City Motors (1933) Pty Ltd v. Southern Aerial Super Service Pty Ltd
106 CLR 477(Judgment by: Kitto J)
City Motors (1933) Pty Ltd V
v Southern Aerial Super Service Pty Ltd
Judges:
Dixon CJ
Kitto JWindeyer J
Subject References:
Sale of goods
Hire Purchase
Possession
Trespass to goods
Right of bailee to maintain action of detinue against bailor to regain possession
Judgment date: 21 August 1961
Sydney
Judgment by:
Kitto J
I agree. As at present advised, however, I would think it right to hold, as the learned trial judge held, that upon tender of the PD1,250 to the appellant the general property in the Thames Trader diesel truck passed to the respondent.
Mr. Kemmis, the appellant's sales manager, gave evidence from which, in my opinion, the proper conclusion is that the agreement reached between that gentleman and Mr. Gangell, the respondent's managing director, was an agreement to the effect that the respondent should transfer and deliver its Commer diesel truck to the appellant and pay or cause to be paid to the appellant PD1,250; and that upon performance by the appellant of these obligations the Thames Trader should become the property of the respondent, provided that if the PD1,250 should have been paid by a finance company under a hire-purchase arrangement with the respondent it should become the property of the finance company. When the respondent, having duly transferred and delivered the Commer diesel to the appellant, tendered a cheque for the PD1,250 and the cheque was rejected without any objection being taken to the form of the tender, the respondent had done all that was to be done by it to make the property pass. I should be disposed to think that that was in law a fulfilment of the condition: Benjamin on Sale, 8th ed. (1950) p. 777; for the law considers a party who has entered into a contract to deliver goods or pay money to another as having substantially performed it if he has tendered the goods or the money: Startup v Macdonald [F7] . Not, of course, that the debt is thereby discharged; but, since the wrongful refusal of the other party to accept the tender has rendered the complete delivery or payment impossible, the doing of all that the party making the tender had to do to make the delivery or payment is considered "equal to performance" so far as conditions of the operation of the contract are concerned: Hotham v East India Co [F8] cf. Mackay v Dick [F9] .
It is true that before the tender the appellant repudiated the contract; but the repudiation was wrongful, and, since the respondent elected not to treat the contract as at an end, it could have had no effect upon the subsistence or the operation of the contract. The appellant, of course, had no intention at any time thereafter that the property in the Thames Trader should pass to the respondent, and if the case had been one of gift by delivery the property would not have passed, for want of a present intention that it should do so. But in modern law the transfer of ownership of a chattel, in the case of a contract of sale, is, as I understand the matter, the work of the contract: Holdsworth, A History of English Law, 5th ed. (1942), vol. iii, p. 355; and, if this be so, no intention can be material save the common intention of the parties at the time of the contract. Thus s. 22 (1) of The Sales of Goods Act, 1896 (Tas.) provides that where there is a contract for the sale of specific or ascertained goods, the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred. The principle which is thus given statutory force appears to me to govern this case. The contract was self-executing. Until the performance of the conditions as to the trading-in of the Commer diesel and as to the payment of the PD1,250, the contract had only contractual effect; but upon fulfilment of the conditions it took effect as a conveyance: Blackburn on Contract of Sale, 3rd ed. (1910) p. 267; Chalmers, Sale of Goods, 13th ed. (1957) p. 68. No unilateral change of intention, and no other event which left the contract on foot and left the appellant the owner of the Thames Trader, could prevent the conversion of the contract of sale into a sale upon performance of the agreed conditions of vesting. This view is in accordance with a comment of Lord Blackburn, op. cit. p. 210, on the case of Mires v Solebay [F10] , in which, after pointing out that the contract in that case did not operate as a sale, because the goods were transferred to a third person before the agreed conditions for the passing of the property were performed, the learned author wrote: "But if the conditions are fulfilled and the agreement made absolute whilst the seller remains owner of the goods, it seems that the agreement has the same effect as if it were then for the first time made without any condition, and consequently that the property passes at once".
If the law were other than I take it to be, a contract under which goods are delivered on sale or return might be defeated by a change of intention on the part of the owner while the other party's right to elect is still on foot-a proposition which Lord Esher M.R. denied in Kirkham v Attenborough [F11] ; and in respect of a hire-purchase agreement it would be incorrect to speak as Lord Herschell L.C. spoke in Helby v Matthews [F12] , or to describe the hirer's right as "an absolute right to purchase" as Swinfen Eady M.R. called it in Whiteley v Hilt [F13] , or to say of the owner's general property in the goods, as Warrington L.J. said of it in the same case [F14] , that it is qualified and limited by the contractual interest of the hirer, or to say as Channell J. said in Belsize Motor Supply Co v Cox [F15] of an assignee from the hirer: "He might have completed his title as against the plaintiffs by tendering the amount of the purchase-money remaining unpaid" [F16] .
Reasoning applicable to a contract which is not also a conditional conveyance is inapplicable here. I should be disposed to regard the respondent as entitled to judgment by reason of ownership of the Thames Trader. But if this be not so, the respondent must nevertheless succeed by reason of a right to possession in virtue of the bailment, as the Chief Justice has shown.
I would dismiss the appeal.