Case: Aluminium Industrie Vaassen BV v Romalpa Aluminium Ltd [1976] 1 WLR 676
Outcome: distinguished
There are two final matters to which I should refer. First, while the relationships of agency and sale are mutually exclusive, it is not uncommon for an intermediary to be the agent of its seller-principal but to be a principal vis-&agrave;-vis a third party on the sale to it: see eg Bailey &amp; Co Ltd v Balholm Securities Ltd at 408; Aluminium Industrie Vaassen BV v Romalpa Aluminium Ltd [1976] 1 WLR 676. As was said by Roskill LJ in Romalpa (at 690): I see no difficulty in the contractual concept that, as between the defendants and their sub-purchasers, the defendants sold as principals, but that, as between themselves and the plaintiffs, those goods which they were selling as principals within their implied authority from the plaintiffs were the plaintiffs' goods which they were selling as agents for the plaintiffs to whom they remained fully accountable. As will be seen, the respondents seek to draw some comfort from this. 74 To anticipate matters, the applicant's contention is that the above documentation clearly indicated that each transaction involved a sale by TVO to Farmlink with a re-sale to the overseas buyer. Farmlink, in contrast, contends that the documentation is consistent with its having acted as an agent for sale vis-&agrave;-vis TVO and as a seller vis-&agrave;-vis the overseas buyers, hence its reliance upon Romalpa at 690. 75 Consistent with her practice in earlier seasons, Ms Churchill arranged a pre-season planning meeting at PBVO on 30 October 2003 with growers (including Mr Hannaford) with whom she hoped to deal and who may have been interested in exporting some cherries. Apart from having a wrap-up of the previous season, the agenda referred, amongst other matters, to crop expectations, ie volume, size, quality and timing, to export market potential and to packaging requirements. The agenda did not refer to price unsurprisingly in my view given that the meeting was almost two months in advance of when exporting might be expected to commence and about a month before picking. It is Ms Churchill's evidence that price probably was not discussed at that meeting: "Not that early, no". I would note that the Cherry Export Marketing Strategy she faxed to TVO on 2 December 2003 made no mention of price and, in a fax to Freshmart of the same date suggesting an export "Program for Singapore", she gave only indicative prices as it was "too early for the real prices". 76 At some time, though, it is clear that the growers told Ms Churchill what prices per kilo they wanted for cherries (categorised by size), such that there was, according to Ms Churchill, an understanding between not just Farmlink and TVO, but all the growers that "this was the sort of price they would want to go out to the market to return, and that's what they expected". It is equally clear that she calculated her own export strategy referred to below on the basis of those prices. Those prices were (i) $7.00/kg for 24-26mm fruit; (ii) $9.00/kg for 26-28mm fruit; (iii) $11.00/kg for 28mm fruit; and (iv) there was about a $1.00 premium on 500gm punnets. Farmlink and TVO later agreed several changes to these prices as actual consignments were made. It also is alleged that Farmlink made unauthorised changes on occasion, ie changes not negotiated with TVO. 184 The issue that remains is: what was the true character of the TVO-Farmlink relationship? As I have earlier indicated, while the relationships of agency and sale are mutually exclusive, it is not uncommon for an intermediary to be the agent of its seller-principal but to be a principal vis-&agrave;-vis a third party on a sale to it: see above [55]. In my view the present is not one such case. And it is, in any event, far removed from the reservation of title clause type of case exemplified by Romalpa on which the respondents' rely.