Appoo, Appoo and Appoo v Battersby - [1996] QCA 287

IN THE COURT OF APPEAL	[1996] QCA 287
SUPREME COURT OF QUEENSLAND

Appeal No. 392 of 1996

Brisbane

[Appoo v. Battersby]

BETWEEN:

SEAN COLLIN APPOO as Executor of the Estate of
NOEL COLLIN APPOO and Executor of the Estate of
IRENE EVELYN APPOO

(Plaintiff) Appellant

AND:

OWEN LESLIE BATTERSBY

(Defendant) Respondent

McPherson J.A.
Davies J.A.
Ambrose J.

Judgment delivered 23 August 1996

Separate reasons for judgment of each member of the Court each concurring as to the order.

APPEAL DISMISSED WITH COSTS.

CATCHWORDS:	CIVIL - Damages for breach of contract - dispute as to nature of contractual terms agreed between the parties - evidence - whether trial judge erred in excluding from evidence correspondent between the parties - privilege attaching to negotiations to settle dispute.
Counsel:	Mr. J. Given for the appellant Mr. G. Crow for the respondent
Solicitors:	Morton & Morton for the appellant Paul Hollihan & Co. for the respondent
Hearing Date:	22 July 1996

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 392 of 1996

Brisbane

Before McPherson J.A.

Davies J.A. Ambrose J.

[Appoo v. Battersby]

BETWEEN

SEAN COLLIN APPOO as Executor of the Estate of
NOEL COLLIN APPOO and Executor of the
Estate of IRENE EVELYN APPOO

(Plaintiff) Appellant

AND

OWEN LESLIE BATTERSBY

(Defendant) Respondent

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the 23rd day of August 1996

In 1990 Mr Noel Appoo and Mrs Irene Appoo, both now deceased, owned a house at Ovens Street, Bundaberg, which was subject to a mortgage in favour of ATSIC. The mortgage payments and rates were in arrear and the owners were being threatened with imminent eviction by the mortgagee. According to his evidence at the trial, the defendant Owen Battersby, who was Mrs Appoo's son, came to the rescue. He was employed at Blackwater and at the time was receiving what he described as a "reasonable" salary. He offered to buy the property. A written contract dated 28 September 1990 (ex 2) was drawn up and signed by the parties. It is in standard REIQ printed form, and provided for payment at completion on 26 October 1990 of the balance of purchase price of $55,000, after allowing for a deposit already paid in the sum of $1,495, in return for possession and transfer free from encumbrance. Rates and outgoings to the date of possession were to be paid by the vendors. By cl.23 of the general conditions, time was to be of the essence.

Although those were terms of the written contract signed by the parties, there was, according to the evidence of the defendant at the trial, an earlier agreement with his parents that they, or the survivor of them, should have the right to reside in the house for life provided that they paid the rates. On 24 October 1990, which was after the contract had been returned by the Stamps Office but before settlement, two additions, which were incorporated as Special conditions 1 and 2, were made…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1996] QCA 287
Decision Date: 23/08/1996

CaseChat Overview and Summary

The case of Appoo, Appoo and Appoo v Battersby involved a dispute between the plaintiffs, who were the executors of the will of a deceased person, and the defendant over a claim for damages for breach of contract. The plaintiffs sought to recover damages for alleged breaches of contract by the defendant, while the defendant contested the existence of a contract and denied any breach. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the trial judge correctly excluded certain correspondence between the parties from evidence. The plaintiffs argued that the correspondence was relevant to the terms of the contract and should have been admitted. The defendant contended that the correspondence was privileged as it related to negotiations to settle the dispute. The court had to determine whether the privilege applied and, if so, whether it was properly invoked in this instance.

In delivering the judgment, the court examined the nature of the privilege and the circumstances in which it applies. The court noted that the privilege is intended to protect the confidentiality of negotiations aimed at resolving disputes and that it applies even after the dispute has been finalised. The court concluded that the privilege did apply to the correspondence in question, as it related to negotiations to settle the dispute. The court further found that the privilege was properly invoked by the defendant, and therefore, the trial judge was correct in excluding the correspondence from evidence.

As a result of the court's decision, the plaintiffs' claim for damages for breach of contract was dismissed. The court held that the exclusion of the correspondence did not prejudice the plaintiffs' case, as the evidence available was sufficient to determine the issues before the court. The defendant was therefore not liable to pay damages to the plaintiffs.

Orders