mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Gamer's Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd [1987] HCA 30 ; (1987) 163 CLR 236
Outcome: cited
Such orders were effected usually by TVO delivering the packaged cherries to PBVO or, on occasion, to freight forwarders retained and paid for by Farmlink. It is agreed between the parties that, if the relationship between TVO and Farmlink was that of sale and purchase, such delivery was an unconditional appropriation such that property passed to Farmlink: see Sale of Goods Act , s 18 rule 5(1) ; Gamer's Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd [1987] HCA 30 ; (1987) 163 CLR 236 ; Carlos Federspiel &amp; Co SA v Charles Twigg &amp; Co Ltd [1957] 1 Lloyd's Rep 240. When making a delivery TVO usually faxed what it called a "dispatch docket" to Farmlink. This handwritten document, which made no reference to price, was for present purposes the only document of significance generated by TVO for delivery to Farmlink in any season. Mr Hannaford's explanation for the absence of a price on the dispatch docket was that: We didn't put a price on because sometimes the price can vary a little bit and this was one reason for creating these documents was for our own internal records as well to keep track of our sales for our own viewpoint but there was very often a price variation to do with cost of freight [or] the fact if they were in punnets or gift boxes, there may be some variation to the agreed price. 187 Being a contract for the sale of goods, each order filled was subject to the provisions of the Sale of Goods Act . As I earlier noted, it is agreed in light of my sale finding that property in the cherries passed in respect of each consignment when the goods were appropriated to the contract and this occurred on delivery: see Sale of Goods Act , s 18 rule 5 ; Gamer's Motor Centre (Newcastle) at 255; Carlos Federspiel &amp; Co SA . The individual orders equally were subject to the provisions of s 14 of the Act as to implied conditions as to quality and fitness. Though it has not been the subject of contest by TVO, I am prepared to assume without deciding that, with the subject matter of the contract being perishables and it being a known purpose of the individual orders that the cherries were intended to travel to, variously, Singapore and Hong Kong for resale, it was an implied condition of each order filled that the cherries were, at the time of sale, in such a condition that they would still be fit for human consumption at the end of their shipment unless "that condition is unnaturally changed" after delivery to the first buyer, ie Farmlink: Sale of Goods Act , s 14(a) ; Kemp Ltd v Tolland (trading as James Tolland &amp; Co) [1956] 2 Lloyd's Rep 681 at 684-685; Benjamin's Sale of Goods at [11-067], but see also [11-060] and [11-062] as it is contended by TVO that Farmlink had an opportunity to inspect prior to shipment. I will refer to this later in these reasons: see [235]. The corollary of this condition was that Farmlink bore responsibility for unnatural changes in the cherries' condition occurring after delivery to it and until delivery to the overseas buyers: Kemp at 684-685.
Case: Carlos Federspiel &amp; Co SA v Charles Twigg &amp; Co Ltd [1957] 1 Lloyd's Rep 240
Outcome: cited
Such orders were effected usually by TVO delivering the packaged cherries to PBVO or, on occasion, to freight forwarders retained and paid for by Farmlink. It is agreed between the parties that, if the relationship between TVO and Farmlink was that of sale and purchase, such delivery was an unconditional appropriation such that property passed to Farmlink: see Sale of Goods Act , s 18 rule 5(1) ; Gamer's Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd [1987] HCA 30 ; (1987) 163 CLR 236 ; Carlos Federspiel &amp; Co SA v Charles Twigg &amp; Co Ltd [1957] 1 Lloyd's Rep 240. When making a delivery TVO usually faxed what it called a "dispatch docket" to Farmlink. This handwritten document, which made no reference to price, was for present purposes the only document of significance generated by TVO for delivery to Farmlink in any season. Mr Hannaford's explanation for the absence of a price on the dispatch docket was that: We didn't put a price on because sometimes the price can vary a little bit and this was one reason for creating these documents was for our own internal records as well to keep track of our sales for our own viewpoint but there was very often a price variation to do with cost of freight [or] the fact if they were in punnets or gift boxes, there may be some variation to the agreed price. 187 Being a contract for the sale of goods, each order filled was subject to the provisions of the Sale of Goods Act . As I earlier noted, it is agreed in light of my sale finding that property in the cherries passed in respect of each consignment when the goods were appropriated to the contract and this occurred on delivery: see Sale of Goods Act , s 18 rule 5 ; Gamer's Motor Centre (Newcastle) at 255; Carlos Federspiel &amp; Co SA . The individual orders equally were subject to the provisions of s 14 of the Act as to implied conditions as to quality and fitness. Though it has not been the subject of contest by TVO, I am prepared to assume without deciding that, with the subject matter of the contract being perishables and it being a known purpose of the individual orders that the cherries were intended to travel to, variously, Singapore and Hong Kong for resale, it was an implied condition of each order filled that the cherries were, at the time of sale, in such a condition that they would still be fit for human consumption at the end of their shipment unless "that condition is unnaturally changed" after delivery to the first buyer, ie Farmlink: Sale of Goods Act , s 14(a) ; Kemp Ltd v Tolland (trading as James Tolland &amp; Co) [1956] 2 Lloyd's Rep 681 at 684-685; Benjamin's Sale of Goods at [11-067], but see also [11-060] and [11-062] as it is contended by TVO that Farmlink had an opportunity to inspect prior to shipment. I will refer to this later in these reasons: see [235]. The corollary of this condition was that Farmlink bore responsibility for unnatural changes in the cherries' condition occurring after delivery to it and until delivery to the overseas buyers: Kemp at 684-685.
Case: Gibson Motorsport Merchandise Pty Ltd v Forbes [2006] FCAFC 44 ; (2006) 149 FCR 569
Outcome: cited
By way of preface to my own conclusions, I should make the following general observations. The relationships of TVO and Farmlink, and of Farmlink and Freshmart and Mak respectively, were clearly interdependent ones as the evidence of the process of making and filling orders reveals. It was open to Farmlink to choose to so structure its relationship with TVO or for that matter with Freshmart or Mak in a manner which obliged it to act in the interests either of TVO in the sale of cherries or of Freshmart or Mak in their purchase. It equally was open to Farmlink to choose to structure its relationships with TVO and the overseas buyers in a manner which, while requiring cooperation with, and some level of trust in, them, served its own several interests: cf Gibson Motorsport Merchandise Pty Ltd v Forbes [2006] FCAFC 44 ; (2006) 149 FCR 569 at [17] . In my view, Farmlink chose the latter course. This was clearly manifest in its price agreement with TVO and in its seller-purchaser relationship with the overseas buyers. There was nothing fiduciary about it. 178 The rival contentions of the parties can be simply put. TVO's case is that an overarching (or framework) conditional contract was entered into in or about December 2003 under which it agreed that, if it accepted an order or orders to sell cherries to Farmlink, it would do so at the prices that the parties had previously agreed. That agreement was effectuated in the individual orders filled by TVO.
Case: Carminco Gold &amp; Resources Ltd v Findlay &amp; Co Stockbrokers (Underwriters) Pty Ltd (2007) 243 ALR 472
Outcome: cited
The documentation passing between Farmlink and Freshmart and Mak respectively admits of no other conclusion, the more so given the international trading context in which the dealings occurred. It is, in my view, most improbable that the overseas buyers would reasonably have committed themselves to a contractual arrangement with a principal of whose actual identity or circumstances they may have been unaware, especially where the goods in question were perishables of a type that were apt to give rise to some level of quality issue during periodic dealings over a season: on the distinction between unidentified and undisclosed principals, see Carminco Gold &amp; Resources Ltd v Findlay &amp; Co Stockbrokers (Underwriters) Pty Ltd (2007) 243 ALR 472. The view I take of Farmlink's contracts with Freshmart and Mak is that they were ones to which TVO was a stranger. If the prices in those contracts were to be re-negotiated for reasons of quality defects, market conditions or whatever, that was to be by the contracting parties alone. Likewise if claims for defects in quality permissible under the applicable law against the seller were to be made they were to be made against Farmlink. 183 The final comment I would make on Farmlink's relationship with the overseas buyers is that it would have been obvious to them that Farmlink was not the grower of the cherries Freshmart and Mak purchased. It was an exporter. But there is nothing in the evidence reasonably to suggest that Farmlink was acting, or was purporting to act, in the overseas sales in a "representative" capacity: cf above [47](3).
Case: Palette Shoes Pty Ltd v Krohn [1937] HCA 37 ; (1937) 58 CLR 1
Outcome: cited
I would add, because it is a matter relied upon by the respondents, that I do not derive any assistance from the manner in which Farmlink received payments from its buyers and "accounted" to TVO. If it was an agent, then, subject to how its accounting to TVO was (or was taken in the circumstances to have been) agreed, the manner in which it held the proceeds of sale of its principal's property (ie in its own trading account) may itself have constituted a breach of trust: see Palette Shoes Pty Ltd v Krohn [1937] HCA 37 ; (1937) 58 CLR 1 at 30; but cf The "Tiiskeri" [1983] 2 Lloyd's Rep 658 at 663 ff. For understandable reasons, I have not been addressed on this. However, if, as I have held, Farmlink was receiving the purchase price for its consignments from its purchaser and then was settling with its own seller, there was nothing unusual in the manner of its so doing. I would add that it may well have been the case that the timing of its settlement was an implied actual term of their framework contract (the bulk of orders being settled en bloc at the end of the season).
Case: The "Tiiskeri" [1983] 2 Lloyd's Rep 658
Outcome: cited
I would add, because it is a matter relied upon by the respondents, that I do not derive any assistance from the manner in which Farmlink received payments from its buyers and "accounted" to TVO. If it was an agent, then, subject to how its accounting to TVO was (or was taken in the circumstances to have been) agreed, the manner in which it held the proceeds of sale of its principal's property (ie in its own trading account) may itself have constituted a breach of trust: see Palette Shoes Pty Ltd v Krohn [1937] HCA 37 ; (1937) 58 CLR 1 at 30; but cf The "Tiiskeri" [1983] 2 Lloyd's Rep 658 at 663 ff. For understandable reasons, I have not been addressed on this. However, if, as I have held, Farmlink was receiving the purchase price for its consignments from its purchaser and then was settling with its own seller, there was nothing unusual in the manner of its so doing. I would add that it may well have been the case that the timing of its settlement was an implied actual term of their framework contract (the bulk of orders being settled en bloc at the end of the season).
Case: BICC plc v Burndy Corporation [1985] 1 Ch 232
Outcome: cited
My conclusion in effect necessitates that the applicant must succeed in his claim to be paid the purchase price. Farmlink has not set up as a defence the seller's breach of the implied condition of quality and fitness: see BICC plc v Burndy Corporation [1985] 1 Ch 232 at 247; Sutton, Sales and Consumer Law at [22.24] ff (4 th ed, 1995). That breach is only relied upon in justification of the price discounts applied: FAD 8.2 and 10.3. While a cross-claim for damages for breach of the implied condition has been pleaded, it has not been prosecuted: see "The Cross-Claim" below. In the circumstances Farmlink can only be said to have persisted in a "self-help" remedy which lost any semblance of justification when TVO insisted on its strict legal rights. 208 It is not strictly necessary for me to deal with these matters given the view I have taken of the TVO-Farmlink contract and of the defence and cross-claim pleaded by the respondents. However, because they loomed large in the evidence adduced, though not so much so in submissions, I will state briefly my own views on them. 209 By way of preface to what I have to say, I should indicate that it is necessary to deal separately with quality issues as they relate to Singapore and Hong Kong consignments respectively.
Case: Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177
Outcome: cited
First, misleading or deceptive conduct is conduct which in the circumstance does lead, or is capable of leading, a person into error or, in non-disclosure cases, which fails to disabuse a person of his or her error: Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 200; Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 at 198.
Case: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191
Outcome: cited
First, misleading or deceptive conduct is conduct which in the circumstance does lead, or is capable of leading, a person into error or, in non-disclosure cases, which fails to disabuse a person of his or her error: Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 200; Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 at 198.
Case: Elders Trustee and Executor Co Ltd v EG Reeves Pty Ltd [1987] FCA 332 ; (1987) 78 ALR 193
Outcome: cited
Secondly, a statement of opinion (ie of a belief or judgment) will not be misleading or deceptive or be likely to be so merely because it misinforms or is likely to do so: Elders Trustee and Executor Co Ltd v EG Reeves Pty Ltd [1987] FCA 332 ; (1987) 78 ALR 193 at 242. It may be otherwise if the opinion was not in fact held, or had implicit in it the representation that it was reasonably based on a substratum of fact which was incorrect: RAIA Insurance Brokers Ltd v FAI General Insurance Co Ltd [1993] FCA 92 ; (1993) 41 FCR 164 ; Murphy v Overton Investments Pty Ltd [2004] HCA 3 ; (2004) 216 CLR 388 ; Cheshire and Fifoot at [11.116].
Case: RAIA Insurance Brokers Ltd v FAI General Insurance Co Ltd [1993] FCA 92 ; (1993) 41 FCR 164
Outcome: cited
Secondly, a statement of opinion (ie of a belief or judgment) will not be misleading or deceptive or be likely to be so merely because it misinforms or is likely to do so: Elders Trustee and Executor Co Ltd v EG Reeves Pty Ltd [1987] FCA 332 ; (1987) 78 ALR 193 at 242. It may be otherwise if the opinion was not in fact held, or had implicit in it the representation that it was reasonably based on a substratum of fact which was incorrect: RAIA Insurance Brokers Ltd v FAI General Insurance Co Ltd [1993] FCA 92 ; (1993) 41 FCR 164 ; Murphy v Overton Investments Pty Ltd [2004] HCA 3 ; (2004) 216 CLR 388 ; Cheshire and Fifoot at [11.116].
Case: Murphy v Overton Investments Pty Ltd [2004] HCA 3 ; (2004) 216 CLR 388
Outcome: cited
Secondly, a statement of opinion (ie of a belief or judgment) will not be misleading or deceptive or be likely to be so merely because it misinforms or is likely to do so: Elders Trustee and Executor Co Ltd v EG Reeves Pty Ltd [1987] FCA 332 ; (1987) 78 ALR 193 at 242. It may be otherwise if the opinion was not in fact held, or had implicit in it the representation that it was reasonably based on a substratum of fact which was incorrect: RAIA Insurance Brokers Ltd v FAI General Insurance Co Ltd [1993] FCA 92 ; (1993) 41 FCR 164 ; Murphy v Overton Investments Pty Ltd [2004] HCA 3 ; (2004) 216 CLR 388 ; Cheshire and Fifoot at [11.116].
Case: CCP Australian Airships Ltd v Primus Telecommunications Pty Ltd (2005) ATPR 40-042
Outcome: cited
Thirdly, by virtue of s 51A(2) where a corporation makes a representation as to a future matter and does not have reasonable grounds for making it, the representation is taken to be misleading: CCP Australian Airships Ltd v Primus Telecommunications Pty Ltd (2005) ATPR 40-042. The onus is on the representor to adduce evidence of reasonable grounds: Futuretronics International Pty Ltd.
Case: Demagogue Pty Ltd v Ramensky [1992] FCA 557 ; (1992) 39 FCR 31
Outcome: cited
Fourthly, silence, ie non-disclosure of a relevant fact or matter, can constitute misleading or deceptive conduct in circumstances in which one party is reasonably entitled to expect disclosure of the existence of that fact or matter if known to the other with whom it is dealing: see Demagogue Pty Ltd v Ramensky [1992] FCA 557 ; (1992) 39 FCR 31 ; Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 at 198-201.
Case: Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151
Outcome: cited
Fourthly, silence, ie non-disclosure of a relevant fact or matter, can constitute misleading or deceptive conduct in circumstances in which one party is reasonably entitled to expect disclosure of the existence of that fact or matter if known to the other with whom it is dealing: see Demagogue Pty Ltd v Ramensky [1992] FCA 557 ; (1992) 39 FCR 31 ; Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 at 198-201.
Case: Watson v Foxman (1995) 49 NSWLR 315
Outcome: cited
Of the representations alleged in this category, the first in conversations from 23 December Ms Churchill said words to the effect that everything was going "all right" to Mr Hannaford does not warrant serious individual consideration. The pleading is devoid of detail and of context and is quite unilluminating: cf the observations of McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 318-319. The submissions have not ameliorated this. 261 The representations alleged to have been made in phone conversations around 4 and 6 January 2004 relating to the China market cannot stand in light of my earlier findings. I have rejected Mr Hannaford's evidence as to the timing of the operative conversations and I have accepted Ms Churchill's evidence as to their substance. They occurred on 3 and 7 January and resulted in Mr Hannaford's agreement to two price reductions. These conclusions necessarily must lead to my rejection of both of these allegations of misleading or deceptive conduct. More significantly, I have found that at the relevant times Ms Churchill did make Mr Hannaford aware of the market conditions in the China market. 262 The final representation of this category was that after 6 January 2004 Ms Churchill had regular telephone conversations with Mr Hannaford but did not advise him of any difficulties with selling TVO cherries in the Hong Kong market save for saying there were allegedly problems with the quality of cherries in one shipment. An allegation so broadly cast is not only unsatisfactory, it is contradicted by a body of evidence. I will not reiterate that evidence here other than to note that I have found that on 7 January, Ms Churchill communicated the substance of Mak's "serious decline" email to Mr Hannaford; probably on 7 January he agreed to cancel a shipment; the next morning he suggested a price reduction to which Mak agreed on 9 January; on 9 January two separate quality complaints were made by Mak, these being the first such complaint made by Mak; and notwithstanding the above, Mr Hannaford agreed to Farmlink's "Mud Map" of 10 January proposing four air freight shipments to Hong Kong. Whatever might be said from this time onwards about the adequacy or otherwise of Ms Churchill's investigation of the quality complaints made, the burden of the complaint that she did not advise of any difficulties with selling in the Hong Kong market is not made out.
Case: Gurney v Grimmer (1932) 38 Com Cas 7
Outcome: cited
2.3.3(2) of the Determination, which uses the term ' and/or ' without further limitation, leaves open the possibility in option (d) above. A referral in terms of option (d) is not void for uncertainty ( Looke v Parbury, Henty &amp; Co Pty Ltd [1950] VLR 94) but authorises the Parliamentary Service Commissioner to decide which of the above alternatives (ie. (a), (b) or (c)) to adopt ( Gurney v Grimmer (1932) 38 Com Cas 7).
Case: Looke v Parbury, Henty &amp; Co Pty Ltd [1950] VLR 94
Outcome: cited
2.3.3(2) of the Determination, which uses the term ' and/or ' without further limitation, leaves open the possibility in option (d) above. A referral in terms of option (d) is not void for uncertainty ( Looke v Parbury, Henty &amp; Co Pty Ltd [1950] VLR 94) but authorises the Parliamentary Service Commissioner to decide which of the above alternatives (ie. (a), (b) or (c)) to adopt ( Gurney v Grimmer (1932) 38 Com Cas 7).
Case: Priestley v Godwin (Parliamentary Service Merit Protection Commissioner) [2008] HCA 59 ; (2008) 251 ALR 612
Outcome: cited
Priestley made submissions concerning orders made at an earlier stage of these proceedings by a judge of the Court. No appeal or application for leave to appeal was brought against those orders in this Court. However, it appears that those orders were the subject of consideration by the High Court in Priestley v Godwin (Parliamentary Service Merit Protection Commissioner) (2008) 251 CLR 612. In that case, French CJ said that Mr Priestley's allegations regarding those previous orders were ' baseless '. I indicated to Mr Priestley that I would not deal with his submissions regarding those previous orders in these proceedings and I do not do so. In his application, Mr Priestley also seeks orders that he be provided with a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving reasons for the claimed decision dated 10 May 2007, as well as disclosure of the evidence or other material on which the findings on material questions of fact were based. To the extent that this represents an additional order to the order sought to provide reasons for the claimed decision, it is also predicated upon there having been a decision as Mr Priestley characterised it made on that date. The relevant facts as to whether or not the claimed decision was made and what decision was made are evident from the documentary material in evidence. There was no claimed decision. He is not entitled to these orders. The decision for which Mr Priestley seeks reasons was not made. Mr Priestley's application has no reasonable prospect of success. It follows that the proceedings should be dismissed pursuant to s 31A of the Federal Court Act, with costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 28 May 2009 The Applicant appeared in person. Counsel for the Respondents: Mr D O'Donovan Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 28 April 2009 Date of Judgment: 28 May 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/561.html