Smith v Peter and Diana Hubbard Pty Ltd - [2006] NSWCA 109

New South Wales

Court of Appeal

CITATION: Smith and Another v Peter & Diana Hubbard Pty Ltd and Others [2006] NSWCA 109

HEARING DATE(S): 15 March 2006

JUDGMENT DATE:
9 May 2006

JUDGMENT OF: Giles JA at 1; Santow JA at 14; McColl JA at 81

DECISION: Appeal allowed. Orders at [13].

CATCHWORDS: AGENCY – scope of agent’s authority – whether agency extended to receiving or directing payment of purchase money – whether purchasers on constructive notice of agent’s lack of authority.

LEGISLATION CITED: Sale of Goods Act 1923 s22, S23

CASES CITED: Jacobs v Morris (1902) 1 Ch 816
Marriott v General Electric Co Ltd (1935) 53 CLR 409
Pacific Carriers Ltd v BNP Paribas (2004) 208 ALR 213
Petersen v Moloney (1951) 84 CLR 91

PARTIES: Brian SMITH (First Appellant)
BRIAN SMITH TIMBER TRANSPORT PTY LTD ACN 003 789 606 (Second Appellant)
PETER & DIANA HUBBARD PTY LTD ACN 085 735 771 (First Respondent)
Peter Yule HUBBARD (Second Respondent)
Diana Maree HUBBARD (Third Respondent)

FILE NUMBER(S): CA 40870/04

COUNSEL: N A COTMAN, SC/ C D WOOD (Appellants)
K P SMARK (Respondents)

SOLICITORS: Stephen O’Reilly, Bridge St Lawyers (Appellants)
Lorraine Boyce Solicitors (Respondents)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 1023/03

LOWER COURT JUDICIAL OFFICER: Quirk DCJ

LOWER COURT DATE OF DECISION: 09/10/2004

CA 40870/04
DC 1023/03

GILES JA
SANTOW JA
McCOLL JA
9 MAY 2006

Brian SMITH and Another v PETER & DIANA HUBBARD PTY LTD and Others

Judgment

1 GILES JA: The facts are set out in the reasons of Santow JA, which I have had the advantage of reading in draft.

2 In their cross-claim the Hubbard interests pleaded against the Smith interests a case of damages for repudiation of a contract to sell the prime mover. Mr and Mrs Hubbard could not have obtained damages from the Smith interests, because the cross-claim alleged a contract made by Mr Hubbard “on behalf of the first cross-claimant”, that is, Peter & Diana Hubbard Pty Ltd. It was not alleged that property in the prime mover had passed to Peter & Diana Hubbard Pty Ltd pursuant to an intention found in accordance with ss 22 and 23 of the Sale of Goods Act 1923, presumably because it was necessary that work be done on it before delivery (removal of hydraulics – although not in Santow JA’s facts, this was found as part of the contract), see Rule 2 in s 23.

3 In order to obtain damages for repudiation of the contract, it was not necessary in law that the purchase price had been paid to the Smith interests. The cross-claim specifically alleged that it had been paid to them by reason of Mr Wear’s actual or apparent authority of the Smith interests to direct payment to Benjosh, and that after accepting the repudiation Peter & Diana Hubbard Pty Ltd sought return of the purchase price from the Smith interest without success. The part to be played by this is not clear. Payment to…

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: [2006] NSWCA 109
Decision Date: 9 May 2006

CaseChat Overview and Summary

Smith, the appellant, brought proceedings against Peter and Diana Hubbard Pty Ltd, the respondent, concerning a property transaction. The dispute centred on whether the respondent, acting as agent for the vendor, had the authority to receive or direct the payment of the purchase money, and whether the purchasers were on constructive notice of any limitations on this authority. The matter was heard in the Court of Appeal of New South Wales.

The primary legal issues before the court were: firstly, the scope of the respondent's authority as an agent in relation to the handling of the purchase moneys; and secondly, whether the purchasers had constructive notice of any lack of authority on the part of the respondent to receive or direct such payments.

The Court of Appeal found that the agency agreement did not extend to authorising the respondent to receive or direct the payment of the purchase money. The court reasoned that the purchasers were put on constructive notice of the agent's lack of authority in this regard. Consequently, the appeal was allowed, and the orders made at paragraph [13] of the judgment were varied.

Orders

Orders of the court

Appeal allowed. Orders at [13].

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:	Smith and Another v Peter & Diana Hubbard Pty Ltd and Others [2006] NSWCA 109
HEARING DATE(S):	15 March 2006
JUDGMENT DATE:	9 May 2006
JUDGMENT OF:	Giles JA at 1; Santow JA at 14; McColl JA at 81
DECISION:	Appeal allowed. Orders at [13].
CATCHWORDS:	AGENCY – scope of agent’s authority – whether agency extended to receiving or directing payment of purchase money – whether purchasers on constructive notice of agent’s lack of authority.
LEGISLATION CITED:	Sale of Goods Act 1923 s22, S23
CASES CITED:	Jacobs v Morris (1902) 1 Ch 816 Marriott v General Electric Co Ltd (1935) 53 CLR 409 Pacific Carriers Ltd v BNP Paribas (2004) 208 ALR 213 Petersen v Moloney (1951) 84 CLR 91
PARTIES:	Brian SMITH (First Appellant) BRIAN SMITH TIMBER TRANSPORT PTY LTD ACN 003 789 606 (Second Appellant) PETER & DIANA HUBBARD PTY LTD ACN 085 735 771 (First Respondent) Peter Yule HUBBARD (Second Respondent) Diana Maree HUBBARD (Third Respondent)
FILE NUMBER(S):	CA 40870/04
COUNSEL:	N A COTMAN, SC/ C D WOOD (Appellants) K P SMARK (Respondents)
SOLICITORS:	Stephen O’Reilly, Bridge St Lawyers (Appellants) Lorraine Boyce Solicitors (Respondents)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 1023/03
LOWER COURT JUDICIAL OFFICER:	Quirk DCJ
LOWER COURT DATE OF DECISION:	09/10/2004