Case: WK Witt (WA) Pty Ltd v Metters Ltd [1967] WAR 15
Outcome: considered
On 26 March 2004, Farmlink was sent a solicitor's letter on Mr Hannaford's behalf concerning Farmlink's conduct "in acting as the agent" for TVO in relation to the export of its cherries during January 2004. Some reliance, necessarily slight: see [47](2) above and WK Witt (WA) Pty Ltd v Metters Ltd [1967] WAR 15 at 18; is placed upon this characterisation of the relationship. Reliance equally is placed upon a discovered TVO table relating to the exports to Hong Kong in which the heading: "Expected Price" and "Expected Amount" have been altered by hand to "Agreed Price" and "Agreed Amount". Mr Hannaford could not identify the handwriting. Farmlink relies on this as evidence of attempted reconstruction of events to support TVO's sale of goods claim. 172 Evidence on quality control apart (which is considered below), there is a deal of material before me to which I need make no, or only slight, reference. Though much has been said of the Australian market in general and of TVO's dealing with Woolworths and Coles in particular, I do not consider that the evidence on that market or on those dealings has any significant probative value either in characterising the TVO-Farmlink relationship or in resolving the quality questions raised. I would note in particular that it is accepted by TVO that their sales to local wholesale markets are conducted through agents; and that both Woolworths and Coles conduct their own inspections based on their own specifications and reject cherries that do not meet the specifications. No question of rejection has arisen in this matter although evidence was put on of three rejections by Woolworths of entire deliveries in January 2004. Equally, I draw from Dr Brown's evidence that risks to the maintenance of the cool chain for cherries transported in the domestic freight system are of a different order to those presented by export freight. 173 I equally have not had regard to evidence concerning TVO's dealings with other exporters and in particular Jayfresh "J" in other years. The bare detail of financial outcomes devoid of context and circumstance, I consider to be likely to mislead and therefore to prejudice. 179 Under the shadow of the principles to which I earlier referred and of the decisions of International Harvester Co , Ex parte White; In re Neville and Witt in particular, the factual matters upon which TVO relies primarily for this conclusion are: (i) the transaction between TVO and Farmlink was at a firm price; (ii) the documentation all reflected a sale from TVO to Farmlink; (iii) Farmlink set the price for the overseas sale and kept its sale price and margin a secret; (iv) Farmlink engaged all the freight forwarders and paid the freight costs itself; (v) Farmlink never accounted to TVO in a way which showed the total amount received, its margin and amounts paid for freight, etc; (vi) Farmlink issued invoices to its overseas customers; (vii) Farmlink alone knew the identity and location of its overseas customers; (viii) Farmlink identified itself as the shipper on the bills of lading and airway bills; (ix) Farmlink negotiated the changes in price without checking or obtaining instructions from TVO or Mr Hannaford; and (x) significantly in the year that there was insurance, the insured was Farmlink, the consignee's interest was noted, but there was no recording of TVO having any interest in the cherries. 185 The evidence, in my view, simply cannot sustain a conclusion that Farmlink acted on TVO's behalf in a "representative": cf Bowstead &amp; Reynolds at [1-001]; Colonial Mutual Life Assurance Society at 48-50; or "fiduciary": cf Restatement of Agency , Second , SS1.01; capacity in selling its cherries. Farmlink was a purchaser buying for the purposes of resale. It is significant in this that (i) the parties agreed in advance the prices at which TVO would sell its cherries they were not simply indicative prices (I will refer below to the significance in this of purchase discounts); (ii) while the consignments were into markets with which TVO had some, albeit rudimentary knowledge, they were simply two of the overseas markets into which TVO cherries were consigned by exporters in the 2003/2004 season; (iii) Farmlink, in contrast, was knowledgeable about, and experienced in, those two markets at that time: cf Witt at 18-19; (iv) TVO did not assume responsibility for the export or the costs associated with the export this was at Farmlink's expense: cf Witt at 18-19 and Farmlink, not TVO, bore responsibility for misadventures happening to the cherries after delivery to it; (v) TVO was not in a position to exercise practical control over Farmlink (other than by refusing orders); (vi) TVO was unaware of Farmlink's price; (vii) while Mr Hannaford doubtless understood that Farmlink would obtain its own return on the sales (howsoever this was done), there was nothing unusual about his having no interest in that matter as his relationship with Farmlink did not otherwise point to an agency relationship: cf Mercantile International Group plc at [5] and [36]; and (ix) TVO happened to know the Singapore buyer was a company with which Mr Koh was associated but did not know the identity of the Hong Kong buyer. In short, having regard to the context in which they dealt with each other, the relationship they formed in the making and filling of orders was that of seller and buyer for resale. The contrary inference that TVO appointed Farmlink its agent for sale is neither a reasonable, nor the most probable, deduction from the known facts.