MCCARTHY BROS. (MILK VENDORS) PTY. LTD. V. THE DAIRY FARMERS CO-OPERATIVE MILK CO. LTD. 10/1946

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CARTHY BRO} K S) PTY. L

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DA \- OP} LK CO. LTD.

McCARTHY BROS. (MILK VENDORS) PTY. LTD.

Ve THE DAIRY FARMERS CO-OPERATIVE MILK CO, LTD.

DER.

Appeal dismissed with costs.

CARTHY BRO} MILK, VENDORS ) PTY. LTD

DA ARMIES) O-OPERA If CO. LTD.

REASONS FOR JUDGMENT. LaTHAM C.J.

' The plaintiff failed in the Supreme Court by reason of illegality in the retail disposition by the plaintiff of the milk which the plaintiff had bought wholesale from the defendant. The Full Court stated as the basis of its decision that "the intention of one of the parties (the plaintiff Company) was that the goods should be used by it for an unlawful purpose", Further, it was said in the reasons for judgment that "On the conceded facts, all relevant contracts of sale and purchase were made in 1944 and were invalid because made solely for the purpose of its then illegal business by the plaintiff company". I am not prepared to affirm the judgment of the Supreme Court on the ground that the plaintiff in 1944 intended to resell the milk without a certificate and that the plaintiff, and apparently only the plaintiff, was therefore precluded from enforcing any rights under 'any contract with the defendant relating to the milk. I would not assent to this proposition without further consideration.

But I am of opifiion that the appeal should be dismissed on the ground that the rebates claimed by the plaintiff are claimed in respect of sales by the defendant to the plaintiff (and therefore of purchases by the plaintiff from the defendant) which were made in breach of sec. 41(e) of the Milk Act 1931-42 - such sales in 1944 being the necessary basis of the claim. The plaintiff must rely upon these illegal sales in order to establish its case. In my