Jiao Chen v SellYourCarFast Pty Ltd

Plaintiff's Case

1. The Plaintiff's case is that there is only one issue for determination, and that is whether title passed from the Plaintiff to the purchasers such as to allow them to pass title on to the Defendant. It contends that following the decisions in Davey v Robinson's Motors Pty Ltd [36] and Godfrey v Sevenoaks [37] that it should be accepted that the sale of the car from the Plaintiff to the purchaser was contingent on the clearance of the bank cheque and the clearance having not occured the contract was void and title did not pass.
2. In Daley v Robinson's Motors Pty Ltd, the Full Supreme Court of NSW considered an appeal in circumstances where the owner of the motor car advertised for sale as a result of which he was approached a person Allen who wished to buy the car at an agreed price. Allen promised to give the Plaintiff a post-dated cheque in payment of the price. He then obtained possession, decamped and sold the car to the Defendant, a third party who made no inquiries as to title until after the purchase from Allan had been concluded. The Plaintiff sued the Defendant for damages for conversion and the trial judge concluded that the Plaintiff had agreed with Allen, that Allen should have the car at his disposal for certain purposes but that no property in the car would pass until the post-dated cheque had been met. The question for the Full Court was whether in the circumstances, the Plaintiff had intended to pass property to Allen, enabling him to dispose of the car as his own or merely the pass possession of the car.
3. This required consideration of what was the intention of the parties bearing in mind that despite the owner's intention that property should not pass until the post-dated cheque had been met, he allowed Allen to have the car at his disposal to enable him to dispose of the car to another buyer. Once Allen received the purchase money, he could then pay the amount which was owing to the Plaintiff on the post-dated cheque.
4. The trial judge held that the fact that the owner had kept the registration certificate indicated that he must have thought that the retention of it prevented title from passing. Street CJ quoted with approval, the speech of Lord Herschell L.C. in McEntire and Maconchy v Crossley Brothers Ltd [38] where he stated:- "Upon an agreement to sell it depends upon the intention of the parties whether the property passes or does not pass. Here the parties have in terms expressed their intention, and said that the property shall not pass til the full purchase-money is paid. I know of no reason to prevent that being a perfectly lawful agreement. If that was really the intention of the parties I know of no rule or principle of law which prevents its being given effect to. I quite agree that if, although the partiers have inserted a provision to that effect, they have shewn in other parts of the agreement, by the language they have used or the provisions they had made, that they intended the property to pass, you must look at the transaction as a whole; and it might be necessary to hold that the property has passed, although the parties have said that their intention was that it should not, because they have provided that it shall." [39] In conclusion, it was held that it was open to the District Court to make the finding that title had not been intended to pass.
5. In Godfrey v Sevenoaks, the Plaintiff purported to sale a Rolls Royce motor car to a man by the name of Swinbourne who offered to buy the car and proposed to drive it to Melbourne, Victoria. [40] The Plaintiff accepted Swinbourne's cheque making it clear at the time that he would allow him to have possession of the car but no title to it would pass until the cheque was honoured. A receipt was thereafter handed to Swinbourne. Swinbourne's cheque was dishonoured. Although the Plaintiff directed him to take the car at once to a garage, Swinbourne did not do so. Swinbourne instead drove the car to Sydney, NSW where he sold it nine days after he purported to acquire it. The Defendant gave Swinbourne a cheque which he promptly cashed and thereafter Swinbourne disappeared from view. Owen J (with whom Roper CJ in Eq. and Manning J agreed) upheld the decision of the District Court Judge that title had not passed to Swinbourne. Owen J held that it was open to the Judge to hold that a term of the contract of sale was that title would not pass until and unless the buyer's cheque was met. His Honour stated:- "Assuming that it can properly be said that the terms of the receipt could be regarded as a representation of fact made by the plaintiff to the defendant, it was a representation that a cheque had been received in full payment for the car. Prima facie, a payment by cheque is not complete until the cheque is honoured. A cheque may be taken in full satisfaction of a debt, but the presumption is that the cheque is merely taken on account of the debt. Prima facie, therefore, it seems to me that this receipt was nothing more than a representation of a conditional payment for the car. I do not think that the document can be regarded as an unequivocal representation that Swinbourne was the owner of the car." [41]
6. Daley v Robinson's Motors Pty Ltd was decided prior to the decision in Godfrey v Sevenoaks. [42] Relying on the prima facie presumption referred to in Godfrey, the Plaintiff submits that by adopting the reasoning in Davey and in Godfrey, title did not pass to the purchaser for the simple reason that the agreement in both instances was contingent on the seller being put in funds. Absent that element, it was submitted that there was no contract for sale, and there was no meeting of the minds.
7. Although both cases referred to involved circumstances where there was found to be a specific proviso that the property would not pass until the cheque had been met, I do not understand the decision in Godfrey v Sevenoaks to be so contingent; particularly bearing in mind the prima facie statement by Owen J that payment by cheque is not completed until the cheque is honoured. Certainly that seems to be the basis upon which the matter was approached in an analogous case of Eddy v State of New South Wales. [43]

Defendant's Case

1. Defendant relied on what it termed were three exceptions to the nemo dat quod non habet principle embodied in s 26 (1) of the Sale of Goods Act 1923 (NSW). [44]
2. The Defendant has drawn attention to the decision of Rein SC DCJ (as his Honour then was) in Vassallo v Haddad Import and Export Pty Ltd. [45] In that case, the Court found that title was intended to pass at the time the cheque was handed to the owner of the motor vehicle. This was so, as on the facts the owner of the vehicle had various reservations arising from the fact that the cheque was neither a bank cheque nor an Australian cheque and thereafter made various inquiries including of the NSW Police. Once satisfied, the owner handed over the keys to the vehicle and filled out the notice of disposal in return for the cheque. [46]
3. Rein SC DCJ stated:- "The first argument between the parties in relation to this section was whether the fraudster FB1 had a voidable title or not. There was no reservation of title or deferment of the passing of property until clearance of the cheque (cf Davey v Robinson's Motors Pty Ltd (1957) 75 WN (NSW) 56 and Godfrey v Sevenoaks (1957) 75 WN (NSW) 487), and the contract was an unconditional contract for sale of specific goods in a deliverable state, the property in which passes to the buyer when the contract was made (see s 23 of the SGA) unless the contract was void. Doff contended that the transaction was void because he only intended to deal with Fouad Barhoum, not FB1." [47]

Section 27

1. The Defendant contended that the agreement between the parties was voidable not void and as such engages section 27 of the 1923 Act. This section reads as follows:- 27 Sale under voidable title Where the seller of goods has a voidable title thereto but the seller's title has not been avoided at the time of the sale, the buyer acquires a good title to the goods, provided the buyer buys them in good faith and without notice of the seller's defect of title.
2. The Defendant relied on section 22 of the 1923 Act to assert that title passed when intended to pass, and pursuant to section 27 the title was voidable as the predominant intention of the Plaintiff was to contract with the purchasers present before her.
3. The evidence before me is that the Plaintiff accepted a bank cheque and handed relevant documentation to two persons (or more specifically the smaller male) together with the keys expecting that they would return after a test drive. True it is that nothing was said about the need for the cheque to have been cleared prior to the transfer of any title. Nor had the Plaintiff recorded any name although no doubt Mr Ziyang Ou had some details, at least a phone number and perhaps a record from www.carsales.com.au online.
4. The purchasers left with the car without returning.
5. Viewed as a whole the circumstances do not rebut a prima facie presumption that payment is not complete until the cheque is honoured and in the circumstances title did not pass.
6. The Plaintiff was not cross-examined to suggest otherwise.
7. Even accepting the test set out in Southdown Publications Pty Ltd v ACP Magazines Pty Ltd [48] and focussing on the predominant intention of the parties, I would not hold that Ms Chen's intention was specifically to transact with the person who gave her the cheque, such as to make the transaction voidable in the context of section 27.
8. The evidence was that the smaller of the persons before the Plaintiff indicated that he were to put the car in the name of their uncle's company. The name of that company was not identified and the transfer form was left blank as to the name of the buyer. In my view, a "voidable title" has not been established.
9. It is unnecessary in this context to consider whether the Defendant acted in good faith.

Section 26

1. The Defendant's next argument was applying the exception in section 26(1) of the 1923 Act - there was a statutory estoppel. Section 26(1) reads as follows: 26 Sale by person not the owner (1) Subject to the provisions of this Act, where goods are sold by a person who is not the owner thereof and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by the owner's conduct precluded from denying the seller's authority to sell.
2. The Defendant acknowledged that there were two types of estoppel potentially raised under section 26, one being reliant on an express representation as to title, and the other being dependant on conduct where the act or omission of the owner enables the seller to create the appearance of ownership. [49]
3. In support of its contention that there was an express representation, the Defendant relies upon the fact that the Plaintiff armed the purchasers with "indicia of title":- 1. Represented that the purchaser held good title to the car; 2. Transferred the vehicle with the certificate of registration; and 3. Represented that the purchaser had the authority to make the sale to the Defendant.
4. In my view, the above does not constitute an express representation made by Ms Chen to the Defendant so as to entitle it to rely on the provisions in section 26(1).
5. In the alternative, the Defendant relied on the above factors constituting conduct where the act or omission of the owner enables the seller to create the appearance of ownership. In Thomas Australia Wholesale Vehicle Trading Co Pty Ltd v Marac Finance Australia Ltd, [50] Glass JA and McHugh JA adopted the criteria for determining the existence of a duty stated by Lord Wilberforce in Moorgate Mercantile Co Limited v Twitchings [51] where his Lordship stated:- "What I think we are looking for here is an answer to the question whether, having regard to the situation in which the relevant transaction occurred, as known to both parties, a reasonable man, in the position of the 'acquirer' of the property, would expect the 'owner' acting honestly and responsibly, if he claimed any title in the property, to take steps to make that claim known to, and discoverable by, the 'acquirer' and whether, in the face of an omission to do so, the 'acquirer' could reasonably assume that no such title was claimed."
6. The circumstances in Moorgate Mercantile Co Limited v Twitchings involved a central register of motor vehicle hire purchase agreements maintained by an organisation in which the Plaintiff was a dealer and the Defendant was a financier. Glass JA in Thomas Australia Wholesale Vehicle Trading Co Pty Ltd noted that in the particular context, Lord Wilberforce found that there was a duty of care arising from the existence of the register and in the absence of such an organisation no duty of care and no estoppel could have arisen. His Honour went on to state:- "… the owner is not precluded by his conduct within the meaning of the Sale of Goods Act, s 26(1), unless he either made a representation to the buyer that the sale was authorised or influenced the buyer to his disadvantage by neglecting to deny the authority of the seller in breach of a duty owed to the buyer or a class of persons to which he belonged. I do not accept that the courts which have construed the statute in this way have imparted to it an alien gloss which defeats the intentions of the legislature. I take my position alongside those who discern in the language of the section an intention that an owner will not be precluded from asserting that he and not the seller had title to the goods sold simply by reason of his failure to disclose his interest to the buyer. His failure must be in breach of a duty to speak out. Unless the conduct of the taciturn owner is subjected to the litmus test of duty, I know of no way to discriminate between conduct which precludes and that which does not." [52]
7. McHugh JA in Thomas Australia Wholesale Vehicle Trading Co Pty Ltd generally agreed with Glass JA, but added:- The subsection creates a statutory estoppel. An owner may be precluded from denying the seller's authority by reason of his conduct which, expressly or impliedly, constitutes an unambiguous representation to the buyer that the seller has his authority to make the sale: Goodwin v Robarts (1876) 1 App Cas 476 at 489; Low v Bouverie [1891] 3 Ch 82 at 103-106, 113; Canada and Dominion Sugar Co Ltd v Canadian National (West Indies) Steamships Ltd [1947] AC 46 at 55-56; Moorgate Mercantile Co Ltd v Twitchings [1977] AC 890 at 902, 917-918, 922-923. In some cases, the omission of the owner to take steps to prevent the sale may also estop him from asserting his title. But inaction, silence, or even gross carelessness in the protection of property is not of itself enough to preclude an owner from asserting his title: Farquharson Brothers & Co v C King & Co [1902] AC 325 at 335-336; Moorgate Mercantile Co Ltd v Twitchings (at 903, 925). The failure to register the transfer of ownership of a car or to register the existence of a hire purchase agreement over a car does not preclude the owner from asserting his title against one who bought from a person who did not have the owner's authority to sell: Cook v Jenkins [1947] VLR 369; Moorgate Mercantile Co Ltd v Twitchings; Associated Midland Corporation v Sanderson Motors Pty Ltd [1983] 3 NSWLR 395. [53]
8. Consistent with these authorities, it was not demonstrated how the Plaintiff's actions amounted to conduct precluding denial of the seller's authority to sell for the purposes of section 26(1) of the 1923 Act.
9. In argument, the Defendant all but conceded that it could not to establish a basis as to engage this provision.

Section 28

1. The third basis which the Defendant resists the Plaintiff's claim is section 28(2) of the 1923 Act. This reads as follows:- 28 Seller or buyer in possession after sale (2) Where a person having bought or agreed to buy goods obtains with the consent of the seller possession of the goods or the documents of title to the goods, the delivery or transfer by that person or by a mercantile agent acting for that person of the goods or documents of title under any sale pledge or other disposition thereof to any person receiving the same in good faith and without notice of any lien or other right of the original seller in respect of the goods shall have the same effect as if the person making the delivery or transfer were a mercantile agent intrusted by the owner with the goods or documents of title.
2. The question of the application of section 28(2) of the 1923 Act and section 5 of the Factors (Mercantile Agents) Act 1923 (NSW) was raised before in Godfrey v Sevenoaks. [54] Owen J at 489 stated:- "The argument was, in effect, that as a result of the combined effect of these two sets of provisions the sale to the defendant by Swinbourne was made pursuant to what might be called a statutory power of disposition. The point is an interesting one, but it seems to me to be clear - and counsel for the appellant has frankly and properly conceded - that it was not raised at the trial."
3. Roper CJ in Eq. concurred. Manning J came to a similar view referring to the alternative submissions "which is that there was no sale at all to Swinbourne but that Swinbourne acted as the statutory agent of Godfrey in selling to Sevenoaks." [55]
4. Despite the fact that this issue was specifically raised, no submissions were forthcoming from the Plaintiff.
5. The purpose of section 28(2) of the 1923 Act was explained in Gamer's Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd. [56] In that case, Mason CJ stated:- "The sub-section needs to be read with its companion provision, s 28(1). The two provisions are statutory exceptions to the general rule enunciated in s 26(1) that a sale of goods by a person who is not the owner and who sells without the authority or consent of the owner confers no better title than the seller has, unless the owner is by his conduct precluded from denying the seller's authority to sell." [57]
6. Brennan J (as he then was) stated:- "I do not think that s 28(2) is limited to cases where the sale etc, is made by a buyer 'in the ordinary course of business of a mercantile agent'. The object of the sub-section is to protect innocent third parties dealing with any buyers without title, not only buyers who are mercantile agents. The operation of the sub-section depends on the hypothesis 'as if the person making the delivery or transfer were a mercantile agent', so that the business of that person is hypothetically translated into the business of a mercantile agent. Therefore s 28(2) attracts to a delivery or transfer in the ordinary course of business by that person the same effect as s 5 of the Factors Act attributes to a transfer or delivery under a sale, pledge or disposition by a mercantile agent in the ordinary course of business as a mercantile agent. That was the view taken by Reed J in Langmead v Thyer Rubber Co Ltd [1947] SASR 29 at 39, and by Gresson P and Cleary J in Jeffcott v Andrew Motors Ltd [1960] NZLR 721 at 729. If the buyer were in fact a mercantile agent, what work would s 28(2) have to do that would not be done by s 5 of the Factors Act? The effect of such a s 28(2) delivery is therefore the effect which a delivery would have if the sale etc, under which it was made had the validity attributed to a sale etc, by that part of the text of s 5(1) of the Factors Act which commences with the words 'subject to …' set out above. In other words, when there is no applicable qualification to be derived from other provisions of the Factors Act and when the proviso to s 5(1) of the Factors Act does not apply, a delivery of goods falling within s 28(2) has effect as though the buyer were delivering the goods under a sale etc, which he had been expressly authorised by the owner of the goods to make. In the circumstances of the present case, if s 28(2) applies, a delivery of the eight cars whose title is in question by Evans & Rose Motors Pty Ltd, the dealer, to Natwest under a sale to Natwest, would have effect as though the sale had been made by the dealer with the express authority of Gamer." [58]
7. Bearing this in mind, it is not to the point that Ms Chen retained title. The first question is whether in terms of the section "a person having bought or agreed to buy the goods obtains with the consent of the seller possession of the goods or documents of title to the goods." Despite the fact that Ms Chen was induced to do so by fraud, she did hand over the vehicle, the keys, registration /transfer papers to the Asian males.
8. Rein SC DCJ in Vassallo stated: It is clear that s 28(2) has no application where the seller is not the true owner of the goods but has stolen them from the true owner and a purchaser in good faith from the seller seeks to rely on the subsection: see also National Employers' Mutual General Insurance Association Ltd v Jones [1990] 1 AC 24 where it was held that 28(2) was never intended to affect adversely the title of one from whom the goods had been stolen. Where, however, the seller is the owner of the goods (as here) and puts the goods into the hands of the person who has bought or agreed to buy the goods (ie here the fraudster) I think the provisions do apply. [59]
9. A similar view was taken in Langmead v Thyer Rubber Co. Limited. [60] In that case per Napier CJ:- I agree that the language of sub-s(2)- "obtains with the consent of the seller, possession of the goods" - must be reasonably understood and applied. It was assumed in Marten v Whale (1917) 2 K.B 480 that this language is not restricted to possession which is obtained under or pursuant to a contract for sale; but nevertheless I think that the sub-section contemplates something resembling a causal connection between the two conditions which bring the enactment into play.. The literal sense of the words - "having … agreed … obtains" - is not satisfied unless the agreement to buy is antecedent to the obtaining by consent. It seems to me that the enactment assumes that "post hoc" is "proper hoc" and I doubt whether it should be applied to a case in which possession is obtained for a special and temporary purpose for which cannot be related to the contractual intention" [61] Reed J stated:- Section 25(2) relates to cases where a person who has bought or agreed to buy goods obtains possession of them. If the goods have been "bought" the property has passed, and there will probably not be many cases where the seller will have rights of the nature mentioned in Halsbury's Laws of England, vol.29, 2nd ed., at p.165. Most cases under s.25(2) will be those where property has not passed, but the buyer has obtained possession of the goods. What may be called the policy underlying each sub-section appears to be the same in substance, and on a consideration of that, and of the language of the section, it would appear to be immaterial under sub-s.(2) that the seller allows the buyer to have possession for a particular purpose, just as under sub-s.(1) it does not matter why the buyer permits the seller to remain in or have possession. The cases cited seem to show that the point is whether the possession of the one or the other is directly referable to, or arises out of the relationship of buyer and seller. [62]
10. On these authorities I accept that even if induced by fraud, there was consent to possession within the terms of section 28(2).
11. The remaining question is whether the Defendant received the items in question "in good faith and without notice of any lien or other right of the original seller in respect of the goods." The Defendant accepts that it bears the onus of establishing this fact. In section 5(2) of the 1923 Act, it is specified that:- 5 Definitions (2) A thing is deemed to be done "in good faith" within the meaning of this Act when it is in fact done honestly, whether it be done negligently or not.
12. Ms Silvana Giannoulis gave evidence set out the steps she took. It was not put to her that there were any circumstances amounting to suspicion or refraining from making an inquiry. Nor did the Plaintiff make any submission in this regard. I accept that upon receipt of the driver's licence, there was a matching up of the person in front and the name on the registration papers. Upon review of the PPSR and confirmation received from Ms Giannoulis. Mr Fernandez had no reason to believe that the car was stolen or improperly obtained. The price paid of $98,000 was not such as to invite any suspicion. [63] Absence of good faith is not established where dealers in second hand motor vehicles might be more astute or careful. [64]
13. Whilst the transfer of fund details provided were to a third party bank account, it was not put to the Defendant's witnesses that this should have led to suspicion and nor any submission made that this amounted to an absence of good faith.
14. For these reasons and bearing in particular the requirement of section 140(2)(c) of the Evidence Act 1995 (NSW), [65] I accept that the Defendant's receipt of the property was in good faith and without notice within the terms of section 28(2) of the 1923 Act.
15. The Defendant having succeeded there is no occasion to consider whether an order for the delivery of the goods under section 93(1)(a) of the 2005 Act would be appropriate.
16. In the circumstances, I make the following orders:- 1. Verdict for the Defendant; 2. The Plaintiff is to pay the Defendant's costs; and 3. Exhibits to be retained for 28 days.

Endnotes

1. Hereinafter referred to as the "2005 Act"
2. Hereinafter referred to as "the vehicle" or the "car"
3. Affidavit of Ms Jiao Chen dated 20 July 2015 at [3] - [6]
4. Affidavit of Ms Jiao Chen dated 20 July 2015 at [8]
5. Affidavit of Ms Jiao Chen dated 20 July 2015 at [10] - [11]
6. See the Affidavit of Mr Ziyang Ou dated 16 July 2015 at [12]
7. Although Mr Ziyang Ou referred to the RTA (Roads & Traffic Authority), it is clear that he was in fact referring to the RMS (Roads and Maritime Services). See the Affidavit of Mr Ziyang Ou dated 16 July 2015 at [12] - [15]
8. See the Affidavit of Mr Ziyang Ou dated 16 July 2015 at [13]
9. See the Affidavit of Mr Ziyang Ou dated 16 July 2015 at [15] and the Affidavit of Ms Jiao Chen dated 20 July 2015 at [16] - [17]
10. Affidavit of Ms Jiao Chen dated 20 July 2015 at [24]
11. Affidavit of Ms Jiao Chen dated 20 July 2015 at [27]
12. See the Affidavit of Ms Jiao Chen dated 20 July 2015 at [29] and the Affidavit of Mr Ziyang Ou dated 16 July 2015 at [26] - [27].
13. See the Affidavit of Ms Jiao Chen dated 20 July 2015 at [34]
14. See the Affidavit of Ms Jiao Chen dated 20 July 2015 at [39]
15. Affidavit of Ms Jiao Chen dated 20 July 2015 at [39]
16. Affidavit of Mr Keith Fernandez dated 15 October 2015 at [15]
17. Hereinafter referred to as "PPSR"
18. Affidavit of Mr Keith Fernandez dated 15 October 2015 at Exhibit KF 2.
19. Affidavit of Mr Keith Fernandez dated 15 October 2015 at [18]
20. Affidavit of Ms Silvana Giannoulis dated 15 October 2015 at [7]
21. Affidavit of Ms Silvana Giannoulis dated 15 October 2015 at [10] - [11]
22. Affidavit of Ms Silvana Giannoulis dated 15 October 2015 at [14]
23. Affidavit of Ms Silvana Giannoulis dated 15 October 2015 at [16]
24. Affidavit of Mr Najib Nehme dated 16 October 2015 at JN 1
25. Affidavit of Ms Jiao Chen dated 20 July 2015 at [40]
26. Affidavit of Ms Jiao Chen dated 20 July 2015 at [45]
27. See Affidavit of Ms Jiao Chen dated 20 July 2015 at Annexure H
28. See Affidavit of Ms Jiao Chen dated 20 July 2015 at [50] - [51]
29. Affidavit of Mr Keith Fernandez dated 15 October 2015 at 25
30. Affidavit of Mr Najib Nehme dated 16 October 2015 at [24]
31. Affidavit of Mr Alexander Moffat dated 17 July 2015 at [59]
32. See Affidavit of Mr Alexander Moffat dated 17 July 2015, Exhibit AJM - 1 at pp 114 - 116.
33. See Affidavit of Mr Alexander Moffat dated 17 July 2015, Exhibit AJM - 1 at p 64.
34. Affidavit of Mr Thomas Barbat dated 17 February 2016 at [5]
35. Ibid
36. (1958) 75 WN (NSW) 56
37. (1958) 75 WN (NSW) 487
38. (1895) AC 457
39. (1895) AC 457, 463 (Lord Herschell L.C.)
40. (1958) 75 WN (NSW) 487, 488 - 489 (Owen J)
41. Godfrey v Sevenoaks (1958) 75 WN (NSW) 487, 489 (Owen J)
42. Godfrey v Sevenoaks (1958) 75 WN (NSW) 487 was followed in Kingaroy Mall Pty Ltd v E & N Collins Enterprise Pty Ltd & Ors [2008] QSC 66 (10 April 2008) [35] (Daubney J)
43. Jinhang and Peiyan Pan v Commissioner for Police; Anthony Eddy v State of New South Wales Police; TQ Heavy Transport Pty Ltd (Mr Quang) v Commissioner for Police and Peiyan Pan (Unreported, District Court of New South Wales, Sorby DCJ, 27 November 2013).
44. Hereinafter referred to as the "1923 Act"
45. (2004) 2 DCLR (NSW) 123 ("Vassallo")
46. Ibid 129 - 130 [19] - [22]
47. Ibid 137 [47]
48. (2003) 60 IPR 367 [95] - [96] also referred to in Vassallo 139 - 140 [56] - [57]
49. (2004) 2 DCLR (NSW) 123, 150 [104]
50. (1985) 3 NSWLR 452
51. [1977] AC 890, 903
52. (1985) 3 NSWLR 452, 468 - 469 (Glass JA)
53. (1985) 3 NSWLR 452, 469 (McHugh JA)
54. (1958) 75 WN (NSW) 487
55. Godfrey v Sevenoaks (1958) 75 WN (NSW) 487, 490 (Manning J)
56. (1987) 163 CLR 236
57. Ibid 242
58. (1987) 163 CLR 236, 252
59. Vassallo 149 [94]
60. [1947] SASR 29
61. Ibid [33] - [34]
62. Ibid [41]
63. See: Heap v Motorists' Advisory Agency Ltd [1923] 1 KB 577 cited in Detective Senior Constable Wilkes v Abou-Yaghi [2012] NSWDC 6 [66] (Gibson DCJ); and Vassallo 146 - 147 [83]
64. Ingram v Little [1961] 1 QB 31, 47 (Sellers LJ) quoted in Vassallo 145, [75]. See also: Associated Midland Corp v Sanderson Motors Pty Ltd [1983] 3 NSWLR 395, 401 - 2 (Clarke J)
65. See also: Briginshaw v Briginshaw (1938) 60 CLR 336; and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, 449 - 50 (Mason CJ, Brennan, Deane and Gaudron JJ)

Amendments 21 March 2016 - Changed case name - removed ABN DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 March 2016