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. His Honour concluded that the mere possession by Midri of the vehicle, the keys and the registration papers did not establish any ostensible authority in him to sell the vehicle on behalf of the true owner, Midri Constructions Pty Limited, and that there was nothing in addition to those matters and in particular no representation was made by Midri Constructions Pty Limited either by a previous course of dealings or by putting Mr Midri in a position or by allowing him to act in a position from which it could be inferred that he had authority to act on behalf of Midri Constructions Pty Limited. 2 UNREPORTED JUDGMENTS In my opinion the learned Judge was correct in his conclusion that the mere possession by Mr Midri of the vehicle, the keys and the registration papers and his signature on those papers on behalf of Midri Constructions Pty Limited did not establish any ostensible agency. There is no challenge, nor could there be in the circumstances, to the finding by his Honour that there had been no previous course of dealings between the McLean Partners and Midri Constructions Pty Limited. The remaining matters relied upon by the plaintiffs are these. The transaction which Mr Midri made with the McLean Partners on or about 4 August 1984 was a rather curious one. The McLean Partnes were to purchase the vehicle on terms that the price was to be paid not in cash but by the carrying out of certain excavation work. Excavation work was carried out although the precise nature of that work and where and for whom it was done does not appear. A dispute arose in relation to the excavation work, the McLeans ceased to carry out any more work and Mr Ilma Midri made a demand for the return of the truck. The truck was not returned and, as I have indicated, was later sold to the plaintiffs. However, there is evidence that on 13 August 1984 the McLean Partners sent a cheque for $2,000 to Midri Constructions Pty Limited and that that cheque was banked in the banking account of Midri Constructions Pty Limited. However, it was marked "Present Again" and it was then presented again but on this occasion was dishonoured. No further action was taken in respect of the cheque or of the payment of $2,000 or of any other sum in respect of the motor vehicle. Moreover, it does not appear from any evidence what the cheque was for. There was no other evidence than that the cheque was sent and was ultimately dishonoured. In his reasons the learned trial Judge found that Mr Derek McLean, having refused to do any further work, also refused to pay any money for the truck or to return the truck. It seem to me that the evidence as to the cheque does not take the case for the plaintiffs any further. It does not establish any agency on the part of Mr Ilma Midri for the company in the sale transaction and does not establish that the company recognised the existence of any transaction in respect of the truck as having been entered into on its behalf. In my opinion the learned trial Judge was correct in the conclusions to which he came, and I would dismiss the appeal with costs. Samuels JA I agree. Meagher JA I agree. The order of the Court, therefore, is that the appeal be dismissed with costs. Counsel for the Appellant: LD Serisier Solicitors for the Appellant: JB Wilson Fardell and Moore Counsel for the Respondent: D Campbell Solicitor for the Respondent: Baldock Stacy and Niven