ATHOL MAURICE JONES v MIDRI CONSTRUCTIONS PTY LTD [1989] NSWCA 113

ATHOL MAURICE JONES v MIDRI CONSTRUCTIONS PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, MEAGHER JJA, and Hope AJA 25 August 1989, 25 August 1989

[1989] NSWCA 113

Agency — ostensible authority — possession of vehicle ignition keys and registration papers by alleged agent — no evidence of association of alleged agent with owner of vehicle — finding that alleged agent had no actual or ostensible authority affirmed. ORDERS Appeal dismissed with costs.

Hope AJA The question for decision in this appeal is whether a Mr Ilma Midri had ostensible authority on behalf of Midri Constructions Pty Limited to sell to three persons whom I will call the McLean Partners an Acco tipping truck. There was a transaction between Mr IIma Midri and the McLean Partners in which Midri purported to sell the truck to the McLean Partners. Subsequently the Partners purported to sell the truck to the plaintiffs. In September 1984 the truck was seized from the plaintiffs, allegedly by Midri Constructions Pty Limited. His Honour Judge Knight held that Mr Ilma Midri had no actual or ostensible authority to sell the vehicle on behalf of Midri Constructions Pty Limited and hence the plaintiffs must fail in their claim against that company.

The matters relied upon by the plaintiffs to support their claim for ostensible authority - and I interpolate that there was no evidence of actual authority - showed that Midri gave possession of the vehicle to the McLean Partners and presumably at the same time gave them the keys of the vehicle, and that he had possession of the registration papers of the vehicle and signed the transfer form on the back of those papers purporting to act in that regard on behalf of Midri Constructions Pty Limited.

There are a number of other matters in addition to these upon which the plaintiffs sought to rely. One was that there had been a prior course of dealings between the McLean Partners and Midri Constructions Pty Limited from which the McLean Partners were properly led to believe that Midri had authority to act on their own behalf. Another organisation with which the McLean Partners undoubtedly had dealings was called Country Pools and Spas Pty Limited. The learned trial Judge did not accept that the McLeans had had any prior business dealings with Midri Constructions Pty Limited, although they had had business dealings with Country Pools and Spas Pty Limited prior to the arrangement made with Mr Midri.