Cam & Sons Pty Ltd v Ramsay [1960] HCA 82

High Court of Australia Dixon C.J. McTiernan, Kitto, Menzies and Windeyer JJ. Cam & Sons Pty Ltd v Ramsay [1960] HCA 82

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 23 Dixon C.J.

The question for determination upon this appeal is whether certain sums are recoverable from the Crown in right of New South Wales in an action against the nominal defendant for money had and received. The appellant is the plaintiff in the action. It is a proprietary company which for many years owned a small fleet of steam trawlers. The trawlers fished off the east coast of Australia from Sydney and north of Sydney down to a latitude south of Tasmania. The company possessed two wharves at Pyrmont, some cold storage rooms, cleaning troughs, filleting tables, an ice-making plant and tanks, and stores for victualling and for nets and so on.

The business of selling the fish fell into two parts. Under contracts with some large institutions or establishments such as hospitals, hostels, immigration camps, camps of the armed services and big suppliers or consumers of fish like large city hotels, cafes and retail stores the company delivered gutted and filleted fish directly from their premises at Pyrmont. This part of the trade the company described as its providoring business. The remainder of the fish caught was sent to the Fish Market in Sydney where it was sold at auction by the market authorities who accounted for the proceeds after deducting a commission. The market authorities also charged a commission calculated upon the value of the fish supplied from Pyrmont by the company directly to its customers in its providoring business. The company's claim in the present proceedings is to recover back from the Crown moneys paid in respect of commission upon fish sent not to the market but to customers in its providoring business. Among other pleas the Crown has set up the Statute of Limitations and it is conceded that we are concerned only with the moneys paid within six years before the issue of the writ: that means within the period from 6th October 1949 to 6th October 1955. In fact the company relinquished its business somewhat earlier than the date of the issue of the writ. On this footing the sum involved is £29,590 13s. 0d.