days’ notice.

Orders

Orders of the court

(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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

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

Most Recent Citation

Metroll SA Pty Ltd v Powerpark Systems Pty Ltd (No 2) [2021] NSWDC 184

Cases Citing This Decision

Rowe v Metroll SA Pty Ltd [2021] NSWCA 196
Citation 1 (Para 37)

…ccupied 3, 4 and 8 March 2021, and his Honour produced a lengthy judgment, promptly, on 31 March 2021: Metroll SA Pty Ltd v Powerpark Systems Pty Ltd [2021] NSWDC 102. In light of the confined nature of the appeal, it may be addressed relatively concisely.…
Metroll SA Pty Ltd v Powerpark Systems Pty Ltd (No 2) [2021] NSWDC 184
Citation 2 (Para 1)

…handed down its reasons for decision in relation to the final hearing of this matter on 31 March 2021: Metroll SA Pty Ltd v Powerpark Systems Pty Ltd [2021] NSWDC 102. An issue has arisen in relation to the appropriate order as to costs to be made in the proceedings.…

See all citing cases →

Cases Cited

Macquarie International Health Clinic Pty Ltd v Sydney Local Health District [2020] NSWCA 161
Citation 1 (Para 98)

…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:…
Left Bank Investments Pty Ltd v Ngunya Jarjum Aboriginal Corporation [2020] NSWCA 144
Citation 2 (Para 122)

…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 st…
Management Services Australia Pty Ltd t/as Peak Performance PM v PM Works Pty Ltd [2019] NSWCA 107
Citation 3 (Para 97)

…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).…
Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12
Citation 4 (Para 96)

…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]:…
Simic v New South Wales Land and Housing Corporation [2016] HCA 47
Citation 5 (Para 78)

…d 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 3…
Croucher v Cachia [2016] NSWCA 132
Citation 6 (Para 104)

…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].…
Victoria v Tatts Group Limited [2016] HCA 5
Citation 7 (Para 16)

…) 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],…
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37
Citation 8

…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 Nom…
Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7
Citation 9 (Para 95)

…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]:…
Gerard Cassegrain & Co Pty Ltd v Cassegrain [2013] NSWCA 453
Citation 10

…r 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 expres…
Sangha v Baxter [2009] NSWCA 78
Citation 11 (Para 104)

…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].…
McCann v Switzerland Insurance Australia Ltd [2000] HCA 65
Citation 12

…ts 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…
Northside Developments Pty Ltd v Registrar-General [1990] HCA 32
Citation 13 (Para 122)

…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:…
Ankar Pty Ltd v National Westminster Finance (Australia) Ltd [1987] HCA 15
Citation 14 (Para 100)

…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.…
Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising & Addressing Co Pty Ltd [1975] HCA 49
Citation 15 (Para 127)

…uthority 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 P…
(1964) 2 QB 480 (1964) 2 QB 480
Citation 16 (Para 127)

…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.…
[1968] 1 QB 549 [1968] 1 QB 549
Citation 17

…, 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 d…

Legislation Cited

Corporations Act 2001 (Cth)
1 mention (from Para 30)

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