Rosecell Pty Ltd & Ors v JP Haines Plumbing Pty Ltd & Ors [2015] NSWSC 1238

Supreme Court New South Wales

Medium Neutral Citation: Rosecell Pty Ltd & Ors v JP Haines Plumbing Pty Ltd & Ors [2015] NSWSC 1238 Hearing dates: 17 February 2015 Decision date: 31 August 2015 Jurisdiction: Equity Before: White J Decision: Counsel for the plaintiffs to bring in short minutes of order in accordance with these reasons. Catchwords: TORTS – conversion – unauthorised sale of goods to bona fide purchaser – 2nd plaintiff and his wife operated a business through the plaintiff companies – they were forced to abandon the business under duress after the husband was assaulted by a former business partner and threats were made against them and their family – plaintiff companies' goods were purportedly sold to the defendants by that business partner – whether a demand for the return of goods is a necessary element in conversion – held that the defendants are liable in conversion for the value of the goods

AGENCY – ostensible authority – species of estoppel by conduct – distinguished from ostensible ownership – whether plaintiffs estopped from denying the validity of purported sales of their goods to the defendants by a third party – held that: (1) the plaintiffs did not represent that the third party had authority to sell their goods; (2) the sales were not made in the ordinary course of business; and (3) the director of the active defendants did not assume that the third party was authorised to sell the goods in reliance on any representations by the plaintiffs

ESTOPPEL – estoppel by silence or inaction – estoppel by negligence – s 26 of the Sale of Goods Act 1923 (NSW) – 2nd plaintiff and his wife lost control of the plaintiff companies' business under duress – husband assaulted by former business associate, and threats were made against him and his family – whether plaintiff companies estopped from denying the validity of unauthorised sales of their goods by reason of their inaction – whether plaintiffs were under a duty to speak out or to take action – relevance of the plaintiffs' and defendants' knowledge of surrounding circumstances where they were not aware of each other – held that: (1) the plaintiffs did not act unreasonably, because they had no choice but to allow the business to be taken over; and (2) the plaintiffs did not make any representations as to ownership of the goods or authority to sell the goods by allowing the business associate to remain in possession and control