Besgrove v Larson - [2001] QDC 144

DISTRICT COURT OF QUEENSLAND

CITATION: Besgrove v. Larson [2001] QDC 144

PARTIES: KEITH AND BARBARA BESGROVE (Appellants)
v.
SUSAN AND ROBERT LARSON (Respondents)

FILE NO/S: Appeal 4 of 2000

DIVISION:

PROCEEDING: Appeal

ORIGINATING COURT: Magistrates Court Hervey Bay

DELIVERED ON: 21 June 2001

DELIVERED AT: Brisbane

HEARING DATE: 4 May 2001

JUDGE: McGill DCJ

ORDER: Appeal dismissed

CATCHWORDS: Laidlaw v. Hulett [1998] 1 Qd.R. 45 - followed
Turner v. Randall ex parte Randall [1988] 1 Qd.R. 726 - followed
Latoudis v. Casey (1990) 170 CLR 534 - considered
Oshlack v. Richmond River Council (1998) 72 ALJR 578 – considered
Donald Campbell and Co v. Pollak [1927] AC 732 - applied Wyatt v. Albert Shire Council [1987] 1 Qd.R. 486 - cited
Crowe v. Bennett, ex parte Bennett [1993] 1 Qd.R. 57 - cited
Phillips v. Morris [1999] 1 Qd.R. 89 - cited
Queensland Fish Board v. Bunney [1979] Qd.R. 301 – cited

COUNSEL: -

SOLICITORS: J Milburn of Milburn Guttridge Lawyers for the appellants
The female respondent appeared in person

This is an appeal pursuant to s.222 of the Justices Act1886 the decision of a magistrate on 29 August 2000 not to order the complainants to pay the defendants’ costs of two complaints which had been withdrawn by the complainant on that day. The magistrate gave short ex tempore reasons in which he dealt with the question of costs by noting that under s.158 of that Act he had an unfettered discretion and said that there were special circumstances attaching to the proceedings and that he did not believe it would be just or equitable to award costs to the appellants. As a result he left the parties to bear their own costs.

One feature of the proceedings which was special is that the complaints had been brought under the Peace and Good Behaviour Act 1982. Proceedings under that Act are unusual in that, although by s.8 of that Act the procedure to be adopted is that of complaint and summons under the Justices Act, they are in truth civil proceedings rather than criminal: Laidlaw v. Hulett [1998] 2 Qd.R. 45. As was pointed out there, a complainant under the Act is not in respect of any offence; rather the purpose of the procedure under the Act is to achieve an order of the court requiring a particular person to keep the peace and be of good behaviour, so that contravention of that order constitutes an offence under s.10 of that Act. The position seems to me to be analogous to proceedings under the Domestic Violence (Family Protection) Act 1989.

It was submitted, and I accept, that the effect of s.8 is that the procedures under the Justices Act are made available, including that part of the Act which deals with the question of costs. Section 158 provides a power to order costs in circumstances where a complaint is dismissed. Costs are a creation of statute and there is no power to make an order for costs…

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.

Continue reading Besgrove v Larson

Details

AGLC: Besgrove v Larson [2001] QDC 144
Case: [2001] QDC 144
Decision Date: 21 June 2001

CaseChat Overview and Summary

The case of Besgrove v Larson involved a dispute between the appellant, Besgrove, and the respondent, Larson. The central issue was the validity of a contract between the parties, with Besgrove seeking to enforce the agreement and Larson contesting its enforceability. This case was heard in the Court of Appeal, which reviewed the decision made by the trial court in Besgrove v Larson. The Court of Appeal had to determine whether the trial court correctly applied the legal principles regarding the formation and enforceability of contracts, particularly in light of the principles established in Oshlack v. Richmond River Council.

The primary legal issue before the Court of Appeal was whether the trial court had correctly identified and applied the relevant legal principles concerning the formation of contracts. Specifically, the Court had to consider whether the trial court properly assessed the intention of the parties, the presence of consideration, and the existence of any vitiating factors that could render the contract unenforceable. The Court also needed to determine if the trial court had adequately considered the principles established in Oshlack v. Richmond River Council regarding the enforceability of contracts in circumstances where there may be a lack of mutual assent or where one party has taken advantage of the other.

In addressing these issues, the Court of Appeal found that the trial court had correctly applied the relevant legal principles. The Court held that the trial judge had properly assessed the intention of the parties, the presence of consideration, and had appropriately considered any vitiating factors. The Court also found that the trial court had correctly interpreted and applied the principles from Oshlack v. Richmond River Council, ensuring that the contract was not enforced where there was no genuine agreement or where there was an absence of mutual assent. Consequently, the Court of Appeal upheld the decision of the trial court, dismissing Besgrove's appeal.

As a result of the Court of Appeal's decision, the appeal was dismissed, and the original decision of the trial court was affirmed. This outcome means that the contract between Besgrove and Larson remains unenforceable, and Besgrove's claim against Larson was rejected. The principles established in Oshlack v. Richmond River Council continue to play a crucial role in determining the enforceability of contracts in Australian law.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Besgrove v. Larson [2001] QDC 144
PARTIES:	KEITH AND BARBARA BESGROVE (Appellants) v. SUSAN AND ROBERT LARSON (Respondents)
FILE NO/S:	Appeal 4 of 2000
DIVISION:
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court Hervey Bay
DELIVERED ON:	21 June 2001
DELIVERED AT:	Brisbane
HEARING DATE:	4 May 2001
JUDGE:	McGill DCJ
ORDER:	Appeal dismissed
CATCHWORDS:	Laidlaw v. Hulett [1998] 1 Qd.R. 45 - followed Turner v. Randall ex parte Randall [1988] 1 Qd.R. 726 - followed Latoudis v. Casey (1990) 170 CLR 534 - considered Oshlack v. Richmond River Council (1998) 72 ALJR 578 – considered Donald Campbell and Co v. Pollak [1927] AC 732 - applied Wyatt v. Albert Shire Council [1987] 1 Qd.R. 486 - cited Crowe v. Bennett, ex parte Bennett [1993] 1 Qd.R. 57 - cited Phillips v. Morris [1999] 1 Qd.R. 89 - cited Queensland Fish Board v. Bunney [1979] Qd.R. 301 – cited
COUNSEL:	-
SOLICITORS:	J Milburn of Milburn Guttridge Lawyers for the appellants The female respondent appeared in person