New South Wales Court of Appeal CITATION : Cross v Taylor & Anor [2004] NSWCA 78 HEARING DATE(S) : 15/03/04 JUDGMENT DATE : 15 March 2004 JUDGMENT OF : Sheller JA at 18, 20; Young CJ in Eq at 1-17; Barrett J at 19 DECISION : Appeal dismissed with costs. CATCHWORDS : Sale of goods- Bird stock and aviary- Doubt as to title in seller or his company- Goods delivered- Purchaser bound to pay- Trial judge entitled to hold purchaser was individual not company. Barry Cross (A) PARTIES : Graham Taylor (1R) Waverley Hill Pty Limited (2R) FILE NUMBER(S) : CA 40103/03 COUNSEL : S Looomes (A) P Maiden (R) SOLICITORS : Fishburn Watson O'Brien (A) Robson and Oliver (R) LOWER COURT District Court JURISDICTION : LOWER COURT 66/2000 (Coffs Harbour) FILE NUMBER(S) : LOWER COURT Twigg DCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40103/03 SHELLER JA YOUNG CJ in EQ BARRETT J Monday 15 March 2004 BARRY CROSS v GRAHAM TAYLOR & ANOR Judgment 1 YOUNG CJ in EQ: In these proceedings, so far as is relevant, the first respondent, Graham Taylor, to whom I will refer as Mr Taylor, sued the appellant, Barry Cross, to whom I will refer as Dr Cross, and another person, a Mr McInnes, for $99,490 being the balance due on the sale of some birds, aviaries and associated equipment. The exact role of Mr McInnes does not appear with clarity, but it would appear that his Honour treated him as acting as Dr Cross' adviser. He does not feature in any other respect in this appeal. 2 The trial came on before Twigg DCJ at Coffs Harbour. His Honour found the case of Mr Taylor against Dr Cross duly established and with interest found a verdict for Mr Taylor of $130,518. Dr Cross appeals to this Court. 3 There was a second set of proceedings before his Honour in the District Court, Waverley Hill Pty Limited, which it is said was Mr Taylor's undisclosed principal, being the respondent. Nothing turns on that matter. There is no appeal from Twigg DCJ dismissing that claim consequentially upon him dealing with the claim now under appeal. 4 Dr Cross' notice of appeal simply says (1) that his Honour erred in law in finding against the appellant personally, and (2) that his Honour erred in law in finding a verdict for the first respondent. 5 The first ground of appeal relates to the fact that, at the trial, Dr Cross' main defence was that there was a company controlled by him, Mambeo Pty Ltd, that was the purchaser of the birds and material and not him personally. Indeed, Mambeo was the plaintiff in that second action to which I have referred. 6 His Honour found that neither party when they were making the relevant contract realised there was any difference between himself and his tame company, if I can use that term. However, his Honour having considered all the material before him and the agreement which is set out on p 90 of the blue appeal book, to which I will return, found that the purchaser was Dr Cross personally. 7 His Honour noted that there were some abortive negotiations between the parties in May 1999 about selling Mr Taylor's business, which included the birds and aviaries. The appellant put some store on the fact that when the sale of business agreement was drafted by solicitors, it was the corporate entities which were inserted as the contracting parties. 8 However, the current agreement was made on 14 June 1999. It was preceded by a letter or note addressed by Mr Taylor headed "Proposed sale of birds to Barry Cross" which set out a price of $196,500 for the birds, excluding two birds which he wished to keep, and associated equipment, the terms of payment noting that "no accountants or solicitors be involved in the sale, so this sale is between you and I". 9 A few days after that though, the present appellant had typed up a document which reads as follows: "Agreement made between Graham Taylor, John McInnes and Barry Cross at Coffs Harbour on Monday, June 14, 1999. In consideration for all the bird stock (excluding the Hahn's Macaw's and two pet birds) used for Graham Taylor's Avicultural Breeding and Research Centre, a sum of $150,000 will be paid. This consideration be paid via a deposit of $50,000 with the balance being paid at a rate of $500 per week plus 50 per cent of the income generated by the birds obtained off Graham Taylor's Avicultural Breeding and Research Centre." 10 The document is then signed by the three persons named in the document. 11 The learned judge said in respect of the May agreement which aborted that: "On my finding, any information sought and needed by Dr Cross and Mambeo in relation to the records and financial running of the bird business was freely available. There was no misrepresentation, nor were any of the defendants induced by false or any misrepresentations to enter into a purchase with either of the plaintiffs. They made their own assessments of the profitability and worth of the birds and their productivity. Indeed, on my finding, Dr Cross and John McInnes were so intent on purchasing the birds that they acted single mindedly. Nothing the plaintiff said deterred them from purchasing the birds." 12 On the next page of his Honour's judgment when dealing with the June transaction, his Honour continued: "On my finding, Dr Cross satisfied himself as to the reasonableness of the price he was paying for the birds he was purchasing. He is, on my observation of him and his business experience, sufficiently aware of what enquiries were to be made to ensure he was getting a good bargain. He did not subsequently make any complaint that he had been misled until litigation was threatened for recovery, as Dr Cross had failed to keep up the weekly payments of $500." 13 So his Honour disposed of an issue before him on the facts that there had been a misrepresentation. His Honour then went on at page 9 and rejected the claim that it was the company and not Dr Cross personally that was liable. He said: "I reject the claim by Dr Cross that when he executed the agreement on 14 June, 1999 he was acting as agent for Mambeo Pty Ltd, a company which he controls. Nothing is disclosed by the agreement, nor anything said at the time of its execution, or subsequently, until litigation becomes apparent. I cannot draw an inference of agency from the statement by Dr Cross ... that he proposed that the birds would be sold from a shop 'under Mambeo Pty Ltd.' I am satisfied that the alleged agency on behalf of Mambeo Pty Ltd was a recent invention to avoid the consequences of liability being shown to be attributed solely to Dr Cross." 14 On this appeal Mr Loomes of counsel appeared for Dr Cross and Mr Maiden for Mr Taylor. Mr Loomes argued that the legal title to the birds was in Waverley Hill Pty Limited, a trustee of Mr Taylor's family trust, and thus Mr Taylor it said had no title. 15 However, this is really quite irrelevant. Mr Taylor and Dr Cross entered into an agreement for the sale of birds. Title passed by delivery. Even if Mr Taylor's title was relatively bad compared with the title to Waverley Hill Pty Limited, he had sufficient title to pass to Dr Cross, and indeed Waverley Hill has never had any challenge to the right of Dr Cross to the birds. This is just a question of sale of goods, over which title passed by delivery and for which the purchaser has not paid. 16 It is true that Waverley Hill was added as a plaintiff. I would have thought that that was just wise caution on behalf of those who were acting for Mr Taylor at the trial. It is also true that the deposit and some instalments were paid by Mambeo's cheque. However, the judge was fully aware of this. He did not consider it to be the only vital matter. He was entitled to do that. 17 I cannot see anything in the judgment of the learned judge which shows that he made any error of law and fact. He came to a conclusion which he was fully entitled to reach, and in my view the appeal must be dismissed with costs. 18 SHELLER JA: I agree. 19 BARRETT J: I also agree. 20 SHELLER JA: The order of the Court will be that proposed by Young CJ in Eq. ******************** Last Modified: 03/23/2004 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.