W J SHIPTON CONSTRUCTIONS PTY LIMITED v GAINFORT'S PLUMING & ELECTRICAL WHOLESALERS PTY LIMITED [1995] NSWCA 489

W J SHIPTON CONSTRUCTIONS PTY LIMITED v GAINFORT'S PLUMING & ELECTRICAL WHOLESALERS PTY LIMITED

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

KirBY P, CLARKE JA and POWELL JA 7 November, 20 December 1995

[1995] NSWCA 489

SALE OF GOODS — passing of property — presumed intention of parties — goods to be held in store and paid for — when unpaid, goods reclaimed — whether property had passed before seizure — held: It had.

WORDS & PHRASES — "property... passed".

Clarke JA'"'Re: MSB Bond Store 1. As per our recent telephone conversation I am pleased to quote on the light fittings for the abovementioned site and my quote is attached.

As agreed between us the Bond Store (MSB Bond Store 1, Hickson Road, Sydney) will be used as a storage site by this company and when all the quoted light fittings are on site payment will be made within 7 days by Ewings Finance.

We hope this quote is successful and we look forward to hearing from you.'

It is common ground that the quotation attached to the letter of 11 January 1985 for the supply of light fittings at a total cost of $61,614.06 was accepted.

In March 1985 Danubex called for the goods and they were delivered in instalments and held in an area on the construction site assigned to Danubex and which that company kept caged and locked. On each occasion that deliveries were made invoices were submitted. According to the trial judge's findings all the light fittings were delivered by the end of March or early April but no payment was received for those fittings. Demands for payment were made but, because Danubex was in financial difficulties, no payments were forthcoming.

Her Honour accepted the evidence of Mr Gainfort that following delivery of all the light fittings he had a number of conversations with Mr Harrison of Danubex culminating in a telephone conversation on 7 or 8 May 1985 in which he informed Mr Harrison that unless payment was forthcoming he would make arrangements to collect the fittings from the site. This threat did not bring about any payment and on Monday, 13 May 1985, a building worker's rostered day off, Mr Gainfort went to the deserted site, broke the chain securing the goods in the designated area to which I referred and removed all the goods which the respondent had delivered and which were in that area. The respondent then issued credit invoices totalling $44,543.69 in respect of the goods which it took. It seems to have been accepted that thebalance of the goods which had been supplied by the respondent had been installed on the premises which were under construction.