American Foods v Beson [2000] NSWSC 535

New South Wales Supreme Court

CITATION : American Foods v Beson [2000] NSWSC 535 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 10618 of 1999 HEARING DATE(S) : 27/09/1999 JUDGMENT DATE : 21 June 2000

PARTIES : American Foods Pty Limited (appellant) Robert Bruce Beson (respondent) JUDGMENT OF : Hidden J at 1

LOWER COURT Local Court JURISDICTION : LOWER COURT 118737/1992 FILE NUMBER(S) : LOWER COURT R Gentle LCM JUDICIAL OFFICER :

COUNSEL : P R Glissan (appellant) M Hodges (solicitor for respondent) SOLICITORS : Mr John Cunningham (appellant) Mark Hodges (respondent) CATCHWORDS : LOCAL COURT - Civil Claim - stated case LEGISLATION CITED : Limitation Act 1969 Local Courts (Civil Claims) Rules CASES CITED : Dare v Pulham (1982) 148 CLR 658 Polymedia Presentations Pty Ltd Weaver (Grove J unreported 13 December 1996) DECISION : See pars 12 and 19. Further contention may yet be argued.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HIDDEN J Wednesday, 21 June 2000 10618 of 1999 American Foods Pty Ltd v Robert Bruce Beson Reasons for judgment

1 HIS HONOUR: This is an appeal by way of stated case from the decision of a Local Court magistrate in a civil claim. It is convenient to refer to the parties in this Court as the appellant and the respondent. The history of the proceedings in the Local Court is as confused as it is protracted. I shall recount only as much of it as is necessary to determine the appeal. 2 At the relevant time the respondent, Robert Bruce Beson, was a director of the appellant, American Foods Pty Ltd. In late 1987 he travelled to America in connection with the company's business. He was accompanied by his wife and children. While in that country, he used an American Express card to pay for expenses totalling in excess of $17,000. 3 On 8 September 1992 American Express International Inc commenced proceedings in the Local Court against the respondent to recover that amount. The respondent filed a defence to that claim. In addition, on 24 October 1994 he filed a third party notice seeking from the appellant contribution towards, or indemnity for, any judgment which American Express might recover against him. However, before the proceedings came on for hearing, the claim against him by American Express was settled. 4 The third party proceedings were pursued, and in the course of them several further procedural steps were taken which it will be necessary to examine. It is from the learned magistrate's decision in those proceedings that this appeal is brought. 5 The third party notice to which I have referred alleged that on or about 23 December 1987 the appellant agreed to be liable for the expenses incurred by the respondent, his wife and children in travelling to America, and to reimburse the respondent for those expenses. On 8 November 1994 the appellant filed a defence to the third party claim, denying any such agreement. Commencing in February 1996, the hearing continued from time to time over the ensuing two years. It was not until 12 March 1998 that his Worship gave judgment. 6 On 21 February 1997, by leave, the respondent filed an amended third party notice. That document maintained a claim based upon the alleged agreement of 23 December 1987, but added an alternative claim for reimbursement said to arise from a provision in the appellant's Memorandum and Articles of Association. At about this time the appellant parted company with its legal representatives, and it remained unrepresented throughout the rest of the proceedings in the Local Court. On 20 March 1997 it filed a defence to the amended third party notice, traversing both claims. On 26 May 1997 it sought leave to file an amended defence, including a defence under the Limitation Act 1969. The fate of that application for leave and the ambit of the defence under the Limitation Act are matters which I must determine in this appeal and I shall return to them. 7 In his judgment of 12 March 1988 the learned magistrate found for the respondent, substantially on the basis of the original claim. He found that the appellant had authorised the respondent's trip to America for the purpose of its business, and at its expense, and that it had approved in advance all travelling and other expenses properly incurred by the respondent for that purpose. However, he also found that that approval did not extend to expenses relating to the respondent's wife and children. Excluding those expenses, and certain other items which were found not to be connected with the appellant's business, his Worship determined that the respondent was entitled to a verdict for a little over $12,000.