Mr Raphael submits that the conversion contract did require the respondent to perform work and incur expense, more particularly in the obtaining of parts from New Zealand (see paragraph 7 Lower Court judgment).
18 Although there may be some overlapping between the two distinct bases on which Mr Roberts relies as providing a common law right to the appellant to recover, in my view, the facts in the Baltic Shipping case are distinguishable from the case which was presented in the Local Court here. At page 352 Mason CJ after citing the general rule which enables the payee of money under a contract to recover as stated by Stable J in Dies case, went on to cite a passage from the judgment of Dixon J in McDonald v Dennys Lascelles (1933) 48 CLR 457 at 477, to the effect that a part payment of the purchase money in advance on a contract for the sale and purchase of land is considered not to be absolute but conditional on the subsequent completion of the contract. The Baltic Shipping Co case involved a contract for the provision of a 14 day cruise in which 10 days benefit had been provided to the plaintiff before the ship sank. It was held that there had been no total failure of consideration, nor as I understand the judgment, had there been a payment of the cruise fare conditional upon completion of performance. In my view the obligation undertaken by the respondent to convert this motor vehicle was an entire and indivisible one and work done in dismantling the vehicle, and in procuring parts from New Zealand could not be regarded as "incomplete performance" resulting in the innocent party "receiving and retaining any substantial part of the benefit expected under the contract". Hence, there was no total failure of consideration and the contract was one in which the consideration for the payment was entire and indivisible i.e. the conversion of the vehicle to right hand drive.
19 Mr Raphael further relies however, on the document Exhibit D (Exhibit 2 in the Local Court). This document is signed by one Mr Allan Reed as well as by the appellant. It clearly relates to the transaction in question, but although Mr Reed may be assumed to be a director or other officer of the respondent, nowhere in Exhibit D does he purport to sign the document on behalf of that corporate entity. The document commences, "This document is to certify". It then describes the vehicle in question having been purchased for the appellant at his request by Mr Reed. It then states that the appellant "owns the said vehicle outright and owes no money against it whatsoever." It states that Mr Reed has been "paid fully for this vehicle" and "does not own any part of the vehicle nor does he have any lien or ownership whatsoever over the vehicle." In my view this document is not contractual in its effect. Although His Worship found that the document, "the agreement to terminate," was "made for valuable consideration" I am unable read it in a way which would support the contention that, by signing Exhibit D, the appellant forewent any right to recover the whole or part of the payment under the conversion agreement.
20 Mr Raphael submits that Exhibit D should be read as a mutual release of the obligation of the parties to the conversion agreement and operates by way of accord and satisfaction, in that the appellant has relinquished any cause of action he may have had for the recovery of the $15,000 or any part thereof. This view of Exhibit D does not appear to have been asserted in the Lower Court and indeed, in my view, is inconsistent with the notice of cross claim which asserts a repudiation or breach by the appellant of the contract for conversion and claims damages therefor. His Worship dealt with the document in paragraph 11 holding that it was not possible to conclude that there was any implied term in Exhibit D which would entitle the appellant to recover. His Worship did not deal with the question whether there may have been an implied term in favour of the respondent, the effect of which was to operate as a relinquishment by the appellant of any cause of action for recovery of any part of the $15,000. The evidence before His Worship is that Exhibit D was compiled by, or at the instigation of the respondent and I accept the submission of Mr Roberts that ambiguity must be resolved against the interests of its maker. There is certainly no express relinquishment of any rights which the appellant may have had to the recovery of the $15,000 or part thereof. I accept the submission of Mr Roberts that this document is substantially an acknowledgment of the appellant's entitlement to the motor vehicle that no moneys remain outstanding for the purchase of it by the appellant to the respondent and that the vehicle had been recovered by the appellant and accordingly that the respondent has no on-going lien in respect of it.
21 The document Exhibit D, in my view, is of evidentiary significance only particularly so far as the case for the respondent is concerned in that it states:
"The vehicle has been taken delivery of in part converted (RHD) form, and which has also been fully paid to Californian Cars and Sports Trucks Pty Limited, Mr Harry Turner on this date."