GRIMMOND v TAYLOR; MERV GRIMMOND PTY LTD v TAYLOR [1988] NSWCA 57

GRIMMOND v TAYLOR; MERV GRIMMOND PTY LTD v TAYLOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY and MCHUGH JJA 30 September 1987, 16 March 1988

[1988] NSWCA 57

ASSIGNMENT — action for recovery of debt by creditor — assignment of debt — re-assignment — debtor asserted received notice of assignment but not re-assignment — no consideration for re-assignment — question of fact — no question of principle. ORDER Appeal dismissed with costs.

Mahoney JA I agree with the judgment of McHugh JA.

Priestley JA The facts in these appeals are set out in the reasons of McHugh JA. I agree with him that the appeals should be dismissed because the appellants did not show that there had been an assignment of the relevant debts in compliance with s12 of the Conveyancing Act, and will mention only matters relevant to that point.

One of the conclusions stated by Herron DCJ on this aspect was "I am not satisfied that these debts were so assigned". The facts relevant to this observation of his Honour were that Mr Grimmond was shown in examination in chief a photo copy of a form letter from Shell, commencing "Dear Customer', referring to an assignment in writing to Shell by Mr and Mrs Taylor of the debts of their distributorship business. The letter said "Enclosed you will find a statement showing the balance, which according to our records, is still owing on your account." The letter asked for prompt remittance of moneys due, subject to investigation of any differences between the amounts shown in the enclosed statement and the customer's records. Mr Grimmond said he received a similar document "as managing director of Mervyn Grimmond Pty Limited". Beyond that, he did not say in what circumstances, nor did he say when he received the "similar" document. No enclosure was produced. He did not say that the document he received had an enclosure showing any amounts owed by him or the company to Mr and Mrs Taylor. He did not say how the photo copy came into existence or where the document he had received was. All that he said was that he received a similar document. The form letter was tendered and became Exhibit 10. No cross-examination was directed to Mr Grimmond on the matter.