Rich v Auswide Constructions Pty Ltd (No 2) - [2020] QDC 330

DISTRICT COURT OF QUEENSLAND

CITATION:

Rich v Auswide Constructions Pty Ltd (No 2) [2020] QDC 330

PARTIES:

ALEXANDER DAVID WILLIAM RICH

(plaintiff)

v

AUSWIDE CONSTRUCTIONS PTY LTD ACN 114 157 925 as trustee for the Auswide Constructions Trust

(first defendant)

and

GARRY BRAND

(second defendant)

FILE NO/S:

15/19

DIVISION:

Civil

PROCEEDING:

Trial

DELIVERED ON:

18 December 2020

DELIVERED AT:

Brisbane

HEARING DATE:

2 and 3 December 2020

JUDGES:

Barlow QC DCJ

ORDER:

1. Judgment for the first defendant on the plaintiff’s claims.

2. Adjourn the proceeding to a date to be fixed for submissions on further orders and costs.

CATCHWORDS:

CONTRACTS – PARTICULAR PARTIES – PRINCIPAL AND AGENT – RELATIONS BETWEEN PRINCIPAL AND THIRD PERSONS – WHAT ACTS OF AGENT BIND PRINCIPAL – DISPOSITIONS BY FACTORS AND MERCANTILE AGENTS – defendant purchased the vessel from a third party – the vessel was returned to the third party for repairs – third party sold the vessel to the plaintiff – whether the third party was a mercantile agent – whether the mercantile agent was acting in the ordinary course of business – whether the plaintiff purchased the vessel in good faith

Factors Act 1892 (Qld), s 3(1), s 3(4)
Sales of Goods Act 1896 (Qld), s 24

Second-hand Dealers and Pawnbrokers Act 2003 (Qld), s 2, s 6, s 29

Associated Midland Corporation v Sanderson Motors Pty Ltd [1983] 3 NSWLR 395, applied
Astley Industrial Trust Limited v Miller [1968] 2 All ER 36, applied
Cahn v Pockett’s Bristol Steam Packet Co [1899] 1 QB 643, cited
Fabre v Arenales (1992) 27 NSWLR 437, cited
Heap v Motorists’ Advisory Agency Ltd [1923] 1 KB 577, cited
Jones v Dunkel (1959) 101 CLR 298, cited
Magnussen v Flanagan [1981] 2 NSWLR 926, considered
McKenzie v McKenzie [1970] 3 WLR 472, cited
Mercedes-Benz Financial Services Australia Pty Ltd v State of New South Wales [2011] NSWSC 1458, cited
Mitchell v Jones (1905) 24 NZLR 932, applied
Oppenheimer v Frazer & Wyatt [1907] 1 KB 519, applied
Oppenheimer v Frazer & Wyatt [1907] 2 KB 50, applied
Oppenheimer v Attenborough & Son [1908] 1 KB 221, considered
Roache v Australian Mercantile Land & Finance Co Ltd (1966) 67 SR (NSW) 54, applied
Robinson Motors Pty Ltd v Fowler [1982] Qd R 374, cited

Staffs Motor Guarantee Ltd v British Wagon Co Ltd [1934] 2 KB 305, applied

COUNSEL:

Self-represented plaintiff with Stephen Arulogun as McKenzie friend

A Marinac (solicitor) for the first defendant

SOLICITORS:

Pacific Maritime Lawyers for the first defendant

Contents
Introduction
The issues
Was Mr Rich dealing with a mercantile agent?
Did Andrew Eustice or Chateau Bateau have possession of the vessel with the owner’s consent?
Capacity in which possession was obtained
Ordinary course of business
Did Mr Rich purchase in good faith?
Conclusions
Addendum – the “McKenzie friend”

Introduction

This is one of those troublesome cases in which one or other of the two litigants[1] must suffer by…

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: [2020] QDC 330
Decision Date: 18 December 2020

CaseChat Overview and Summary

In the case of Rich v Auswide Constructions Pty Ltd (No 2), the plaintiff, Mr. Rich, sought to recover a vessel he had purchased from a third party, claiming it had been sold to him in good faith and without knowledge of any prior claims to the vessel. The defendants, Auswide Constructions Pty Ltd, were the original owners of the vessel, which had been returned to the third party for repairs before being sold again. The dispute involved the relationship between the original owner, the third party, and the purchaser, focusing on whether the third party acted as a mercantile agent and if the sale to the plaintiff was conducted in the ordinary course of business.

The legal issues before the court included determining whether the third party, who had possession of the vessel, qualified as a mercantile agent and whether the sale to the plaintiff occurred in the ordinary course of business. Additionally, the court had to decide if the plaintiff purchased the vessel in good faith, without any knowledge of the defendants' prior ownership and claims.

The court found that the third party did not qualify as a mercantile agent in the context of this case, as they did not have the necessary authority or customary practices to bind the defendants to the sale. Furthermore, the court determined that the sale did not occur in the ordinary course of business. Consequently, the plaintiff did not acquire the vessel in good faith, given that he was aware of the defendants' prior ownership at the time of purchase. Based on these findings, the court ruled in favour of the defendants, dismissing the plaintiff’s claims.

The final orders included a judgment in favour of the first defendant, Auswide Constructions Pty Ltd, on the plaintiff’s claims. The court also adjourned the proceedings to a later date for submissions on further orders and costs.

Orders

Orders of the court

1. Judgment for the first defendant on the plaintiff’s claims.

2. Adjourn the proceeding to a date to be fixed for submissions on further orders and costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Rich v Auswide Constructions Pty Ltd (No 2) [2020] QDC 330
PARTIES:	ALEXANDER DAVID WILLIAM RICH (plaintiff) v AUSWIDE CONSTRUCTIONS PTY LTD ACN 114 157 925 as trustee for the Auswide Constructions Trust (first defendant) and GARRY BRAND (second defendant)
FILE NO/S:	15/19
DIVISION:	Civil
PROCEEDING:	Trial
DELIVERED ON:	18 December 2020
DELIVERED AT:	Brisbane
HEARING DATE:	2 and 3 December 2020
JUDGES:	Barlow QC DCJ
ORDER:	1. Judgment for the first defendant on the plaintiff’s claims. 2. Adjourn the proceeding to a date to be fixed for submissions on further orders and costs.
CATCHWORDS:	CONTRACTS – PARTICULAR PARTIES – PRINCIPAL AND AGENT – RELATIONS BETWEEN PRINCIPAL AND THIRD PERSONS – WHAT ACTS OF AGENT BIND PRINCIPAL – DISPOSITIONS BY FACTORS AND MERCANTILE AGENTS – defendant purchased the vessel from a third party – the vessel was returned to the third party for repairs – third party sold the vessel to the plaintiff – whether the third party was a mercantile agent – whether the mercantile agent was acting in the ordinary course of business – whether the plaintiff purchased the vessel in good faith Factors Act 1892 (Qld), s 3(1), s 3(4) Sales of Goods Act 1896 (Qld), s 24 Second-hand Dealers and Pawnbrokers Act 2003 (Qld), s 2, s 6, s 29 Associated Midland Corporation v Sanderson Motors Pty Ltd [1983] 3 NSWLR 395, applied Astley Industrial Trust Limited v Miller [1968] 2 All ER 36, applied Cahn v Pockett’s Bristol Steam Packet Co [1899] 1 QB 643, cited Fabre v Arenales (1992) 27 NSWLR 437, cited Heap v Motorists’ Advisory Agency Ltd [1923] 1 KB 577, cited Jones v Dunkel (1959) 101 CLR 298, cited Magnussen v Flanagan [1981] 2 NSWLR 926, considered McKenzie v McKenzie [1970] 3 WLR 472, cited Mercedes-Benz Financial Services Australia Pty Ltd v State of New South Wales [2011] NSWSC 1458, cited Mitchell v Jones (1905) 24 NZLR 932, applied Oppenheimer v Frazer & Wyatt [1907] 1 KB 519, applied Oppenheimer v Frazer & Wyatt [1907] 2 KB 50, applied Oppenheimer v Attenborough & Son [1908] 1 KB 221, considered Roache v Australian Mercantile Land & Finance Co Ltd (1966) 67 SR (NSW) 54, applied Robinson Motors Pty Ltd v Fowler [1982] Qd R 374, cited Staffs Motor Guarantee Ltd v British Wagon Co Ltd [1934] 2 KB 305, applied
COUNSEL:	Self-represented plaintiff with Stephen Arulogun as McKenzie friend A Marinac (solicitor) for the first defendant
SOLICITORS:	Pacific Maritime Lawyers for the first defendant