Osborne v Boral Resources (NSW) Pty Ltd

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Osborne v Boral Resources (NSW) Pty Ltd [2012] NSWCA 155

Hearing dates:

23 May 2012

Decision date:

23 May 2012

Before:

Bathurst CJ at [1]; Allsop P at [13]; Macfarlan JA at [16]

Decision:

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

CONTRACT - principal and agent - authority of agent - whether sufficient evidence to find agent had authority to incur liability under contract
EVIDENCE - admissibility - hearsay - business records - email purportedly sent by company officer - whether proof of officer's authority to order goods on behalf of company

Legislation Cited:

Corporations Act 2001 s 129(3)(b)

Cases Cited:

Equiticorp Finance Ltd v Bank of New Zealand (1993) 32 NSWLR 50

Category:

Principal judgment

Parties:

Mark Gregory Osborne (Appellant)
Boral Resources (NSW) Pty Ltd (Respondent)

Representation:

Mr Allen (Appellant)
Mr Locke (Respondent)
Solicitors:
Proctor & Associates (Appellant)
Oliveri Lawyers (Respondent)

File Number(s):

2009/00335437

 Decision under appeal 

Date of Decision:

2011-05-11 00:00:00

Before:

Rolfe DCJ

File Number(s):

2009/00335437

Judgment

1. BATHURST CJ: This is an appeal from a judgment of Rolfe DCJ of 11 May 2011, in which judgment was entered against the appellant in favour of the respondent in the amount of $263,619.59 plus costs. The appellant appeals from that decision on the ground that there was insufficient evidence to found the primary judge's findings. That ground is not made out, and the appeal should be dismissed with costs for the following reasons.

1. The appellant, Mr Osborne, was the sole shareholder and director of Development and Investments Australia Group Pty Limited ("DIAG"), now in administration. In early 2009, DIAG entered into a credit agreement with the respondent, Boral Resources (NSW) Pty Ltd, via its agent entity, Boral Shared Services Pty Ltd. The appellant signed the application on behalf of DIAG as its sole director. He also executed a personal guarantee which was incorporated as part of the contractual arrangement between DIAG and the respondent.

1. A large amount of concrete was ordered and delivered in multiple batches to an address in St Marys under the credit account. In each case it was invoiced to DIAG, and the invoices were sent to the PO Box address listed for DIAG in the credit application form. The primary judge was entitled to infer that from the invoices which showed that it was delivered to that address.

1. On 5 June 2009, the respondent filed a statement of claim against DIAG and the appellant in the District Court claiming approximately $217,000 for concrete supplied and invoiced, as well as the costs of recovery which were also the subject…