New South Wales Supreme Court CITATION : Sides v Elders [2000] NSWSC 749 revised - 7/08/2000 FILE NUMBER(S) : SC 12846/99 HEARING DATE(S) : 27/07/00 JUDGMENT DATE : 27 July 2000 PARTIES : L. Sides Pty Limited - Plaintiff Elders Limited - Defendant JUDGMENT OF : Brownie AJ LOWER COURT Local Court JURISDICTION : LOWER COURT 89/1996 Narrabri FILE NUMBER(S) : LOWER COURT Mr R. Prowse LCM JUDICIAL OFFICER : COUNSEL : Mr V.F. Kerr - Plaintiff Mr G.P. McNally - Defendant SOLICITORS : Bell & Johnson - Plaintiff Locke Harris McHugh CATCHWORDS : Contract for sale of cattle: vendor did not make punctual delivery. Held, purchaser entitled to rescind contract. LEGISLATION CITED : Section 69 Local Court (Civil Claims) Act 1970 CASES CITED : Rigg v Commonwealth Bank of Australia, NSW Court of Appeal, 18 July 2000, unreported Harrington v Browne (1917) 23 CLR 297 at 305 DECISION : Appeal dismissed with costs. THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION BROWNIE AJ THURSDAY, 27 JULY 2000 12846/99 - L SIDES PTY LTD v ELDERS LIMITED JUDGMENT HIS HONOUR: 1 This is an appeal brought under s69 of the Local Court (Civil Claims) Act 1970. The present plaintiff was the plaintiff in a claim brought against the present defendant arising out of a contract for the sale of cattle. 2 In the Court below the case seems to have proceeded substantially upon the basis that the defendant was the purchaser of the cattle. That seems to be an error, but I doubt that anything significant turns upon that now. 3 The learned magistrate, Mr Prowse, found that the contract was partly written and partly oral. A written part of the contract consisted of a printed form of contract, apparently prepared by the defendant, completed in manuscript. It is dated 23 August 1995 and on its face it records a contract of sale made by the plaintiff as vendor to Killara (Quirindi) Pty Ltd as purchaser of 139 Hereford heifers. Clause 3 of the contract has a title "Delivery", and the printed form reads: "Proforma delivery shall be deemed to be and shall be accepted as actual delivery and such proforma delivery shall be given and taken and the livestock counted by both the purchaser and the vendor or their respective agents at_____on or before_____ 19__. Unless the vendor or the agent shall have previously notified the purchaser or his agent that the date is impractical for mustering (regard having been had to the weather and thereby) in which such count and delivery shall take place on the first day thereafter, that the vendor or his agent shall notify as practicable for such count and delivery." 4 There seem to be some typographical errors in the printing but they don't matter. The blanks were completed by inserting a place of delivery and inserting the words "November 1995" as the date of delivery. 5 The learned magistrate found that there were other terms of the contract, some of them oral. He made findings as to what some of those other terms were, but none of those seem to be relevant to the present appeal, except that he said this: "Similarly, the imprecise nature of the delivery date being on or before November 1995 again is so imprecise as to cause both parties to have in their minds, I find, to have in their minds that the delivery was to be on and at a time that was mutually convenient to both parties." A little later he said of the delivery date, "That was really advisory time only." 6 His Worship then summarised the issues which were litigated, as being whether or not, as the plaintiff said, it had made the cattle available for delivery, but the defendant or the purchaser had not taken delivery. On the other hand, the defendant said that the plaintiff had failed to deliver the cattle whereupon, on 23 December 1995, the defendant rescinded the contract by reason of the repudiation of it by the plaintiff, by failing to deliver the cattle by that time. As his Worship put it, the defendant's case was, "that the plaintiff failed to deliver cattle and therefore on 23 December 1995 the contract was terminated for lack of performance." 7 It seems clear enough that within s15 of the Sale of Goods Act 1923 time was not made of the essence of the contract. Nevertheless, the written part of the contract specified delivery on or before November 1995, subject to a qualification relating to weather, which the magistrate seems to have regarded as not significant. 8 The magistrate's findings may, I think, be summarised by saying that by 23 December 1995 the plaintiff had not delivered the cattle contracted to be sold and delivered, and that that failure to deliver the cattle was a breach of the contract which entitled the defendant to rescind it. 9 On appeal the plaintiff asserts in ground 8 that the learned magistrate made no findings as to whether the defendant had given notice or any adequate notice to make time of delivery of the essence, or that the plaintiff's conduct was such to evince an intention no longer to be bound by the contract. Ground 9 essentially repeats that, and ground 10 asserts that there was no evidence to support those findings. 10 It seems to me that the magistrate did find, upon sufficient material, that the plaintiff had failed to deliver the cattle by 23 December 1995, and that, in the circumstances, that was a repudiation of the contract. 11 In my view there is no proper basis for saying that the defendant had to give notice to make time of the essence of the contract. To say that is to import into a contract for the sale of cattle considerations regarded by the rules of equity as significant, when in truth those rules have no application (See Rigg v Commonwealth Bank of Australia Court of Appeal 18 July 2000, unreported). 12 It may be correct, as the learned magistrate said, that it was not an essential term of the contract or a condition of the contract that delivery take place by the end of November. That does not mean, however, that time was infinitely flexible. At best, from the plaintiff's perspective, it seems to me it might mean something like a reasonable time after 30 November, although even that construction of the contract has its problems. (See Harrington v Browne (1917) 23 CLR 297 at 305. 13 In my view, therefore, the appeal fails. 14 There is an additional problem which it seems was not litigated below, but which might be a real problem if I were otherwise minded to allow the appeal. That is that, on the face of the contract, the defendant was not the buyer. It was the agent of the seller, on the face of the contract, and also perhaps the agent of the buyer for other purposes. That is to say, as I see it at the moment, it would not be right to allow the appeal and enter a judgment for the plaintiff or even to allow the appeal and remit the matter to the Local Court for rehearing, because, on the evidence, the defendant never was the buyer of the cattle. 15 For those reasons I dismiss the appeal with costs. ******** Last Modified: 09/26/2000 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.