New South Wales Supreme Court CITATION : Shamrock Holdings Pty Ltd v Norco Co-operative Ltd [2000] NSWSC 1149 FILE NUMBER(S) : SC 12213/2000 HEARING DATE(S) : 27/11/00;29/11/00 JUDGMENT DATE : 1 December 2000 PARTIES : Shamrock Holdings Pty Limited v Norco Co-operative Limited JUDGMENT OF : O'Keefe J COUNSEL : J Hyde/ A Radojev - for plaintiff B E Kinsella - for defendant For plaintiff Rummery's Lismore NSW SOLICITORS : For Defendant Stone & Partners Lismore NSW CATCHWORDS : Local Court - Appeal - ambit - Contract - Undisclosed principal CASES CITED : Pace v Read [2000] NSWSC 823, 18 August 2000, unreported DECISION : Summons dismissed; Plaintiff to pay the defendant's costs THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION O'KEEFE J FRIDAY 1 DECEMBER 2000 012212/00 - SHAMROCK HOLDINGS PTY LTD v NORCO CO-OPERATIVE LIMITED JUDGMENT 1 HIS HONOUR: Shamrock Holdings Pty Ltd (the plaintiff) has appealed against a decision of the Lismore Local Court given on 25 March, 1999 in which a judgment for $39,469.70 together with interest was entered against it in favour of Norco Co-operative Limited (the defendant) on a claim for goods sold and delivered, namely fish which had been supplied for use and sale in a fish shop in the Grafton Mall known as "Fish Delish" between 10 March and 1 November, 1995. 2 It should be noted that originally the action had been against the plaintiff and Robert John Kenny (Kenny) and Manlon Du Bont (Du Bont) but the claims against them had been withdrawn before the hearing of the matter in which the decision is the subject of the present appeal. 3 The grounds of appeal were orginally five in number, namely: "1. There was no evidence supporting the finding that the plaintiff was identified to the defendant as the principal of the business. 2. The law of undisclosed principal was not properly applied. 3. The law of privity of contract in respect to the provision of credit to Kenny or Du Bont was not properly applied. 4. There were no cross-claims or third party notices lodged by either Kenny or Du Bont which would allow the Court to find that the plaintiff was bound to indemnify Kenny and/or Du Bont in respect of any liability they may have had to the defendant. 5. Evidence was wrongly excluded from the proceedings." 4 Grounds 1 and 5 were abandoned at the outset of the hearing and rightly so. The following are therefore the only grounds that need to be considered: "2. The law of undisclosed principal was not properly applied. 3. The law of privity of contract in respect to the provision of credit to Kenny and Du Bont was not properly applied. 4. There were no cross-claimants or third party notices lodged by either Kenny or Du Bont which would allow the Court to find that the plaintiff was bound to indemnify Kenny and/or Du Bont in respect of any liability they may have had to the defendant." 5 The appeal is limited to a question of law (Pace v Read [2000] NSWSC 823; Supreme Court, 18 August 2000, unreported), as was common ground between the parties. 6 The plaintiff was a supplier of dairy products, small goods and fish, amongst other items. Over a period from early 1995 until late 1995 it supplied fish to a fish cafe described or transcribed variously as Fish Delish, Fish De Lish, Fish D'lish and Fish De-Lish. The Magistrate held that the names were, in truth, one and the same and that the business name under which the shop was conducted, as well as the business conducted in it, was owned by the plaintiff. The day to day conduct of the business was in the hands of Kenny and Du Bont, although prior to the time with respect to which the claim related Du Bont had, for personal reasons, withdrawn from the running of the business. 7 In February 1995 an application for credit was made to the defendant by Kenny and Du Bont on behalf of Fish De-Lish. In it they claimed they were the proprietors of the business. This was not so. The proprietor of the business was the plaintiff. As the evidence before the Magistrate revealed, the control of the business and payment of accounts was the province of the plaintiff. Furthermore, the Magistrate held that the credit application completed by Kenny and Du Bont and submitted to the defendant was completed with the full knowledge and consent of the plaintiff. There was ample evidence to support such a finding. 8 The goods supplied by the defendant to the shop were accepted by Kenny, who was an employee of the plaintiff and at the direction of the plaintiff Kenny sent printouts of the takings and accounts for goods supplied to the shop to the plaintiff, which would bank the takings and pay the accounts from its office in Mount Waverly, Victoria. Those accounts included accounts for fish from various sources, including the defendant. 9 The Magistrate then held that the plaintiff was the undisclosed principal of Kenny and Du Bont. He stated the law in relation to the liability of an undisclosed principal as follows: "Where an agent having authority on behalf of another makes a contract in his own name concealing the fact that he is a mere representative, the doctrine of undisclosed principal comes into play. By this doctrine either the agent or the principal, when discovered, may be sued." 10 This is a correct statement of the relevant law and an examination of the judgment in which this law was applied to the facts as found discloses no error of law. 11 In the instant case on the findings of the Magistrate no question of privity of contract in respect of the provision of credit to Kenny and Du Bont arose. Before this Court, counsel for the plaintiff did not contend to the contrary. Indeed, he virtually conceded that this was so when he argued that his "best and only point" was that relating to the asserted error in the statement of the law by the Magistrate in relation to the liability of an undisclosed principal. 12 The remaining point raised in the notice of appeal, namely ground (4), is without substance. The claims against Kenny and Du Bont had been withdrawn and they had been dismissed from the action at a stage antecedent to the hearing involving the plaintiff and the defendant. No issue of the kind sought to be raised in this ground of appeal was open at the hearing before the Magistrate. No error of law in this regard was able to be pointed to by counsel for the plaintiff. I do not think there is any error of law in the Magistrate's decision which would found an argument under ground of appeal (4). 13 The Magistrate's decision correctly applies the facts as found by him to the relevant law. In my opinion this appeal is without merit and must fail. 14 The orders of the court are: 1. Summons dismissed. 2. Plaintiff to pay the defendant's costs. The exhibits may be returned. ********** Last Modified: 12/18/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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