Pargiter v Alexander

[1988] TASSC 107

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Pargiter v Alexander [1988] TASSC 107; B39/1988

PARTIES:  PARGITER
  v
  ALEXANDER

FILE NO/S:  1390/1987
DELIVERED ON:  9 November 1988
JUDGMENT OF:  Nettlefold J

Judgment Number:  B39/1988
Number of paragraphs:  31

Serial No B39/1988

List "B"

File No 1390/1987

PARGITER v ALEXANDER

REASONS FOR JUDGMENT  NETTLEFOLD J

9 November 1988

1. I accept the substance of the evidence of the plaintiff and Mr Bourke. Consequently I find that in May or June of 1985 the plaintiff saw an advertisement in a magazine known as "Trade a Boat" offering for sale a Westsail 33 yacht. The advertisement is a full page advertisement. It is headed "Solar Marine Aust. Pty. Ltd. Sole East Coast Agent for West Sail". It says, inter alia, "this yacht is owned by the managing director of Solar Marine and due to business commitments is seriously offered for sale, $85,000 ONO". In a later publication of the advertisement, published in the July 1985 publication of the same magazine, the plaintiff noticed that the price had been reduced to $79,000 ONO. Some correspondence between the plaintiff and Mr L.W. Alexander followed and on 30 June 1985 the plaintiff travelled to Sydney and met Mr Leslie Alexander at the Birkenhead Marina. After discussion and further correspondence a written contract was entered into between the plaintiff and LW Alexander for sale and purchase of the yacht, after the completion of certain work on it, for $79,000 with a deposit of $31,600 paid to Leslie Alexander.

1. In August 1985 the plaintiff inspected the yacht which was then at the premises of Mort Bay Shipwright Services being fitted out.

1. In September 1985 the plaintiff was informed that the yacht was ready for delivery. He put Mr Bourke in charge of the task of collecting the yacht and bringing it to Hobart.

1. At this stage one should leave the evidence of the plaintiff and turn to the evidence of Mr Bourke. He said he went to Sydney in late September 1985 and there met Mr Leslie Alexander. Mr Bourke took with him a list of work which had to be completed before delivery was taken and two cheques. Mr Bourke examined the yacht and advised the plaintiff by telephone to Hobart that almost all the things on the list had been done. The plaintiff instructed him to pay the cheques to Mr Leslie Alexander which he did.

1. Subsequent to handing over the cheques, Mr Bourke was visited by a person who said he was from the Commonwealth Bank. This person wanted to take possession of the yacht. That person and Mr Bourke then spoke to the plaintiff by telephone. The yacht was taken to a new marina at the direction of the Commonwealth Bank. Two days later Mr Bourke was advised by either the plaintiff or the Commonwealth Bank that he was free to commence his journey to Hobart. Mr Leslie Alexander saw Mr Bourke at the marina mentioned above on the morning that Mr Bourke was leaving Sydney with the yacht and said to Mr Bourke something to the effect "Don't hang around in Sydney, get on the boat and get going as there are other people who are looking for the boat". Mr Bourke sailed that day which was a Saturday, he having arrived in Sydney on the Tuesday or Wednesday.

1. Returning to the evidence of the plaintiff, the plaintiff said that, having been advised of the problem with the Commonwealth Bank, he stopped payment on the cheques which had been handed to Mr Leslie Alexander and paid a sum to the Commonwealth Bank sufficient to discharge a Bill of Sale (P5) which the Commonwealth Bank claimed that it had over the yacht from Mr Leslie Alexander. In due course he received advice from the Bank that the Bill of Sale had been discharged.

1. The plaintiff made the payment to the Commonwealth Bank on the basis of legal advice to the effect that it was essential to make that payment in order to obtain ownership and possession. Prior to delivery of the yacht to Mr Bourke by Mr Leslie Alexander the plaintiff believed that Mr Leslie Alexander owned the yacht which was free from encumbrances and had been completely built in the factory in Perth, Western Australia.

1. The plaintiff has owned three yachts prior to this one. Based on this experience, he did not expect to get any documents of title with the yacht.

1. Some days after he found out about the Bill of Sale, some two to four days or thereabouts after that, the Commonwealth Bank advised him that the defendant claimed an interest in the yacht.

1. The plaintiff did not get authority from Mr Leslie Alexander to discharge the Bill of Sale. He said he thought it would have been rather pointless to discuss it with Mr Leslie Alexander and find out the story behind the Bill of Sale and why he had not been informed of it. The Bill of Sale existed and had to be paid off in order to get possession of the yacht. He did speak to Mr Leslie Alexander on the telephone when the Bill of Sale was mentioned. He assumes that that was on the Friday, the yacht having left Sydney the following day. In that conversation Mr Leslie Alexander said that he wished the plaintiff to pay him and he would pay out the Bill of Sale as had been his intention throughout. He told the plaintiff that he was not happy about the payment to the Commonwealth Bank. Mr Leslie Alexander also communicated with the plaintiff on the following day, Saturday, saying that the boat was just clearing the heads. I quote from the transcript, "he seemed to accept the fact that I had paid the Bank". When Mr Leslie Alexander spoke to him on the Friday the latter was aware that the cheques had been cancelled.

1. I accept the substance of Mr Syme's evidence and find that in September 1985 Mr Syme met Leslie Alexander and the defendant at the slipway belonging to Mort Bay Shipwright Services. Mr Les Alexander had a Westsail 33 yacht called the "Salutu" at the slipway. Mr Syme had a conversation with both of them about the yacht. Leslie Alexander said "You know Vince he works for me". There was a discussion about the work in progress. Mr Syme asked who owned the yacht and Leslie said, in the presence of the defendant, that he did. Mr Syme also asked whether Leslie had a buyer for the yacht and the latter replied, in the presence of the defendant, that he had a doctor in Tasmania who was to buy the yacht.

1. I accept the evidence of Mr Sealy. I find that in about the middle of July 1987 he spoke to Mr O'Farrell who said he had instructions to act for the defendant. Mr O'Farrell was seeking an extension of time for the delivery of a defence and an undertaking not to move in default. In the course of the conversation Mr O'Farrell said that the nature of the defence was that the defendant had been the owner of the boat at all material times but had given it to his brother Leslie Alexander to sell. Leslie Alexander had sold but had not given any money to the defendant. Or, in the alternative, Leslie Alexander had given a Bill of Sale over the boat when he was not authorised to do so.

1. I accept the evidence of Sergeant Dale. In consequence I find that the handwriting on exhibit D3, a bank statement in the name of "Alexander Marine International", is the handwriting of Leslie Alexander. I reject the defendant's evidence to the contrary. I find that the four cheque butts D2 were written by Leslie Alexander. I reject the evidence of the defendant that the words "Cash Rubber Duck Winch–Anchor" in that exhibit were written by him. I also reject his evidence that two cheque butts dated 17 March 1983 and 25 March 1983 respectively were written by him.

1. I accept the evidence of Mr Sealy to the effect that a legal practitioner acting for the defendant produced to him the document D7 for the purpose of resisting an application for summary judgment in this action. That document has on it the following "HL861WA". That has been added to the document and has the effect of misrepresenting it. That is not the only document relied on by the defendant about which there is a serious question. A comparison of exhibits P20, D8 and P28 makes it clear that the original document has been altered by erasing the word "Les" and substituting the word "Vince". The writing of the word "Vince" discloses similarities with an example of the defendant's writing, D5. According to Sergeant Dale there is some similarity, although not strong, between the writing of "V" in D5 and the "V" in "Vince", D8. There were also similarities between "N", "C" and "E" in Vince (D8) and those letters in example D5. There was also some similarity between the letters "N" and "E" in "Vince", D8 and those letters written in a sample of the defendant's writing D6(d).

1. On the whole of the relevant evidence the inference is that the word "Vince" was written on D8 by the defendant. The further inference should be drawn that the writing "HL861WA" was written on D7 at a time when the document was in the custody or under the control of the defendant.

1. I accept the substance of the evidence of Mr Ian Campbell to the effect that he fitted a mast to this vessel on 18 January 1985 with the aid of his two employees, the order for the work coming from Solar Marine Aust Pty Ltd Mr Campbell supervised the work of installing the mast and the defendant did not have a lot to do with it. Consequently I find that the answer by the defendant to interrogatory 8(b) is misleading and the relevant entry in D9 is also misleading.

1. After an exhaustive analysis of the evidence and the arguments of counsel I reach the following conclusions:

1As I stated at the hearing, I would not accept any evidence given by the witness Leslie Alexander unless it was a piece of evidence which, having regard to other evidence, was so inherently likely that it would be unreasonable to reject it or it was a piece of evidence which was corroborated by other acceptable testimony.

2         I now make the same finding in relation to the defendant.

1. The name "Alexander Marine International" is not a registered business name (P2). There is evidence that that name is the name under which a bank account in the Westpac Bank was operated at least during the period 23 February 1983 to 13 April 1983 (see D3). There is clear evidence that Leslie Alexander used that name during the period 24 January 1983 to 25 February 1983 (see P11, P12, P13 and P14). Despite the assertion by the defendant that he has traded under this name at all times since approximately early 1983 as a sole trader doing business described as supplying and servicing of all types to the marine industry from an address at 4 Rose Street, Sefton, New South Wales (see P9), he produced only four pages of a bank statement by way of documentary evidence to support this claim and that bank statement is exhibit D3, the exhibit on which the handwriting of Leslie Alexander appears.

1. There is evidence that Leslie Alexander claimed on 25 August 1983 that hull 781 (Ebert) ordered in this name, Alexander Marine International, was ordered and paid for by him (P14(i)). There is evidence that Leslie Alexander instructed a firm of solicitors to write a letter of demand to Westsail Australia Pty Ltd using this name, Alexander Marine International.

1. The address shown on the bank statement of Alexander Marine International is the same as an address of Solar Marine Pty. Ltd., Leslie Alexander's company.

1. There is also the evidence of Mr Ebert to the effect that Leslie Alexander told him that the Westsail franchise was held by Alexander Marine International and the selling of the boats to the customers was carried through the Solar Marine Company.

1. It is clear that payments to Westsail Australia Pty. Ltd. for a hull and deck came from the bank account in the name of Alexander Marine International.

1. I do not think that McCann had much first hand knowledge of the bank account D3. He was asked "Now, were you involved in the coming into being of that account?" He replied "Well, indirectly, I can't say that particular account". It has not been shown that he had any knowledge of it apart from instructions received from his client, the defendant.

1. When the vessel came to the Birkenhead Marina it was in a berth leased by the Solar Marine Company.

1. I accept the evidence of Mr Ebert to the effect that he lost the benefit of his $16,000 deposit and he came to an arrangement with Leslie Alexander that the latter would get another hull from Westsail with Mr Ebert's $16,000 and, when Leslie sold the yacht built from the hull Mr Ebert would get his $16,000 refunded. Mr Ebert said he knew that another hull was sent from Westsail to Leslie Alexander about the middle of 1984 (cf P9 interrogatory No 2).

1. On the whole of that material I conclude that Leslie Alexander was able to give a good title to this yacht to Dr Pargiter at the time he entered into the agreement with him, subject only to the outstanding Bill of Sale to the Commonwealth Bank. It would be unrealistic not to infer that Leslie Alexander is in breach of some obligation he owed to the defendant in relation to this yacht. No other conclusion will explain the strenuous efforts of the defendant to obtain possession of this yacht. But this does not mean that Leslie Alexander was not in a position as owner to give a good title to the plaintiff. The extraordinary agreement between the defendant and Leslie Alexander (P21) will repay study on that point.

1. I find that, in consequence of the discharge of the Bill of Sale, the plaintiff obtained a good title to the yacht.

1. Alternatively, if the defendant were the owner of the yacht and gave it to his brother to sell, and I refer back to the statement made by Mr O'Farrell, presumably, he gave his brother power to pass title. He knew that his brother might sell as principal and impliedly authorised him to do so. Leslie held himself out as principal to the plaintiff and sold to him as apparent principal. The defendant cannot now be heard to say that the plaintiff acquired no title. I have in mind the following passage in the judgment of Salmon LJ in Lloyds and Scottish Finance Ltd v Williamson & Anor [1965] 1 WLR 404 at 411:

"The defendant is amply protected by the common law, and no question arises under the Factors Acts which, whilst they codified and amplified the common law so far as it applied to mercantile agents, certainly did not derogate from it; see section 13 of the Factors Act, 1889. If the same authority as was given to Peerless had been given to a person who was not in business at all, the plaintiffs' case would not have been even apparently arguable. In such a case no question of the agent's ordinary course of business could have arisen, yet he would undoubtedly have passed a good title to anyone buying in good faith from him as the apparent owner of the motor car." (See also Helmore's Personal Property and Mercantile Law (NSW) 8th ed, 49 – 50).

1. The plaintiff bought in good faith from Leslie Alexander as the apparent owner of the yacht.

1. There is a good deal of evidence to ground an inference that the defendant must have known that the yacht was being sold. In that regard I refer back to the evidence of Mr Syme, the evidence that certain fittings were put into the yacht at the request of the plaintiff during a period when the defendant, according to his case, was working on the yacht, the evidence concerning the publication of the advertisements for sale and their wording and the evidence that the yacht was taken to Mort Bay Shipwright Services for the purpose of being fitted out.

1. For these reasons the plaintiff is entitled to an appropriately worded order for the return of the yacht.