Reported Decision: 75 NSWLR 74
New South Wales
Court of Appeal
CITATION: Seiwa Australia Pty Ltd v Beard [2009] NSWCA 240 HEARING DATE(S): 3 & 9 July 2009
JUDGMENT DATE:
11 August 2009JUDGMENT OF: Allsop P at 1; Campbell JA at 4; Macfarlan JA at 324 DECISION: Appeal dismissed with costs. CATCHWORDS: PARTNERSHIP – partners – power of a partner to bind the partnership – determining the “business of the kind carried on by the firm” for the purpose of s 5 Partnership Act 1892 – whether “business of the kind carried on by the firm” is necessarily the business actually carried on by the partnership – meaning of “the usual way” in which the business is carried on – whether a judge can inform themselves using “common sense” of the business ordinarily carried on by a type of partnership firm – role of judicial notice in deciding this - PARTNERSHIP – partners – power of a partner to bind the partnership – ostensible authority – whether the ostensible authority of a partner is limited to what is necessary to carry on the partnership business – distinction between what is necessary to carry out a particular task and what is necessary to carry out the business of the partnership - PARTNERSHIP – partners – relevance of registration under Business Names Act 1962 to proof of identity of partners – difference between statutory facilitation of proof of identity of partners under Business Names Act 1962 and Business Names Act 2002 - APPEAL AND NEW TRIAL – appeal – general principles – interference with Judge’s findings of fact – limitations on an appellate court’s ability to assess the evidence – limitations extending beyond the trial Judge’s assessments of demeanour – advantages of a trial judge in weighing the account of a witness against contemporaneous documents - CONTRACTS – general contractual principles – parties – identification of parties – whether an objective bystander would conclude that a party to the contract was purporting to act on behalf of the partnership - CONTRACTS – general contractual principles – formation – whether a party can be held to an improbable promise where another party believes that the fulfilment of the promise was possible – whether such a contract can exist - EVIDENCE – witnesses – failure to call – inferences to be drawn – whether a Jones v Dunkel inference is open on the facts – no requirement for the trial judge to draw an adverse inference LEGISLATION CITED: Business Names Act 1962
Business Names Act 2002
Evidence Act 1995
Partnership Act 1892CATEGORY: Principal judgment CASES CITED: Abalos v Australian Postal Commission (1990) 171 CLR 167
Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309
Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540
Beyfus v Greene (1855) 1 VLT 348
Brettel v Williams (1849) 4 Exch 623; 154 ER 1363; 80 RR 726
Commercial Bank v Lakeman (1890) 7 WN (NSW)…
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Details
- Case
- [2009] NSWCA 240
- Decision Date
CaseChat Overview and Summary
Seiwa Australia Pty Ltd appealed to the Court of Appeal of New South Wales against a decision of a judge who found that a partnership, Beard, was bound by a contract entered into by one of its partners. The dispute concerned whether the partner had the authority, either actual or ostensible, to bind the partnership to the contract.
The Court of Appeal was required to determine whether the partner's actions fell within the "business of the kind carried on by the firm" as contemplated by section 5 of the *Partnership Act 1892* (NSW), and whether the judge had erred in their assessment of the evidence, including the application of judicial notice and the drawing of inferences. Specifically, the court considered the meaning of "the usual way" in which a business is carried on and whether a partner's ostensible authority was limited to what was necessary to carry on the partnership business, as opposed to merely carrying out a particular task. The relevance of registration under the *Business Names Act 1962* (NSW) to the proof of identity of partners was also a consideration.
The Court of Appeal upheld the trial judge's findings, reasoning that the judge was entitled to inform themselves, using common sense and judicial notice, of the ordinary business practices of a partnership of the type in question. The court found that the partner’s actions were within the scope of the partnership's business and that an objective bystander would have concluded the partner was purporting to act on behalf of the partnership. The court also held that the trial judge was not required to draw an adverse inference from the failure of a party to call a witness. The appeal was dismissed with costs.
The Court of Appeal was required to determine whether the partner's actions fell within the "business of the kind carried on by the firm" as contemplated by section 5 of the *Partnership Act 1892* (NSW), and whether the judge had erred in their assessment of the evidence, including the application of judicial notice and the drawing of inferences. Specifically, the court considered the meaning of "the usual way" in which a business is carried on and whether a partner's ostensible authority was limited to what was necessary to carry on the partnership business, as opposed to merely carrying out a particular task. The relevance of registration under the *Business Names Act 1962* (NSW) to the proof of identity of partners was also a consideration.
The Court of Appeal upheld the trial judge's findings, reasoning that the judge was entitled to inform themselves, using common sense and judicial notice, of the ordinary business practices of a partnership of the type in question. The court found that the partner’s actions were within the scope of the partnership's business and that an objective bystander would have concluded the partner was purporting to act on behalf of the partnership. The court also held that the trial judge was not required to draw an adverse inference from the failure of a party to call a witness. The appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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