Seiwa Australia Pty Ltd v Beard

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.