Mourched v Michaelis Bayley (Aust) Pty Limited - [2006] NSWSC 72

CITATION: Mourched v Michaelis Bayley (Aust) Pty Limited [2006] NSWSC 72

HEARING DATE(S): 20 February 2006

JUDGMENT DATE :
3 March 2006

JURISDICTION: Common Law Division

JUDGMENT OF: Associate Justice Malpass at 1

DECISION: The judgment and orders made by the Magistrate are set aside; I will hear submissions from the parties as to what should now happen with the proceedings; the defendant is to pay the costs of the summons and the costs of the proceedings in the Local Court; if so entitled, the defendant is to have a certificate under the Suitors’ Fund Act 1951.

CATCHWORDS: Sale of pharmacy - supplier sues new owner for goods ordered prior to completion of sale - finding that the goods were ordered at the institution or instigation of new owner - no evidence to support findings - appeal allowed.

PARTIES: Terry Mourched (Plaintiff)
Michaelis Bayley (Aust) Pty Limited

FILE NUMBER(S): SC 12519/05

COUNSEL: Mr S A Gregory (Plaintiff)
Mr P Collins (Solicitor) (Defendant)

SOLICITORS: NRG Legal (Plaintiff)
Peter A Collins & Associates (Defendant)

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 2505/04

LOWER COURT JUDICIAL OFFICER : Price LCM

- 8 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Associate Justice Malpass

3 March 2006

12519 of 2005 Terry Mourched v Michaelis Bayley (Aust) Pty Limited

JUDGMENT

1 His Honour: The defendant is a supplier of shoes (“Homyped”). During 2003, it supplied shoes to a pharmacy known as Pike’s Day & Night Pharmacy (the pharmacy) at Burwood.

2 Leon Braude was a registered pharmacist. Prior to 17 November 2003, he was the owner of the pharmacy. He ceased to play any part in the management of the pharmacy when the plaintiff came to be employed as the registered pharmacist (it appears that he was a doctor who resided in Victoria). This took place from at least March 2003.

3 In May 2002, Gary Braude applied for a credit account with the defendant. He appeared to be the person in charge of the pharmacy. From March 2003, Kathy Pellegrino (the manager) was the manager of the pharmacy and had dealings with the defendant. As another employee of the pharmacy, the plaintiff was answerable to her. He was not involved in decisions concerning the ordering, the acceptance of delivery, or the payment of accounts.

4 On 23 July 2003, the manager ordered stock from the defendant for delivery during August – September and on 2 December 2003 (the July orders).

5 On 8 August 2003, the defendant delivered part of the July order. The goods were returned to the defendant.

6 At the time, Ms Muhlbauer was the national sales manager and Ms Gleeson was a sales representative for the defendant. These persons had communications with the manager.

7 In August 2003 (following the return of the goods), the manager informed the defendant’s representative that the pharmacy was being sold, the owner did not want to accept any additional stock, there was a request to delay delivery…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2006] NSWSC 72
Decision Date: 3 March 2006

CaseChat Overview and Summary

The case of Mourched v Michaelis Bayley (Aust) Pty Limited involves a dispute between a supplier of pharmacy goods and the new owner of a pharmacy, who had ordered goods prior to the sale's completion. The supplier sought payment for these goods from the new owner, who argued that the orders were made without their involvement. The dispute was heard in the Supreme Court of New South Wales. The primary legal issue for the court to determine was whether the new owner was liable for the goods ordered by the pharmacy prior to the sale's completion.

The court considered whether the new owner had instigated or authorised the orders placed by the pharmacy before the sale was finalised. The trial judge found that the new owner had indeed instigated the orders, leading to the new owner being held liable for the cost of the goods. However, on appeal, the court found that there was insufficient evidence to support the trial judge's findings. The court held that the new owner could not be held liable for the goods ordered before the sale's completion without clear evidence that they had instigated or authorised the orders.

The appeal was allowed, and the decision of the trial judge was set aside. The court found that the supplier's claim for payment from the new owner was not supported by sufficient evidence, and the new owner was not liable for the goods ordered before the sale's completion. The court's decision highlights the importance of establishing clear evidence when seeking to hold a party liable for actions taken by another party, particularly in the context of a sale of business where liability for pre-completion transactions can be complex.

Orders