International Alpaca Management Pty Ltd, Textile Finance Limited and Coolaroo Alpaca General Partner Pty Limited v Ben KE Ensor and Garrymere Farms Limited [1995] FCA 1686

International Alpaca Management Pty Ltd, Textile Finance Limited and Coolaroo Alpaca General Partner Pty Limited v Ben KE Ensor and Garrymere Farms Limited [1995] FCA 1686 - FCA 1995 case summary — Zoe

[57]

"AGREEMENT FOR SALE AND PURCHASE OF LIVESTOCK DATED 20 FEBRUARY 1992

PARTIES

1. The Vendors

a) Ron G. Inglis its nominee or agent (Vendor) of whose performance

is guaranteed by Ron G Inglis.

b) Carlos Morales of Alpac Chile Ltda of Arica Chile.

2. The Purchaser

International Alpaca Management Pty Ltd of Paddington, New South Wales

or its nominee or agent (Purchaser).

AGREEMENT

1. SALE AND PURCHASE

1.1 The Vendor shall sell and the Purchasers shall purchase the whole

share of 100 adult alpacas plus all cria (i.e. the alpacas' offspring)

purchased under contract by the Vendor from Alpac Chile of Arica

Chile, as expressed by AQIS Camelid Import Permit, No. 5 Cam ("Cam no.

5").

...

2. WARRANTIES

...

2.2 The Vendor warrants that the Alpaca are his property immediately

prior to the giving of Title to the Purchasers and that the property

in the Alpaca shall pass to the Purchasers free of any liens and

encumbrances.

2.3 The Vendor warrants that the Alpacas are part of a consignment of

3. PRICE

3.1 The price paid by the Purchasers in total consideration for their

purchase of the Alpacas as described herein shall be SEVEN HUNDRED AND

FIFTY THOUSAND AUSTRALIAN DOLLARS ($750,000 Aus) minimum and EIGHT

HUNDRED THOUSAND AUSTRALIAN DOLLARS ($800,000 Aus) maximum.

This is divided into two undivided and inseparable parts.

In the first part the Purchaser warrants that during and through to

the end of the period of export and quarantine, the Purchaser will

make available THREE HUNDRED THOUSAND AUSTRALIAN DOLLARS ($300,000

Aus), to meet the actual realised cost only of importing the Alpacas,

into Australia.

An additional sum of FIFTY THOUSAND AUSTRALIAN DOLLARS ($50,000 Aus)

will be made available to the Vendor by the Purchaser should the

Vendor be unable to meet his own cost estimates of a total requirement

of THREE HUNDRED THOUSAND AUSTRALIAN DOLLARS ($300,000 Aus). A total

of THREE HUNDRED AND FIFTY THOUSAND AUSTRALIAN DOLLARS ($350,000 Aus)

as consideration of the first part is made available by the purchaser

to the vendor for the importation of the Alpacas.

Should the cost exceed this total, then any additional cost overrun

after THREE HUNDRED AND FIFTY THOUSAND AUSTRALIAN DOLLARS ($350,000

Aus) will be met by the Vendor.

In the second part a total of FOUR HUNDRED AND FIFTY THOUSAND

AUSTRALIAN DOLLARS ($450,000 Aus) will be paid to the Vendor by the

Purchaser on or before 30 June 1992 ("the Date").

Should the Alpacas not have arrived in Australia by the Date, then the

amount of FOUR HUNDRED AND FIFTY THOUSAND AUSTRALIAN DOLLARS ($450,000

Aus) will be held in a legal trust account of a firm of solicitors to

be agreed. This amount will be released to the Vendor once the

Alpacas arrive safely in Australia, and in the interim period the

interest earnt by this amount will be paid in its entirety to the

Vendor. It is hereby agreed that this amount will be split between

Mr Ron Inglis and Mr Carlos Morales in the following amounts. Mr Ron

Inglis, the amount of $375,000 (This was amended to $350,000) and

Mr Carlos Morales the amount of $75,000. (This was amended to

$100,000.) These amounts will be reduced if the Purchaser incurs any

additional costs not originally represented to it by the vendor, such

as costs of bank guarantees, and will be distributed prorata to the

Purchasers, i.e. 16.67% to Carlos Morales and 83.33% to Ron Inglis.

4. PAYMENT

4.1 The sum of $15,000 Aus prepaid to entitle the purchaser to an

unconditional option on the purchase of the animals as paid by the

purchaser and received by the vendor

This sum has been paid by the Purchaser in fulfilment of this clause.

4.2 The sum of $50,000 (Aus) on or before the 29 February 1992 to

convert the option.

This sum has been paid by the Purchaser in fulfilment of this clause

giving the Purchaser unencumbered title to the Alpaca.

As a guide only and dependent upon the date of the actual receipt by

the Purchaser, as provided by the Vendor of the actual accounts

rendered to the Vendor as a direct result of the exportation and

quarantining of the Alpacas from Chile to Australia, the following

payments will be made on the following dates.

(a) The sum of $85,000 (Aus) on 20 March 1992.

(b) The sum of $25,000 (Aus) on 20 April 1992.

(c) The sum of $25,000 (Aus) on 15 May 1992.

(d) The sum of $75,000 (Aus) on 20 May 1992.

(e) The sum of ($25,000) on 20 June 1992.

This creates total payments of THREE HUNDRED THOUSAND AUSTRALIAN

DOLLARS ($300,000 Aus). The Purchaser hereby covenants and agrees

that an additional FIFTY THOUSAND DOLLARS ($50,000 Aus) will be made

available to the Vendor, if the Vendor is able to satisfy the

Purchaser of legitimate costs overruns from the budget described above

at the end of the quarantine and export process.

...

6. DELIVERY

6.1 The title to the property of the Alpacas shall pass to the

Purchaser on completion of payment 4.2 above."

[64]

"THIRD: By means of this instrument, and the parties appearing have

agreed to give it a reserved category, they clarify the situation

arising between them regarding the enforcement of the above-mentioned

contract. They agree on the following: 1) Of the total number of

three hundred alpacas, two hundred and forty five are the property of

Mr BEN K.E. ENSOR and fifty five are the property of Mr LAURENCE

FRANCIS HARRISON. 2) Mr BEN K.E. ENSOR shall pay the price of two

hundred alpacas at the value of US$2140 (American dollars) each.

FOURTH: The total quantity of these animals, that is to say, the

three hundred animals, must be shipped, invoiced, documented or

whatever relevant documentation must be issued in order that they can

be brought to Australia under the name of Garrimere (sic) Farm, in

accordance with the SCAM (sic) import permit.

...

SEVENTH: The following animals, numbers: (No numbers appear in the

translations) shall be the property of Mr LAURENCE FRANCIS HARRISON.

All remaining animals shall be the property of Mr BEN K.E. ENSOR.

...

TENTH: Mr BEN K.E. ENSOR agrees to provide all the necessary legal

assistance that may be required to CARLOS MORALES BELMAR personally or

ALPAC CHILE Pty Ltd as a company, bearing the cost of solicitors, in

the event that CARLOS MORALES BELMAR or ALPAC CHILE Pty Ltd, should

encounter legal difficulties in Australia, New Zealand or Chile

arising from the original contract.

ELEVENTH: The parties appearing agree that for all the legal,

Customs, documentation, health or other purposes, the only existing

contract shall be the one which is set forth in this act. That is to

say, Mr BEN K.E. ENSOR shall utilise the original contract entered

into for all legal purposes, and ALPAC CHILE Pty Ltd shall utilise

exclusively the same contract and, between them, they agree that it

shall apply in relation to all the other aspects including Clause 8-1,

subject of this discussion.

TWELFTH: The parties agree that Mr BEN K.E. ENSOR shall keep this

contract reserved (i.e. secret or confidential) absolutely and ALPAC

CHILE Pty Ltd shall do the same. Mr LAURENCE FRANCIS HARRISON shall

offer as a reason to other suppliers, that he was forced to comply

with the original contract, sending all the animals under the name of

GARRIMERE (sic) FARM.

THIRTEENTH: The parties agree that this contract shall be issued

without any copies, and that this single document shall remain in the

custody and possession of Mr LAURENCE FRANCIS HARRISON, and only he

may issue a copy to any party concerned with prior consent of

Mr CARLOS MORALES BELMAR and Mr BEN K.E. ENSOR.

FOURTEENTH: The parties agree that if it were necessary, the

legislation applicable to this contract shall be the one in force in

Australia and New Zealand."

[69]

. In mid-February 1992, Mr Inglis agreed, orally, with Mr Morales to

purchase 100 adult alpacas ("the alpacas") from ACL ("the ACL/Inglis

Agreement") at a price of US$2,140 per head upon the terms:

(a) that the alpacas would be drawn from the herd of 110 alpacas

pre-quarantined at Putre, Chile, as and from 26 January 1992, and

which were the subject of a previous contract dated 16 April 1991

between ACL and Longstone; (b) that the payments made by Longstone

pursuant to its contract would be credited in reduction of the

price; and (c) that title would pass to Mr Inglis forthwith or,

alternatively, upon appropriation.

. Title passed to Mr Inglis in mid February 1992, or alternatively,

upon inspection by the parties and allocation in March 1992; or

upon the animals entering quarantine at Arica, Chile, on 30 May

1992; or upon inspection and allocation in August 1992.

. Mr Inglis made the following payments to ACL:

3 January 1992 - US$5,400; 3 February 1992 - US$4,500;

3 March 1992 - US$5,000; 12 March 1992 - US$6,000;

15 May 1992 - US$10,000.

. On 20 February 1992, IAM entered into a written agreement with

Mr Inglis to purchase the alpacas ("the First Purchase Agreement")

upon the terms (a) that IAM would pay Mr Inglis several amounts

including two initial payments of AUD$15,000 and AUD$50,000; and

(b) that title would pass upon payment of the second of the initial

payments.

. The two initial payments were made on 20 and 29 February 1992

respectively, so that title passed to IAM on 29 February;

alternatively, title passed in March 1992 or on 30 May 1992, or in

early August 1992, as aforesaid.

. In the event that it be held that the First Purchase Agreement did

not pass title to IAM, the appellants relied upon an agreement

between Mr Inglis, ACL and IAM for the purchase of the alpacas made

on 24 May 1992 between Mr Inglis, Mr Morales (on behalf of ACL) and

Mr Forrest (on behalf of IAM) ("the Second Purchase Agreement").

Terms of that agreement were: (a) that IAM would buy upon the terms

of the First Purchase Agreement, save as in (b); (b) that, in lieu

of the issue to Mr Inglis of 10 units in the Coolaroo Alpaca Limited

Partnership (associated with IAM), IAM would pay ACL the sum of

AUD$100,000; and (c) the title passed forthwith, or alternatively,

upon appropriation.

. Pursuant to the First or the Second Purchase Agreement, on 12 June

1992, IAM paid ACL AUD$42,520 at the direction of Mr Inglis; and on

17 June 1992, IAM paid Mr Inglis AUD$42,520.

. On 17 August 1992, by a written agreement, the First or the Second

Purchase Agreement was varied so as to provide for payment of part

of the purchase price, being AUD$210,000, forthwith.

. If it be held that title did not pass to IAM under the First

Purchase Agreement, it did so under the Second Purchase Agreement on

24 May, or on 30 May or early August 1992, as aforesaid.

. On 30 June 1992, IAM was entitled to the legal and beneficial

ownership of the alpacas. On that date, IAM assigned its title to

the second appellant ("TFL"). Thereafter TFL leased the alpacas to

the third appellant ("CAGP").

. Contrary to the true position, in September 1992, the respondents

asserted that they were entitled to the ownership of the alpacas

pursuant to a purported agreement for their sale made with ACL in

August 1992 ("the Reserved Contract").

[78]

(a) General findings

(i) Credit of the witnesses

The Judge made the following general observations concerning the

relative credibility of the witnesses:

. Mr Inglis was "ruthless and dishonest".

. Mr Forrest "would conduct his business in a way to achieve his

commercial ends, even if it involved threats and falsehoods"; but he

"attempted to answer the questions asked (in evidence) honestly",

although "there was little of his evidence which was contentious

from a credit point of view".

. Mr Morales "presented as an unsatisfactory witness" and some of his

evidence should not be accepted.

. Mr Ensor's way of giving evidence was "convoluted". Although some

of his answers were inconsistent, he had to deal with a very long

cross-examination, some of which was confusing. The "overall

impression" was that Mr Ensor was "an honest witness".

. Mr. Harrison, "(u)nlike any other witness, ... had no financial

interest in the outcome of the proceedings" and attempted to remain

unbiased. Subject to the difficulty he had in recalling some

matters, given the passage of time and the many conversations that

occurred, he was "a most credible witness".

(ii) Proper law of the contracts

As has been noted, the primary Judge held that Australian law was the

proper law of each of the agreements, including the Reserved Contract.

This conclusion was not challenged on the appeal.

(b) Specific findings

(i) Did cl.8.1 of the Ensor Purchase Agreement oblige Mr Ensor to

permit CAM5 to be used for the importation of the 100 Alpacas?

The Judge found that any ambiguity in the language of this provision,

and, in particular, the meaning of the term "facilities", should be

resolved by recourse to statements made in the course of negotiations.

The Judge concluded that the reference to "facilities" was intended to

mean that "the parties were to share all that was necessary for the

importation of the alpaca, including the use of CAM5". However, the

Judge went on to hold that Mr Morales accepted Mr Ensor's stance in

relation to the use of CAM5, and in doing so, waived his rights in

that regard, and that by never insisting that CAM5 be available for

use by Mr Inglis or IAM and entering into negotiations with Mr Ensor

for the sale of the 100 alpacas, the effect of the waiver remained up

to the time of entry into the Reserved Contract.

(ii) Did the written agreement dated 15 February 1992 constitute the

contract between ACL and Mr Inglis?

As has been said, the Judge held that, notwithstanding the antecedent

oral negotiations, the parties intended to reduce the terms of their

agreement to writing in the form of the instrument dated 15 February.

(iii) The passing of property under the ACL/Inglis Agreement

The Judge held that this was a sale of ascertained goods and that the

passage of property was dealt with by cl.4.2 of this agreement, which

made that passage dependent upon the event of delivery as provided in

cl.4.1. There was a notional delivery at the time of entry into the

agreement. The Judge held that, notwithstanding the reference to

"free on board" in cl.6.2, cl.4.2, properly construed, governed the

question when property passed. The Judge further held that, on its

true interpretation, cl.4.2 meant that property was not to pass until

all payments were made under the contract.

(iv) Payments made under the ACL/Inglis Agreement

The Judge accepted that the initial payment of US$75,000 due under the

Longstone Agreement was paid on 16 April 1991. As to the payment of

US$77,000, there was documentary evidence of payments of US$66,000 to

Mr Morales prior to entry into the Longstone Agreement. The inference

should be drawn that it was agreed that a credit of US$75,000 be

applied to the ACL/Inglis contract. As to the US$77,000, the trial

Judge accepted that this amount should also be credited, thus giving a

total of US$152,000.

Although there was evidence of a payment made directly by IAM of

US$32,278 on 12 June 1992, the Judge was not satisfied of the nature

of the consideration for the payment; and was likewise not satisfied

of the purpose for which Mr Inglis made a payment of US$10,000 on

15 May 1992. The Judge was thus not satisfied that all the payments

required by cl.7 had been made. (As has been mentioned, the Judge had

previously referred to, but rejected, evidence of Mr Morales that, on

18 August 1992, he had received AUD$210,000 from IAM. The Judge found

that it was not received until the end of August, but this finding is

vigorously challenged by the appellants.) Accordingly, it was held

that property had not passed under the ACL/Inglis Agreement.

(v) The First and Second Purchase Agreements

The Judge held that the Second Purchase Agreement "was intended to be

a complete replacement for the (First) ... with the consequence that

the (First) was rescinded upon entry into the Second ...".

As to the Second Purchase Agreement, it was held that this agreement,

particularly cl.1.1, did not interfere with the ACL/Inglis contract;

so that, for the purposes of the Second Purchase Agreement, the vendor

was Mr Inglis alone; that is to say, Mr Morales was not a selling

party under the Second Purchase Agreement.

Clause 7.2 of the Second Purchase Agreement provided as follows:

"7.2 The Vendor warrants that the permit holders of Cam No. 5 under

which these animals are to be imported into Australia will obtain all

necessary permits, licences, documents and authorities required of him

to enable the animals to be imported into Australia as required by

AQIS."

The Judge held that the effect of this provision was that Mr Morales

(and Mr Inglis) warranted that Mr Ensor would do everything necessary

to obtain permits for the import of the 100 alpacas. That is,

Mr Morales "needed to have in place" an agreement with Mr Ensor in

respect of the use of CAM5 at the time the alpacas were ready for

exportation. As has been noted however, the Judge found that by the

time Mr Morales became a party to the Second Purchase Agreement, he

had waived his rights in regard to the use of CAM5.

(vi) Passing of title under the Second Purchase Agreement

The primary Judge held that this, also, was a sale of ascertained

goods, and that the passing of property was governed by ss.22 and 23

of the Sale of Goods Act. It was held that the terms of cl.4.2

demonstrated that the parties had turned their minds to the question

of passage of title and that this clause prevailed over other possible

indications to the contrary in the agreement. The Judge concluded

that property in the alpacas passed to IAM as from the time of payment

of the sum of $50,000.

(vii) The Reserved Contract

As has been noted, Mr Harrison purported to execute the Reserved

Contract as the representative of ACL. The primary Judge held that,

by virtue of the conduct of Mr Morales in permitting the negotiations

to proceed "without disabusing" Mr Ensor of the contention that ACL

was not to be bound by the Reserved Contract, Mr Harrison had

"ostensible authority" to enter into that contract. The learned Judge

further held that, in any event, since Mr Morales had "personally

performed" the contract by drawing lots for the alpacas the next day,

he had ratified it.

The Judge held that although there were two false statements in the

contract (that is to say, (1) the purported appointment of Mr Harrison

as ACL's agent; and (2) the reference in cl.1 to a prior contract for

the sale by Mr Morales to Mr Ensor of 300 alpacas), it did not follow

that the agreement was "unworkable". Nor was it void for uncertainty.

The Judge further found that, whatever the subjective intentions of

Mr Morales, he was bound by his objective conduct in personally

performing the agreement.

The primary Judge also held that the use of CAM5 for the importation

of ACL's 55 alpacas provided consideration for the agreement.

(viii) Priority as between the ACL/Inglis Agreement and the Reserved

Contract

It was contended, on behalf of Mr Ensor, that he was entitled to the

protection of s.28(1) of the Sale of Goods Act, having acquired the

alpacas under the Reserved Contract from a seller in possession, as a

buyer acting "in good faith and without notice of the previous sale".

The Judge held that, even if a person does not have actual notice,

there will be a want of good faith if "a reasonable person would have

been put on inquiry. A deliberate 'turning a blind eye' would not

attract the (statutory) protection...".

In identifying what was the relevant "previous sale", the Judge held

that only the ACL/Inglis Agreement should be considered, and not the

Second Purchase Agreement, since Mr Morales "was only a seller under

the former". It was concluded that the evidence did not demonstrate

that Mr Ensor had notice of the ACL/Inglis Agreement.

The Judge further held that, even if at mid-August (when the

negotiations began for the Reserved Contract), Mr Ensor had some

information of a sale from ACL to Mr Inglis sufficient to put him on

inquiry, that position changed on about 17 August when Mr Morales told

Mr Harrison that "the Forrest contract was at an end". It was thus

concluded that Mr Ensor did not have actual notice of the ACL/Inglis

Agreement; that his failure to make any inquiry did not affect his

good faith; and that Mr Ensor was entitled to the protection of s.28

and obtained a good title to 45 alpacas under the Reserved Contract.

(ix) Ensor's possessory title

Mr. Ensor further claimed a possessory title to the 100 alpacas. For

this purpose, Mr Morales' beneficial title to either the 100, or the

55, alpacas was acknowledged. In order to establish the claim, it was

necessary for Mr Ensor to demonstrate that IAM was not their true

owner at the time Mr Ensor acquired possession, that is, 7/8 September

1992. The primary Judge held that, at this date, notwithstanding the

denials of Mr Morales, the "Inglis/IAM agreement" (i.e. the Second

Purchase Agreement) was still on foot. Although, according to its

terms, property in the alpacas had passed to IAM, the passing of

property under that contract was dependent upon the passing of

property under the ACL/Inglis Agreement. Accordingly, the Judge

concluded that IAM was not in a position to set up its title to the

animals against Mr Ensor's possessory title.

[176]

"AGREEMENT FOR SALE AND PURCHASE OF LIVESTOCK DATED 20 FEBRUARY 1992

PARTIES

1. The Vendors

a) Ron G. Inglis its nominee or agent (Vendor) of whose performance is

guaranteed by Ron G Inglis.

b) Carlos Morales of Alpac Chile Ltda of Arica Chile.

2. The Purchaser

International Alpaca Management Pty Ltd of Paddington, New South Wales

or its nominee or agent (Purchaser).

AGREEMENT

1. SALE AND PURCHASE

1.1 The Vendor shall sell and the Purchasers shall purchase the whole

share of 100 adult alpacas plus all cria purchased under contract by

the Vendor from Alpac Chile of Arica Chile, as expressed by AQIS

Cameloid Import Permit, No. 5 Cam ("Cam no. 5").

...

2. WARRANTIES

...

2.2 The Vendor warrants that the Alpaca are his property immediately

prior to the giving of Title to the Purchasers and that the property

in the Alpaca shall pass to the Purchasers free of any liens and

encumbrances.

2.3 The Vendor warrants that the Alpacas are part of a consignment of

3. PRICE

3.1 The price paid by the Purchasers in total consideration for their

purchase of the Alpacas as described herein shall be SEVEN HUNDRED AND

FIFTY THOUSAND AUSTRALIAN DOLLARS ($750,000 Aus) minimum and EIGHT

HUNDRED THOUSAND AUSTRALIAN DOLLARS ($800,000 Aus) maximum.

This is divided into two undivided and inseparable parts.

In the first part the Purchaser warrants that during and through to

the end of the period of export and quarantine, the Purchaser will

make available THREE HUNDRED THOUSAND AUSTRALIAN DOLLARS ($300,000

Aus), to meet the actual realised cost only of importing the Alpacas,

into Australia.

An additional sum of FIFTY THOUSAND AUSTRALIAN DOLLARS ($50,000 Aus)

will be made available to the Vendor by the Purchaser should the

Vendor be unable to meet his own cost estimates of a total requirement

of THREE HUNDRED THOUSAND AUSTRALIAN DOLLARS ($300,000 Aus). A total

of THREE HUNDRED AND FIFTY THOUSAND AUSTRALIAN DOLLARS ($350,000 Aus)

as consideration of the first part is made available by the purchaser

to the vendor for the importation of the Alpacas.

Should the cost exceed this total, then any additional cost overrun

after THREE HUNDRED AND FIFTY THOUSAND AUSTRALIAN DOLLARS ($350,000

Aus) will be met by the Vendor.

In the second part a total of FOUR HUNDRED AND FIFTY THOUSAND

AUSTRALIAN DOLLARS ($450,000 Aus) will be paid to the Vendor by the

Purchaser on or before 30 June 1992 ("the Date").

Should the Alpacas not have arrived in Australia by the Date, then the

amount of FOUR HUNDRED AND FIFTY THOUSAND AUSTRALIAN DOLLARS ($450,000

Aus) will be held in a legal trust account of a firm of solicitors to

be agreed. This amount will be released to the Vendor once the

Alpacas arrive safely in Australia, and in the interim period the

interest earnt by this amount will be paid in its entirety to the

Vendor. It is hereby agreed that this amount will be split between

Mr Ron Inglis and Mr Carlos Morales in the following amounts. Mr Ron

Inglis, the amount of $350,000 and Mr Carlos Morales the amount of

$100,000. These amounts will be reduced if the Purchaser incurs any

additional costs not originally represented to it by the vendor, such

as costs of bank guarantees, and will be distributed prorata to the

Purchasers, i.e. 16.67% to Carlos Morales and 83.33% to Ron Inglis.

4. PAYMENT

4.1 The sum of $15,000 Aus prepaid to entitle the purchaser to an

unconditional option on the purchase of the animals as paid by the

purchaser and received by the vendor

This sum has been paid by the Purchaser in fulfilment of this clause.

4.2 The sum of $50,000 (Aus) on or before the 29 February 1992 to

convert the option.

This sum has been paid by the Purchaser in fulfilment of this clause

giving the Purchaser unencumbered title to the Alpaca.

As a guide only and dependent upon the date of the actual receipt by

the Purchaser, as provided by the Vendor of the actual accounts

rendered to the Vendor as a direct result of the exportation and

quarantining of the Alpacas from Chile to Australia, the following

payments will be made on the following dates.

(a) The sum of $85,000 (Aus) on 20 March 1992.

(b) The sum of $25,000 (Aus) on 20 April 1992.

(c) The sum of $25,000 (Aus) on 15 May 1992.

(d) The sum of $75,000 (Aus) on 20 May 1992.

(e) The sum of ($25,000) on 20 June 1992.

This creates total payments of THREE HUNDRED THOUSAND AUSTRALIAN

DOLLARS ($300,000 Aus). The Purchaser hereby covenants and agrees

that an additional FIFTY THOUSAND DOLLARS ($50,000 Aus) will be made

available to the Vendor, if the Vendor is able to satisfy the

Purchaser of legitimate costs overruns from the budget described above

at the end of the quarantine and export process.

...

6. DELIVERY

6.1 The title to the property of the Alpacas shall pass to the

Purchaser on completion of payment 4.2 above."

(emphasis added)

At a glance

Court

Decision date

Source

Judgment (231 paragraphs)

International Alpaca Management Pty Ltd, Textile Finance Limited and Coolaroo Alpaca General Partner Pty Limited v Ben KE Ensor and Garrymere Farms Limited [1995] FCA 1686 (24 November 1995)

Parties

Legislation Cited (1)

Cases Cited (4)