Colmark (Australia) Pty Ltd v Smith [1991] QSCFC 44

, \0- 10 ,20 r~~\ 30 40 50 60 /**e. IN THE SUPREME COURT OF QUEENSLAND FULL COURT Appeal No. 61 of 19 BEFORE: The Chief Justice (Mr.Justice Macrossan Mr.Justice McPherson S.P.J. Mr.Justice Derrington BRISBANE, 15 APRIL 1991 REVISED COPIES ISSUED Court Reporting Bureau Date: 2-1 j~ / 9/ (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter,Court Reporting Bureau.) BETWEEN : COLMARK (AUSTRALIA) PTY . LTD. (Plaintiff) -and- RONALD PETER HOWARD SMITH (Defendent) JUDGMENT Respondent Appe 1 lant 90 THE CHIEF JUSTICE: Leave was given in the District Court to enter final judgment in the proceedings commenced with interest. The appeal seeks to challenge the propriety of that order and suggests that leave to defend should have been given * When the matter was raised a preliminary point was taken by the respondent* Briefly as to this aspect, the notice of appeal was not given within the time prescribed but an extension was ordered, there being a relevant power in the Act - that is the District Court Act. The respondent contends, however, that the extension of time for appeal was subject to a condition which has not been complied with. We, had our attention directed to the terms of the order made for extension of time, and it may be that a question 20 30 40 50 — Govt Printer Qld 60 [1991] QSCFC 44 -- 1 of 5 -- 1 10 20 30 40 50 of construction of the terms of that order relevant for our consideration would be raised - that is if the appeal were to turn on this point. We see that the learned District Court Judge, to whom the application for extension was made, did order upon undertaking being given an extension of time but the undertaking is stated (1) That the appeal will proceed diligently. The order further continues, "The performance of that undertaking to be a condition of the order that is made for the extension of time for the filing of the notice of appeal." The respondent contends that the applicant for the order and the present appellant did not proceed diligently. There could be questions for consideration which would include these: whether the solicitor who gave the undertaking was in breach and- should be dealt with; whether in fact it should be judged in all the circumstances that the appeal was proceeded with diligently; or whether the terms of the District Court Judge's order should be construed as having the effect that if subsequent proceedings on the appeal were not diligently taken then the extension of time would itself be vacated, as it were, automatically under the conditions of the order. I do not need to deal with these questions and a further one which raised on this point, namely, whether the respondent's action, or alleged action as perhaps it should be put, at the call-over of the appeal cases in seeking to have the appeal set down should amount to a waiver of the point so that the respondent could no longer take advantage of lt:* After the preliminary point had been aired before us we invited counsel for the appellant to proceed with the merits, reserving what our decision would be on the preliminary point c? i 10 20 30 40 50 60 60 — Govt. Printer, Qld. 2 -- 2 of 5 -- 1 20 BO L 40 50 60 n should that matter turn out to be critical. When the merits are examined, it appears to me that the appeal has no substanc^ The appellant was a partner in a firm called Northside Bulk Disposals to whom the plaintiff supplied goods over a period of some six months or so. In very round terms the total value of the goods seems to have been something of the order of $50,000, or approaching that figure. During the period of the supply of numerous items, about $25,000 of the total supplied was paid off at different times. However, the amount of the indebtedness eventually was left at a figure somewhat over $20,000. The appellant did not himself order any of these goods, the material shows; it was his partner who did it. The questic we are concerned with then is the limit of that partners ostensible authority. Section 8 of the Partnership Act was referred to below and became the basis of the District Court Judge's decision - that is that he should^give leave to enter judgment. The section of the Act was examined by us in the course of argument. The appellant says that although his partner ordered the goods he himself was unaware of the nature and extent, I think it comes down to, of the ordering that had occurred. One looks to see whether a triable issue has been raised. It may well be that the firmest statements may not have to be made by someone seeking to avoid the entry of final judgment, but at least matters of substance must be put forward if it is hoped that leave to enter judgment will not be given. The appellant seems to say, when the details of hrs-somewhat shadowy complaints are examined, that credit was given which was unusually large for a new business and he adds to this that the amount of credit was continued even though there was a largb 10 20 30 40 50 60 — Govt. Printer, Qid. -- 3 of 5 -- to 20 BO 40 50 60 10 ate 20 and increasing indebtedness which was not being fully liquidatejd. It seems the items supplied were such things as garden sheds, carports and garages . No point is made of the type of goods supplied- The appellant does not say that they were not appropriate in the partnership business being conducted, and indeed the material seems to show that they were quite appropri in that they were used or sold on in the course of the business being conducted by the partnership. However, as I say, no point is made on the type of goods that were supplied but only in respect of the credit which was given, it being said that it was not given in what could be called the usual way relevant for the purposes of the application of section 8 of thje Partnership Act. In greater Particularity it might be seen that the appellant is contending that more credit than he personally expected would be asked for and given was in fact extended and that the extension of the original credit terms imposed was again something unexpected. He seems to be saying in short that the plaintiff supplier was unexpectedly generous with credit, but insufficient is adduced, in my view, to show anything unusual from the point of view of the application of a section of the Partnership Act and the principles enshrined within it. We are talking about the supply of items over a broad period of some six months. The words of the Act relevant for our purposes are these, "Every partner is an agent of the firm and his other partners for the purpose of the business of the partnership and the acts of every partner who does any act for the carrying on in the usual way of business of the kind carried on by the firm bind the firm and his partners." 30 40 50 60 —Govt. Printer, Qld 4 -- 4 of 5 -- The matters there before us as to the alleged unexpected generosity of credit, in my view, do not persuade me at all that a case has been raised that the acts of the partner who ordered the goods in question was not carrying on in the usual way the business of the firm itself and I see no reason for interfering with the decision of the learned District Court Judge who permitted judgment to be entered. I would therefore dismiss the appeal. MR.JUSTICE MCPHERSON : I agree. MR.JUSTICE DERRINGTON: I agree. MR.CURRAN: I ask for costs. MR.THOMPSON: I can say nothing in that regard. THE CHIEF JUSTICE: The respondent should have against the appellant an order for its costs of and incidental to the appeal to be taxed. MR.JUSTICE MCPHERSON: I agree. MR.JUSTICE DERRINGTON: I agree. — Govt. Printer. Qld. i 10 20 30 40 50 60 5 -- 5 of 5 --