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[2001] WASCA 269
appellant. Appeal allowed. The orders below, except as to costs, were set aside. The respondent plaintiff was to have leave to amend on proper terms and a new trial on the question of damages. If it wished to...
2 cited instruments linked from this judgment.
The contract gave a date by which Ledger was to pay, but the court read that date together with the rest of the agreement. The provisions about Ledger having and preparing the car indicated that delivery was expected before payment. Because the contract did not make payment independent of delivery, the vendor could not use the statutory exception that allows a seller to sue for the price. Its claim was limited to damages, and the appeal succeeded.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,250 words · generated 01/10/2026
In Ledger v Cleveland Nominees Pty Ltd [2001] WASCA 269, the Full Court of the Supreme Court of Western Australia considered when a seller of goods can sue for the purchase price rather than claim damages after a purchaser fails to take delivery. The decision turned on the meaning of the phrase “on a day certain, irrespective of delivery” in s 48(2) of the Sale of Goods Act 1895 (WA).
Cleveland Nominees Pty Ltd agreed to sell Kim Francis Ledger a Porsche 944 Turbo racing car and an inventory of parts for $75,000. The written agreement said that the purchase price was payable “on or before the 1st June 1997” [3]. The District Court judge found that the document’s date, 6 February 1995, contained a typing error and should have read 6 February 1997 [3].
The agreement dealt with more than the price and its payment date. Title was to remain with the vendor until full payment. Until payment was completed, the car was not to be raced in local or interstate events. Ledger was to transport the car and inventory to his premises, keep them safely for Cleveland Nominees pending payment, and prepare the vehicle to qualify as a Group A Porsche Cup racecar [3].
Ledger failed to take delivery. Cleveland Nominees, the plaintiff in the District Court, sued for the price. Ledger argued that the vendor’s remedy was confined to damages. The District Court decision favoured the vendor, but the Full Court allowed Ledger’s appeal. It concluded that the agreement did not make the price payable independently of delivery and ordered a new trial on the question of damages, subject to terms [16]-[17].
The Full Court was constituted by Wallwork J, Wheeler J and Burchett AUJ. Wallwork J and Wheeler J agreed with Burchett AUJ’s reasons and proposed orders [1]-[2]. Burchett AUJ delivered the substantive reasons.
The court began from the distinction between a claim for the price and a claim for damages. It described a claim for damages as the general remedy for a buyer’s breach, and identified statutory exceptions under s 48(1) and s 48(2) [5]. Section 48(1) concerns cases where property in the goods has passed to the buyer. The issue here was s 48(2), which permits an action for the price where the price is payable on a day certain, irrespective of delivery, and the buyer wrongfully neglects or refuses to pay [4]-[5].
The important point was that a payment date alone does not meet s 48(2). Burchett AUJ said that to read the provision as applying whenever a contract names a payment date would ignore “irrespective of delivery” [6]. The contract must be expressed in terms adequate to displace the ordinary operation of s 28, under which delivery and payment are concurrent conditions unless the parties agree otherwise [6].
The court treated the s 48(2) rule as an exception to the usual arrangement, rather than a general consequence of setting a date for payment. It referred to Martin v Hogan, where members of the High Court described the provision as an exception and, in Higgins J’s words, a “rare” one [6]. The judgment drew on those authorities to stress that the statutory language requires a contractual obligation to pay that is independent of delivery.
The court then considered the agreement as a whole. On one side was the payment date: 1 June 1997. On the other were the provisions contemplating Ledger’s possession of the car before payment. The agreement required him to take the vehicle to his premises, keep it safe for the vendor pending payment and prepare it for racing [14]. The bar on racing until payment was complete also appeared to assume that the purchaser would have the vehicle in his possession before paying [14].
Those provisions led Burchett AUJ to read the payment date as operating on the footing that delivery would already have occurred [14]. The agreement’s identification of the purchaser’s premises also supported that reading: if the purchaser were to own and hold the car before any delivery under the contract, the vendor would have had no apparent concern about where he took it [14].
The resulting construction was that the seller’s payment right remained connected to delivery. The payment date was not “irrespective of delivery” within s 48(2) [15]. Because the vendor could not rely on that provision, it could not maintain its action for the price on this contract and in the circumstances. Its claim was limited to damages [16].
The reasoning also rejected the suggestion that a different exception, based on a contract specially requiring payment before delivery, could resolve this dispute. Burchett AUJ observed that such contracts can exist, but stated that the sole question here was whether s 48(2) applied. If the payment obligation was not independent of delivery, the court could not construe this agreement as requiring payment before delivery for the purposes of that alternative line of authority [12]-[13].
The judgment did not purport to change the statutory framework. It applied the Sale of Goods Act 1895 (WA), particularly ss 28 and 48(2), in light of earlier authorities. Its contribution is its explanation of how the statutory words apply when a contract specifies a payment date but also contains terms pointing to delivery before payment.
Before the decision, the framework described by the court was that delivery and payment were ordinarily concurrent under s 28, unless the contract indicated otherwise [6]. The seller’s usual remedy for buyer breach was an action for damages, not the price [5]. The Act provided exceptions, including s 48(2), where the contract made the price payable on a day certain irrespective of delivery [4]-[5].
The judgment emphasised that the statutory exception is not established simply by a definite date. Earlier decisions discussed in the reasons had treated expressions such as “cash against documents” as consistent with payment against delivery, rather than as necessarily making payment independent of delivery [9], [15]. In Howes Bros v Queensland Milling Co, as described by Burchett AUJ, a requirement for payment within thirty days was read as allowing payment on delivery within that period, rather than requiring the full price on the thirtieth day regardless of delivery [11].
The court’s application in Ledger reinforces a contextual approach: payment language is read with the rest of the agreement, including its provisions about possession, storage and use. The decision illustrates that a date can be certain but still not be independent of delivery if the agreement assumes delivery will have happened by that date [14]-[15].
The judgment also recognised a separate contractual possibility: parties can expressly create a right to payment before delivery, even if the payment is not due on a day certain irrespective of delivery [12]. It referred to Minister for Supply and Development v Servicemen’s Co-operative Joinery Manufacturers Limited as an example of a contract expressly providing for payment before delivery [12]. But the Full Court did not decide that this agreement created such a right. It held that the relevant question was whether the payment obligation met s 48(2), and concluded it did not [13]-[16].
Accordingly, the decision’s effect should be stated narrowly. It explains the construction of this contract and the statutory requirements identified in the judgment. It does not establish that every contract with a payment date is conditional on delivery, nor does it prevent parties from making a sufficiently clear agreement about payment before delivery.
At [6], Burchett AUJ explained that the words “irrespective of delivery” have work to do. The contract must be sufficient to exclude the ordinary rule that delivery and payment occur together unless otherwise agreed. In plain English, naming a due date is not enough if the agreement still links payment to delivery.
At [14], the court relied on the practical arrangements in the agreement. Ledger was to have the car at his premises, hold it for the vendor pending payment and prepare it as a racing car. The court considered those provisions evidence that delivery was expected before the payment date. Put simply, the surrounding terms helped explain what the payment-date clause meant.
At [15], Burchett AUJ drew the statutory conclusion: if delivery was contemplated before payment, payment was not stipulated “irrespective of delivery”. The court considered that treating the date as wholly independent of delivery would create an exception to the ordinary rule that the contract did not express.
At [16], the court stated the consequence: the seller could not maintain an action for the price on this agreement and in these circumstances, and was limited to a claim for damages. This resolved the principal issue on appeal. The court did not determine the amount of damages.
At [17], the court addressed what should happen next. It considered a new trial on damages appropriate, with leave to amend on proper terms. If the vendor proceeded with the new trial, the proposed terms required it to bear its own costs and pay Ledger’s costs of that trial in any event, as well as the appeal costs.
The decision is most relevant where a sale-of-goods contract fixes a payment date, but a dispute arises about whether the seller can claim the price even though delivery has not occurred. Its central interpretive question is whether the contract makes payment due independently of delivery, as opposed to setting a date on the assumption that delivery will have occurred by then.
The relevant features in Ledger were a fixed payment date combined with clauses contemplating the purchaser’s possession and use-related preparation of the goods before payment [3], [14]. The purchaser was to move the car, store it for the vendor and prepare it for racing. Those provisions supported the finding that delivery was anticipated before the payment date.
The judgment also discusses “cash against documents” arrangements. It refers to authorities treating that expression as consistent with payment against delivery, particularly where the documents represent or enable control of the goods [9], [15]. The decision therefore signals that commercial shorthand should be read in the context of the contract and the role of the documents, rather than assumed to establish payment independent of delivery.
The decision may also be relevant where goods are sold from an undivided bulk or have not been appropriated to the contract, because s 48(2) is framed to apply even where property has not passed and goods have not been appropriated [4]. However, the judgment’s result depended on construing the particular agreement. It does not settle the construction of other payment clauses without examining their text and surrounding contractual arrangements.
The supplied judgment contains no discussion of later cases considering or applying Ledger v Cleveland Nominees Pty Ltd. It was delivered on 30 August 2001, and the text provided identifies no later judicial treatment. The judgment does discuss earlier authorities, but those citations do not establish how subsequent courts treated this decision.
The authorities used by the Full Court include Martin v Hogan, White and Carter (Councils) Ltd v McGregor, Stein Forbes & Co v County Tailoring Company, Muller Mclean & Co v Leslie & Anderson, Colley v Overseas Exporters, Shell-Mex, Limited v Elton Cop Dyeing Company Limited, and Howes Bros v Queensland Milling Co [6]-[12]. These are part of the reasoning supporting the distinction between a claim for the price and a claim for damages, and the interpretation of payment terms in contracts for the sale of goods.
The judgment also refers to cases concerning contracts that expressly require payment before delivery, including Minister for Supply and Development v Servicemen’s Co-operative Joinery Manufacturers Limited [12]. Burchett AUJ distinguished that issue from the question actually before the court: whether this contract made payment due irrespective of delivery [13].
Any account of later treatment would require sources beyond the text of this judgment. On the materials provided, the safe description is that Ledger applied earlier authorities to the specific agreement before it and stated the statutory distinction it considered controlling.
The judgment resolves the appeal by construing the particular contract. It does not determine the damages payable. That issue was left for a new trial [17]. The supplied text does not provide the evidence or calculations relevant to damages, or the outcome of any later trial.
The judgment also does not define an exhaustive formula for words that will satisfy s 48(2). It says that contractual terms must be adequate to exclude the ordinary effect of s 28 and that the requirement is an exception [6]. The decision gives an example of terms that did not meet the test, but does not survey every possible drafting approach.
A separate question, expressly acknowledged but not decided, concerns contracts that create a clear right to payment before delivery without relying on s 48(2) [12]-[13]. The judgment recognises that such agreements may exist and refers to authorities on the subject. But it does not decide whether the agreement in this case created such a right, because Burchett AUJ considered the s 48(2) issue determinative.
Finally, the supplied judgment does not provide later appellate consideration, subsequent statutory developments or the present status of the authorities discussed. Those matters cannot be established from this source alone. This is general legal information, not legal advice; Zoe can make mistakes; before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : LEDGER -v- CLEVELAND NOMINEES PTY LTD [2001] WASCA 269
Sale of goods - Vendor's claim, not for damages, but for the price - Whether should have been limited to damages - Whether the price was "payable on a day certain, irrespective of delivery" within s 48(2) of the Sale of Goods Act - Provision for payment by a day construed as assuming delivery would by then have taken place - Discussion of authorities
Appeal allowed, and new trial ordered on the question of damages, subject to terms
1 WALLWORK J: I agree with the reasons for judgment of Burchett AUJ and with the orders proposed by his Honour. There is nothing I wish to add.
2 WHEELER J: I have had the advantage of reading in draft the reasons for judgment of Burchett AUJ. I agree with these and with the orders proposed by his Honour.
3 BURCHETT AUJ: This appeal raises an unusual point of the law of the sale of goods. At issue is whether the respondent, the vendor of a Porsche racing car who was the plaintiff in the District Court, became entitled, upon the appellant defendant failing to take delivery, to sue for the price. The appellant's contention is that the vendor was limited, in the circumstances, to an action for damages. The learned judge found that the contract was in writing, being a letter from the vendor to the purchaser, with the purchaser's acceptance subscribed. The letter bore the date 6 February 1995, but her Honour held there was an error in the typing of the year, which should have read "1997". Omitting the letterhead and two pages of attached inventory, the document reads as follows:
"6 February, 1995
Mr K F Ledger
C/- Chellingworth Porsche
252 Aberdeen Street
Northbridge WA 6005
Dear Kim,
Re: Porsche 944 Turbo Racing Car
Referring to our recent discussions regarding the 944 Turbo Racing Porsche I confirm our understanding as follows:-
You will purchase the entire car for the amount of $75,000. The purchase includes the parts set out on the attached list of inventory.
The purchase price is payable on or before the 1st June 1997.
Until the payment of the purchase price has been completed the vehicle will not be raced in any local or interstate event and you will insure the vehicle with the insurance company noting my interest as unpaid vendor.
Title to the vehicle will at all times remain with me until full payment of the purchase price has been received by me.
You will transport the vehicle and the inventory from its current location at Wespeed to your Aberdeen Street premises and hold same in safe keeping for me pending the completion of the payment of the purchase price. You will at your expense prepare the vehicle to qualify as a Group A Porsche Cup racecar.
Yours faithfully,
Cleveland Nominees Pty Ltd
ACN 008 816 233
(Signature)
Clive Hartz
I confirm my agreement to purchase the vehicle on the above conditions.
(Signature)
K F Ledger"
4 Although the contract provides that the price "is payable on or before the 1st June 1997", such a term, being a stipulation "as to the time of payment", is "not deemed to be of the essence" of the contract: The Sale of Goods Act 1895, s 10. However, the term is the central provision of the contract for the purposes of the argument in this case, because it was held by the judge to attract the operation of s 48(2) of the Act, which reads:
"Where, under a contract of sale, the price is payable on a day certain, irrespective of delivery, and the buyer wrongfully neglects or refuses to pay such price, the seller may maintain an action for the price, although the property in the goods has not passed, and the goods have not been appropriated to the contract."
5 Under The Sale of Goods Act, it may be said that, in general, the seller's remedy for a breach of the contract by the buyer is an action for damages, not for the price. The statutory exceptions are pursuant to s 48(1), which applies "[w]here, under a contract of sale, the property in the goods has passed to the buyer", and pursuant to s 48(2), "[w]here, under a contract of sale, the price is payable on a day certain, irrespective of delivery".
6 Section 48(2) is not brought into operation merely by a provision for payment of the price "on a day certain"; for so to construe it would be to ignore the words "irrespective of delivery". These words are not otiose. They require that the contract be in terms adequate to exclude the ordinary effect of s 28 of the Act, by which, "[u]nless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions", and to show a right to full payment which may be in advance of delivery. The right, where s 48(2) does apply, is properly to be regarded as an "exception". It is so described by Isaacs and Rich JJ in their joint judgment, and also by Higgins J who added the word "rare", in Martin v Hogan [1917] HCA 75; (1917) 24 CLR 234. Having pointed out that a provision in the form of s 48 "represents the common law", Isaacs and Rich JJ said (at 262):
"The common law proceeds on a just principle. If the consideration for the price passes, the price can be recovered simpliciter. But in a sale of goods the consideration does not pass unless the property passes. If, again, there has been an agreement to pay the money on a day fixed by the contract, irrespective of the consideration passing - then, again, the sum can be recovered. But apart from that exception, the common law says, however strictly a man may have promised to pay the price on any given event, his failure to pay on that event is to be compensated for by ascertaining the amount of damage the promisee has sustained."
Higgins J, after referring (at 265 - 266) to the case where the property in the goods has passed to the buyer as entitling the seller to the full price, continued (at 267 - 268):
"There is, however, a second case in which, according to this Act, the full price is recoverable. It is the rare case [emphasis added] where, under the agreement, the price is payable 'on a day certain irrespective of delivery' although the property in the goods has not passed and the goods have not been appropriated to the contract (sec 49(2)). Now, in this case the contract fixed no 'day certain irrespective of delivery.' At the time of the contract, it could not be said that the price was to be paid on 9th August or any other particular day, delivery or no delivery. The words of the section are not 'at a definite time,' but 'on a day certain irrespective of delivery.' The case on which the learned draughtsman of the Act based the exception [emphasis added] (see Sale of Goods Act 1893, by Judge Chalmers) is the case of Dunlop v Grote [1845] EngR 1197; [2 Car & K 153]. In that case the defendants had on 3rd March 1845 bought of the plaintiffs 1,000 tons of a certain kind of pig-iron to be delivered to the defendants; delivery was to be taken on or before 30th April; and if delivery were not required by the defendants on or before 30th April, the defendants promised nevertheless to pay on that day. The defendants presently got 600 tons and paid for it; but they did not require delivery of the remaining 400 tons on or before 30th April. Under these circumstances, the defendants were held bound by their contract to pay on 30th April. That was the day for payment, delivery or no delivery, before that day. It was as if the seller had said: 'We shall not promise to give you at your price 1,000 tons of our pig-iron to be delivered as you require unless you promise to let us have all the money not later than 30th April.' There is no such exceptional [emphasis added] provision in this case, and therefore the ordinary rule would apply of payment when the goods are appropriated by the seller with the consent of the buyer, payment when the property passes. It is true that in the contract these words are used: 'Terms.- Cash against documents'; but these words are consistent with the ordinary condition that, previously or simultaneously, the goods are specifically appropriated to the contract by mutual assent. If the buyers had fulfilled their promise, and accepted the documents, and assented to the appropriation of the K Z chaff, the goods could at once have been taken up by the defendants from the shipping company; but the buyers did not fulfil this promise. They refused to accept the documents, refused to assent to the appropriation, refused to accept the goods; and an action would lie, not for the price, but for damages from non-acceptance. In fact, the words 'cash against documents' were used on the assumption that the documents would, as usual, be accepted, and the goods thereby appropriated to the buyer; but as the documents were not accepted, the seller cannot sue as if there had been an appropriation."
7 I should mention that, in Martin v Hogan, the High Court was evenly divided as to the result, Barton, Gavan Duffy and Powers JJ holding that the buyers failed on a point of pleading. As they were the appellants, they failed, but their failure on such a ground does not detract from the statements of the law of the sale of goods by Isaacs, Rich and Higgins JJ to which I have referred.
8 The position, with respect to an action for the price of goods sold, is stated in similar terms by Lord Keith of Avonholm in White and Carter (Councils) Ltd v McGregor [1961] UKHL 5; [1962] AC 413 at 437:
"I would refer first to contracts for the sale of goods which were touched on in the course of the debate, for the reason that one of the remedies provided to the seller by the Sale of Goods Act, 1893, is an action for the price. This, however, applies only in two cases. One is where the property in the goods has passed to the buyer. But property cannot pass without the intention of the buyer as well as that of the seller and, except in some such cases as fraud or lack of consensus in idem or breach of contract by the seller, no question of repudiation can arise. The contract is completed and finished apart from delivery and nothing remains but payment of the price. The only other case is where parties have contracted for payment on a day certain, irrespective of delivery or the passing of property. This is a clear case of a contractual debt unconditioned by any question of performance by the other party."
9 In Stein Forbes & Co v County Tailoring Company (1916) 115 LT 215, the contract note included a term:
"Payment: Net cash against documents on arrival of the steamer."
Payment being refused and s 49(2) of The Sale of Goods Act 1893 (UK), equivalent to s 48(2), being relied on, Atkin J (as Lord Atkin then was) said (at 216):
"But this is not a case where the price is payable on a day certain irrespective of delivery. On the contrary, it is payable expressly against delivery."
In another case where the agreement provided for "cash against documents", the same view was taken by Roche J (as Lord Roche then was): Muller Mclean & Co v Leslie & Anderson [1921] WN (Eng) 235, more fully reported in (1921) 8 Ll LR 328. Roche J added a strictly unnecessary explanation that, when Atkin J, in Stein Forbes & Co v County Tailoring Company, treated "cash against documents" as making payment of the price "expressly against delivery", this was because his Lordship took the documents to represent the goods, as indeed a bill of lading does.
10 In Colley v Overseas Exporters [1921] 3 KB 302 at 306, McCardie J said:
"An action for the price of goods is, of course, essentially an action for a liquidated sum. It involves special and technical elements. By special bargain the price of goods may be payable before delivery or before the property has passed from vendor to buyer: see Pordage v Cole [(1669) 1 Wms Saund 320]; Leake on Contracts, 6th ed, pp 467-8; Workman, Clark & Co v Lloyd Brazileno [[1908] 1 KB 968]; and s 49 of the Sale of Goods Act, 1893. In ordinary cases and unless otherwise agreed delivery of the goods and payment of the price are concurrent conditions: see s 28 of the Sale of Goods Act 1893."
11 This decision was followed by Fair J in the New Zealand case Sandford v Dairy Supplies, Limited [1941] NZLR 141. Colley v Overseas Exporters was also referred to, and the logic of the ordinary operation of the Sale of Goods Act was applied, in Shell-Mex, Limited v Elton Cop Dyeing Company Limited (1928) 34 Com Cas 39, a decision of Wright J (as Lord Wright then was). The contract, which provided for sales of oil to fuel a factory, contained, by its cl 15, a term: "Sellers have a right at any time to invoice to buyers the due quantities of oil not taken up, and to demand payment of the invoice amounts ...." Wright J said (at 43 - 44):
"As a rule, the price of goods sold is only payable in respect of delivery, or in a case where the property has passed, so that the seller or other bailee of the goods holds for the buyer; or where, irrespective of delivery, there is a specific term of the contract that the price is payable at a time certain (which means at a time specified in the contract not depending on a future or contingent event, The Merchant Shipping Company v Armitage [[1873] LR 9 QB 99]), irrespective of the passing of the property or delivery. In the present case it is clear no property passed, because such is the rule where there is no specific appropriation of the bulk; this established rule has recently been again enunciated in Re Wait [[1927] 1 Ch 606]. No time certain is specified for payment in clause 15, and no delivery has been made or is contemplated, because the defendants have repudiated the contract, and the contract period has long expired."
His Lordship interpreted cl 15 (at 44 - 45) as follows:
"I think clause 15 remains a term in a contract for the sale of goods, and the price invoiced under it still remains the price as of goods sold and delivered. ... I think, ... under clause 15, if the buyers say they will neither pay nor take the goods and thus repudiate the contract, the sellers can still only claim damages for non-acceptance of the goods, or for repudiation of the contract. Clause 15 does not in terms say that the buyers have to pay the invoice price as a debt at any specified time, or on delivery of the invoice, or at any specified time after delivery. What is invoiced under clause 15 is still the price payable under the contract, which includes the sellers' services in actually delivering the goods to the buyers' works. The sellers have never earned the price as such, and can only claim damages because they have been prevented from fulfilling their contract."
Similarly, in the early Queensland decision, Howes Bros v Queensland Milling Co (1897) 8 QLJ 83, Griffith CJ (with whom Cooper J agreed) construed a contract providing for "free storage for one month" by the seller of bran and pollard and "terms, net cash in thirty days from date" as governed by the ordinary rules as to sales of goods. He rejected a construction (contended for at 86) that would require payment of "the whole price ... on the thirtieth day, whether any bran or pollard had then been delivered or not". He accepted that "although payment was to be made within thirty days, it was only to be made in exchange for the bran and pollard, and that the contract was an ordinary contract for the sale of goods". Griffith CJ held (at 86):
"The contract now in question is a contract for the sale of goods. It is, therefore, except so far as that construction is modified by the express terms, to be construed as meaning that the delivery of the goods and the payment of the price are to be concurrent. ... On the other hand, cash was to be paid on delivery, but within thirty days from the date of the contract. I think that the meaning and the intention of the parties, gathered from the words they have used, was that the contract was for a specified quantity of bran and pollard, for which the purchasers were to get credit for a period not longer than thirty days from the date of the contract, at whatever period during that time the delivery might be made. The purchasers could not, by refusing to take delivery of the goods purchased within that time, escape the obligation to pay on that date, but I do not think that the vendors were entitled on the thirtieth day to demand payment of the money unless they were in a position to deliver the goods. There is nothing to show that in that case the rule declared by the statute was to be excluded [ie, that delivery of the goods and payment of the price are to be concurrent]."
12 The cases show that, apart from what the authorities I have been discussing treat as a statutory exception (under s 48(2)) to the normal position, there may also be contracts specially framed so as to create their own exceptional right in the seller to receive payment of the price, not indeed "on a day certain, irrespective of delivery", but at some time that is clearly intended to be before delivery, and before the passing of the property. As Lord Herschell LC made clear in McEntire v Crossley Brothers, Limited [1895] AC 457 at 463, the time when the property passes "depends upon the intention of the parties", as expressed in the contract. In Minister for Supply and Development v Servicemen's Co-operative Joinery Manufacturers Limited [1951] HCA 15; (1951) 82 CLR 621 at 636, Latham CJ, after referring to Pordage v Cole (1669) 1 WmsSaund 319; 85 ER 449 and Dunlop v Grote [1845] EngR 1197; (1845) 2 Car & K 153; 175 ER 64, said:
"In the present case there was an express contract that the price should be payable before the delivery of the goods and the Commonwealth [the seller] was therefore entitled to demand, and, if it chose to do so, to sue for, the price before any delivery of goods had been made under the contract."
"In my opinion the term 'net cash before delivery' imposed a condition that the goods were to be paid for before the property should pass by delivery."
See also Style Finnish (Qld) Pty Limited v Abloy Security Pty Limited [1994] 2 Qd R 203; Consolidated Rutile Ltd v China Weal Pty Ltd [1998] QSC 170.
13 In the light of these principles, it is necessary to determine whether the contract in the present case provides that "the price is payable on a day certain, irrespective of delivery" within s 48(2). That is the sole question, for if the construction that the payment is to be made irrespective of delivery cannot be sustained, there is no room for a construction that would require the payment to be made before delivery, so as to render applicable the decision in Minister for Supply and Development.
14 The contract provides that "[t]he purchase price is payable on or before the 1st June 1997". But it goes on immediately to provide that "[u]ntil payment of the purchase price has been completed the vehicle will not be raced in any local or interstate event". That seems to assume the purchaser, who was proposing to convert the car to what was called in the evidence "a Group A racing car", would have possession before paying the price. The final paragraph of the agreement also makes this plain, for it requires the purchaser to "hold [the vehicle] in safe keeping for [the seller] pending the completion of the payment of the purchase price", and also provides that the purchaser "will at [his] expense prepare the vehicle to qualify as a Group A Porsche Cup racecar". Bearing these matters in mind, I would conclude that when the contract provides for payment on or before 1 June 1997, it does so on the footing that the car will have already been delivered to the purchaser. It is true that he undertook the burden of transporting it to his premises. But the very fact that those premises, being suitable for the storage of a vehicle (they were the premises of a Porsche motor dealer), were specifically nominated in the contract, shows that actual delivery before completion under the contract was contemplated; otherwise, the seller would have had no concern with where the purchaser might choose to take his own property.
15 If the contract contemplated, as I think it did, that delivery would take place prior to the payment on or before 1 June 1997 (a date that was not made of the essence), then the payment was not stipulated for "irrespective of delivery". To construe the time provision as operating irrespective of delivery would be to construe it as creating an exception it does not express from the normal rule that "delivery of the goods and payment of the price are concurrent conditions" (s 28). That something would be required in the contract sufficient to show an exception was held by Isaacs and Rich JJ, and also by Higgins J, in Martin v Hogan. While in that case (as in Stein Forbes & Co v County Tailoring Company and Muller Mclean & Co v Leslie & Anderson), the formula "cash against documents" failed to satisfy the words "payable on a day certain" as the courts have construed them, Higgins J showed that it also failed to satisfy the words "irrespective of delivery", since a proper construction of the contract could not ignore the exceptional nature of a term for payment irrespective of delivery, and should understand the provision so expressed as assuming the ordinary condition that delivery would be effected concurrently with the payment. There is nothing in the agreement to attach to the obligation to pay the character, in the words of Lord Keith of Avonholm in White and Carter (Councils) Ltd v McGregor, of a "debt unconditioned by any question of performance by the other party". The reasoning of Higgins J in Martin v Hogan is echoed by that of Wright J in Shell-Mex, Limited v Elton Cop Dyeing Company, Limited, where it is pointed out that the clause providing for payment remained a term in a contract for the sale of goods, and the payment remained "the price as of goods sold and delivered". What his Lordship was saying, as I understand him, was that the right to demand payment, far from being irrespective of delivery, was associated with the obligation to deliver. Similarly, Griffith CJ and Cooper J, in Howes Bros v Queensland Milling Co interpreted the seemingly unqualified words "net cash in thirty days from date", bearing in mind that the contract related to the sale of goods, and under such a contract delivery and payment would ordinarily be concurrent, so that the term should be understood as having the effect that "cash was to be paid on delivery, but within thirty days from the date of the contract".
16 It follows that the seller, being unable on this contract, and in the circumstances, to maintain an action for the price, was limited to a claim for damages. Accordingly, the appeal must be allowed, and the orders made below, except as to costs, must be set aside.
17 The question then arises, what consequential orders should be made? In my opinion, the appropriate order is that which Higgins J would have made in Martin v Hogan (at 269): that the respondent plaintiff have leave to amend on proper terms, and that there be a new trial on the question of damages. If the respondent wishes to exercise that leave and to proceed with a new trial, since it was its choice to claim the price rather than damages that led to the need for a new trial, it should bear its own costs and should pay the appellant's costs of the new trial in any event. The respondent must also pay the costs of the appeal.
Ledger
Cleveland Nominees Pty Ltd [2001] WASCA 269
(1951) 82 CLR 621
(1917) 24 CLR 234
Appeal allowed. The orders below, except as to costs, were set aside. The respondent plaintiff was to have leave to amend on proper terms and a new trial on the question of damages. If it wished to proceed with the new trial, it was to bear its own costs and pay the appellant's costs of the new trial in any event. The respondent was also to pay the costs of the appeal.