Walters v Taylor Marine Ltd HC Auckland CIV-2006-404-2772
[2009] NZHC 2617
•19 October 2009
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2006-404-2772
BETWEEN BARRY WALTERS First Plaintiff
ANDBARRINGTON CHARTERS LIMITED Second Plaintiff
ANDTAYLOR MARINE LIMITED First Defendant
ANDLAWRIE ABEL Second Defendant
ANDLR ABEL & COMPANY LIMITED Third Defendant
Hearing: 8 September 2009
Counsel: M Heard for Plaintiffs
RO Parmenter for First Defendant
BM Stewart and P Hall for Second and Third Defendants
Judgment: 19 October 2009
JUDGMENT OF ASHER J
This judgment was delivered by me on 19 October 2009 at 2:15 pm pursuant to Rule 11.5 of the High Court Rules
………………………………………..
Registrar/Deputy Registrar
Solicitors:
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Date
R Allen, Richard Allen Law, PO Box 8344 Symonds Street, Auckland 1150
Simpson Western Solicitors, Auckland
Copy:
M Heard, LeeSalmonLong, Auckland
BM Stewart, Barrister, PO Box 10653, Takapuna, AucklandRO Parmenter, Barrister, PO Box 1052, Shortland Street, Auckland
BARRY WALTERS AND ANOR V TAYLOR MARINE LIMITED AND ORS HC AK CIV-2006-404-2772
19 October 2009
[1] The plaintiff, Barry Walters, purchased a 60-foot yacht ‘Blaze’ from a David Bishop in 2003, which, it turned out, was encumbered to a third party. It cost Mr Walters $312,653.95 to clear the encumbrance. He has not been able to recover any damages from Mr Bishop. In these proceedings he claims against the yacht brokers, Taylor Marine Limited, and the sub-contractors to those yacht brokers, LR Abel & Company Limited, and a director of LR Abel & Company Limited, Lawrie Abel.
Background
[2] Mr Walters resides in Queenstown and is a director of Barrington Charters Limited (“Barrington”), the second plaintiff. Barrington carries on the business of offering boats for charter. Taylor Marine Limited (“Taylors”) is a marine broker based in Auckland. The third defendant, LR Abel & Company Limited (“Abel & Co.”) is also a marine broker based in Auckland. The second defendant, Lawrie Abel, is a director and shareholder of Abel & Co. and works for the company.
[3] Until July 2003 Mr Bishop was the owner of the Blaze, a 60-foot yacht. The vessel was encumbered by a mortgage to KeyBank National Association of Cleveland, Ohio (“KeyBank”). It was registered against the vessel’s title in the United States of America.
[4] During July 2002 Mr Bishop engaged Taylors to be his exclusive agent for the purpose of selling the vessel. Taylors operated a system in its office where there was appointed for each day a “duty broker”. The appointment was on rotation between various brokers. If a potential vendor or purchaser approached Taylors for the first time, the broker on duty on the day would be assigned the listing for the vendor/client, or would be allocated as the selling broker if the vessel was sold to a purchaser.
[5] When Mr Bishop first approached Taylors, Mr Abel was the duty broker. Mr Abel liaised with Mr Bishop for the purposes of preparing the listing details, inventory and specifications. He arranged for the advertising of the vessel.
[6] In due course Taylors prepared an agreement whereby Mr Walters purchased the vessel from Mr Bishop. The agreement was signed on about 15 June 2003. The purchase price was $650,000, and there was a warranty in the agreement that the vessel would pass to the purchaser free from all encumbrances. The sale and purchase was settled on 25 July 2003, with Taylors obtaining a commission of
$37,687.50 inclusive of GST. Of that commission $6,210.63 was paid to Abel & Co.
[7] On 29 September 2005 Mr Walters sold the vessel to Barrington, a company that he controlled. On 28 April 2006 the vessel was arrested at the instigation of KeyBank, relying on its mortgage, and as a consequence proceedings issued in New Zealand. Ultimately those proceedings were settled by Mr Walters. $150,000 was paid to KeyBank. The total loss suffered by the plaintiffs was $312,653.95, the balance above the $150,000 being legal costs in various proceedings relating to the seizure of the vessel.
[8] The amended statement of claim that was filed contained a number of causes of action, including claims under the Fair Trading Act 1986, and in negligence. However, in the end the plaintiffs have presented their case based on one cause of action only, under the Consumer Guarantees Act 1993 (“the Act”). It is stated that the issues for determination are:
a) whether those acting as agents in the sale of goods are “suppliers” for the purposes of the Act; and
b)whether, in this case, the second and third defendants were “acting as agents”.
No issue is taken by the defendants as to this approach or the quantum of the plaintiffs’ loss.
The key submissions of the parties
[9] The word “goods” is defined in s 2 at (a) and (b)(ii) of the Act as:
goods—
(a)means personal property of every kind (whether tangible or intangible), other than money and choses in action; and
(b) includes—
…
(ii) ships, aircraft, and vehicles:
[10] It is common ground that the vessel Blaze is a ship and therefore “goods”. Under s 5(1)(b) “suppliers” guarantee that the goods are free from any undisclosed security, and s 16 gives the consumer a right of redress against a “supplier” of goods where the goods fail to comply with any guarantee set out in s 5. Thus, it is common ground between the parties that if any of the defendants fall within the definition of “supplier”, they are in breach of the guarantee contained in s 5(1)(b).
[11] Mr Heard for the plaintiffs submits that all the defendants are suppliers under the definition of “supplier” in s 2 of the Act. The submission of Mr Parmenter for the first defendant and Mr Stewart for the second and third defendants, is that the plaintiffs’ interpretation of the definition of “supplier” is too broad, and that the definition does not include their respective clients. It is necessary now to consider these arguments.
[12] There appear to be no New Zealand authorities on the issues. I was referred to Pearce v Thomas DC NAP, NP471/02 29 April 2003, Rea DCJ, where a submission that an agent was a supplier was rejected. However, that was a summary judgment application, and no detailed reasons were given.
Section 2 of the Act
[13] The definition of “supplier” in s 2 of the Act provides:
supplier—
(a) means a person who, in trade,—
(i) supplies goods to a consumer by—
(A) transferring the ownership or the possession of the goods under a contract of sale, exchange, lease,
hire, or hire purchase to which that person is a party;
or
(B)transferring the ownership of the goods as the result of a gift from that person; or
(C)transferring the ownership or possession of the goods as directed by an insurer; or
(ii) supplies services to an individual consumer or a group of consumers (whether or not the consumer is a party, or the consumers are parties, to a contract with the person); and
(b) includes,—
(i)where the rights of the supplier have been transferred by assignment or by operation of law, the person for the time being entitled to those rights:
(ii) a creditor within the meaning of the Credit Contracts and Consumer Finance Act 2003 who has lent money on the security of goods supplied to a consumer, if the whole or part of the price of the goods is to be paid out of the proceeds of the loan and if the loan was arranged by a person who, in trade, supplied the goods:
(iii) a person who, in trade, assigns or procures the assignment of goods to a creditor within the meaning of the Credit Contracts and Consumer Finance Act 2003 to enable the creditor to supply those goods, or goods of that kind, to the consumer:]
(iv) a person who, in trade, is acting as an agent for another, whether or not that other is supplying in trade; and
(c)for the avoidance of doubt in the following circumstances, means only,—
(i) in the case of a supply of electricity as a good, the retailer of the electricity with whom the consumer has a contract; and
(ii) in the case of a supply of electricity line function services, the distributor who owns or operates the line that is connected to the consumer's premises; and
(iii) in the case of other services relating to electricity, the person who provides that service to the consumer.
[emphasis added]
[14] Mr Heard relies primarily on s 2(b)(iv), submitting that each of the defendants can be said to have been in trade, to have been acting as an agent for another, and to, therefore, be a supplier. In putting forward this submission
Mr Heard relied on a report of Professor David Vernon, An Outline For Post-sale Consumer Legislation in New Zealand: A report to the Minister of Justice, 1987, (“The Vernon Report”). This report did not provide any blueprint for the Act, but has been described as influential to its drafting, (Gault on Commercial Law, CG Intro.01). It must be approached with caution as a guide to legislative intent.
[15] A particular passage relied on by Mr Heard was at p 16 of the Vernon Report:
Consumer sales are made possible by cooperative efforts of everyone in the distribution chain. Although in their dealings with each other, each of the parties in the chain may view itself as an independent entrepreneur, that such independence existed would come as a surprise to most consumers. At a minimum, consumers would view the manufacturer and the retailer as being jointly responsible for the quality of the goods, and in some cases, for the quality of the service rendered, e.g., the plumber and the producer of the pipe. To the extent that an important statutory goal for New Zealand is to establish a legal process that is consistent with consumers’ reasonable expectations, technical privity requirements and the law’s failure to deem the producer, the importer, the wholesaler, and the retailer as a single legal entity must give way.
Later it is stated that post-sale consumer protection legislation in other countries treats “everyone in the chain as having a direct legal obligation to the ultimate consumer. It is recommended that New Zealand act similarly”: at 16. Mr Heard relied on these extracts as supporting his interpretation of the definition of “supplier”, as involving all persons, including brokers, who are in the supply chain, within the definition of “supplier”. He asserted that there was a policy decision that placed responsibility for any failure in the goods on the innocent supplier rather than the innocent consumer. The innocent supplier has the better chance to recover the loss or protect itself through insurance.
[16] I was handed a copy of the Fair Trading Act, RSA 2000, of Alberta where the word “supplier” was defined as including a person who promoted the use or purchase of goods or services in the course of that person’s business. Similarly in the Business Practices and Consumer Protection Act, SBC 2004, of British Columbia the definition of “supplier” extended to soliciting, offering, advertising or promoting with respect to a transaction, in the course of business.
[17] Mr Heard also relied on an extract from Gault on Commercial Law, CG2.15.09, commenting on the definition of “supplier”:
Persons who sell on behalf of others attract liability as suppliers under the Act. This applies whether or not the principal is acting in trade. Thus real estate agents, motor vehicle dealers, commission agents, and other brokers who sell goods on behalf of others, are liable for supplier’s guarantees. Where those agents required the vendor to indemnify them against claims under the Act, a vendor who is not acting in trade may attract indirect liability. However, in relation to the guarantee of acceptable quality, this may well be a situation in which assessment of “all other circumstances of the supply” would determine whether or not there is a breach of guarantee: see CG7.15.
[emphasis added]
[18] He referred to an article by Cynthia Howes, “Agents and Consumer Guarantees” (1995) 6 Canterbury University Law Review at 164, where it was stated:
However, the liability of agents under the Act is not confined to the obligations of agents to their clients. The Act introduces a provision which has the effect of making agents, in certain circumstances, liable for the failure of guarantees where the goods and services are in reality not supplied by agents themselves but by suppliers who have authorised agents to act for them. This represents a significant departure from the established common law position as to the liability of agents. Under the Act an agent may be personally liable where goods or services fail to comply with the guarantees even if the agent is not in fact a party to the transaction between the supplier and consumer. Agents who would otherwise be merely intermediaries are brought within the Act by virtue of the definition of “supplier” in section 2(1). That provision states that a “supplier” is a person who supplies goods or services in trade to a consumer in certain stated circumstances …
[emphasis added]
[19] There is a shorter statement to similar effect in J C Skinnon and L Sligo, Companion to the Consumer Guarantees Act 1993, Butterworths, Wellington 1994 p 19:
Paragraph (f) [now (b)(iv)] deems a supplier the person in trade who acts as an agent for a private individual, for example, real estate agents and motor vehicle dealers selling “on behalf”.
[20] It is submitted, therefore, that the Act creates a significant exception to the usual rule that a disclosed agent who effects a contract is generally not liable in respect of any breach of it.
Is Taylors a supplier?
[21] Mr Parmenter for Taylors relied on s 2(a)(i)(A) where it is stated that a supplier is a person who, in trade, supplies goods to a consumer by “transferring the ownership … of the goods under a contract of sale … to which that person is a party”. He submits that an agent such as Taylors is not “in trade” in the sense that the phrase is used in the section of selling goods. Rather, the trader, Taylors, is providing brokering services. He noted the distinction between supplying goods and supplying services in the definition of “supply”, which reads:
Supply, -
(a)In relation to goods, means supply (or re-supply) by way of gift, sale, exchange, lease, hire, or hire purchase; and
(b) In relation to services, means provide, grant, or confer.
“Trade” is defined as follows:
Trade, means any trade, business, industry, profession, occupation, activity of commerce, or undertaking relating to the supply or acquisition of goods or services.
[22] It is his submission that Taylors supplies services, and its trade is the supply of such services. It does not supply goods. Therefore, he submits in terms of the definition of “supply”, Taylors does not supply boats to a consumer. He submits that a person cannot be a supplier if that person does not sell goods and is not a “party” to the contract.
[23] Mr Parmenter is undoubtedly correct that Taylors did not supply the vessel to Mr Walters in the sense of transferring its ownership to him pursuant to a contract to which it was a party. Taylors was not the vendor; the party who was the vendor was Mr Bishop. Taylors was in a classic agency position, disclosing the fact of the agency and supplying brokering services, and not supplying vessels.
[24] Therefore, if the case was to be determined on the definition of supplier in s 2(a)(i)(A), the case against Taylors would fail. Taylors did not supply goods to Mr Walters, and did not transfer the ownership of the vessel to Mr Walters under a contract to which it was a party.
[25] It is necessary then to turn to (b)(iv) of the definition of “supplier”, on which the plaintiff particularly relies. This sub-paragraph in the definition is one of four sub-paragraphs under the heading “includes”. It could be argued that “includes” indicates that what follows is for clarification purposes only, and cannot create any substantive extension of meaning to the preceding definition at (a). If that were so, then given the obvious requirement in (a)(i)(A) of the definition that a supplier must be a party, the case against Taylors would fail.
[26] However, the use of the word “includes” does not mean that what follows is only by way of elaboration or clarification. In this particular paragraph in its context, after the word “includes” there are a number of definitions of “supplier”, which clearly go beyond clarification or elaboration. Those definitions extend the meaning of “supplier”. Thus, an assignee under (b)(i) is included in the definition. An assignee cannot generally be a “party” to the original contract of sale. An assignee is a third party who acquires the contract from a party, normally at a date after the contract. Therefore an assignee would not, but for the extended definition under the word “includes”, have been a supplier. At (b)(ii) it is stated that a financier who has lent money on the security of the goods if the whole or part of the price of the goods was to be paid out of the proceeds of the loan and the loan was arranged by a person who in trade supplied the goods, is also a supplier. Again, such a financier could not by any means be regarded as the party who transferred the ownership of the goods to the purchaser. Rather, the financier is a third party. Nevertheless by the extended definition in (b)(ii) such a person is included in the definition of “supplier”.
[27] The word “includes” appears then to provide an extended definition of supplier, going beyond those who are parties to the contract of sale. The use of the word “includes” as a drafting technique to widen a definition was recognised in Progressive Meats Limited v Ministry of Health [2008] NZAR 633 at [25].
[28] It is necessary then to consider what is meant by the words in (b)(iv) “person who, in trade, is acting as an agent for another, whether or not that other is supplying in trade”.
[29] The definition in (b)(iv) does not specify the nature of the transaction or the person who is the principal. The statement that the “another” may or may not be supplying in trade indicates that that person is the principal and may or may not be a one-off seller. The definition in (b)(iv) must, to have any credible meaning, relate back to (a)(i)(A), which refers to the supplying of goods to a consumer by a party to a contract. The agent must be the agent of that party, who will be the principal to the supply contract. The intention appears clear; agents who have a profession or business of selling on behalf of others can be suppliers, even if the person who owns the goods sold is not a person in the trade of supplying such goods. The intention, therefore, under (b)(iv) is that the person acting as agent is a person different from the person actually selling the goods. This is consistent with the law of agency. An agent is not a “party” to the contract he or she arranges: Montgomerie v U.K. Mutual S.S. Assn Ltd [1891] 1 QB 370 at 371.
[30] It cannot therefore be the case that the person acting as agent has to be in the trade of supplying the goods in the sense of selling the goods. This would make a nonsense of (b)(iv) and indeed make it unnecessary. Rather, the phrase “in trade” in (b)(iv) can include being in trade in relation to services, i.e. the service of being an agent or broker.
[31] Taylors was the agent for Mr Bishop. Their contract stated so, and that was the form of the arrangement. Taylors did not own the boat, and sold it on behalf of Mr Bishop. It received commission. It was in the classic position of a selling agent. It was its business and trade to so act. It facilitated the transaction by advertising and promoting the item to be sold, and acting as an intermediary between the purchaser and the vendor, at all times in the vendor’s interests. That is the trade of an agent.
[32] Mr Parmenter’s distinction of the trade being the services rather than the supply of goods, does not provide an adequate basis for distinguishing an agent in the position of a broker such as Taylors. He effectively is submitting that the words “in trade” impose a qualification that the person acting as agent must be in the trade of selling goods. However, selling agents in New Zealand, such as marine brokers and real estate agents, generally do not sell the goods on their own behalf. They are facilitators. Their position can be compared to that of motor vehicle dealers. Motor
vehicle dealers may sell on behalf, but more often will purchase cars from vendors, and then sell the vehicles themselves. In such circumstances no recourse is necessary to the extended definition in (b)(iv), as the motor vehicle dealer is the actual vendor and (a)(i)(A) applies.
[33] I also cannot accept Mr Parmenter’s submission that the purpose of the extended definition at (b)(iv) is to catch those who seek to “hide behind the laws of undisclosed agency” by asserting, “Yes, I sold the goods to you but I was selling them for my principal on commission”. In such a case where the principal is not disclosed the contract is in any event enforceable against the agent, and at common law the agent is regarded as a party to the contract: The Farmers Co-Operative Organisation Society of New Zealand v Flynn (1991) 5 NZCLC 67,293 at 67,295. Therefore, the broker who is an undisclosed agent is liable as a supplier under s (a)(i)(A) in any event, and does not need s (b)(iv). If the agency was in fact disclosed, then the agent is not liable at common law, and the purpose of an expanded definition can be assumed to be to extend the common law.
[34] Mr Parmenter submits that this interpretation will make boat brokers guarantors that their principal’s boats are unencumbered, of acceptable quality, and reasonably fit for a particular purpose. However, the conclusion that boat brokers can be suppliers accords with the general purpose of the Act. Although the Act does not include a purpose section, from the tenor of its general provisions it can be seen as a statute intended to provide protection for the consumer. To hold a broker acting as agent to be a supplier, if this is limited to those who intentionally set themselves up in the trade of selling goods as agents on behalf of vendors, in the way Taylors did, is to add to the protection that a consumer will have when purchasing from an agent. A legislative decision has been made that professional agents such as Taylors should meet claims such as this. They will have to set up procedures and take such steps as are regarded as necessary to insure themselves, so that they can avoid or, if the occasion arises, meet such claims. To this extent it can only be said that such a result is not inconsistent with the pro-consumer purpose of the Act, and arises from a natural reading of the extended definition in (b)(iv). The same purpose appears to have driven the provisions in the equivalent statutes in the provinces of Alberta and British Columbia in Canada as observed at [16].
[35] In reaching this decision I do not place any reliance on the contents of the Vernon Report. There is insufficient material before the Court showing the influence of this report in relation to the enactment of the Act. I do, however, note that the interpretation is consistent with the view expressed in Gault on Commercial Law, Ms Howes in her article in the Canterbury University Law Review, and Skinnon and Sligo in their Companion to the Consumer Guarantees Act 1993. I accept the statement of Ms Howes in her article at p 167:
It is the agent who, under the general law of agency, is a “mere scribe” and so not a party to the contract who is affected. Such an agent is, in effect, substituted for the principal where the principal is not in trade, and he or she assumes the obligations under the Act which would have attached to the principal had the principal been in trade.
I find that Taylors are here effectively substituted for Mr Bishop, even though Mr Bishop is not in trade, and that Taylors has assumed the obligations under the Act which would have attached to Mr Bishop had he been in trade.
Are Mr Abel and LR Abel & Company Limited suppliers?
[36] It is necessary first to refer to the facts in a little more detail. The agreed statement of facts describes Abel & Co. as a marine broker and an independent contractor to Taylors. It describes Mr Abel as a marine broker. Mr Abel was the person on duty at Taylors when Mr Bishop approached it. He prepared the listing details, inventory, and specification for the vessel and arranged all advertising for it. Included in the documents submitted by consent is an authority to sell from Mr Bishop to Taylors. It reads:
I hereby appoint Taylor Marine Ltd (the “agent”) to act as the vendor’s agent to offer and advertise the named vessel …
There are certain warranties given to the agent, and the person described as the vendor agrees to pay commission. The document is stated to be a sole agency and it is signed by Taylor Marine Ltd and by the vendor. The person who has signed for Taylors is “Lawrie Abel”. There was a card produced showing the name of “Lawrie Abel” by the main name of “Taylor Marine Brokers Limited”. The sale and purchase agreement between Mr Bishop and Mr Walters appears to be signed by the vendor.
[37] Taylors rendered an invoice to Mr Bishop showing the commission payable. It was signed:
Lawrie Abel
Taylor Marine Limited
Abel & Co. submitted a tax invoice statement to Taylors for its share of the commission, as did others also involved in the sale. It was paid that commission by Taylors. Mr Abel did not render an invoice. Mr Bishop paid Taylors. He did not pay anything to Mr Abel or Abel & Co.
[38] Abel & Co. can be seen as a sub-contractor to Taylors. There was no evidence of any actual agency being created between Mr Bishop and Abel & Co. or Mr Abel directly. In themselves Mr Abel and Abel & Co. had no actual authority to bind Mr Bishop in relation to any sale of the vessel. The authority to sell between Mr Bishop as vendor and Taylors, was expressed to be a “sole agency” and there is no reference to Abel & Co. or Mr Abel. Abel & Co. and Mr Abel did act as agents for Taylors.
[39] While the definition in (b)(iv) is expansive, the essence of it is that there must be a person who, in trade, is “acting as an agent” for another. The word “agent” is not defined in the Act. An “agency” arises from a relationship where one person is appointed to act as the representative of another. It exists where one person has the authority or capacity to create legal relations between another person called the principal, and a third party: LC Fowler and Sons Ltd v St Stephens College Board of Governors [1991] 3 NZLR 304. As observed at [29], (b)(iv) cannot be read in a vacuum, and it is necessary to consider it with (a)(i)(A), which refers to the transfer of ownership by a “party”. This indicates that in relation to the sale of a good, the “another” is the vendor. I do not interpret (b)(iv) as extending the definition of “supplier” beyond agents of the vendor/party to include the agents of brokers. The “another” is the principal of the supply agreement, and not the principal’s agent.
[40] In this case the party was Mr Bishop as vendor. Therefore, the short answer to the claim against Abel & Co. and Mr Abel is that they were not acting as agent for Mr Bishop. Mr Bishop gave them no authority to act for him. He gave it to Taylors.
They were acting as sub-contractors and agents to Taylors. The extended definition in (b)(iv) does not apply to them.
[41] This conclusion is not inconsistent with the purpose of the Act. If the definition of “supplier” was extended to the agents of agents, it could extend to the actions of employees. It seems unlikely that the legislature would have intended that employees or independent agents of the agent could be liable, given the burden that this would place on persons who often would not personally have the resources to ensure that the guarantees in Part 1 are met or, in the event of them not being met, that the consumer could obtain redress. The pro-consumer focus of the Act does not mean that it should be assumed that all persons connected to a supply are suppliers.
[42] Mr Heard relied on Body Corporate 202254 v Taylor [2009] 2 NZLR 17, to support the proposition that Mr Abel could be personally liable. He referred to the decision of William Young P at [78]:
[78] At this point, the issue comes down to competing policy considerations: on the one hand, consumer protection considerations which are best served by a broad approach to liability; and on the other, the undesirability of imposing unexpected liabilities on employees (along with an associated weakening of the usual protection afforded by limited liability status). Although both the broad and narrow approaches are tenable, we see no reason why we should depart from the broad approach given its congruity with the words of the statute, the most recent and authoritative Australian decision on similar legislation and, most significantly, the pattern of New Zealand authority, including judgments of this Court.
[43] Body Corporate 202254 v Taylor concerned specific provisions in the Fair Trading Act 1986, which imposed liability on any person who engaged in misleading or deceptive conduct “in trade”. On their face the words “in trade” could not be construed as excluding employees. However, as Mr Stewart for Abel & Co. and Mr Abel submitted, a clear distinction can be made between liability for statements made personally by a director and employee of a company which are misleading and deceptive under the Fair Trading Act, and the circumstances in which an individual can become liable for the statutory guarantees (including section 5 undisclosed security) provided for under the Act.
[44] The issue here does not hinge on whether Abel & Co. or Mr Abel were in trade, but whether they meet the definition of supplier. The case turns solely on the issue of agency, and the interpretation of “supplier”. No analogy with the Fair Trading Act can assist. Neither was a supplier.
[45] In these circumstances it is not necessary to consider further argument to the effect that Mr Abel might be personally liable, despite the fact that it was his company that was sub-contracted.
Result
[46] Therefore, the answer to the two questions set out at [8] are as follows:
a) Whether those acting as agents in the sale of goods are “suppliers” for the purposes of the Act.
Answer: Yes, if they are the agents of the vendor of the goods.
b)Whether, in this case, the second and third defendants were “acting as agents”.
Answer: No.
[47] Judgment is entered for the plaintiffs against the first defendant, Taylor
Marine Limited, in the sum of $312,653.95.
[48] The plaintiffs fail against Mr Abel and Abel & Co., the second and third defendants. Judgment is entered for the second and third defendants against the plaintiffs.
[49] If the parties are unable to agree, submissions are to be filed by the plaintiffs and second and third defendants in relation to costs, and by the plaintiffs in relation to interest, within 21 days. Submissions in reply are to be filed within a further
21 days.
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Asher J
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