Supreme CourtNew South Wales

Medium Neutral Citation: Mercedes-Benz Financial Services Australia Pty Limited v State of New South Wales & Anor [2011] NSWSC 1458
Decision Date: 30/11/2011
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: Dibbs Barker (Plaintiff)
Crown Solicitor (1st Defendant)
MacGillivrays Solicitors (2nd Defendant)

A J Bulley (Plaintiff)
Submitting appearance (1st Defendant)
G Sirtes SC with D R Meltz (2nd Defendant)
File Number(s): 2009/290650

JUDGMENT

1HIS HONOUR : The question in this case is which of two innocent parties has title to a Ferrari motor vehicle known as a Ferrari 612 Scaglietti Sessanta. The vehicle was seized by the police. The first defendant (the State of NSW) has filed a submitting appearance. It does not claim the car. The parties have agreed to interim arrangements for storage of the vehicle until the determination of who has title to it. The contesting parties are the plaintiff, Mercedes-Benz Financial Services ("MBFS") and the second defendant, Mr Rakesh Tulshyan.

2Mr Tulshyan is a resident of Singapore. He purchased the vehicle on 28 February 2008 from the Ferrari franchised dealer, Italia Motori. The vehicle was one of only 60 manufactured throughout the world to commemorate 60 years of the manufacture of Ferrari cars. Mr Tulshyan did not take personal delivery of the car. He placed the car on consignment for sale by a licensed motor car dealer, Chanti Pty Limited that traded under the name European Car Specialists ("ECS").

3Mr Tulshyan dealt with a salesman at ECS called Jimmy Nehme. Mr Nehme was the director and shareholder of a company called Via-Me Transport Pty Ltd ("Via-Me Transport").

4MBFS is in the business of providing finance for the acquisition of luxury motor vehicles. Mr Nehme was an existing customer of MBFS. Without telling Mr Tulshyan, Mr Nehme arranged for Mr Tulshyan's Ferrari vehicle to be purportedly sold by ECS to MBFS. Via-Me Transport entered into a hire purchase contract with MBFS on 4 November 2008. MBFS paid $400,000 to ECS on 5 November 2008. The invoice for the purchase of the car received by MBFS, apparently from ECS, stated a purchase price of $600,000. It referred to a deposit of $200,000 and stated that a balance of $400,000 was due. It was common ground that the $200,000 deposit was not paid. Nothing was paid to Mr Tulshyan. I was told that ECS is being wound up.

5Mr Tulshyan claims that he remains the owner of the car. MBFS contends that it acquired title. It relies on two grounds. It says that ECS had authority under the consignment agreement to sell the vehicle for the price it did. It contends that the facts that ECS did not receive the whole of the stated price of $600,000, and did not account to Mr Tulshyan for the money it did receive, do not mean that ECS lacked actual authority from Mr Tulshyan to sell the car. Alternatively, MBFS contends that it obtained good title pursuant to s 5(1) of the Factors (Mercantile Agents) Act 1923.

6That section provides:

" 5 Powers of mercantile agent

(1) Where a mercantile agent is entrusted as such with the possession of any goods or the documents of title to goods, any sale pledge or other disposition of the goods made by the agent in the ordinary course of business of a mercantile agent shall, subject to the provisions of this Act, be as valid as if the agent were expressly authorised by the owner of the goods to make the same:

Provided that the person taking under the disposition acts in good faith, and has not at the time of the disposition notice that the person making the disposition has not authority to make the same. "

7There was no dispute that ECS was a mercantile agent entrusted with possession of the vehicle.

8An alternative claim by MBFS relying on s 26(2) of the Sale of Goods Act 1923 was not pressed. MBFS accepted that if it could not succeed under s 5(1) of the Factors (Mercantile Agents) Act , it could not succeed under s 26(2) of the Sale of Goods Act .

9Mr Tulshyan says that the invoice on which MBFS paid was not from ECS, but was concocted by MBFS' agent, Mr Jeremy Turner, who was employed by a related company of MBFS. There was ultimately no issue that Mr Turner was MBFS's agent in the transaction. Mr Tulshyan says the $400,000 was not paid under a contract of sale between ECS and MBFS. Alternatively, Mr Tulshyan submitted that ECS was not authorised to sell the car under the consignment agreement. He submitted that ECS did not dispose of the vehicle in the ordinary course of business, MBFS did not act in good faith in acquiring the vehicle and had notice that ECS did not have authority to sell.

10Mr Tulshyan relied on serious irregularities committed by Mr Turner. Mr Turner asked ECS to change its invoice to state that the purchase price included luxury car tax of $125,266.15 when he knew it did not. The invoice Mr Turner submitted to the settlements department of MBFS was either wholly prepared by him (as Mr Tulshyan submitted) or was amended by him to state that the vehicle was a demonstrator and not a used vehicle. To Mr Turner's knowledge the invoice submitted by him to the settlement department of MBFS was false in stating that the vehicle was a demonstrator and that luxury car tax was included in the price.

11The issues are:

(a) whether the $400,000 paid by MBFS to ECS was paid under a contract for sale between ECS and MBFS

(b) if so, whether a sale by ECS to MBFS was authorised by Mr Tulshyan under the terms of the consignment agreement between him and ECS as orally varied ;

(d) whether MBFS acted in good faith and without notice that ECS did not have authority to sell the vehicle; and

(e) if ECS had authority, or is taken by virtue of s 5 of the Factors (Mercantile Agents) Act to have had authority to make the sale, whether title to the vehicle passed to MBFS where the stated deposit making up part of the purchase price was not paid.

12I have concluded that:

(a) there was a purported contract for sale between ECS and MBFS;

(b) ECS did not have authority to make the contract with MBFS;

(d) MBFS through its agent Mr Turner did not act in good faith and without notice that ECS did not have authority to sell the vehicle;

(e) if ECS had been taken to have authority to sell, title would have passed, notwithstanding the so-called deposit was not paid. By reason of findings (b), (c) and (d) title did not pass to MBFS.

Mr Tulshyan's dealings with ECS

13Mr Tulshyan purchased the vehicle from Italia Motori for $650,000. This price was inclusive of GST and luxury car tax of $109,645.

14On 15 April 2008 Mr Tulshyan signed the consignment agreement with ECS. The agreement provided that the vehicle would be sold for no less than $650,000, which sum would be paid directly to Mr Tulshyan's nominated bank account.

15On 8 September 2008 Mr Nehme advised Mr Tulshyan that he was working with a client who had shown some interest in the car. Mr Tulshyan authorised Mr Nehme to sell the car for $599,000. On 23 October 2008 Mr Nehme advised Mr Tulshyan that ECS was doing its best to sell the car and there was a strong possibility of a sale. Mr Nehme said he was sure that he would get a result very soon.

16In mid November 2008 (after the purported sale by ECS to MBFS and hire purchase contract with Via-Me Transport) Mr Nehme proposed to Mr Tulshyan that Mr Tulshyan swap the Ferrari for a Mercedes Benz and Lamborghini which he could sell, and a net price of $480,000 would be paid to Mr Tulshyan. Mr Tulshyan advised that unless he saw $480,000 in his account, he would not do the deal. By mid November 2008 Mr Tulshyan was prepared to exchange the vehicle for $480,000 in cash. On 28 November 2008 Mr Nehme told Mr Tulshyan that his client had not yet confirmed the deal because the vehicle had been sent to the service department (of Italia Motori). There was an electrical fault. The car had been sent back to Italia Motori on 25 November and was collected again by ECS on or about 12 December 2008.

17Mr Tulshyan was travelling extensively and was not in further contact with Mr Nehme or anyone else from ECS until late March 2009. He then tried to contact them, but could not do so. He contacted Italia Motori who investigated. On 27 April 2009 he was told that ECS was in liquidation and the car yard was vacant. A "REVS" search revealed that MBFS had registered an interest in the vehicle of a type described as " Hire Purchase " on 6 November 2008.

18The vehicle was seized by the police in May 2009.

Mr Nehme's prior dealings with MBFS

19Mr Nehme was an existing customer of MBFS. MBFS provides finance not only for the acquisition of motor vehicles from Mercedes-Benz dealers, but from other dealers. Between 29 August 2003 and 7 August 2008 Via-Me Transport or Mr Nehme had entered into four contracts with MBFS.

20On 29 August 2003 Via-Me Transport entered into a hire purchase agreement with MBFS in respect of a Mercedes-Benz vehicle. That contract was paid out on 27 February 2007.

21On 8 December 2006 Via-Me Transport entered into a hire purchase agreement with MBFS for a Ferrari vehicle. The financed amount was $270,875. That contract was paid out on 24 January 2008, before the full term expired.

22Via-Me Transport entered into a hire purchase contract with MBFS on 2 January 2008 (that is, shortly before the early discharge of the contract in respect of the Ferrari motor vehicle) for a Bentley. The financed amount was $300,885. That contract was also discharged early. It was discharged by a payment of $305,973.98 on 13 August 2008. Six days before that payment was made, that is, on 7 August 2008, Mr Nehme personally entered into a contract with MBFS described as " Consumer Sale by Instalment " for the acquisition of another Bentley motor vehicle. The amount financed was $250,000. That contract was still on foot in October and November 2008. It remained on foot. Mr Nehme stopped making payments after 18 June 2009.

23Up to November 2008 there were only seven defaults by Via-Me Transport or Mr Nehme in making due monthly payments under these contracts. They were swiftly remedied.

24Mr Tulshyan did not submit that there was anything suspicious about these transactions.

Mr Nehme's application for finance for the Ferrari

25Mr Turner was employed by Daimler Australia Pty Ltd. Its ultimate holding company is the ultimate holding company of MBFS. His duties included assisting clients with finance. He assisted Mr Nehme with applications for credit to MBFS in 2007 and January 2008.

26On 29 October 2008 Mr Nehme approached Mr Turner and applied for finance to purchase a Ferrari 612 vehicle from ECS. Mr Turner said that he was unaware that Mr Nehme was employed by or associated with ECS. He was not cross-examined on that evidence. As noted above, Via-Me Transport had entered into a hire purchase agreement in 2006 with MBFS for a Ferrari vehicle. The contract was paid out on 24 January 2008. $252,343.55 was paid on 21 January 2008. The account history showed that payment as being a direct deposit with the notation " RTGS payment THE DIRECTOR CHANTI PTY L [cut off]".

27Neither Mr Turner nor any witness from MBFS was asked about that payment. Whilst Mr Turner's evidence was unsatisfactory, I accept his evidence that he was not aware that Mr Nehme was associated with ECS.

28Mr Turner had details about Mr Nehme and Via-Me Transport on file. On 29 October 2008 he prepared an application to MBFS for approval of hire purchase finance of $500,890 for the acquisition of the Ferrari motor vehicle. Via-Me Transport was to be the hirer. The vehicle cost, including fees, would be $600,890 and a deposit of $100,000 was shown as the amount to be paid by the hirer. The proposed hire would be for a term of four years with a " balloon payment " or " residual " of $180,000. The application was submitted to the credit department of MBFS.

29Mr Turner gave evidence that he was telephoned on 29 October 2008 by Mr Nehme. He did not meet Mr Nehme in person. He had first dealt with Mr Nehme in connection with the purchase in 2006, through ECS, of the first Ferrari vehicle. He met Mr Nehme at that time. According to Mr Turner, during his telephone call with Mr Nehme (which Mr Turner originally placed as taking place on 3 November 2008, a date he subsequently corrected), Mr Nehme told him that he was looking at purchasing a Ferrari 612 from the European Car Specialist in Sydney. He was seeking credit to assist with the purchase. Mr Turner said that he would need a signed Mercedes Privacy Form so that he could get the application process underway, but as Mr Nehme was already an existing customer, all details would already be on the file unless they had changed. In both of the two previous transactions involving a Ferrari Spider vehicle purchased in late 2006 and the Bentley vehicle purchased in August 2008, the vehicles were purchased by MBFS from ECS.

30Mr Turner completed an application for credit through a computer program used by Daimler Australia Pty Ltd for submission to MBFS. The application form was submitted in the name of Via-Me Transport to be guaranteed by Mr Nehme. Mr Turner provided details of the asset and liability position of Via-Me Transport based on the previous credit application.

31The application was reviewed by Mr Matthew Xerri, Senior Manager of Retail and Corporate Credit, with MBFS. Credit checks were carried out. Mr Xerri reviewed Via-Me Transport's and Mr Nehme's 2007 and 2008 tax returns. He formed the view that the application would be approved if the customer made a deposit contribution of $250,000. In his report on the application dated 31 October 2008 Mr Xerri said:

" Applicant is clearly not a $500k profile. His property has two mortgages on it and the company only made a $70k profit. I believe there is more to this than meets the eye however difficult to put my finger on it. Therefore considering the vehicle is booking well, applicant is asset backed, customer has a good credit history with MBFS, customer has been at these levels previously and ATS is evident I will support however with a max lend of $350k ".

32On 31 October 2008 Mr Turner was told that the application had been conditionally approved only for a loan of $350,000. The application had been for finance of $500,890. A condition of the approval notified to Mr Turner was that " LCT [Luxury Car Tax] to be disclosed on the tax invoice OR confirmation that LCT had already been PIF [Paid in Full] ...".

33This was a standard condition of approval required by MBFS's procedures manual. What it required (whether disclosure on the invoice or confirmation of prior payment) depended on whether luxury car tax was payable on the sale as a first retail sale, or whether the tax should have been paid already on a prior sale.

34The 2007 income tax returns for Via-Me Transport and Mr Nehme reviewed by Mr Xerri were facsimile copies that had been sent from ECS on 28 December 2007. They would have been sent in connection with the application for the hire purchase contract for the first Bentley vehicle. The 2008 tax returns were facsimile copies that were sent from ECS on 30 October 2008. Mr Xerri said that it was not unusual to receive the customer's financial information from a third party dealership as the dealership may fax information on their customer's behalf. Expert evidence was given by Mr Desmond Stirling for the plaintiff, and Mr Gregory O'Callaghan for MBFS. They are both experienced in the business of providing finance for motor vehicle acquisitions. Mr Stirling said that in his experience it is not normal industry practice for a motor vehicle dealer to send confidential documents such as income tax returns to the finance company. Mr O'Callaghan disagreed to the extent that he said it would be in the normal course of business for a dealer in the position of ECS to forward such documentation to the finance company if the dealer was introducing the credit application to the finance company. That was not this case. Nonetheless, Mr O'Callaghan did not find it unusual that the information was provided by ECS. I do not conclude that the fact the tax returns were faxed from ECS was a suspicious circumstance that ought to have put MBFS on notice that something was amiss.

35In his first affidavit Mr Turner said that when he received notification that the application submitted on behalf of Mr Nehme had been declined, he raised the matter with Mr Paul Betar and said " Head office has declined the application on the basis that the deposit of $200k [sic] is too low. I actually think that given the client's record with us and the vehicle in question, the deposit is fair. " He said that he was later informed by a Mr Neil Crotty, a Dealer Representative Manager, who advised that the application had been reassessed and would be approved with a $200,000 deposit with a maximum lend of $400,000.

36This is perplexing because the initial application did not propose a deposit of $200,000. Mr Betar did not recall such a conversation.

37According to Mr Xerri, the application was reviewed on or about 3 November 2008 at the request of Mr Turner. Following that review, Mr Xerri concluded that he would support the application " with $200k given equity into the deal, good asset backing, low LSR and applicant being at these levels previously. Even though I have my concerns, there is enough here to warrant support ." This decision was conveyed to Mr Turner.

False Invoices: Luxury Car Tax

38Mr Turner deposed that following receipt of an approval on 31 October 2008 he sent a fax to ECS containing instructions for the invoice to be supplied to MBFS. Mr Turner sent a format for an invoice to ECS and asked for the invoice to be faxed to him. The timing cannot be correct, but that does not matter.

39On 3 November 2008Ms Isabella Varnavelias of ECS sent an invoice to Mr Turner. The invoice was addressed to MBFS. It described the vehicle to be sold as " 1 x used Ferrari 612 Scaglietti Sessanta (60 th ) Ann. " It showed an odometer reading of 179 kilometres and a " Built Date [of] 02/08 ". The price including GST was $600,000. The invoice stated:

" Less deposit $200,000

Balance due $400,000. "

40The form of invoice stated that it was printed using " EasyCars " by Jeal Computer Services Pty Ltd. This was a reference to a software package available to motor dealers called a " Dealer Management System ".

41The draft tax invoice contained details of ECS's bank account and also stated that:

" NO TITLE TO THE VEHICLE SOLD SHALL PASS TO THE PURCHASER IF:

(a) Any cheque paid by him/her in part or full payment for such car is dishonoured, or

(b) The title to the car traded in by the Purchaser in part or full payment is not free of all defects and incumbrances, or

(c) In the event of financial accommodation being required by the Purchaser any finance company declines to accept the Purchaser as a customer.

Until the whole of the foregoing conditions or such of them as shall apply to the transaction shall have been fulfilled the Purchaser shall hold the vehicle sold as bailee only. "

42Mr Turner did not pass this invoice on to MBFS. He said that to the best of his belief he called Ms Varnavelias and told her that the invoice needed to be amended to show luxury car tax so that it complied with the conditional approval. He said that following that conversation he believed that ECS sent him a second invoice also dated 3 November 2008. This described the vehicle to be sold in the same way as the earlier invoice, that is, as a used vehicle. The two most obvious differences were that instead of stating, as had the earlier invoice, " Total Purchase Price including GST $600,000 ", this invoice stated:

" Total Purchase Price (inc. $43,157.62 GST)

(inc. $125,266.15 LCT) $600,000. "

43In other words, this invoice purportedly showed that the purchase price included luxury car tax of $125,266.15. Luxury car tax was not payable on the sale of a used vehicle. Whether a vehicle is a " used vehicle " does not depend on how far it has been driven, but on whether it has been sold by retail.

44The other most obvious difference was that the second invoice did not include the words concerning passing of title included in the first invoice.

45On a closer examination there are other more subtle differences. The second invoice was not produced from the Jeal Computer Services Dealer Management System. Mr Stirling and Mr O'Callaghan were agreed that that was so. On the second invoice the " Built Date " was stated to be " 02/09 " instead of " 02/08 ". The earlier invoice made provision for its being signed by the purchaser and the dealer. The second invoice did not. Whilst the layout of the invoice was similar to the first invoice there were subtle differences in the printing and in the typewritten parts of the documents.

46Mr Turner understood the vehicle being purchased by MBFS to be used. In oral evidence he said that he understood that ECS was selling the vehicle as principal. He understood that if the car was a used car, i.e. one that had already been sold, luxury car tax would not be payable.

Who created the second invoice?

47The form of second invoice was not sent by facsimile. Mr Turner said that it accompanied signed documentation, being the hire purchase agreement and guarantee signed by Via-Me Transport and Mr Nehme.

48According to Mr Turner he sent the invoice to MBFS's settlements department and someone from the settlements department contacted him to ask why luxury car tax was payable on a used vehicle. I do not accept that evidence. The invoice in the form in which Mr Turner said he received it from ECS was not sent to MBFS. The person with the carriage of the matter at the relevant time in the settlements department at MBFS was a Ms April Robinson. She denied receiving an invoice showing the vehicle as being used. She had no recollection of speaking to Mr Turner about the transaction at all. If anyone had spoken to Mr Turner, it would have been she. I am satisfied that Mr Turner made up that evidence to justify the course that he took.

Alteration of the second invoice

49Mr Turner scored over heavily the word " used " on the invoice and wrote in by hand the word " demonstrator ". The reason he did that was that luxury car tax would have been payable if this were the first retail sale of a vehicle that had been used only as a demonstrator. In other words, Mr Turner made a second falsification of the invoice. Having obtained from ECS an invoice that purportedly showed luxury car tax was included in the price, he altered the invoice to describe the car as a demonstrator and not a used car. He did this so that the falsity of the statement about luxury car tax being payable would not be detected.

50As noted above, the condition of MBFS's approval of the application for finance was that luxury car tax was to be disclosed on the tax invoice, or confirmation was to be provided that luxury car tax had already been paid. As the vehicle was a used vehicle (it having already been a subject of a retail sale by the Ferrari franchised dealer), to satisfy the condition Mr Turner was required to obtain confirmation that luxury car tax had been paid. This would not have been difficult. Italia Motori is the only New South Wales Ferrari franchised dealer. The car in question was one of a limited edition of only 60 manufactured by Ferrari for distribution throughout the world. Mr Stirling said:

" A dealer, such as ECS, buying any vehicle let alone a Ferrari 612 Scaglietti Sessanta 60 th Anniversary model would obtain the original documentation to evidence that the vendor had title to the vehicle and had the authority to sell the vehicle. No legitimate purchaser would buy such a Ferrari without receipt of the original sales documentation. These documents add to the value of the car for a collector. "

51I accept that evidence. The original sales documentation would include the invoice from Italia Motori to the first purchaser which would show that the first purchaser had already paid the luxury car tax.

52No-one from MBFS said that compliance with the condition that there be confirmation that LCT had already been paid meant that there had to be verification that luxury car tax had been remitted to the Australian Tax Office by the original selling dealer. What the conditions required was confirmation that luxury car tax had been paid to the original selling dealer. Mr Turner did not do that. The question is, why not?

53Mr Turner said:

"... Mr Nehme had been contacting me on a regular basis, emphasising his need to finalise the transaction as soon as possible. ... [T] o avoid the delay of obtaining confirmation of LCT having been paid, following my conversation with the plaintiff [MBFS] I amended the invoice by crossing out 'USED' and inserting 'DEMONSTRATOR'. I made this amendment because it would then be clear to the plaintiff why LCT was noted on the invoice (because it is my understanding that it is paid on the first retail sale of a vehicle) and I would not have to seek confirmation of LCT having been paid on the original sale, which would only delay settlement. "

54The " conversation with the plaintiff " referred to in this paragraph was to the alleged conversation with someone from the settlements department referred to at para [48], being the evidence I have rejected.

55Thus, Mr Turner said he was simply complying with the condition of finance approval that luxury car tax be disclosed on the invoice. But that condition could not apply where luxury car tax was not payable on the sale because it was not a first retail sale. As the sale was of a used vehicle, to satisfy the condition Mr Turner had to provide confirmation that luxury car tax had been paid.

Did Mr Turner prepare the second invoice?

56It was put to Mr Turner in cross-examination that he created the second invoice and it was not supplied to him by ECS. He denied that suggestion. I accept that denial. Had Mr Turner prepared the second invoice himself, he would not have described the vehicle as a used vehicle. There would have been no need for him to make a handwritten amendment.

57The question remains why the second invoice was not produced from ECS's Dealer Management System, or why there were the subtle changes in formatting and size of type that show that the document was not produced from the same system that produced the first invoice. No-one was called from ECS. Given that Mr Nehme from ECS was planning the fraud, it is a reasonable inference that he provided the second invoice to Mr Turner. It is probable that Mr Turner told him, not Ms Varnavelias, that the first invoice needed to be amended to show luxury car tax. Although in his affidavit Mr Turner said that he believed he told Ms Varnavelias that the invoice needed to be amended to show luxury car tax so that it complied with the conditional approval, in his oral evidence he said " the conversation would have been if you cannot provide me with confirmation that LCT has been paid you need to include LCT on the invoice ". He said that he could not recall the exact conversation. He also said that in a short conversation with a person whose identity he could not recall, he would have said " I either need proof that it has been paid. If you cannot do that you need to show the LCT on the tax invoice ".

Why did Mr Turner not insist on evidence that Luxury Car Tax had been paid?

58In the course of cross-examination Mr Turner said that " They couldn't prove; they couldn't provide proof that it had been paid ". He thought that ECS was selling the car as principal. He accepted that for a dealer like ECS to track down the invoice for the first purchase of the vehicle would have been a matter of calling up the franchise dealer and saying that " We have got a Ferrari here. We bought it ourselves from ... whoever it was purchased from. We would like the invoice to show that luxury car tax had been paid ." He agreed that this was a rare car and there was only one franchise dealer in New South Wales to his knowledge.

59In oral evidence Mr Turner said that Mr Nehme had been " contacting me regularly asking had the deal been settled? " When asked whether Mr Nehme told him why he was anxious to have it settled urgently or quickly, Mr Turner gave the unresponsive answer " In my experience, everybody wants their car settled straight away. Everybody wants to be driving their new car. "

60To Mr Turner's knowledge Mr Nehme already had the Bentley motor vehicle he had acquired only a few months earlier. He knew of no need for Mr Nehme to have the Ferrari immediately.

61Mr Turner gave no evidence that he was given any reason why it would take ECS too much time to obtain proof that luxury car tax had been paid. His evidence was that ECS could not get that proof.

62Although Mr Turner at some points in his evidence denied that it struck him as irregular that ECS could not provide confirmation that luxury car tax had been paid, he also gave the following evidence about ECS's willingness to issue the second invoice showing an amount of luxury car tax that he understood would not be payable on the transaction.

" Q. Being involved in the motor car industry, having received the invoice on 3 November 2008 which recorded a used car being sold, it would strike you would it not, as being highly irregular for a motor car dealer to change voluntarily an invoice to include a very large amount of luxury car tax being paid if it did not have to pay it?

A. No.

Q. Why not?

A. Given the reputation of some of the dealerships along that stretch.

Q. What does that mean, they are dodgy?

A. I wouldn't use that word.

Q. What did you mean by the statement?

A. They would engage in practices that would go outside the bounds in order to finalise transactions. "

63I have accepted Mr Turner's evidence that he was not aware that Mr Nehme had any association with ECS other than, as he thought, a customer. Nonetheless, he was alert to the fact that there was something suspicious about the transaction. Otherwise there would be no reason he should not have insisted that ECS provide the confirmation he was required to obtain for MBFS that luxury car tax had been paid. Instead, he procured a false invoice that he then further falsified so as to deflect the need to provide that confirmation. He was not just taking a short cut to avoid work and delay. I conclude that he suspected there was something wrong, and refrained form inquiring further.

64Mr Nehme signed the hire purchase agreement for Via-Me Transport and dated the document on 4 November 2008. He also signed his personal guarantee and dated it 4 November 2008. Those documents were provided to Mr Turner on that or the next day. Mr Turner purportedly witnessed Mr Nehme's signature. In fact he did not witness Mr Nehme's signing the guarantee. Mr Turner denied that he was just wanting to push the transaction through and was prepared to cut corners. His explanation for falsely stating that Mr Nehme had signed the document in his presence was that he was familiar with Mr Nehme's signature. Mr Turner denied that it was a serious thing for him to have stated that he had witnessed the signature when he had not.

65There is no evidence that Mr Turner had a motive to turn a blind eye. He stood to gain only a modest commission on the sale that would not provide such a motive. I do not accept Mr Turner as a witness of credit. Although it is suspicious that Mr Turner was prepared to procure a false invoice, to further falsify the invoice, and falsely to attest Mr Nehme's signature, that suspicion does not amount to proof of knowledge of Mr Nehme's fraud, or motive to assist the fraud. I take account of the absence of affirmative evidence of motive, but nonetheless I conclude that Mr Turner suspected something was wrong and turned a blind eye. No stronger finding is warranted.

MBFS's settlements department

66Ms Robinson was responsible for checking the invoice and that matters were ready for settlement. She could see that the invoice sent to her had had the word " used " crossed out and the word " demonstrator " inserted in handwriting. That did not ring alarm bells with her as she thought this was merely the correction of a mistake. It was not suggested that she knew or ought to have known that the nature of the vehicle that was being bought was such that it was unlikely ever to have been a demonstrator car.

67The credit application and the settlement were dealt with in different departments of MBFS. At the stage of the credit application it was assumed that the vehicle was a used vehicle. Ms Robinson was involved at the settlement stage and not the credit stage. She assumed that the vehicle was a demonstrator vehicle, and accordingly was satisfied with the invoice. Had the invoice been referred to Mr Xerri or someone in his department, it can be inferred that it would not have been approved.

68Ms Robinson assumed from the invoice that ECS was able to sell a new Ferrari. She did not give any thought to whether or not it was a Ferrari franchisee. Had the invoice not been amended, in other words, had the invoice described the vehicle as being a used vehicle, she would not have authorised settlement until she had received confirmation that luxury car tax had been paid. She was asked:

" Q. What kind of confirmation would be satisfactory to you?

A. The previous agreement that the vehicle was originally sold, would have had such a car tax disclosed on it as well. "

69I understood her to say that obtaining a copy of the invoice for the first retail sale which showed the payment by the first purchaser of luxury car tax would have been sufficient confirmation.

70The amounts of GST and luxury car tax shown on the invoice on which MBFS paid were wrong. I was not provided with the details of a correct calculation of luxury car tax had it been payable, but Mr O'Callaghan and Mr Stirling were agreed that the amount was incorrect. GST was also incorrectly stated. The GST should be calculated on the value that included luxury car tax. Presumably these errors were not detected by MBFS's settlement department. However, it was not suggested that this was significant.

71MBFS made no inquiry as to whether or not the deposit of $200,000 shown on the invoice had been paid. The evidence was that it was not the practice of a financier in the position of MBFS to make such an inquiry. This is remarkable. As the finance company depends upon acquiring title to the goods, one would expect it to be satisfied that the whole of the price for the goods had been paid. For example, on the terms of the first invoice submitted by ECS to Mr Turner, if a cheque for the deposit had not been met on presentation, ECS would be entitled to maintain that it retained title to the goods until the balance of the purchase price was paid. It is hard to see what answer MBFS would have to such a claim. But in the light of the evidence that it is not industry practice to make such an inquiry, I draw no adverse inference against MBFS on the question whether it acted in good faith and without notice of the absence of ECS' authority to sell from the failure to make such an inquiry.

Adequacy of credit assessment

72A good deal of evidence was given about the adequacy of the credit assessment. Mr Stirling maintained that a prudent financier would not have agreed to provide the finance on the financial information supplied about Via-Me Transport and Mr Nehme. This evidence might have been relevant if it was capable of leading to an inference that MBFS was not acting in good faith or that it had notice that ECS did not have authority to sell. Counsel for Mr Tulshyan argued that MBFS wilfully turned a blind eye to the financial circumstances of Via-Me Transport and Mr Nehme.

73There are strong grounds for saying that MBFS should have appreciated that on the financial information provided it was unlikely that Via-Me Transport and Mr Nehme had the income and financial resources to meet the obligations under the hire purchase contract. The financial statements showed Via-Me Transport as being in the business of truck hire. They showed a 60 per cent return on gross income. This was unrealistic.

74Mr Xerri understood that the Ferrari vehicle to be leased by Via-Me Transport under the hire purchase agreement would not be used for the purposes of deriving income in the trucking business of Via-Me Transport, but was to be a vehicle for the personal pleasure or recreation of Mr Nehme. He assumed that because the vehicle was to be leased by the company, all of the hire expenses would be deductible simply because it was a company asset, even though it would not be used in deriving assessable income. This was erroneous. If the hire purchase instalments were not deductible, the stated income of Via-Me Transport and Mr Nehme was insufficient to meet their obligations to MBFS.

75There are other valid criticisms of the processing of the credit application. But the criticisms of credit processing do not show that MBFS did not act in good faith. Mr Xerri was never convinced about the financial position of Via-Me Transport and Mr Nehme. He decided that the application should be approved for two reasons. The first was the good credit history of Via-Me Transport and Mr Nehme with MBFS. The second was that MBFS would be outlaying $400,000 to purchase a used vehicle valued at $600,000. Prima facie there was sufficient security if Via-Me Transport and Mr Nehme were unable to meet their obligations under the hire purchase agreement. MBFS did not " wilfully turn a blind eye " (to use counsel's expression) to the financial circumstances of Via-Me Transport and Mr Nehme. The criticisms of its credit assessment did not affect its good faith.

Was there a contract for sale between ECS and MBFS?

76MBFS pleaded that on or about 5 November 2008 it received an invoice dated 3 November 2008 from ECS addressed to the plaintiff that referred to a balance due of $400,000. It alleged that ECS had possession of the vehicle and sold the vehicle to it. It pleaded that it paid the balance due under the invoice to ECS and thereby purchased and acquired good title to the vehicle. (It also pleaded that ECS was a mercantile agent and that the vehicle was sold in the ordinary course of its business as a mercantile agent and that ECS was expressly authorised to sell the vehicle, but these additional allegations are not material to the present issue.) It pleaded that on or about 6 November 2008 Via-Me Transport took possession of the vehicle.

77Counsel for Mr Tulshyan submitted that MBFS did not receive any invoice from ECS. It did not deal with ECS. The invoice upon which MBFS paid was not genuine. Counsel submitted that if MBFS did not pay an invoice issued by ECS there never was a contract for sale between ECS and MBFS. Counsel for Mr Tulshyan submitted:

" There was no contract or other agreement between MBFS and ECS. Indeed, those two companies had no dealings between each other at all. If MBFS wishes to contend that title passed, it had to pass pursuant to an agreement. Such an agreement had to be constituted by something: an exchange of promises, the provision of a document (an invoice) coupled with words and/or conduct. In this case, an agreement to pass title to the Vehicle is pleaded by MBFS to be constituted by an offer (constituted by the provision of 'the Invoice') and by acceptance through conduct (the payment by MBFS of funds to ECS). Payment of money by MBFS to ECS, without more, is inadequate to pass title in circumstances where MBFS was not taking possession of the Vehicle. It was not taking even 'notional' possession of the vehicle. Possession was being taken by Via-Me Transport Pty Limited. This is not a case, incidentally, where MBFS pleads that title has been passed by payment of money only, or payment of money coupled with the taking of possession. If MBFS can only satisfy one limb of its contractual equation - payment of money - it cannot establish any concluded contract whereby it obtained title. "

78I do not accept that there was no contract between ECS and MBFS. It was common ground that Mr Turner was MBFS's agent. On any view ECS submitted at least one invoice to MBFS's agent. I have found that it also submitted the second invoice to MBFS's agent. The fact that Mr Turner altered the invoice before sending it to MBFS's settlements department does not mean that the payment of $400,000 was made against anything except an invoice submitted by ECS. Even if the second invoice had been wholly concocted by Mr Turner, there would still be a contract between the parties constituted by the submission of the first invoice, being ECS' offer to sell the goods to MBFS, that was accepted by conduct, being the payment of $400,000 stated as the balance due under the invoice. That is because the offer, being the invoice submitted by ECS, was received by MBFS's agent. The fact that MBFS's settlement department paid out on a different document from the one ECS submitted does not mean that there was no contract. Whatever the subjective intentions of the employees of MBFS, the question of whether the parties' conduct gave rise to a contract is to be ascertained objectively. The question is whether the parties' conduct showed an outward manifestation of their intention to contract. On any view, ECS submitted an invoice that manifested an intention to contract and it was capable of acceptance by payment. On any view, its invoice was received by MBFS's agent. A contract was made when MBFS paid what was shown to be the balance payable for the purchase of the vehicle. (The question whether that payment was sufficient to pass title where the stated deposit of $200,000 had not been paid is a different question addressed below.)

Did ECS have actual authority to sell?

79It was submitted for MBFS that because Mr Tulshyan had given authority to ECS to sell the vehicle for less than $600,000, ECS had actual authority to make the sale to MBFS. That argument is incorrect for three reasons. First, unless the power were expressly conferred, ECS would not be authorised to sell the vehicle to or for the benefit of itself. In Tobin v Broadbent [1947] HCA 46; (1947) 75 CLR 378, Dixon J said (at 401):

" Prima facie, a power, however widely its general words may be expressed, should not be construed as authorizing the attorney to deal with the property of his principal for the attorney's own benefit. Something more specific and quite unambiguous is needed to justify such an interpretation. "

(See also Sweeney v Howard [2007] NSWSC 852; (2007) 13 BPR 24,381 at [55]-[57]). On the same principle, the authority is not to be construed as authorising a sale to ECS's directors or employees. They were required to act in Mr Tulshyan's interests and not to put themselves in a position of conflict between their duty and interest. That was not only their equitable obligation, it was an implied limit on ECS's authority.

80Secondly, the consignment agreement did not authorise ECS to sell the vehicle on terms that part of the purchase price was left outstanding. Even if a sale by ECS for the benefit of Mr Nehme at a price of $600,000 was authorised, a sale on terms that only $400,000 of a $600,000 purchase price was received from the purchaser before possession was delivered was not authorised.

81Thirdly, the sale was only authorised on terms that the whole of the purchase price was paid to Mr Tulshyan's account. A sale on terms that the purchase price was to be paid to ECS's account was not authorised. The relevant term was that:

" The vehicle will be sold for no less than $650,000 [subsequently varied] which will be paid directly to the owner into his nominated Macquarie Bank account. "

82The contract for sale provided for payment to be made to ECS's account and was thus not authorised by the consignment agreement.

83For these reasons I reject MBFS's submission that ECS had actual authority to sell the vehicle on the terms it did.

Was the sale in the ordinary course of business of a mercantile agent?

84In the Factors (Mercantile Agents) Act a " mercantile agent " has the following meaning (s 3):

" Mercantile agent means a mercantile agent having in the customary course of business as such agent authority either to sell goods, or to consign goods for the purpose of sale, or to buy goods, or to raise money on the security of goods. "

As noted above, there was no dispute that ECS was a mercantile agent within the meaning of the Act. Nor was there any issue that ECS was entrusted with the possession of the vehicle as a mercantile agent.

85Counsel for Mr Tulshyan submitted that the sale was not made by ECS in the ordinary course of business of a mercantile agent. Counsel submitted that it was not in the ordinary course of business of a used car dealer to sell new or demonstrator Ferraris. Such sales would only be in the ordinary course of business of franchised dealers.

86ECS' business did not include selling a new or demonstrator Ferrari. Only a Ferrari franchised dealership would be able to sell new Ferrari cars. It might be theoretically possible for a demonstrator vehicle that has been registered to be sold on consignment by a used car dealership. Mr O'Callaghan said that demonstrator vehicles are often sold by dealers to trade people within the used car sector who then on-sell the cars to used car dealers. However, this very rare Ferrari vehicle would never have been a demonstrator. Mr O'Callaghan agreed it would have been irregular for a used car dealer to be selling a Ferrari demonstrator and would not be in the ordinary course of that dealer's business to do so.

87However, ECS did not purport to sell a demonstrator vehicle. Both invoices it submitted were for the sale of a used vehicle. The fact that Mr Turner altered the invoice before submitting it to the settlements department of MBFS is not to the point. He was MBFS's agent in the transaction. His change to the invoice could not change the contractual description of the goods sold. That description was as set out in the invoice submitted by ECS to Mr Turner, not as set out in the invoice submitted by Mr Turner to the settlements department of MBFS.

88The only person who dealt with ECS on behalf of MBFS was Mr Turner. It does not matter that Mr Turner did not think that ECS was acting in the transaction as an agent ( Oppenheimer v Attenborough & Son [1908] 1 KB 221 per Buckley LJ at 229; Magnussen v Flanagan [1981] 2 NSWLR 926 at 933; Associated Midland Corporation v Sanderson Motors Pty Ltd [1983] 3 NSWLR 395 at 401).

89In Oppenheimer v Attenborough & Son , Lord Alverstone CJ said of the expression " sale, pledge, or other disposition of the goods, made by the agent when acting in the ordinary course of business of a mercantile agent " (at 226-227):

" ... I think that the sub-section means that the transaction is to be validated, if the agent has acted in the transaction as a mercantile agent would act. That, no doubt, includes limits that have been suggested, such as that the sale or whatever the transaction is, must not take place outside business hours, or under circumstances under which a mercantile agent in the trade would not ordinarily transact business. ...

...

In my opinion the words 'acting in the ordinary course of business of a mercantile agent' mean that the person must act in the transaction as a mercantile agent would act if he were carrying out a transaction which he was authorised by his master to carry out. "

90Buckley LJ said (at 230-231):

" I think it means 'acting in such a way as a mercantile agent acting in the ordinary course of business of a mercantile agent would act'; that is to say, within business hours, at a proper place of business, and in other respects in the ordinary way in which a mercantile agent would act, so that there is nothing to lead the pledgee to suppose that anything wrong is being done, or to give him notice that the disposition is one which the mercantile agent had no authority to make. "

91In Magnussen v Flanagan Foster J said (at 934):

" I feel that the effect of those expressions as to the meaning to be attributed to these vital words of the section is at least that in determining whether a sale has been made 'in the ordinary course of business of a mercantile agent' , the court does not concern itself with precise details of the procedure which is involved in the particular type of business. The court should approach the matter, from the point of view of the purchaser dealing with the mercantile agent, on the basis of whether the nature of those dealings would apprise the purchaser that there was something unusual in the matter and indicating some want of authority on the part of the agent. This certainly seems to be the effect at least of the words of Buckley LJ and I do not understand the other members of the Bench to say anything to the contrary at all. "

92It follows that questions relevant to the requirement of the proviso to s 5(1) of good faith and absence of notice that the mercantile agent has no authority to sell are also relevant to the question of whether the sale is in the ordinary course of business of a mercantile agent.

93A sale at a substantial undervalue would not be in the ordinary course of business of a mercantile agent ( Heap v Motorists' Advisory Agency Limited [1923] 1 KB 577 at 590).

94No question arises in this case about trading hours or the place of business of ECS. Nonetheless, the question is whether ECS acted "in other respects in the ordinary way in which a mercantile agent would act, so that there [was] nothing to lead the [purchaser] to suppose that anything wrong was being done " ( Oppenheimer v Attenborough & Son per Buckley LJ at 231), and whether ECS acted " as a mercantile agent would act if he were carrying out a transaction which he was authorized by his master to carry out " (per Lord Alverstone CJ at 227).

95In the present case ECS, at Mr Turner's request, supplied a false invoice that purportedly showed that luxury car tax was included in the purchase price of $600,000. There was no evidence that that is the way a motor car dealer would act if it were carrying out a transaction it was authorised by its principal to carry out. In other words, MBFS has not shown that a motor car dealer, if acting in the ordinary course of business, would falsely state that luxury car tax was included in the purchase price when it was not. The onus was on MBFS to establish that the sale was made in the ordinary course of business of a mercantile agent ( Associated Midland Corporation v Sanderson Motors Pty Ltd at 399-400).

96On this ground I consider that MBFS has failed to establish that the sale was in the ordinary course of business of a mercantile agent.

Good faith and absence of notice of lack of authority to sell

97The onus is also on MBFS to prove that it acted in good faith and without notice that ECS did not have authority to sell. That onus is not satisfied. Even if the onus were on Mr Tulshyan, I would be satisfied that MBFS, through its agent Mr Turner, did not act in good faith without notice of lack of authority. I do not find that Mr Turner knew that ECS did not have title to sell the vehicle. But there is an absence of good faith if the purchaser " did suspect that the thing was not altogether right " ( Oppenheimer v Frazer & Wyatt [1907] 1 KB 519 at 530) or if the purchaser consciously refrained from making inquiry ( Associated Midland Corporation v Sanderson Motors Pty Ltd at 402).

98On his own evidence Mr Turner was on notice that ECS, whom he believed to be the owner of the vehicle, could not prove that luxury car tax had been paid on its first retail sale. If it were the owner of the car, it would be expected that it would have established that matter for its own purposes when it purchased the car. On Mr Turner's evidence Mr Nehme was pushing the transaction through as quickly as possible, even though there was no reason why haste was needed. I have found (at para [63] and [65] above) that Mr Turner did suspect that things were not all in order, but refrained from making further inquiry. Accordingly, the proviso to s 5 is not satisfied.

99Counsel for MBFS submitted correctly that it is not in all circumstances that an agent's action will be taken as action of his principal (Kirkpatrick v Kotis [2004] NSWSC 1265; (2004) 62 NSWLR 567 at 581, [85]). In this case Mr Turner did not seek to act as principal. He always acted as agent. Counsel also referred to Lysaght Bros & Co Ltd v Falk (1905) 2 CLR 421 at 429-430 where Griffith CJ said:

" ... an agent who is not acting for his principal but for his own benefit is acting behond the scope of his authority. "

But in this case, MBFS does not assert that Mr Turner was acting for his own benefit and I have made no such finding.

100MBFS did not submit that Mr Turner's conduct or state of mind was not to be attributed to it because on the ground that he was acting in fraud of it (see e.g. Beach Petroleum NL v Johnson (1993) 115 ALR 411 at [574]; Beach Petroleum NL v Kennedy [1999] NSWCA 408; (1999) 48 NSWLR 1 at [473]-[476]). Nor would my findings in relation to Mr Turner's conduct provide a basis for such a submission.

101It follows that MBFS did not acquire title to the vehicle. I will also deal with the last question that only arises if I am wrong in that conclusion.

If the sale were valid pursuant to s 5 of the Factors (Mercantile Agents) Act, would title have passed?

102Under s 22 of the Sale of Goods Act , where there is a contract for the sale of specific goods, the property in the goods is transferred to the buyer at such time as the parties intend it to be transferred (s 22(1)). Section 23 specifies rules for ascertaining the parties' intention. Unless a different intention appears, where there is an unconditional contract for the sale of specific goods in a deliverable state, the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of payment or the time of delivery, or both, is postponed (s 23).

103In the present case the contract was made when MBFS paid $400,000 to ECS. That was its acceptance of the offer contained in ECS's invoice. Prima facie , property in the goods passed at that time. The question is determined by the invoices themselves. There was nothing else from which that intention could be discerned.

104ECS sent two invoices. Both have to be considered. Whilst the second invoice did not include the terms as to passing of title, I do not think in the circumstances in which the second invoice was obtained that the parties would be taken to have intended that the earlier specified terms would cease to apply.

105Both invoices impliedly represented that the deposit of $200,000 had been paid to ECS. This was implied from the statement that $400,000 was the " balance due ". There was nothing to indicate that the deposit was also due. This is confirmed by para (a) of the terms dealing with passing of title. That clause would deal with the situation where a deposit had been paid, but the cheque for the deposit was dishonoured. That was not this case.

106The terms did not state that no title to the vehicle would pass to the purchaser until full payment was made. Accordingly, the parties are to be taken to have intended that title would pass on payment of the balance described as being due. Hence, if ECS had been taken to be expressly authorised to make the sale pursuant to s 5 of the Factors (Mercantile Agents) Act , title would have passed on payment of the sum of $400,000.

Conclusion

107For these reasons I conclude that title to the vehicle did not pass to MBFS. Mr Tulshyan remains the owner of the car and is entitled to a declaration accordingly.

108I make the following orders:

1. Order that the amended summons and the claims for relief in the statement of claim be dismissed.

2. Declare that the second defendant and cross-claimant is the lawful owner of Ferrari 612 Scaglietti Sessanta 2D Coupe, registration number BES 92R, engine number F133H127339 ("the Vehicle").

3. Declare that the second defendant/cross-claimant is entitled to immediate possession of the Vehicle.

4. Order that the plaintiff/cross-defendant remove the encumbrance over the vehicle with the Register of Encumbered Vehicles in New South Wales.

5. The exhibits may be returned but are to be retained by the parties' solicitors pending the expiry of the time for appeal and, if an appeal is filed, pending determination of the appeal.

109Prima facie Mr Tulshyan is entitled to his costs on the ordinary basis. I will hear the parties on costs.

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Wednesday, December 21, 2011

MERCEDES-BENZ FINANCIAL SERVICES AUSTRALIA PTY LIMITED V STATE OF NEW SOUTH WALES & ANOR [2011] NSWSC 1458