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

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

Hamelex White, not Mr Wear personally, was the agent of the Smith interests. Its engagement to find a purchaser for the prime mover did not give it actual authority to receive the purchase money as a receipt by the Smith interests, and still less authority to direct payment of the purchase money to Benjosh Pty Limited, a third party unknown to Mr Smith. The Smith interests did not, by their conduct, hold out Hamelex White or Mr Wear as having ostensible authority to direct payment to a third party. On the basis on which the case was fought, the Hubbard interests therefore failed to establish an entitlement to damages measured by their liability to AGC, and the appeal was allowed.

Jurisdiction
Australia
Judgment Date
09 May 2006
Procedural Posture
Civil Appeal From District Court Judgment on Cross Claims Arising From an Intended Sale of a Prime Mover / Appeal to the New South Wales Court of Appeal From the Decision of Quirk DCJ Dated 09/10/2004
Outcome
Appeal allowed; judgments on the first and second cross-claims set aside; cross-claims dismissed.
Legal Topics
["scope of Agent's Authority" 'actual Authority' 'ostensible Authority' 'authority to Receive or Direct Payment of Purchase Money' 'constructive Notice of Lack of Authority' 'repudiation of Contract']
['agency' 'contract' 'sale of Goods'] ["scope of Agent's Authority" 'actual Authority' 'ostensible Authority' 'authority to Receive or Direct Payment of Purchase Money' 'constructive Notice of Lack of Authority' 'repudiation of Contract']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Civil Appeal From District Court Judgment on Cross Claims Arising From an Intended Sale of a Prime Mover / Appeal to the New South Wales Court of Appeal From the Decision of Quirk DCJ Dated 09/10/2004

Legal Issues

  1. 1 ['Whether Mr Wear, as distinct from Hamelex White, was the agent of the Smith interests.' "Whether the agent's authority to find a purchaser or sell the prime mover extended to receiving the purchase money as a receipt by the Smith interests or directing that the purchase money be paid to Benjosh Pty Limited." 'Whether the Smith interests made any representation giving Hamelex White or Mr Wear ostensible authority to direct payment to a third party.' 'Whether the Hubbard interests were on constructive notice of any lack of authority to direct payment to Benjosh Pty Limited.' "Whether the Smith interests were liable for damages measured by the Hubbard interests' liability to AGC."]

Ratio Decidendi

Hamelex White, not Mr Wear personally, was the agent of the Smith interests. Its engagement to find a purchaser for the prime mover did not give it actual authority to receive the purchase money as a receipt by the Smith interests, and still less authority to direct payment of the purchase money to Benjosh Pty Limited, a third party unknown to Mr Smith. The Smith interests did not, by their conduct, hold out Hamelex White or Mr Wear as having ostensible authority to direct payment to a third party. On the basis on which the case was fought, the Hubbard interests therefore failed to establish an entitlement to damages measured by their liability to AGC, and the appeal was allowed.

Court Disposition

Appeal allowed; judgments on the first and second cross-claims set aside; cross-claims dismissed.

Orders

  • ['Appeal allowed.' "Set aside the judgment for the cross-claimants on the first cross-claim in the sum of $275,704.79 and the order that the cross-defendants pay the cross-claimant's costs, and in lieu thereof order that the first cross-claim be dismissed and that the cross-claimant pay the cross-defendants' costs."...