AE NEWTON PTY LTD v MIKE WALKER TRANSPORT PTY LTD [1997] NSWCA 2

AE NEWTON PTY LTD v MIKE WALKER TRANSPORT PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHELLER JA, DUNFORD and SPERLING AJJA 28 February 1997, 7 April 1997 [1997] NSWCA 2

Contract — Cartage — whether contract between parties to action — question of fact — assessment of Witness — advantage of Trial Judge

Sheller JA I agree with Dunford AJA.

Dunford AJA This is an appeal against the judgment of His Honour Judge Twigg QC in the District Court at Parramatta by which he found for the defendant in an action for cartage fees allegedly due from the respondent to the appellant during two periods, namely from January 1983 to January 1986 (the earlier period) and from March 1987 to July 1988 (the later period).

During that time the appellant carted shipping containers from the wharves to various destinations around Sydney and its case was that it was doing this as the subcontractor of the respondent which was another trucking company; whereas the respondent claimed that the contracts of cartage were made by the appellant directly with the various shipping companies, in particular with Karlander Shipping Line (KKL) before that company went into liquidation in February 1986, and later with the DuPont and Hong Kong Island Shipping Lines. There was also a defence in respect of the earlier period based on the Limitation Act 1969.

It appears that whatever the arrangements between the various parties were they were quite informal, that initially no one paid much, if any, attention to who was contracting with whom, and it was only when KKL went into liquidation that it was sought to make the respondent liable to the appellant.

There was evidence that when there were containers to be moved the trucking companies would be notified and when they turned up at the wharves the work would be allocated by employees of the shipping company. In respect of those loads carried by the appellant's trucks, the drivers would complete daily work sheets (Ex. D), which were on the plaintiff's stationery and in respect of those relating to the appellant's claim in the first column headed "Account" the name "Walker" was generally (or always) written. These work sheets were in due course given to Mr Walker of respondent company who took them, along with those relating to loads carried by its own trucks and those carried by another trucking contractor, Boyle, to the shipping company, which then drew a cheque for the total amount due for cartage in favour of the respondent and gave it to Mr Walker of the respondent company, who deposited it in a special bank account which he opened specifically for this purpose at Westpac Banking Corporation, Leichhardt Branch, which was separate from the other bank accounts of the company. He then withdrew in cash the amounts due to the appellant and Boyle and handed such amounts to Mr Newton and Mr Boyle respectively. When giving these cheques to the respondent, KKL attached to them a "with compliments" slip on which was written by employees of KKL the "invoice numbers" and the amount of each invoice together with an indication of how much was to go to