Mercedes-Benz Financial Services Australia Pty Limited v State of New South Wales & Anor [2011] NSWSC 1458

Supreme Court New South Wales

Medium Neutral Citation: Mercedes-Benz Financial Services Australia Pty Limited v State of New South Wales & Anor [2011] NSWSC 1458 Decision date: 30 November 2011 Jurisdiction: Equity Division Before: White J Decision: Refer to para [108] of judgment. Catchwords: SALE OF GOODS - mercantile agent - agent put in possession of vehicle and authorised to sell - agent's employee sold vehicle to financier and entered into hire purchase agreement for his own benefit - agent did not have actual authority to sell vehicle - whether purchaser obtained title pursuant to s 5(1) Factors (Mercantile Agents) Act 1923 - whether sale made by agent in ordinary course of business of mercantile agent - agent would not supply false invoice if carrying out a transaction it was authorised by principal to carry out - sale not in ordinary course of business of mercantile agent - whether purchaser acted in good faith and in absence of notice of lack of authority to sell - absence of good faith where purchaser suspected that the thing was not altogether right and consciously refrained from making inquiry - s 5 Factors (Mercantile Agents) Act 1923 not satisfied - purchaser did not acquire title Legislation Cited: Factors (Mercantile Agents) Act 1923 Sale of Goods Act 1923 Cases Cited: Tobin v Broadbent [1947] HCA 46; (1947) 75 CLR 378 Sweeney v Howard [2007] NSWSC 852; (2007) 13 BPR 24,381 Oppenheimer v Attenborough & Son [1908] 1 KB 221 Magnussen v Flanagan [1981] 2 NSWLR 926 Associated Midland Corporation v Sanderson Motors Pty Ltd [1983] 3 NSWLR 395 Heap v Motorists' Advisory Agency Limited [1923] 1 KB 577 Oppenheimer v Frazer & Wyatt [1907] 1 KB 519 Kirkpatrick v Kotis [2004] NSWSC 1265; (2004) 62 NSWLR 567 Lysaght Bros & Co Ltd v Falk (1905) 2 CLR 421 Beach Petroleum NL v Johnson (1993) 115 ALR 411 at [574]; Beach Petroleum NL v Kennedy [1999] NSWCA 408; (1999) 48 NSWLR 1 Category: Principal judgment Parties: Mercedes-Benz Financial Services Australia Pty Limited (Plaintiff) State of New South Wales (1st Defendant) Rakesh Tulshyan (2nd Defendant) Representation: A J Bulley (Plaintiff) Submitting appearance (1st Defendant) G Sirtes SC with D R Meltz (2nd Defendant) Dibbs Barker (Plaintiff) Crown Solicitor (1st Defendant) MacGillivrays Solicitors (2nd Defendant) File Number(s): 2009/290650