Superstart Batteries Pty Ltd v Fleming and Sandford Enterprises Pty Ltd
[2010] QDC 203
•29 April 2010
DISTRICT COURT OF QUEENSLAND
CITATION:
Superstart Batteries Pty Ltd v Fleming and Sandford Enterprises Pty Ltd [2010] QDC 203
PARTIES:
SUPERSTART BATTERIES PTY LTD ACN 101 683 694
Appellant
v
FLEMING AND SANDFORD ENTERPRISES PTY LTD ACN 007 848 517
Respondent
FILE NO:
292 of 2009
DIVISION:
Appellate
PROCEEDING:
Appeal
ORIGINATING COURT:
Magistrates Court at Maroochydore
DELIVERED ON:
29 April 2010
DELIVERED AT:
Maroochydore
HEARING DATE:
24 March 2010
JUDGE:
K S Dodds, DCJ
ORDER:
Appeal allowed to the extent of reducing the judgment sum and interest to $10,334.31 and $6353.32 respectively.
CATCHWORDS:
APPEAL – where agent supplied principal’s goods on terms outside his authority – where agent liable to the principal for the cost of the goods so supplied – whether agent had standing to sue for the cost of the goods so supplied
Justices Act 1886 (Qld) s 222
COUNSEL:
D J Topp for the appellant
S J Courtney for the respondent
SOLICITORS:
Greenhalgh Pickard Solicitors for the appellant
Butler McDermott Lawyers for the respondent
This is an appeal by a defendant from a judgment in the Magistrates Court at Maroochydore given on 18 September 2009. On that day the Magistrate published her reasons and gave judgment for the plaintiff against the defendant for $11,016.09, interest in the sum of $6923.84 and costs in the amount of $7091.50.
The appeal is by way of rehearing.[1]
[1] Section 45(1) Magistrates Courts Act 1925; Rules 765 and 785 Uniform Civil Procedure Rules.
The proceeding before the Magistrate was commenced by claim filed 31 August 2007 claiming $11,016.09 being money due and owing by the defendant to the plaintiff in respect of the sale and delivery of batteries plus interest and costs. The statement of claim pleaded that at all material times the plaintiff operated a business whereby it sold and delivered batteries which were provided from Lion Batteries (Wholesale) Pty Ltd trading as Apollo Batteries Sales (Lion), and that between September 2002 and December 2002 it supplied batteries to the defendant at its request to the value claimed. Despite demand for payment it had not been paid and the defendant had refused to make payment.
The defendant’s defence denied the allegations in the statement of claim. It asserted it had never traded with the plaintiff, the plaintiff had never made any previous demands to it for the amount alleged owing. Consequently the defendant had never refused to pay the plaintiff.
On 7 August 2008, the appellant joined as a third party, Eric Alamango trading as Superstart Batteries Queensland.
The grounds of appeal were:
1.That the Magistrate at first instance erred in law by not finding that an antecedent debt or obligation was owed by the plaintiff to the entity Lion Batteries (Wholesale) Pty Ltd without which the plaintiff lacked any justiciable cause of action;
2.In the alternative to ground 1 above, that the first instance Magistrate erred in law in not finding that the plaintiff/respondent failed to make out a case in liability in respect of invoices 114913, 114942 and 114980.
Before any evidence was given at the trial, an application was made by the appellant to strike out the respondent’s claim. It was asserted that if any debt was owed by the appellant, it was owed to Lion, not the respondent. In response the solicitor for the respondent told the Magistrate that evidence to be given in the respondent’s case would deal with this assertion.
At the trial evidence was given for the respondent by John Fleming (Fleming), a director of the respondent and Terry Allan (Allan), the Queensland manager of Lion.
In the appellants case, evidence was given by Theofanis Trigas (Trigas), managing director of the appellant and Eric Alamango (Alamango), who at the material time was employed by the appellant as its State manager.
Ground One
The evidence in the respondent’s case before the Magistrate was that the respondent received batteries from Lion which it would supply to customers. Some customers had an account with Lion. Customers who did not have an account with Lion were to be supplied cash on delivery. It was the respondent’s responsibility to collect payment from non-account customers. It had to account to Lion for that money. It was responsible for payment to Lion.
Prior to September 2002, Alamango had traded on his own behalf as Superstart Batteries in Caloundra. The respondent had supplied him with batteries. Alamango had no account with Lion. Fleming who was the human face of the respondent on the Sunshine Coast would not, at least at times, collect cash on delivery but would allow Alamango time to pay. On one occasion batteries not paid for were written off by Lion.
Alamango’s business was not going well. It was having difficulty paying its way. In August or September 2002 Alamango told Fleming that “Theo” (Trigas) who was an owner of Superstart Batteries in New South Wales, was going to take over Alamango’s business, that money problems were a thing of the past.
The appellant Superstart Batteries Pty Ltd was incorporated on 13 August 2002. In August or September 2002 Alamango moved from Caloundra to Warana and on 1 October 2002, the appellant opened for business at the corner of Production and Tandem Avenues at Warana. Alamango was its manager.
What I have set out above was, on all the evidence, uncontroversial in the proceeding before the Magistrate.
Fleming said in his evidence that after the appellant established at Warana, he supplied batteries to it at Alamango’s request. He had been told by Alamango that he was short of suitable stock which he could sell. The appellant did not have an account with Lion. Invoices were raised for the supply of batteries, which occurred. Alamango would initial an invoice on delivery. Allan gave evidence that after he became aware that Trigas Superstart Batteries Pty Ltd was starting business on the Sunshine Coast, he came to the Coast and with Fleming went on a canvassing drive to retain and acquire customers on the coast. He was present on one occasion when Fleming delivered batteries to the appellant at the Warana address.
The invoices, which in total equalled the amount claimed, were tendered and admitted as evidence. They were headed “Lion Batteries (Wholesale) Pty Ltd T/A Apollo Batteries (Sales) ABN 70 002 156 256”. On the foot of each invoice was printed “All goods remain the property of Lion Batteries (Wholesale) Pty Ltd until paid in full”.
In Alamango’s evidence he denied being supplied with the batteries the subject of the invoices. He said there had been one occasion when he and Fleming had swapped batteries, four of them. He agreed his initials appeared on a large number of the invoices. With respect to some, invoices 114 913 and 114 980, he said initials on the invoice were not his.
Trigas gave evidence that there was never an occasion the appellant’s business at Warana was required to source Lion’s batteries. His company supplied all batteries to the Warana branch. Alamango had no authority to purchase batteries from the respondent. He accepted that Alamango was the state manager of the appellant.
The Magistrate found Alamango an unreliable witness whose evidence was inconsistent. She did not accept his evidence about not receiving batteries Fleming said he had delivered and for which he said Alamango had initialled invoices. She concluded that when Alamango’s evidence differed from Fleming she preferred the evidence of Fleming which was supported (in part) by the evidence of Allan. She “had difficulty” with the evidence of Trigas. She found him “less than forthright”. She observed him change an answer he gave to the person representing the appellant on the trial when prompted by a gesture by a person in the courtroom and did not believe an answer he gave following that.
The Magistrate’s finding that the respondent had supplied the batteries Fleming said it had and that they had not been paid for was not challenged on this appeal. The appellant submitted however that there was no sufficient evidence before the Magistrate to prove that the respondent was the proper plaintiff. The batteries remained the property of Lion until paid for. The respondent was Lions agent for the sale and supply of its batteries. Whilst on the evidence the Magistrate accepted the respondent was liable for payment for batteries supplied to non-account customers, no evidence was given to show that the respondent had paid or remained liable to pay Lion for the batteries in question or to show that Lion had not written off the debt as it apparently had with respect to some other batteries, invoices 114 976 and 114 977 which were not part of the claim before the Magistrate.
The Magistrate addressed this issue in her reasons. She considered that it was clear on the evidence that the respondent “was responsible for the debt arising out of the non payment of invoices to cash on delivery customers”. The respondent was therefore responsible for any debt arising out of non payment by Superstart and “had standing to bring the action for the non payment of invoices delivered for batteries--- received by Superstart for the period October 2002 until December 2002”. She did not in her reasons deal specifically with what is now submitted because no issue of the debt in question being written off by Lion was agitated before her. What was agitated, apart from denying that the batteries in question were delivered, was that because Lion owned the batteries and the respondent was Lion’s agent, any alleged debt was owed to Lion and Lion was the proper plaintiff.
By supplying Alamango with batteries and not receiving payment immediately the respondent through Fleming entered into a private credit arrangement with Alamango which left the respondent responsible to Lion for the price of the batteries. It is inherent in the Magistrate’s judgment for the plaintiff on the claim that she found the amount claimed remained owing to the respondent. On the pleadings and on the evidence before her I think she was entitled to so find. There was no evidence that the debt raised by the supply of the batteries in question had been written off by Lion exonerating the respondent from its liability to Lion.
Ground one is not established.
Ground Two
This ground rests on the evidence of Alamango wherein he said that the initials on certain of the invoices which were part of the claim were not his initials. On one, Invoice 114 942, there were no initials.
It was implicit on Fleming’s evidence that initials on all the invoices involved in the claim were Alamango’s. An examination of the invoices reveals that Invoice 114 942 does not have upon it any initials. Invoice 114 980 has initialling on it which is not dissimilar to initials on other invoices Alamango accepted as his. Invoice 114 913 has in red biro some initialling. It is not the only invoice initialled in red biro, for example, Invoices 114 945, 114 956, 114 959, 114 973 and 114 933 accepted by Alamango as containing his initials. It bears some passing similarity to some initials on some other invoices. It may be observed there is variation between initialling even amongst those Alamango accepted as his.
In light of the findings about credibility made by the Magistrate, Invoices 114 913 and 114 980 may be regarded as bearing Alamango’s initials, despite Alamango’s denials.
Invoice 114 942 however has not been initialled. Fleming, in his evidence said that he would write up an invoice and get it signed by Alamango when the batteries the subject of the invoice were delivered. It is part of the total of the plaintiff’s claim. No evidence was led to explain why if the batteries on it were delivered, no initials appear on it. Moreover the Magistrate’s reasons for judgment do not reveal that she considered this particular invoice and its lack of any initials.
The appeal should succeed to the extent that the judgment sum be reduced by the amount of invoice 114 942; $681.78.
The appeal will be allowed to the extent the amount of the judgment is varied to $10,334.31 and the amount of interest is varied to $6353.32.
The bulk of the appeal involved ground 1. Ground 2 has succeeded only to the extent of one invoice out of three only because it had not been initialled and the evidence was deficient regarding it. I will give the parties an opportunity to make submissions about costs.
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