Sipke Tiekstra v PGH Ltd

[1992] SASC 3472

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA FULL COURT White A.C.J.(1), Cox(2) and Mohr(3) JJ.

CWDS
Contracts - general contractual principles - offer and acceptance - Contract for the sale of bricks - bricks ordered without the authority of the building owner (the appellant).
Held, per curiam, appeal dismissed. Per White A.C.J. (Cox and Mohr JJ. agreeing) - the circumstances in which the bricks were ordered were unclear, but the appellant had, by allowing the bricks to be put into the walls, adopted and ratified any previous contract and took the benefit of the use of the bricks.

HRNG ADELAIDE, 12 June 1992 #DATE 12:6:1992
Appellant in person
Counsel for respondent:         Mr M.W. Clisby
Solicitors:   M L Sibly

ORDER
Appeal dismissed.

JUDGE1 WHITE A.C.J. This is an appeal against a decision of Justice Bollen who dismissed an appeal from a decision of a magistrate in the Local Court. I will paraphrase some brief passages from the judgment of Justice Bollen which set the scene. 2. The plaintiff sells bricks. The defendant was arranging for a house to be built. The defendant's builder was a man called Woodard. The action was for the price of 7,030 bricks said to have been sold and delivered by the plaintiff to the defendant. The amount claimed was $4,612. 3. Certain witnesses were not called before the magistrate. One of them was the builder who had been engaged by the appellant not only to build the house but to supply the materials. Someone, maybe from the builder's office, rang for the bricks to be delivered. 4. Without descending into detail, there was a good deal of uncertainty as to the circumstances in which the bricks were ordered and delivered. 5. One witness called by the plaintiff (Mr Wundenberg) gave evidence. He was not cross-examined by the unrepresented appellant before the magistrate. He said that when he asked the appellant who the builder was, he said that he was. That was not true because the builder was Mr Woodard; and Mr Woodard was responsible for arranging for the supply and delivery of the bricks there, and paying for them. 6. The documentation of the respondent, a brick supplying company was poor. First, its account was sent to a company, not then operating, in which the appellant was interested, no doubt as a director and shareholder. Eventually the respondent sued that company and later discontinued those proceedings. When the respondent did bring fresh proceedings against the appellant personally, it brought them against him - but with his wife's initials. One way or another both the bricks and the litigation have had a very unhappy history. 7. It is important to note that Mr Wundenberg said (and he was not cross-examined upon the topic) that three pallets of bricks were still on the ground and not built into the walls when he met the appellant at the site. Subsequently all of those bricks were incorporated into the walls of the brick veneer house for the benefit of the appellant. 8. Bollen J. said at the end of his reasons: "I would say that the probability is that Woodard" (the builder, who eventually became bankrupt and left the State) "ordered the bricks from the respondent company and that the appellant, by eventually accepting the bricks and having them built into the wall of his house, adopted or ratified the order for the bricks." 9. Bollen J. went on to say that, if he was driven from that position, he would say that at the moment when the appellant agreed, however reluctantly, to allow the bricks to be put into his walls, he and the brick company entered into a contract which required the appellant to pay a reasonable price for bricks delivered. 10. In the events which happened, the appellant, very reluctantly and through force of bad fortune and heavy financial commitments, did reluctantly agree to allow the bricks to be put into the walls. Thereby he adopted and ratified any previous contract and took the benefit of the use of the bricks. For these reasons I would uphold the judgment of Bollen J., who in turn upheld the judgment of the magistrate. I dismiss the appeal. On the question of costs I think a good deal of hardship has been caused to the appellant. Some of the blame might be laid, one way or another, at the respondent's door. I think that justice would be done if each party paid own costs of the appeal. The order of the court is appeal dismissed, each party to pay own costs of this appeal to the Full Court.

JUDGE2 COX J. I agree.

JUDGE3 MOHR J. I agree.