C G Mal Pty Ltd v Sanyo Office Machines Pty Ltd

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

4179/98 - C G MAL PTY LTD v SANYO OFFICE MACHINES PTY LTD & ORS

1 HIS HONOUR: The essential dispute between the parties in this case is in a very narrow compass. 2 In 1993, the plaintiff was operating the Metropole Hotel at Cremorne. It wished to acquire 12 cash registers. The defendant was willing, indeed anxious, to supply them, and in due course they were supplied. 3 The defendant's salesman suggested that the goods could be supplied at a rental of $3,000 per month over a three year period with a residual of $1. 4 The plaintiff says that that was the deal that was done even though the paper work did not support it. It says that it has paid the rental and $1, and indeed, in error, has paid about $69,000 too much. 5 The defendant says that the plaintiff could not proceed with the original proposal for hire purchase, but instead agreed to rent the equipment at $3,000 per month for three years and thereafter from month to month at $3,000 with an option to return the goods at the end of each month. 6 The basic matter for me to decide is which version is correct. The pleadings put in claims for equitable estoppel of the proprietary type, claims under the Trade Practices Act and unjust enrichment, but the plaintiff's case was put at the trial solely as one of proprietary estoppel. The defendant has a cross claim for the current rent. 7 The plaintiff company (C J Mal) is one controlled by C J Maloney. From time to time, various members of his family including his two daughters, Mrs Kerrin Ryan and Mrs Kristine Eaton, were directors or officers. Mr Maloney and Mrs Eaton are cross defendants because of their guarantees of C J Mal's liabilities under the contract. 8 On the defendant's side, one must not make the mistake of thinking that the defendant is the Australian subsidiary of a large international corporation. In fact it is a small company controlled by Mr Radford which has the licence to use the Sanyo name for certain purposes as an Australian distributor of its product. Not only is the company which I have called the defendant a party to the proceedings, some of its officers are also sued personally. However, for ease of reference I will refer to the parties as simply the plaintiff and the defendant. 9 I have found it extremely awkward to determine the facts in this matter. A large factor in the problem has been that on the plaintiff's side only one person gave evidence and she was unreliable, but there were at least two other persons who I would have thought could have given evidence, but did not. On the defendant's side, four men gave evidence, two were not impressive witnesses, and none really seemed to be people who had a good recollection of what really occurred in this particular case. When one turned to the documents, there was the unexplained fact that the original of the vital letter on which the plaintiff relied was discovered in the defendant's own files. 10 Turning to the facts in detail, the defendant sent to the plaintiff a letter on 19 March 1993. This letter contained a suggestion that a tax effective method of the plaintiff acquiring the 12 cash registers was for them to be leased at a rental of $2,500 per month with a $35,000 residual, or $3,000 per month with a $1 residual. It is clear that the plaintiff thought about that and was concerned that the letter did not specifically say that on payment of the $1 residual in the case of the second proposition, the goods would become its property. These words were written in the letter and the salesman initialled the alteration. For some reason the original letter found its way back into the defendant's files. The plaintiff says that the $3,000 rental for three years with the payment of a $1 residual in order to get title of the goods was the deal agreed to. 11 Mrs Kerrin Ryan, the only witness to give evidence for the plaintiff, says that probably by 24 March she had received from the defendant some documentation which, when one examines it, is a pure and simple rental agreement with guarantees but with no suggestion that title is to pass to the lessee by a capital payment at the end of the lease. She says that she had her father, Mr Maloney, execute this document, but then realised that the machines should be purchased by the company and not her father personally and telephoned someone at the defendant's office to get a new set of documents. Probably between the time the first set was signed and the replacement set arrived, she consulted a solicitor and the solicitor advised that the documents did not provide for purchase of the equipment. 12 There is some confusion on the evidence as to just when Mrs Ryan saw the solicitor, but whichever date it was, the visit certainly occurred before the final document was signed on 7 April 1993. 13 Between 24 and 29 March Mrs Ryan says she received a second set of documents from the defendant similar in all respects to the first set. She said that the only handwriting on them was the notation "SOM 1/4" on the top righthand corner. 14 The evidence shows that these documents were an adaptation of documents which had been provided to the defendant by another corporation on 3 March 1993. It would seem that the defendant had never before involved itself in leasing its equipment directly or in any other method of financing other than through a third party financier. The defendant adapted virtually word for word the documents received from that other company merely changing the name of the lessor from the name of the other company. It was a set of these documents that was executed by Mr Maloney on 24 March 1993 and replaced with the set that was executed about 7 April 1993. 15 At this stage the accounts of the major witnesses diverge. Mrs Ryan says that shortly before 29 March she telephoned Mr Wilson of the defendant and said to him: "I have had legal advice from our solicitor that under no circumstances should C G Mal enter into an agreement whereby C G Mal does not own the equipment at the end of the three year term. I need a letter from Sanyo supporting this in order for us to proceed." Mr Wilson allegedly replied: "I will get that letter to you." She then says that she received that letter on about 29 March 1993; it was addressed to her at the Bondi Hotel at Bondi Beach, a hotel owned by an associate company of the plaintiff where she often worked. She said she had her father and sister sign the documents on behalf of the company or its guarantor and witnessed their signatures. She can remember that her sister returned from a holiday in Nevertire on 5 or 6 April 1993. She can remember that at some time between 29 March and 7 April 1993 she met Mr Wilson at the Bondi Hotel. She had with her at that time the letter of 29 March and the second set of documents. She can remember that on 7 April she gave or sent to Mr Wilson the second set of documents. 16 Paragraph 22 of Mrs Ryan's affidavit of 23 April 2001 says: "In arranging for the signatures of my father and my sister on the documents I relied on the letter of 29 March 1993 as referring to the Rental Agreement that bore the notation 'SOM 1/4', and I assumed that, upon payment of $1 and any outstanding moneys owing to Sanyo at the termination of the rental period referred to in the Rental Agreement, C G Mal Pty Ltd would be the owner of the equipment." 17 In her cross examination, Mrs Ryan said that she was not the manager of the Metropole Hotel. However, that company was effectively controlled by her father. It was not her decision to buy the cash registers; it was her father's decision. She acted merely as her father's personal assistant and as a conduit whereby decisions of her father were conveyed to the manager and other members of the staff. 18 There was no evidence as to what Mrs Ryan told her father or her sister when she had them execute the rental agreement which bears date 7 April 1993. Her father and sister did not give evidence. 19 There was also no evidence as to how the endorsement "SOM 1/4" got on the document. It was clear from the defendant's evidence that SOM stood for Sanyo Office Machines. I was left in doubt as to whether 1/4 meant 1 April or transaction 1 of April 1993 or something else. 20 Mr Wilson swore two affidavits. He totally denied that there was any conversation whereby Mrs Ryan asked him for a letter about the right to purchase. He said that there had been some discussions as to how the acquisition of the cash registers was to be financed and by himself or his colleagues had understood that the plaintiff was unable to provide its accounts to a finance company as a result of which no finance company would be willing to finance the acquisition and that accordingly some other method of financing was approached. He said he spoke to Mrs Ryan on perhaps two occasions about the inability of the plaintiff to obtain finance. He then submitted a rental agreement to the plaintiff. 21 Mr Wilson then says that he sent a copy of the appropriate rental agreement to Mrs Ryan and then arranged to meet her at the Bondi Hotel at approximately 11.30 am on 7 April 1993. He says that when he arrived at the hotel he was taken down to a bar which had not yet been opened to the public and Mrs Ryan said that she was sorry that they had to meet in such a place but she wanted to have confidential discussions. 22 Mr Wilson says he then asked Mrs Ryan to read the document and said to her: "This is a rental agreement which provides that you pay us $3,000 per month for three years. The goods are exactly the same as those that were submitted under the lease agreement. Previous proposed lease agreement and interest is at the same rate. The only difference is Sanyo has to wait three years to be paid. After the three year period you can continue to rent the equipment on a month to month basis or we can renegotiate the agreement." He then said: "This is not the same as the deal with the third party financier. There is no residual. It is a rental agreement not hire purchase." Mr Wilson says he recollects that Mrs Ryan left the room and then returned with the executed document. He then executed it on the first page on behalf of the defendant and took the original away and left a copy with Mrs Ryan. 23 Mrs Ryan denies that any of this occurred. 24 Other people from the defendant's office gave evidence, but were not able to throw any light on these particular matters. 25 In cross examination Mrs Ryan agreed that she was told that the deal had changed to the extent that the defendant was effectively going to be the financier. She was not at all sure whether there was a meeting between her and Mr Wilson on 7 April, but she did know that there was at one stage a meeting between the two of them at the hotel. However, she denied that the document was signed at the time when Mr Wilson came over to the Bondi Hotel. She agreed that Mr Wilson had said that the document was a rental agreement at $3,000 per month and that the goods were exactly the same as those provided under the lease agreement, but she did not recall that he ever said that the only real difference was that Sanyo would have to wait three years until it was paid in full. 26 At page 32 of the transcript, Mr Newlinds, who appeared for the defendant, squarely put to Mrs Ryan his client's case:

"Q. I put to you earlier Mrs Ryan that you at no time received the original of the letter from Sanyo that bears the date 29 March, remember that?

27 After a couple of questions the answer was "I truly believe I did receive the original." 28 The cross examination then continued:

"Q. Do you actually have a memory, sitting there today, of receiving the original?

A. I remember seeing the letter and feeling yes, this can proceed because we will own the equipment at the end of the term.

Q. I should also put to you that my case is that you didn't see a copy of the letter at all at around the time the agreement was entered into?

Q. And I'm saying that at some stage after the dispute between the parties arose, perhaps after the case started, I am not sure, you saw a copy of the letter. That is what really happened, isn't it?

Q. What I want to really put to you is that the discrepancies, or most of them, between your first affidavit and your second affidavit are explained by you trying to reconstruct events to fit in with the letter having been seen by you on 29 March 1993. That is what you have done?

A. No." 29 I should set out the text of the letter of 29 March because it is crucial to the case. It is addressed to Mrs Ryan at the Bondi Hotel and is signed by R C Radford, Managing Director, and John A Sutherland, Financial Director. The text is: "We hereby confirm that we will transfer full title of goods the subject of Rental Agreement dated 1 April 1993 between C G Mal Pty Ltd and Sanyo Office Machines Pty Ltd at the termination of the rental period. Transfer will be effected upon payment of all outstanding moneys owing to Sanyo Office Machines Pty Ltd at that time plus the sum of $1.00." 30 In so far as the defendant suggests that the letter was not received by Mrs Ryan until after the present case commenced and that she then reconstructed the whole of her evidence so as to rely on a letter which she had only seen perhaps after discovery, I must say that the balance of probabilities does not favour that view. One of the pieces of evidence that was relied on in support of that view by Mr Newlinds was that the original document was in the possession of the defendant and that the copy in the exhibit PX01 has on the bottom of it the signature of Mr McDowell, the manager of the hotel and a JP and a printed endorsement as if from a fax machine "Total P.05". There is no doubt that the document in the exhibit is a photocopy or facsimile copy of what is attached to an affidavit of Mr McDowell which was never read in these proceedings because the signature which appears to be Jan Horen JP of Katoomba who took that affidavit, appears on both documents. However, as Mr Carnovale for the plaintiff points out, a copy of that letter without the signatures at the foot was attached to the plaintiff's then solicitors' letter of 17 July 1998. That letter shows that it had been faxed from the Bondi Hotel on 12 June 1998. This is a time before the first affidavit of Mrs Ryan and it is a time before the letter was discovered in this litigation. It is clear as anything can be in this case, that an original or photocopy of the letter was in the possession of the Bondi Hotel in June 1998. There is just no explanation on the defendant's case as to how this could possibly be so. The simple explanation is that the letter was given to Mrs Ryan in April 1993 and kept on file. The major difficulty with this is how the original of the letter was found on the defendant's file when this litigation commenced. As to this, one can only speculate, one possibility being that the letter was executed in duplicate. 31 Apart from the fact that the theory put forward by the defendant is unsupported by the bulk of the evidence, the probabilities of the matter favour the plaintiff's version. The letter was addressed to the plaintiff at the Bondi Hotel whereas the formal material to deal with the contract was sent to the Metropole Hotel at Cremorne. Why would the letter be addressed to the Bondi Hotel unless it was going to be handed to Mrs Ryan or sent to her in the immediate future? Secondly, why would the letter be generated at all if by 29 March it was clear to everybody that the former hire purchase deal was dead and the parties were only talking about a leasing arrangement? 32 The defendant company was not a large company, the key executives spoke to each other regularly and were speaking about the present matter. Mr Sutherland and Mr Wilson had been debating as to the rental agreement and Mr Wilson had obtained pro forma rental agreements from other people in the industry from at least 3 March. It beggars belief that people in such a close knit community were still thinking of the hire purchase deal at the end of March. There was some suggestion in cross examination that the defendant keeps all sorts of rubbish on the file and so it is quite possible that a letter that was generated by mistake and never sent was put on the file instead of being put in the waste paper bin. Again, this seems to be unlikely. There is then the rather odd reference to the rental agreement dated 1 April 1993. On the face of it this refers to a rental agreement and this was the agreement which was currently being considered by the plaintiff. It is absurd, of course, to refer to an agreement dated 1 April 1993 in a letter dated 29 March 1993, but one possible explanation is that a typist mistook 1/4 on the agreement for 1 April. 33 Mr Newlinds submitted that Mrs Ryan's evidence was very unsatisfactory. She had admittedly made a series of obviously erroneous statements in an earlier affidavit for which her only explanation was that she was very sick at the time and not concentrating; an explanation I did not find particularly satisfactory. I accept this submission. Nonetheless, Mr Wilson's evidence was not impressive. He did not create a credible demeanour, though it must be said that he had not worked for the defendant for some four years and he was being asked about events which had happened about eight years before the trial. There was also the general flavour on the defendant's side that obviously these matters had been talked about by the key executive, but everyone thought it was somebody else who had actually done the calculations. Accordingly, the oral evidence on the part of the defendant was only marginally better than the oral evidence on the part of the plaintiff. 34 There are some Jones v Dunkel and other considerations to take into account. 35 As I have said, Mr Maloney was in control of the hotel. He did not give any evidence. Accordingly, I am entitled to assume that there is nothing that Mr Maloney could have said about the letter of 29 March which could assist the plaintiff. As he could very easily have said, if it be the case, that Mrs Ryan had shown the letter to him, or told him about it, or he had seen it on his files and he didn't do so, I must draw the inference. Mr McDowell appears to have been the manager at the relevant time. He did not give evidence. Again, he could have said that he had seen the letter of 29 March, but he has chosen not to give evidence. 36 Mr Newlinds also asked me to draw inferences from the fact that legal professional privilege was claimed of the documents held by Messrs Gye and Perkes who were acting for the plaintiff in a dispute with the defendant during 1994. The plaintiff claimed legal professional privilege of these documents. Mr Newlinds asked me to infer, again, that the letter of 29 March was not available at that time else the plaintiff would have waived the privilege and produced the letters that Gye and Perkes had. However, the law clearly is that courts are not to draw adverse inferences of the Jones v Dunkel type where a person claims legal professional privilege, as otherwise that privilege would be of little worth: Wentworth v Lloyd (1864) 10 HLC 589; 11 ER 1154; Giannarelli v Wraith (No 2) (1991) 171 CLR 592, 605; Standard Chartered Bank of Australia Ltd v Antico (1993) 36 NSWLR 87. 37 I also considered the fact that the rent under a straight out rental agreement and that under a hire purchase agreement were the same. This is not usually the case. However this was an exercise in exploring a blind avenue as the defendant's men did no recalculation but thought correctly, that the plaintiff would not baulk at $3,000 per month rental. 38 Putting these previous thoughts in order, it seems to me that despite the unsatisfactory nature of the oral evidence adduced on behalf of the plaintiff, the circumstances are such that it is more likely than not that the letter of 29 March 1993 was given to Mrs Ryan between 29 March and 7 April 1993. 39 The next question of fact that needs to be considered is whether Mr Maloney or Mrs Eaton ever saw the letter. 40 Mr Carnovale submits that this is quite irrelevant. He says that if a document comes into the hands of an officer of the company who is its agent to receive the letter and she becomes aware of its contents, it does not matter that another agent of the company has never seen the letter, but signs the contract on behalf of the company. 41 Mr Newlinds says that this proposition is not completely accurate. He says it depends on whether the person who signed the contract read the letter concerned, or whether the officer who received the letter had sufficient authority that her merely handing the contract to the signing officer for him or her to sign off would, in its very nature, show that the contract was in order to sign. 42 As Mr Newlinds points out, there is absolutely no evidence as to what Mr Maloney saw when he signed the contract. All we know from Mr Wilson is that Mrs Ryan went to another part of the Bondi Hotel and came back with the contract signed, and from Mrs Ryan that she filled out the documents "and arranged for my father and my sister to sign". 43 The evidence shows that Mrs Ryan did not at the relevant time hold an executive position with the company. She was her father's personal assistant and a conduit between her father and the managers for the passing on of instruction. 44 It must also be said that the onus was on the plaintiff to establish its case, and if it deliberately chose not to proffer evidence from Mr Maloney as to the circumstances in which he signed the document, then one does not make any inferences in the plaintiff's favour. Indeed, the Jones v Dunkel doctrine infers that there was nothing Mr Maloney could have said that would have benefited the plaintiff's case. 45 In my view, the mere fact that Mrs Ryan had the letter of 29 March and formed the view that she was signing a hire purchase agreement, does not go far enough in showing that the company had that knowledge when the company's contract was signed by Mr Maloney. 46 It must be borne in mind that to have a proprietary estoppel, it must be proved that A has so conducted itself either by encouragement or representations, that B believed that he, she or it will acquire some right or interest, and B has so acted to his, her or its detriment on that basis, that it would be unconscionable for A to assert his strict legal rights; see Pawlowski The Doctrine of Proprietary Estoppel (Sweet and Maxwell, London, 1996) p 1 and Snell on Equity 30th ed (Sweet and Maxwell, London, 2000) 39-12 et seq. 47 Accordingly, the plaintiff must prove both that there was at least encouragement to make an assumption and reliance on that encouragement when an act was done to the detriment of the plaintiff. It does not seem to me enough to show that officer A of the company received an encouragement if officer B of the company does an act to the company's detriment unless it can be shown that officer B was given the information by officer A. Of course, it would be sufficient if officer A expressly or impliedly certified to officer B that the contract was in order to be signed on behalf of the company and officer A was given the encouragement. However, unless there is some such connecting factor proved, it does not seem to me that the plaintiff can establish the elements of proprietary estoppel. 48 In the instant case, because there is a complete absence of what Mr Maloney knew when he signed the contract and Mrs Ryan was not in a key executive position within the company, the claim for proprietary estoppel must fail on the facts. 49 However, Mr Newlinds says that it must also fail because of clause 28 of the rental agreement which Mr Maloney signed. Clause 28 so far as is relevant, provides as follows: "(1) …The terms and conditions of this Agreement contain all the terms of the contract between Sanyo and the Renter in respect of the Equipment, and all other terms, conditions, provisions, arrangements and stipulations, if any are of no force or effect. (2) The Renter expressly acknowledges that no options, promise or representation, express or implied, written or oral, has been made by or on behalf of Sanyo to the Renter that the Equipment may be purchased from Sanyo by the Renter or any nominee of the Renter at any time during the term of the rental agreement or upon or after the expiration of the term." 50 Mr Newlinds says that in any event that provision would be a complete answer to the plaintiff's claim. 51 Mr Newlinds acknowledges that there could be cases where the lessor's representative made a statement such as "You see clause 28, don't worry we never rely on it" or some such utterance, but apart from such cases the clause is fully effective. 52 Mr Newlinds relies on a passage from the judgment of McLelland J in Johnson Matthey Ltd v A C Rochester Overseas Corp (1990) 23 NSWLR 190, 196, where the learned Judge said that "In general it may be said that except in the case of fraud, and subject to any statutory provision, an 'entire contract' clause will bind the parties in accordance with its terms, properly construed. Such a clause itself gives rise to an estoppel by convention which excludes any antecedent estoppel which might otherwise have had effect." That passage was followed by Miles CJ in the ACT Supreme Court in Skywest Aviation Pty Ltd v Commonwealth (1995) 126 FLR 61, 104 and by Bryson J in Australian Co-operative Foods Ltd v Norco Co-operative Ltd (1999) 46 NSWLR 267, 279. 53 In Whittet v State Bank of NSW (1991) 24 NSWLR 146, 153-4, Rolfe J clearly indicated that in his view McLelland J had overstated the position. His Honour noted that in the subsequent case of Bentham v ANZ Banking Group Ltd (26 June 1991, unreported) McLelland J seemed to retreat, at least partly from his view, and that it was inconsistent with the Privy Council's decision in Bank Negara Indonesia v Hoalim (1973) 3 PCC 27; [1973] 2 MLJ 3. 54 However, neither the Bank Negara case, nor Whittet's case, involve an "entire contract" clause. It may just be that generally McLelland J's proposition is too widely expressed with respect to the possibility of any pre-contract negotiation being the basis of a proprietary estoppel. I myself do not think it is, but that's another matter. His Honour's words are right in point, have been affirmed by judges of the highest calibre, and in my view I should follow them. 55 Accordingly, the defendant is entitled to succeed on the claim because of clause 28, particularly 28(2) of the rental agreement. 56 Accordingly, the plaintiff's claim must be dismissed. 57 Although, as I have noted earlier, there were other bases for the claim, the only one that was argued was proprietary estoppel. Alternative claims under the Trade Practices Act would run into virtually the same problems as arose under the proprietary estoppel claim. 58 The cross claim is for moneys due under the rental agreement. 59 As Mr Newlinds has submitted, there is no attack on the actual contract: there is a collateral attack on estoppel but once this fails, the contract remains on foot. Accordingly, at any stage the plaintiff had the option of either returning the goods or paying $3,000 per month. It did not do either. Accordingly the defendant is entitled to a verdict for the rental. 60 Mr Carnovale says that the defendant is only entitled to rent up to the date of the filing of the cross claim. I think this is technically correct. However, until the goods are returned or something else significant happens the defendant will be entitled to its rental. Ordinarily, in this sort of case, the Court permits the defendant to file a new action for the rent between the date of the cross claim and the date of the making of the orders when short minutes are brought in so that taking this point usually only means that the person taking the point has to pay the filing fee for the new suit and perhaps counsel's brief fee on appearing to obtain judgment in it. It is, of course, another matter if there was some substantial defence after December 1998. 61 It would seem that the defendant sold the hotel in 1999. However, strangely enough no-one seems to know where the goods are, or at least if they do, they are not telling the Court. Mrs Ryan gave some evidence that the goods were so faulty that they were useless and that by 1997 they had been abandoned, but it is hard to accept this in the light of evidence that the plaintiff was still paying the defendant's invoice for repair to the goods in 1997. 62 It may be that if the goods became life expired so that they were absolutely of no use, or if they were lost without fault to the plaintiff, or for some other cause, rent may cease. I am merely speculating as I have not looked deeply enough at the rental agreement. However, unless some such event is established, or unless the goods are returned, it is difficult to see why rent does not continue to accrue. 63 However, I will content myself with publishing these reasons and listing the matter on 2 July 2001 at 10 am for the purpose of short minutes being brought in. If this date is inconvenient to counsel, provided my Associate is given adequate notice, the day can be changed. ******************

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