McIVER TRANSPORT PTY LTD v BYRNE [2000] NSWSC 779

New South Wales Supreme Court

CITATION : McIVER TRANSPORT PTY LTD v BYRNE [2000] NSWSC 779 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 11451/00 HEARING DATE(S) : 20 July 2000 JUDGMENT DATE : 20 July 2000

PARTIES : McIver Transport Pty Limited (Plaintiff) Laurence Michael Byrne (Defendant) JUDGMENT OF : Adams J at 1

LOWER COURT Local Court JURISDICTION : LOWER COURT 5277/98 FILE NUMBER(S) : LOWER COURT Sweeney LCM JUDICIAL OFFICER :

COUNSEL : Mr G Sirtes (Plaintiff) Mr L J Aitken (Defendant) SOLICITORS : Coudert Brothers (Plaintiff) Colbron & Associates (Defendant) DECISION : Appeal dismissed, with costs.

Revised THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ADAMS J

THURSDAY 20 JULY 2000 11451/00 McIVER TRANSPORT PTY LIMITED v LAURENCE MICHAEL BYRNE JUDGMENT

1 HIS HONOUR: This is an appeal from the judgment of a Magistrate in a contract case. The plaintiff, Laurence Michael Byrne, sued McIver Bulk Haulage Pty Limited (McIver's) for work done in relation to a road trailer. 2 There was a contract between them for the purchase of a number of very large trailers in accordance with agreed specifications. It became apparent, in due course, that modifications were required. It was disputed whether those modifications were necessary because the specifications were inadequate or because the plaintiff had not ensured that the road trailer in question was constructed in accordance with the specifications. The nature of the agreement, if any, between the parties, concerning the additional work was also in dispute. 3 It appeared that the plaintiff's case was, in substance, that his son David had negotiated that additional work agreement on his behalf. As I see the evidence below, the principal issue was whether that had occurred and that the Magistrate was given to understand, although possibly unintentionally, that whether the son was authorised to make that agreement on the plaintiff's behalf, was not in issue. 4 The learned Magistrate held, when this matter was raised specifically for the first time in final addresses, that it had not earlier been apparent that such was part of the case made by the defendant but at all events found that there was ample evidence of the authorisation in question. 5 There was direct evidence from the plaintiff on the point, although this required some interpretation from the Magistrate in the context, but the circumstances as a whole, given the obviously close commercial relationship between the plaintiff and his son, the fact that the work was being done by a company which, for technical commercial reasons, was not the original contractor but which had as its principal executive officers both the plaintiff and his son, the continued negotiations and the actual performance of the work, demonstrated an overwhelming case of agency. 6 Even if this is to overstate somewhat the significance of this evidence, I am satisfied that a submission that there was no evidence upon which such a conclusion could be drawn is clearly wrong. 7 No other point of law arises. The appeal is therefore dismissed, with costs. **********