Bilato Nominees Pty. Limited v. Northern Gold N.L., John Benger and Talmina Trading Pty. Limited

Supreme Court of the Northern Territory of Australia

Nader J.

13, 14, 17, 18, 19 March 1986
Judgment given 19 March 1986
Reasons Published 7 April 1986

Contract - sale of goods - construction of disputed arrangements between the parties - dispute as to number of contracts; form of contract or contracts, verbal or written; identity of proper contracting parties; substantive terms of contract.

Cases referred to Statutes referred to

Counsel for Plaintiff Solicitor for Plaintiff Counsel for Defendants Solicitor for Defendants

Charlick v. Foley Brothers (1916) 21 CLR 249

Sale of Goods Act {NT) s.9(1)

John Waters

Waters James & O'Neill

:	Peter Tiffin Ward Keller

nad860131

'	/-,
'	IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA

No. 665 of 1984

BETWEEN:

BILATO NOMINEES PTY. LIMITED
Plaintiff
AND:

NORTHERN GOLD N.L.
First Defendant
AND:

JOHN BENGER AND:

Second Defendant

TALMINA TRADING PTY. LINITED
Fourth Defendant

CORAM:	NADER J

REASO}lS FOR JUDGMENT
(delivered 7 April 1986)

The plaintiff, Bilato Nominees Pty. Ltd., sued Northern Gold N.L., John Benger, Graham Chrisp and Talmina Trading Pty. Limited (the first, second, third and fourth defendants respectively) for the balance of the purchase

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price of certain mining equipment ('the equipment') situated, at the time of the sale, at a tin and tantalite mine owned by the plaintiff in the Finnis River area south of Darwin. At some time before the hearing, the plaintiff discontinued its action against the third defendant. The plaintiff claimed the sum of $191,000.00. Defences were delivered on behalf of the first, second and fourth defendants. The defences of the first and fourth defendants

were	extensively	amended

after	the	commencement	of the

hearing.	The	fourth

defendant,	a

foreign	company

incorporated liquidation.

in	New

South	Wales,

is	in	voluntary

At the conclusion of the hearing on 19 March 1986, I gave a verdict for the plaintiff against the first defendant in the sum of $182,000.00; a verdict for the second defendant against the plaintiff, and a verdict for the fourth defendant against the plaintiff. I reserved the question of costs, to be argued on a date to be fixed. The time for appeal was extended so as not to run till the publication of these reasons.

A sale of the equipment took place, at a casual meeting between Mr Bilato and representatives of the first and fourth defendants at the plaintiff's mine on or about 20 June 1984 (the June meeting), from the plaintiff to one or more of the defendants. Mr Robert Cleaver, then a director

of the fourth defendant and a consultant of the first defendant, with agency to contract on its behalf in respect of purchasing at least some of the goods, wrote out in his own hand a document (exhibit A), in the following terms:

Apron feeder - conveyor		30,000	
Trammel - conveyor		40,000	
2 jigs 15 TPH. cleanup jig	10,000 ea.
5000	
25,000	
	Stacker		

Primary Crusher

Secondary

186 K.V.A.	Cat

Hydro
Screen	Finley	40/50	type Demountable

Conveyor Motor Starter

Motor Starter Conveyor

Power Plant Dryer

30,000

30,000

27,000

35,000
9,000

$226,000

$35,000	Deposit
Balance within
60 days.

Exhibit A was handed to Hr Dino Bilato, who represented the plaintiff, at the June meeting. Shortly afterwards (there were differing versions of how soon), a document described as an 'invoice' was delivered on behalf of the plaintiff to

Mr	Neville	Wigg	at	his	home	at	50 Barker Road, Howard Springs.	The invoice (exhibit B) was in the following form:

POST OFFICE BERRIMAH N.T. 5788

TELEPHONE: 84 3094

N.T. SAND AND METAL INDUSTRIES PTY. LTD. 1106 AGOSTINI ROAD, BERRIMAH

M	NORTH GOLD N.L. HOWARD SPRINGS.
50 BARKER ROAD.

No. 0039

 	coleman print, darwin	

1	APRON FEEDER and CONVEYOR	$30,000.00	
1	TROMMEL & CONVEYOR	$40,000.00	

2	
JIGS@ $10,000 ea		
1	CLEAN-UP JIG@ $5,000		$25,000.00	
1	PRIMARY CRUSHER Stacker	conveyor	$30,000.00	

Motor
1 SECONDARY CRUSHER Motor conveyor
186 K.V.A CATERPILLAR POWER PLANT &
DRYER
1 FINLAY HYDRO-SCREENER 40/50 type

$30,000.00

$27,000.00

and stacker	$35,000.00	
1 DEMOUNTABLE	$ 9,000.00	
	$226,000.00	
$35,000 deposit		
He Ne.	BALANCE WITHIN 60 DAYS
Reeeivea ey	(Mr Bilato's	

signature)	

At the time of, or some time after, the delivery of exhibit	B,	a	cheque	for	$35,000.00 was delivered to the

plaintiff. The cheque became exhibit G. It was drawn on a bank account of the first defendant in favour of 'N.T. Sand and Metal Industries P/L' and was dated 7 July 1984. No further payment in respect of the sale was made by or on behalf of any defendant.

Mr Bilato contended that the offer to purchase the equipment of the plaintiff made at the June meeting was made on behalf of the first defendant. He contended that no such offer was made on behalf of the fourth defendant or any other person. He said that he accepted the  first defendant's offer. On the other hand, the first defendant contended that, through Mr Neville Wigg or Mr Robert Cleaver, it made an offer to purchase only on& part of the equipment, namely, a Finlay hydro-screener and stacker-conveyor, for $35,000.00, which offer was accepted by Mr Bilato on behalf of the plaintiff. It said that the payment of $35,000.00 made by it was for the hydro-screener and stacker. The first defendant said that the other items of equipment appearing on exhibits A and B were sold to the fourth defendant and that those goods were incorrectly included on exhibit B. The fourth defendant supported the contentions of the first defendant. The fourth defendant said that it acted through its agents, Mr Robert Cleaver and Mr Neville Wigg. The latter was, at all material times, a director of the fourth defendant. The fourth defendant had not paid for the goods it said it purchased and relied on

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several defences, some of which were pleaded by amendment for the first time after the hearing commenced. At the hearing, the fourth defendant abandoned a defence earlier pleaded. I will comment again on the amendments to the defences.

In order to remove confusion that might arise by reason of the title 'N.T. Sand and Metal Industries Pty. Ltd.' appearing on exhibit B, and the name 'N.T. Sand and Metal Industries P/L' appearing on exhibit G, it should be mentioned that 'N.T. Sand and Metal Industries' was, at all material times, a registered business name of the plaintiff. I was satisfied that the words 'Pty. Ltd.' on exhibit B were included in ignorance. Some time after  the  ransactions that occurred in June 1984, Mrs Bilato was advised by the plaintiff's accountant that the words 'Pty. Ltd.' should be deleted from the plaintiff's stationery. Counsel for the defendants submitted that the misnomer imputed some unreliability to the plaintiff, however, I did not accept the submission in so far as it is said to have affected the plaintiff's credibility in these proceedings.

The fourth defendant contended that, although there was an agreement for the sale of items of equipment other than the hydro-screener and stacker from the plaintiff to itself, the agreement was unenforceable by virtue of section 9(1) of the Sale of Goods Act (N.T.). If it had been

0
7

necessary to consider this defence, I would have rejected it for reasons that need not be stated. I would, however, say that I was reminded of the remarks of Isaacs J. in Charlick v. Foley Brothers Ltd. (1916) 21 CLR 249 at 251-2.

The fourth defendant pleaded (also for the first time, at the hearing) that the equipment did not comply with a condition that it was in good order and condition and, further, that the equipment did not comply with a condition that it be situated at a particular place, it having been removed from that place by the plaintiff.

I concluded, on the balance of probabilities, that the material facts contended for by the plaintiff were to be preferred to those relied on by the first and fourth defendants.

There was no evidence that the second defendant entered into any contract of sale with the plaintiff. He was, it is true, a director of the fourth defendant, but there was no basis upon which he can be said to have become liable to the plaintiff, either as a principal or as agent for an undisclosed principal. I will refer to the second defendant again in his capacity as a witness for the first and fourth defendants.

For the easier comprehension of the several versions of events given by the witnesses, I propose to divide the evidence into convenient sections:

Remarks about the witnesses;
The events at the Bilato mine in June 1984;
c. The delivery of exhibit B;
The delivery of exhibit G;	and
The first defendant's response to exhibit B.

Remarks About the Witnesses

Dino Bilato

He lives at 1106 Agostini Road, Berrimah. He had  come to the Northern Territory in 1953 and had been engaged in sand dredging and mining for about 15 years. He was married with six children. In about 1979 or 1980, he commenced operating a tin and tantalite mine on the Wangi Road in the Finnis River area.  After acquiring the lease, known as 186B, he purchased the plant and equipment necessary to operate the mine.  It is not quite clear from the evidence, but it is likely that the mine was owned and operated by the plaintiff company. There are indications in the evidence that it was run

very much as a family enterprise. At some time between 1981 and 1983, the mine got into full production. Early in 1984, in the Wet Season, Mr Bilato slipped and fell from a piece of machinery, injuring himself. In conjunction with his wife and children, a decision was made to close the mine and sell the plant. Mr  Bilato put the word around the industry that the plant was for sale. Amongst others, he told Mr Neville Wigg, Mr John Benger and Mr David Loveridge.  These men are referred to below. The reasons for closing the mine were the combined effect of the injury suffered by Mr Bilato and its consequence that he was unable to do the physical work he had usually done, and the economic facts of the operation that meant he could not afford to employ a person to replace himself.

It was in this context that the events at the mine in June 1984 took place.

Valerie Barton Bilato

The wife of Dino Bilato and a director of the plaintiff. Her role included most of the plaintiff's book-keeping.

Robert James Bilato

A son of Mr and Mrs Bilato and lives with them at Berrimah. He was born on 9 June 1964 and is a plant mechanic by occupation.

John Anthony Bilato

A son of Mr and Mrs Bilato, living at Berrimah. He was born on 3 October 1965 and is an electrical fitter mechanic by occupation.

Robert Bruce Cleaver

He described himself as a miner. He is a qualified chartered accountant. In June 1984, he was a consultant of the first defendant, an agent of the first defendant for the purposes of acquiring some plant in June 1984, and a shareholder of the first defendant.  At the time of giving evidence, his wife and family lived in Colorado in the United States of America, and it was his practice to live for about half the year in the United States and the other half at 157 Elizabeth Street, Sydney. He became a director of the first defendant in July 1984. He had earlier been a director of the first

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defendant, but had resigned on 21 July 1983. He was, at all material times, a director of the fourth defendant.

Neville William Wigg

He described himself as a 'company director'. He was at all material times a director of the first and fourth defendants. He had resigned from both of those

directorships before the hearing by reason health. He had known Mr Bilato for many years. lived at 50 Baker road, Howard Springs.

of	ill Mr Wigg

John Benger

Mr Benger described himself as a manager. He lived at Howard Springs. He had been a director of the fourth defendant since about 1981 and became a director of the first defendant on 4 May 1985. He was not a director of the first defendant at the time of the June meeting.

The Events at the Bilato Mine in June 1984

According to Mr Bilato

On or about 20 June 1984, Mr Bilato was living at the mine, mainly as a caretaker. At about 10 a.m. a number of men arrived, unexpectedly, at the mine without any prior
arrangement.	They came in two cars.	Mr Bilato knew two of
the men well: Mr Wigg and Mr Benger. They were miners involved in the neighbouring operations of Talmina Trading Pty. Ltd (the fourth defendant). Mr Bilato greeted Mr Wigg and Mr Benger in 'a normal way'. He had not met the others before. Mr Wigg introduced them: Mr Cleaver, Mr Tom Cahill and Mr Geoff Lambert. They were introduced as directors of the first defendant. After introductions, Mr
Wigg said, 'We are interested to buy the Finlay'. Mr Bilato said that it had already been sold, but the purchaser had not met the price. Mr Bilato thinks he then told the visitors that the rest of the equipment was for sale at a bargain price. Mr Cleaver then put himself forward, the others standing back. They walked around the mine and Mr Bilato showed Mr Cleaver the equipment. They discussed prices and Mr Cleaver asked questions and made notes in a notebook he had taken from his pocket. The items of equipment specified in exhibit A were included in the tour of inspection. There were other items which were not included in exhibit A, which were not sold. When the

inspection was over, Mr Bilato and the others walked back to the demountable that served as living quarters and office for Mr Bilato. Mr Wigg accompanied Mr Bilato on the walk back while the others were some distance behind discussing
matters	amongst	themselves.	The	party	went	into	the
demountable where Mr Bilato served orange juice. Mr Cleaver asked Mr Bilato whether he was prepared to sell the Finlay hydro-screener if the rest of the plant {referred to in exhibit A) was also bought.  Mr Cleaver mentioned a price of
$226,000.00. Mr Bilato agreed to the proposal, saying that it sounded wonderful and made him very happy. Mr Cleaver asked him whether he had an invoice book. None was available, but Mr Bilato handed Mr Cleaver an exercise book that had been discarded by one of his daughters and which he kept at the demountable for making notes. Mr Cleaver then wrote on the first page of the exercise book and returned it to Mr Bilato. While Mr Cleaver was writing, the other men were talking between themselves. In the course of the conversation between Mr Bilato and Mr Cleaver, Mr Cleaver suggested a deposit of $35,000.00 and the balance in 60 days, to which Mr Bilato agreed. More orange juice was consumed, and the visitors left the demountable and returned to their cars. As they did so, Mr Bilato was asked (by whom is not clear) whether the Finlay hydro-screener could be taken straight-away because it was needed for work at a mine at Halls Creek. He was also asked whether the 3 jigs could also  be  taken  straight-away.   Mr Bilato consented to the

requests. He imposed no condition as to the payment of the deposit before the hydro-screener and jigs could be taken. The jigs were to be converted from electrical to hydraulic operation. Mr Bilato believes  that he was told that the jigs were required for use at Bridge Creek, near Fountainhead, about 110 miles from Darwin.  The visitors then drove to the adjacent Talmina mine. During the whole course of negotiations on that morning, no mention whatever was made of Talmina Trading Pty. Ltd. (the fourth defendant). Mr Bilato was well aware of the involvement of Mr Wigg and Mr Benger with the fourth defendant, the operator of the tenements that surrounded his own and whose plant was some hundreds of metres from his own plant.

Mr		Bilato	was	cross-examined	at		length.			In particular		it was put to him that he had sworn an affidavit on 4 December 1984 in which he said that	Mr	Cleaver	wrote· out		a	cheque for $35,000.00 which was signed by Mr Cleaver and Mr Wigg and given to him before the men left	the	mine. Mr	Bilato conceded that he was mistaken about that and said that he had learned from his family about the		mistake.		He also		said		that	at		the		time he made the affidavit he was affected by pain-killing drugs he was then taking.		There is no	real	contention		that			the cheque for $35,000.00 was in fact paid some days later.				The	cross-examination		on		the matter	was really directed to  showing  that Mr Bilato's memory of events was unreliable. There were similar

inconsistencies	between	the	affidavit	and	Mr	Bilato's

testimony upon which he	was	cross-examined	for	the reason.

same

According to Mr Cleaver

Mr	Cleaver	was a member of the party that visited

the Bilato mine. Charles	McAlpine

Mr	Wigg	was	driving	one	car	with	Mr (who	was		not	called as a witness) as a

passenger.	Mr Benger drove the second car with	Mr	Cleaver
as passenger. Neither  Mr Cahill nor Mr Lambert were with the visiting party. The purpose of visiting the area was to show Mr McAlpine, a visitor from Canada, the Talmina operations. Mr Wigg's car, leading, diverted into the area of the Bilato mine. The visit was unplanned and no appointment had been  made  to  go  there.   Mr  Bilato was

outside,	working.

Mr	Wigg	introduced	Mr	Cleaver	as a

partner at Talmina from North America, and Mr McAlpine as being from Canada. Mr Wigg said to Mr Bilato, 'Can we buy this - we need this hydro-screen for the operation at Halls Creek for Northern Gold.' Mr Bilato said, 'No, its sold to this fellow, Trezise.' The party then walked over to and inspected the hydro-screen. Mr Cleaver said he thought Mr Wigg said to Mr Bilato, 'Well, we'd really like to get hold of this, do you have a firm deal with Trezise?' Mr Bilato said, 'Yes, the last I heard from him he still wanted to buy

it.' Mr Cleaver said, 'How much has he contracted to buy it from you for?' Mr Bilato said, '$35,000.00.' Mr Wigg said, 'Does that include the conveyor and stacker?' Mr Bilato said, 'Yes, that's the whole thing complete.' Mr Cleaver said to everyone present, 'Let's go and have a look at the rest of this equipment around here, because I understand you've got it for sale, because we're looking to put an operation in 300 yards away in the tantalite mine for Talmina.' Mr Cleaver asked Mr Bilato whether he would mind if they looked at the plant. Mr Bilato said he would be delighted to take them around. They walked around in a group, talking about the various pieces of equipment. Mr Cleaver said he wrote everything down because he had pen and paper. He was writing down the prices Mr Bilato· was asking. There was no haggling about prices. During the inspection, Mr Cleaver said to Mr Wigg, in Mr Bilato's presence, that the price of the trommel seemed a bit high. Mr Wigg said, also in Mr Bilato's hearing, 'It's a bit higher than we could probably get it for in town or somewhere else, but it's here. We don't have to cart it out here.'

Mr Cleaver said he asked Mr Bilato whether the plant was working and in good condition and that Mr Bilato said, 'Yes, everything has been fixed up and its in good order and condition.' The group then went into the demountable. Mr Cleaver then totalled up the items on his piece of paper. He thinks Mr Wigg said, "Well, you know, we

really need this hydro-screen urgently to go down	to	Halls

Creek for Northern Gold.' you are going to buy all

Mr Bilato said, 'In that case, if of	it,	then	you	can	have	the

hydro-screen. '	Mr	Cleaver said, 'Well, in that case we'll
write this out. If you give me a piece of paper I'll write all this out. Northern Gold can pay you right away for the hydro-screen but we can't. We, Talmina, need a period of time.' Mr Bilato said, 'How long do you need?' Mr Cleaver said, '60 or 90 days. We have got to arrange the finance.' Mr Bilato said, 'That's alright, 60 days is alright, as long as I get the $35,000.00 for the hydro-screen.' Mr Cleaver then wrote out exhibit A in the exercise book. The members of the group shook hands with Mr Bilato and left for the adjacent Talmina mine. Mr Cleaver said that- Mr McAlpine spoke with a Canadian accent. This was relied upon by counsel for the defence to support his submission that Mr Bilato was unreliable. It should be mentioned that a great deal of Mr Cleaver's evidence was as to what was in the minds of himself and the others of the group. It was not objected to, but I have regarded it as having no evidentiary weight. I have found it necessary to decide the case principally by reference to ascertaining the most likely version of what was said and done at the Bilato mine on that day.

Mr Cleaver agreed that the word 'deposit' appearing in exhibit A was a misnomer and that he should have	written

out two separate lists. He explained it by saying that he had written exhibit A on the spur of the moment and that it was a 'bush agreement'.

According to Mr Wigg

Mr Wigg said that the party that visited the mine occupied two cars. He was driving one car with Mr Cleaver as passenger and Mr Benger was driving the other car with Mr McAlpine as passenger. The party had visited a number of Talmina properties in the area and the visit to the Bilato mine was made on the way home. Mr Wigg's vehicle arrived first. When they arrived, they got out of the vehicles and Mr Bilato came out of the demountable. Mr Wigg asked Mr Bilato whether the hydro-screen was still for sale. Mr Bilato said that someone else had bought it and that the deal was just about closed. Mr Wigg said, 'Well, I need it in Halls Creek for Northern Gold. Can we do a deal on it?' There was some reluctance on Mr Bilato's part to agree because he was waiting for a final answer from Mr Trezise who had not given a final answer. After some further conversation, the group went to look at the hydro-screen. I gathered from his evidence that during this conversation the occupants of the other car had not yet arrived. Mr Wigg and Mr Bilato set off to look at the hydro-screen, when the other car arrived. The occupants got out and followed some

distance	behind.	Mr	Wigg	said	that	no	introductions

occurred, to his knowledge. the	others.		Mr	Bilato hydro-screen	and		Mr		Bilato

He assumed that Mr Bilato and	Mr	Wigg	inspected attempted		to		explain

knew the its

operation	to	Mr Wigg.	Mr Wigg said that he understood its
operation and that he had seen other hydro-screens working. Mr Wigg said, 'That's not necessary. What I wanted to know is whether we could buy it.' After a period  of deliberation, Mr Bilato said, 'Yes, alright. Yes, alright.' Mr Wigg said, 'Well, I will have to organize the money but we wouldn't take the hydro-screen until we paid for it.' Mr Wigg asked Mr Bilato the price at which it was to be sold to

Mr	Trezise.	Mr 'We'd give you the

Bilato said, '$35,000.00.'
same.'	Then	some	small

Mr Wigg said, talk	ensued

concerning	the	mines	generally.	No	other	person	was
involved in the foregoing conversation.		Mr		Bilato	and		Mr Wigg	then	returned	to	the	front		of his motor car.		The· others had been looking at a large pile of	over	size	rock which		was	near	the hydro-screen.	They all arrived at the car together.	Mr Bilato said, 'Do you want to look	at		the rest	of	the	gear?'		Mr Wigg said, 'What do you mean?'			Mr Cleaver said,	'What	gear?'	I	took		it	from Mr Wigg's evidence that this was the first time  that Mr Cleaver entered the conversation with Mr Bilato. Mr Bilato said, 'I am pissed off, you know, all this stuff's for sale.' Mr Cleaver then had a conversation with Mr Bilato about  what was for sale, only part of which Mr Wigg heard. He did hear

Mr Bilato say, 'Everything you can see	is Bilato	said,	'Is		there		anything		that there?'		Mr Wigg	said,	'Yes,	of	course

for		sale.'		Mr you	can use down there		is.	The

logistics
Talmina.'

of	it		make	a	lot	of	it They	all	walked	towards

well worth while at the	crusher.	Some

general	conversation took place about good crushers and bad
crushers. Mr Wigg said to Mr Benger, 'Have a look at this one.' Mr Wigg and Mr Benger inspected a crusher. Mr Bilato was walking around with Mr McAlpine and Mr Cleaver. Mr Wigg and Mr Benger noticed that part of the crusher was missing and had some conversation about it. Mr Wigg and Mr Benger then inspected another crusher which was further away from the other persons. They continued to inspect various items of plant. Then Mr Cleaver went over to Mr Wigg and Mr Benger. Mr Bilato was talking to Mr McAlpine. Mr Cleaver then returned to Mr Bilato. There was conversation between Mr Bilato and Mr Cleaver that was not heard by Mr Wigg. The group then returned to the cars. Mr Cleaver wrote in a pad. Mr Bilato invited Mr Wigg to look at a 930 Caterpillar loader, commending its virtues. Mr Wigg said that they had enough loaders. Mr Bilato invited them to look at another piece of machinery. Mr Wigg said that they were not interested. Some discussion took place about how some  of the plant could be transported. In particular, discussion took place with Mr Bilato as to how the trommel could be transported to the Talmina mine site. Subsequently, some conversation took place in front of a motor car  between Mr

Bilato and Mr Cleaver which Mr Wigg did not hear. Mr Wigg said that he did not think he went into the demountable at any stage. He said that the others might have, but he thought he stayed out in front of the car. He thought if he had gone into the demountable, he would have remembered it. After leaving the Bilato mine, Mr Wigg returned directly to his home at Howard Springs, stopping at Noonamah to allow Mr Cleaver to get out of his car into Mr Benger's car.

According to Mr Benger

Mr Benger could not recall the precise date of the June meeting but did not disagree that it took place on approximately 20 June 1984. He said he had arrived in his motor vehicle with Mr Cleaver as his passenger. Another vehicle, ahead of his, was driven by Mr Wigg who had a Mr Charles McAlpine as his passenger. Mr Wigg's  vehicle arrived first. Mr Benger was not able to say what happened by way of introductions before he and Mr Cleaver arrived. When he arrived, Mr Cleaver was introduced to Mr Bilato. Mr Benger and Mr Bilato were already known to one another. Mr Benger does not recall how Mr Cleaver was introduced to Mr Bilato or by whom.

Mr Benger said that he thought from recollection that the first conversation was between Mr Wigg and Mr

Bilato concerning the availability of the Finlay hydro-screen and stacker-conveyor. He could not recall precisely what was said but, to his recollection, Mr Bilato was asked whether the unit was available. He said that Mr Bilato explained that it had already been sold to a Mr Trezise but that the price had not yet been paid. Mr Wigg continued to press Mr Bilato to sell to 'Northern Gold'. Mr Bilato persisted in saying that he felt some obligation to the Trezises. Mr Bilato told Mr Wigg that the price agreed to with Mr Trezise was $35,000.00. Mr Wigg offered the same amount. Mr Benger described the position as a stalemate.

Mr Bilato made it known that all of the equipment on the site was for sale, as a result of which Mr Wigg and Mr Cleaver decided to inspect it. It should be mentioned that Mr Benger also made reference to the particular companies on behalf of which the inspection was being made but, where he did not incorporate those references in any alleged conversation, I have treated them as having no evidentiary value. A tour of the area proceeded in  which the four visitors and Mr Bilato took part. As  the inspection took place, Mr Cleaver did most of the talking with Mr Wigg advising him as to the values that Mr Bilato put on each of the items of equipment inspected. Mr Benger said that early in the piece it was clear to him that they were looking at the equipment on the basis that it could be used on the 'Talmina' property adjacent. Mr Cleaver was

taking notes as the inspection took place. Some haggling took place in relation to the values Mr Bilato placed on items of equipment but, as the inspection proceeded, prices were agreed. The inspection took  20 minutes or half an hour. I noted that Mr Bilato had also said that Mr Cleaver was the person who did most of the talking to him during the inspection.

Mr Benger gave evidence of some conversation he had with Mr Bilato and Mr Wigg about a crusher from which a part was missing.

Mr Benger said that Mr Bilato supplied the party with orange juice in the demountable and that detailed discussions took place between Mr Bilato and Mr Cleaver as to the terms of payment. Mr Benger said that discussion related to the fact that 'Northern Gold' could pay 'virtually on the spot' for the Finlay hydro-screen and stacker-conveyor. He also said that Mr Cleaver indicated clearly to him, Mr Benger, that 'Talmina Trading' would require some time to make arrangements to raise the money to pay Mr Bilato: approximately $190,000.00. Mr Benger specifically recalls that Mr Cleaver asked Mr Bilato for 60 or 90 days in which to raise the money and that Mr Bilato opted for 60 days. Mr Benger distinctly remembered Mr Cleaver asking for something on which he could write down some particulars relating to the items bought. He recalls

Mr Bilato getting the exercise book, exhibit A, and he recalls Mr Cleaver writing into it from the notes he had made during the inspection. Mr Benger also recalled that there was some discussion about the sale of the demountable itself when they first entered it. When Mr Cleaver had completed writing in the exercise book, the party soon moved outside and drove away.

It was only when Mr Benger was taken over his evidence in chief for the second time in relation to the conversation at the demountable that he said that, to the best of his recollection, Mr Cleaver asked Mr Bilato whether Mr Bilato would be willing to sell the hydro-screen and stacker-conveyor to 'Northern Gold' for $35-,000.00 if 'Talmina Trading' was prepared to take the other equipment on the list.

When asked by me a question relating to whether any reference to the purchasing parties was made during the conversation in the demountable, Mr Benger said, 'Your Honour, I recall, but not precisely, that the items of equipment were discussed   the  suitability  of  putting them on Talmina Trading site.'

The Preparation and Delivery of Exhibit B

According to Mr Bilato

Mr Bilato said that, after the meeting at the Bilato mine, he requested his wife to prepare an  invoice. He handed her the exercise book, exhibit A.  Some time later, Mrs Bilato presented Mr Bilato with a document, obviously forming part of a book of forms, which Mr Bilato signed. The document became exhibit Bat the trial and the carbon copy, exhibit C.

Some time after the June meeting, Mr Wigg visited Mr Bilato at the mine to tell him that they had received funds from Sydney and to invite him to deliver the invoice. Mr Bilato asked Mrs Bilato to deliver the invoice to Mr Wigg. It should be mentioned that Mr Bilato's evidence is vague as to when he asked Mrs Bilato to prepare the invoice and as to when she did so. It is also unclear from Mr Bilato's evidence whether Mr Wigg visited the mine before or after preparation of the invoice. In fairness to Mr Bilato, these matters were not put directly to him, although, whether he would have remembered is doubtful.

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26

According to Mrs Bilato

Mrs Bilato said she went to the Bilato mine to take food to Mr Bilato 'in the middle of the week'. He  showed her the exercise book, exhibit A, and requested her to make a copy, which she did. He also asked her to prepare an invoice. He said, 'I've sold the plant to Northern Gold'. She took home the copy she had made from which she prepared the invoice, exhibit B. She did not think she made the invoice on the same day. The note made by Mrs Bilato at the mine became exhibit E.

It is not possible to say with certainty that her visit to the mine referred to above occurred on the same day as the June meeting, but I note that 20 June 1984 was, in fact, a Wednesday.

Mr Bilato signed the invoice when he went  home. Mrs Bilato thinks Mr Bilato instructed her early in July to get the boys (meaning one or more of their sons) to deliver it to Mr Wigg. Mrs Bilato sent her sons Robert and John accordingly. The boys left, returning later with the cheque drawn on account of the first defendant for $35,000.00. The cheque was dated 7 July 1984. It bore two .signatures  one of them Mr Wigg's and the other 'N. Watts'. It became exhibit G and is referred to earlier in these reasons. Mrs Bilato banked the cheque.

27

According to Robert James Bilato

About the first week in July 1984, he was instructed by Mrs Bilato to deliver the invoice, exhibit B, to Mr Wigg at his home. One evening, Robert Bilato, accompanied by his brother John Bilato, drove to Mr Wigg's house at Howard Springs, arriving at about 6.30 p.m. They went to the front door and knocked. Robert saw that Mr Wigg was having his evening meal. Mr Wigg came to the door. He was well known to both boys. Robert used to address him as 'Neville'. Robert said to  Mr Wigg, 'I've got an invoice here for you from my father.' He handed it to Mr Wigg who said, 'Thank you very  much Robert, that's what we want'. The invoice was not in an envelope when delivered to Mr Wigg. Mr Wigg read the invoice. He invited the boys to sit at a table and seats on a patio at the front of his house. He went into the house, returned with a brief case and sat at the table. He placed the invoice on the table,  opened the brief case and took out a cheque book.  Some conversation took place about Mr Wigg's dogs. It appears that he bred various kinds of dogs, either as a business or a hobby. Mr Wigg placed the cheque book on the table and drew the cheque, exhibit G.  Robert recalled Mr Wigg making a mistake spelling the word 'Thirty' and his crossing it out and initialling the alteration. Robert had not seen that done before and, he said, it stuck in his memory. There was

some further chatting about the dogs. Robert knew that Mr Wigg was having his evening meal, so he and John left fairly soon.

Robert	also	remembered	noticing that a number of

the cheque forms in the cheque book already bore although	the	cheques	had	not	been filled in.

signatures It is not

clear whether each of the forms referred to carried	one	or
two signatures. The only significance of this evidence is that it points to the detail with which Robert Bilato remembered the events of that evening. As will be seen, events described by Robert Bilato were substantially denied by Mr Wigg.

According to John Anthony Bilato

He said that in July 1984 he and Robert went to Mr Wigg's home to deliver the invoice, exhibit B. Mr Wigg came to the door and greeted them. Robert said, 'We've brought this invoice.' Because he was standing behind Robert, John was unable to hear all that was said. He saw Mr Wigg take the invoice and appear to read it. The invoice was not delivered to Mr Wigg in an envelope. Mr Wigg said something like, 'This all looks in order.' John and Robert sat at a table on the verandah while Mr Wigg went into the house. He returned with a cheque book, either in a case or without a

case: John was not sure. The cheque-book was a double one with cheques above and below. Mr Wigg put the invoice  on the table and wrote out the cheque, exhibit G. John remembered that a number of the cheque forms had the signature IM. Watts' or 'W. Watts' already on them. Some conversation took place about Mr Wigg's Red Heeler dogs.
When he handed over the cheque, Mr Wigg said, 'This should help your father along a bit.' No reference was made to the name of any company during the visit.

According to Mr Wigg

Mr Wigg said he received the invoice, e-xhibit B, on the day of the June meeting at the Bilato mine. He was having tea when Mr Bilato's sons arrived and gave him an envelope. At the risk of misstating what Mr Wigg said, I quote his evidence verbatim:

'At 50 Barker Road.		Actually why I can remember it so well, I said - one of the young boys came around I was eating my tea.		Dino's son came around and dropped it off while I was eating		my		tea,	and	I thought,	My	God,		he	said it's an invoice, and I didn't open the - it was	in		an	envelope,	and	I didn't	open		the		envelope		I		gave	it to my wife because I have many interrupted meals, and the boys left		and		then	I		opened		it		first		thing Monday morning because the thing that triggered me it	had the	same thing on the envelope as its got on here, its got North Gold NL and that astounded me	and	I thought, must be for the - the apron feeder for the
- not for the apron feeder for the hydroscreen, and I opened it up and I seen all the other things on there, and I thought, North Gold, I said he's got everything on here he's got all Talmina's stuff on here as well.'

No cheque was drawn or handed to Robert or John Bilato when the invoice was delivered. Mr Wigg denied the events described by Robert and John Bilato relating to the delivery of the invoice. He admitted, however, that the cheque, exhibit G, came from a double cheque book.

The following passage also	appears	in	Mr	Wigg's
evidence:

'Isn't it the case that they came around, gave you the invoice and then you sat them down on your patio you've got a patio  or  front verandah haven't you?---No. I was eating my tea at  the time, and I don't get to eat a lot of home meals, you know, working around the bush and everything like that, and I'm very fussy about my evening meal
- its my only meal.	That cheque they got	weeks possibly	maybe	two		or tDree weeks after, because the money wasn't transferred.	I	had	to	ring	up days	and		days	on	end	- that's how I J--.now it so well, to get that money sent through.'

The Delivery of Exhibit G

According to Mr Bilato

It is unclear from Mr Bilato's evidence as to exactly how Bilato Nominees Pty. Ltd. came to receive the cheque. In court he resiled from the account given in his

affidavit sworn on 4 December 1984, after consultation with his family. In that affidavit he said that  after negotiating the sale of the equipment Mr Cleaver drew and handed over a cheque signed by himself and Neville Wigg for
$35,000.00. In evidence, contradicting the affidavit, Mr Bilato said that he remembered that, in his words, 'Neville Wigg came to the mine and said "We got the cheque", the cheque arrived from Sydney, and he say "Deliver  the invoice".'  He  believed   that after Exhibit B was prepared and delivered {an account of which appears earlier) his sons were given the cheque, which was later banked. However, Mr Bilato did not see it.

According to Robert Bilato

Dealt with under C, above.

According to John Bilato

Dealt with under C, above.

According to Mr Wigg

After receiving the invoice, Mr Wigg arranged by way of 'requisition' for the Sydney office of the first defendant to transfer money to him so that he could draw a cheque in favour of Bilato Nominees Pty. Ltd. for
$35,000.00.

Mr Wigg arranged for Mr Neville Watts to countersign the cheque. He  did not specify exactly when this happened but said that the cheque was prepared in the office at his Howard Springs house. Mr Wigg said that Mr Watts may have countersigned cheques in additio.n to that destined for the plaintiff, possibly resulting in the Northern Gold NL cheque book having several signed cheques in it.

Mr Wigg telephoned the Bilatos and spoke to someone to tell them that the cheque was ready. Some time  later, one of the Bilato boys came to his home to collect it. Mr Wigg was certain that only one of Robert or John Bilato came to the door of his house but did not remember which boy it was. He believed that another person, perhaps one of the Bilato boys, was waiting in the car.

Mr Wigg gave the already prepared cheque to whoever it was that came to collect it. The cheque was already detached from the cheque book. The book itself could not have been seen by the person who collected the cheque. The handover of the cheque occurred at the front door with little surrounding conversation. In Mr Wigg's  words, whoever it was that came to the door 'just whipped in and whipped out'.

Response to Receipt of Exhibit B

According to Robert Bilato

This was dealt with under C, above.

According to John Bilato

This was dealt with under C, above.

According to Mr Wigg

Some time after Bilato	telephoned	him.

the	delivery	of	exhibit	B,	Mr Mr Wigg told Mr Bilato that he was

speaking for 'Northern Gold'.

'Northern Gold'	wanted	only

the	Finlay	Hydro-screen	and	the	stacker.	Mr Bilato had

mistakenly invoiced 'Northern Gold' for other items which were, according to Mr Wigg, for 'Talmina'. According to Mr Wigg, he said, 'The hydro Finlay screen is Northern Gold and the rest of it was Talmina'. He requested Mr Bilato to correct the errors in the invoice, exhibit B. Mr  Bilato said he would fix it up.  According to Mr Wigg, when he later delivered the cheque for $35,000.00 to one of the Bilato boys, he did not raise the question of the revised invoice which, he said, he had discussed with Mr Bilato. He explained his failure to do so by saying that he had had dealings with Mr Bilato before. Mr Bilato had said he would fix it and Mr Wigg had taken him at his word. Mr Wigg said he did not know why he had not returned the incorrect invoice to Mr Bilato. When asked why he did not ask for a fresh invoice when he delivered the cheque to one of the Bilato boys, Mr Wigg said  'I  thought  . I'd got the Finlay, they'd got the cheque, that was the end of it.
I'm	not	100	percent	on	office	procedures.	I'm getting
dragged over the coals for it all the time.

It would be fair to say that, according to Mr Wigg, although he knew that the invoice was incorrect in a number of respects, he told Mr Bilato of the error and left it to him to 'fix'. He took no further steps to ensure that it was, in fact, fixed.

I noted that Mr Wigg said, in part explanation for not having ensured that the invoice was rectified, that he could always rely on Mr Bilato's word. The difficulty about such a recommendation coming from Mr Wigg is that it

amounted	to	something trustworthiness,	which

in	the	nature	of	evidence	of tended to confirm my own view of Mr

Bilato as an honest and reliable person.

According to Mr Cleaver

Mr Cleaver gave evidence of an approach made to Mr Bilato, in company with a Mr Chrisp, with a view to persuading Mr Bilato to accept real estate t 34  Daly Street, Darwin, in satisfaction of the $191,000.00 still owing. When that approach was made, Mr Cleaver had been appointed a director of the first defendant. An opportunity presented itself to him to raise with Mr Bilato the errors in exhibit B. However, he did not refer to them.

I noted from my inspection of exhibit B that it contains notes placed on it in a handwriting which I am satisfied is the same handwriting as that appearing on exhibit A, namely, that of Mr Cleaver. There was  no evidence that I recalled as to when those notes were added to exhibit B but, if they were added before the approach to Mr Bilato referred to above, they constitute some evidence

that Mr Cleaver had seen exhibit Band was aware that it was grossly misleading.

Although reference has been made to evidence relating to events that occurred both before and after the June meeting, the question, what were the terms of the bargain and who were its parties, was to be answered by reference to what was said and done at that meeting, and by whom. The evidence of other events was relevant to those questions only in so far as it rendered any version of the parties more or less probable. The status of the participants in the meeting was relevant because, even if the words and conduct of a particular person were apt to show, on the face of it, a particular contract, the authority of that person to bind the principal on whose behalf he purported to act was a material question. In the event, it was not contentious because ultimately it was conceded by counsel that Mr Cleaver did have the authority of the first defendant to bind it contractually in respect of the purchase of mining equipment.

A great deal of evidence adduced by the defendants, both by way of cross-examination of Mr Bilato and from their own witnesses, was directed to proving that the first defendant had no use for most of the subject equipment and

that it was needed by the fourth defendant. I was asked to infer that in view of the lack of a requirement for the equipment on the part of the first defendant, it was unlikely that the first defendant would have bought it. So, as I understand it, the argument ran. Moreover, it was submitted, the fourth defendant did have a need for the
equipment and was, therefore, the party more likely to have bought it.

In view of the admitted connexions between the two defendants, even accepting the evidence of the respective needs of the first and fourth defendants to truly state the facts, it indicated circumstances of not particularly great significance in this case. Such evidence might have been more persuasive, as showing the likelihood or otherwise of the alleged conduct of the first and fourth defendants, had they been unrelated companies having no common directors or agents and been engaged in activities of different kinds from one another. In this case, however, Mr Wigg was a director of both defendants; Mr Cleaver was an agent for relevant purposes of the first defendant and a director of the fourth defendant, and both companies were actually or prospectively engaged in mining activities. Mr Cleaver had purchased 100,000 shares in the first defendant at par (259) when the company was floated. Mr Cleaver had  been a director of Northern Gold N.L. upon incorporation and, although not a director in June 1984, became a director

again in August.	There were other	connexions	between	the first and fourth defendants.

The first defendant, I accepted, had a pressing need for the hydro-screen and stacker. It had to exercise some persuasion to get Mr Bilato to agree to sell because of his feeling of commitment to Mr Trezise. It is quite consistent with these circumstances that the first defendant offered to buy all of the subject equipment on the basis that it would make its own arrangements with the fourth defendant as to which company would ultimately get particular items of equipment. The evidence relating to the jigs supported this view. The evidence of the respective needs of the defendant companies did not, the·refore, have the probative force it would have had if the defendant companies had been unrelated.

Of	course,	the	physical	proximity of the fourth

defendant's site made the

plaintiff's

mine	an

attractive

place	from	which	to

buy	plant.

However,

that	is	a

circumstance of limited probative value because it would apply equally to all of the plaintiff's equipment, including the hydro-screen which was admittedly taken elsewhere. Nevertheless, I weighed the proximity factor in the balance. I noted, however, that the fourth defendant was able to, and did in fact, acquire plant elsewhere for its operations next door to the Bilato mine while it was allegedly in debt to the plaintiff for the equipment it said it had purchased.

It was of particular significance to me that I found Mr Cleaver, in particular, and Mr Wigg unimpressive witnesses. I could place very little weight on their evidence generally. Mr Cleaver impressed me as clever; as
a man who knew just how much to say and how to tailor his answers to meet what he perceived as the needs of the case - a valuation reinforced by my observations of his demeanour in the witness box. It is also of considerable significance that Mr Cleaver, a chartered accountant, who could be expected to understand the significance of the words he used, made a memorandum of the agreement reached in the form of exhibit A. I was completely unconvinced by the reasons he gave for doing so.

Mr Wigg, likewise, impressed me as unreliable. His conflict with Robert and John Bilato, for example, was too gross to be accounted for by a lapse of memory. The Bilato brothers were obviously truthful. This conflict confirmed my conclusion that Nr Wigg said what he thought would support his side when he thought he could get away with it.

Mr Benger impressed me as a straight forward man, telling the truth as he recalled it. However, in important matters I believed he rationalized, perhaps not deliberately.   In relation to the payment of the deposit of
$35,000.00, Mr Benger conceded that his former recollection

had changed because of having heard the case as it proceeded. He had, as was his right, sat in court almost
throughout the hearing, giving his evidence at the later stages. I did not believe his evidence was not affected by this fact. He conceded that exhibit A did not truly reflect the agreement he contended for. The very real force of Mr Benger's evidence did not persuade me that the probabilities in this case favoured the defendants.
Mr Benger, probably constrained by a genuine desire to be truthful, appeared to avoid saying unequivocally that Mr Bilato was informed at the June meeting that the fourth defendant was the purchaser of the equipment other than the hydro-screen and stacker-conveyor. He went little further than saying that there was discussion amounting to an assertion that the equipment would be suitable for use at the Talmina site. Mr BengeL· d.Ld, under cross-examination, say that the document, exhibit A, did not reflect the agreement contended for by the defendant companies. He said he would not have concerned himself with the misleading nature of exhibit A had he seen it because he would have expected some formal documentation to be prepared later, expressing the agreement correctly.

I have no reason to disbelieve that Mr Benger was told during the June meeting that much of the equipment purchased was to be used at the Talmina site. However, I do not accept as likely that this information was given to Mr

Bilato and, as I have pointed out elsewhere, the manner in which the equipment purchased was to be distributed between the two closely related defendants did not impress me as a particularly probative circumstance.

Mr Bilato impressed me as a man doing his best to relate truly what happened. He was excitable;  his memory was defective in some respects. He had been in poor health for some time and, in court, used a metal frame to help him to walk. Despite defects in his recollection, I was quite satisfied that in essential respects he was reliable.  He had been consistent in his assertions from the very beginning: from the very time he directed Mrs Bilato to produce the invoice, exhibit B. It was not suggested that, if there had been a contract with the fourth defendant, he had reason to avoid recognition of the fact. As far as Mr Bilato knew, the owners of the 'Talmina' mine, adjacent to his mine, were perfectly capable of paying for all of the equipment in exhibit A. At the time of the preparation of exhibit B, there was nothing that would have made Mr Bilato believe that the fourth defendant was not a s·olvent, active company. Mr Bilato, one would have expected, would readily have acknowledged the existence of a sale to the fourth defendant if he had, in fact, believed there had been such a sale. The personnel associated with the Talmina operations next door were well known to Mr Bilato and, one would have expected, he would have been only too ready to do business

with them. His insistence on the fact that the first defendant was the purchaser was inexplicable if he did not genuinely believe it to be the fact.

However,	there	were	impressive	circumstances

corroborating	Mr The conduct of Mr

Bilato's	understanding of the agreement. Wigg	when		Mr	Bilato's	sons	delivered

exhibit	B	to	him,	including	Mr Wigg's reaction, and the
subsequent failure of the first defendant to respond as one would expect a company to respond to being charged
$191,000.00 more than it had bargained for, pointed to a tacit admission by the company that exhibit B truly reflected the bargain of the parties: namely, a sale of all the goods specified therein to the first defendant for which a deposit of $35,000.00 was to be paid and the balance in 60 days.

It is implicit in these last remarks that I accepted the evidence of Mr Bilato's sons as to the presentation of the invoice and the delivery of the cheque for $35,000.00. I rejected Mr Wigg's version of events concerning the delivery of the invoice and the preparation and delivery of the cheque.

Unconvincing attempts were made by the defendants to show that after receipt of the invoice, exhibit B, the first defendant did react by informing the plaintiff that

the invoice was incorrect. On the whole of the evidence, I thought it very unlikely that the first defendant reacted as it alleged. In any event, the error contended for by the defendants was so serious in its consequence for the first defendant that one would have expected an unmistakable response. The first defendant was a public company. It was not a small proprietary company. I would have expected its directors to have been conscious of their responsibility to protect the company and its members by not acquiescing in a false assertion by a stranger of a debt owed to it by the company. An appropriate reaction would have been such as to appear on record in some way so as to be susceptible of proof at a later date.

Mr Cleaver, who became a director of the first defendant at the beginning of August 1984, well within the
60 day period, despite communications with Mr Bilato did not raise the matter of the invoice. A clear opportunity to do so arose when (during the 60 day period on Mr Cleaver's version, but later on Mr Bilato's) he called on Mr Bilato with a Mr Chrisp to offer a building in Darwin as payment for the equipment. At that time Mr Cleaver had almost certainly been appointed a director of the first defendant.

Mr Wigg's evidence, referred to above, concerning his response to seeing the invoice addressed to 'North Gold N.L.', was unacceptable. It impressed me as an attempt at

the eleventh hour to		cover			a		glaring		gap		in	the		first defendant's	case.		Indeed, the first and only time that it was put to Mr Bilato that any such suggestion had been		made to	him was during further cross-examination by leave of the court on the morning after	I		had		made			a	remark	on				the subject	believing cross-examination to have been completed. Mr Bilato denied that Mr Wigg had said		any	such		thing			to him.		I accepted Mr Bilato's evidence on the point.		It was put to Mr Bilato by counsel		for		the	defendants		that			the relevant conversation occurred when Mr Wigg made a telephone call to Mr Bilato.	Mr Wigg said later that the conversation took	place  when Mr Bilato made a telephone call to Mr Wigg to find out why he had not been paid.

The defendants' cases were themselves marked by a singular lack of internal consistency, especially as to the events at the Bilato mine in June 1984. Their witnesses' accounts of those events defied attempts on my part to be reconciled into anything like a coherent narrative.

Almost all of the indicia I was able to find as to where the truth lay, including the impressions made on me by the witnesses, led me to conclude that the plaintiff's case, in its essential respects, was more likely to be true than those of the first and fourth defendants.

45

The		Defence	of	the	first		defendant		originally asserted	that		Mr Cleaver entered into an oral agreement on its behalf at the meeting.		At the trial,	the	Defence		was amended,	substituting		Mr		Wigg for Mr Cleaver.	During the hearing, no doubt because of Mr Wigg's evidence that he		had no	recollection			of		entering		the	demountable,	counsel conceded that Mr Cleaver should be regarded as	having	been the	agent	for		the first defendant for the purchase of the hydro-screen		and		stacker.			It		is also noted that the original Defence of the first defendant contained what amounted to an admission that the first defendant bought two of the jigs as well as the hydro-screen and stacker-conveyor. The amended Defence removed reference to the jigs. The first defendant's  inconsistency was also shown by the fact that its Defence, before amendment, asserted that the sum of $35,000.00 was paid by Mr Cleaver on the day of the June meeting at the Bilato mine. The Defence of the fourth defendant originally denied that the three jigs were purchased by it. I must say that I  found the shifting position of the first and third defendants, after commencement of the hearing, to reflect badly on the conviction with which the defendants themselves viewed their own cases.

There is no doubt that the pleadings, as amended, determined the issues which must ultimately have decided the cases. If I were to have taken such a strict view, the

first defendant would have been in difficulty on its own defence because, on any view of the evidence, it cannot be said that Mr Wigg was the person who entered into an oral agreement on its behalf with the plaintiff even if he did
take part in the negotiations. However, I gave the first defendant the benefit of a less strict view of how the pleadings should be regarded and it should be understood that even if I were to have regarded the Defence as asserting that Mr Cleaver was the agent for the first defendant, I would have found for the plaintiff.

Counsel for the defendants said, on 14 March 1986, that the amendment made, upon his application, to the defence of the first defendant, substituting Mr Wigg's name for Mr Cleaver's, was not in accordance with instructions received after the court rose on 13 Harch 1986. I repeat that my verdicts did not depend on the state of the defendants' pleadings, as such, unsatisfactory though they were. I have referred to them to show the state of uncertainty about very material facts within their knowledge that afflicted the defendants, even during the trial.

Lest it may be thought to have escaped my attention, I    should refer to the fact that  the  deposit of
$35,000.00 payable under the agreement was the price of the hydro-screener and stacker-conveyor. It was argued on behalf of the defendants that this coincidence indicated the

existence of two separate agreements: one for the sale of the hydro-screener and stacker-conveyor, and the other for the sale of the rest of the equipment for $191,000.00. This submission has no real force. It is quite consistent with there having been only one sale that the amount of the deposit should cover the price of the equipment which it was desired to remove almost immediately. A deposit of, say, 10 percent would not have been sufficient to cover the price of the hydro-screener and stacker-conveyor.