Panchos v Davison - [2009] NSWSC 228

CITATION: Pachos v Davison [2009] NSWSC 228
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 30 March 2009

JUDGMENT DATE :
30 March 2009

JUDGMENT OF: Mathews AJ

EX TEMPORE JUDGMENT DATE: 30 March 2009

DECISION: (i) appeal dismissed
(ii) by consent, plaintiff to pay the defendant’s costs assessed and agreed at $11,000 inclusive of GST and to be paid within 28 days of today.

CATCHWORDS: CONTRACT - appeal from Local Court - whether purported agent had ostensible authority - no agency established

LEGISLATION CITED: Uniform Civil Procedure Rules 2005

CATEGORY: Principal judgment

CASES CITED: Pacific Carriers Limited v BNP Paribas [2004] HCA 35; 133 CLR 72
Smith v Hubbard Pty Limited [2006] NSWCA 109

PARTIES: John Pachos (Plaintiff)
Charles Davison (First Defendant)
Candice Weeden (Second Defendant)

COUNSEL: J Keys (Plaintiff)
AS Monzo (1st Defendant)

SOLICITORS: Plaintiff in person
Houston Dearn O'Connor (First Defendant)

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 650/07

LOWER COURT JUDICIAL OFFICER : Pierce LCM

LOWER COURT DATE OF DECISION: 6 May 2008

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Mathews AJ

Monday 30 March 2009

12631/08 John Pachos v Charles Davison & Anor
JUDGMENT

1 HER HONOUR: This is appeal from the decision of a Local Court Magistrate at Burwood delivered on 6 May 2008. His Honour dismissed the plaintiff's claim against the first defendant and ordered the plaintiff to pay the first defendant's costs including costs on an indemnity basis from 17 December 2007.

2 The background of the matter is as follows. On 11 June 2007, the plaintiff, who is the owner of a business called High Tech Motor Sport, was approached by the second defendant, Candice Weeden, who identified herself as the first defendant's, "Motor Sport Media Manager" and said she was authorised to negotiate on the first defendant's behalf. She proceeded to negotiate with the plaintiff for one of his V8 utes to be leased out for the first defendant to drive at a forthcoming round of races at Hidden Valley, Darwin on 24 June 2007.

3 The plaintiff told the second defendant that the cost would be $15,000 plus GST, making a total of $16,500. She accepted these terms. The plaintiff asked for the first defendant's height and weight so that he could adjust the driving seat and for his licence details. These were, in due course, provided by the second defendant.

4 I should say by way of aside that the second defendant obtained the details of the first defendant's height and weight from the internet. She obtained the details from the defendant himself as a necessary precondition for his driving in the race.

5 The plaintiff accordingly arranged for one of his racing utes to be sent to Darwin before the event on 24 June. He himself also travelled to Darwin on 20 June. The plaintiff met the first defendant in Darwin on Friday 22 June. They had…

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: [2009] NSWSC 228
Decision Date: 30 March 2009

CaseChat Overview and Summary

The matter before the court involved an appeal from a decision of the Local Court. The plaintiff, Panchos, sought to recover unpaid invoices from the defendant, Davison, who had purchased goods from Panchos but failed to pay. Panchos claimed that Davison's agent had authority to purchase the goods on Davison's behalf, while Davison argued that no such authority existed. The court was required to determine whether the agent had ostensible authority to act on Davison's behalf, and if so, whether that authority was sufficient to bind Davison to the contract.

The legal issues before the court were whether the agent had ostensible authority to bind Davison to the contract and whether the agent's authority was sufficient to establish an agency relationship. The court considered whether there was a representation made by Davison that the agent had authority, whether Panchos reasonably relied on that representation, and whether Panchos suffered a loss as a result of that reliance. The court also considered whether the agent's authority was actual or apparent, and whether the agent's actions were within the scope of their authority.

The court found that there was no evidence of a representation made by Davison that the agent had authority to act on Davison's behalf. The court held that there was no ostensible authority, and that the agent did not have the actual authority to bind Davison to the contract. The court further held that Panchos had not suffered any loss as a result of their reliance on any such representation, as they had not relied on any representation made by Davison. The court found that the agent's actions were outside the scope of their authority, and that there was no agency relationship established between Davison and the agent.

The court dismissed the appeal and affirmed the decision of the Local Court. The court held that Panchos was not entitled to recover the unpaid invoices from Davison, and that the appeal was without merit. The court ordered that Panchos pay Davison's costs of the appeal.

Orders