Brush Park v The Leasing Centre

[2006] NSWSC 1385

CITATION:	Brush Park v The Leasing Centre [2006] NSWSC 1385
HEARING DATE(S):	28 August 2006
JUDGMENT DATE :	15 December 2006
JURISDICTION:	Common Law Division
JUDGMENT OF:	Associate Justice Harrison
DECISION:	(1) Leave to appeal is refused; (2) The appeal is dimissed; (3) The decision of Magistrate Garbett dated 27 February 2005 is affirmed; (4) The summons filed 23 March 2006 is dismissed; (5) The plaintiff is to pay the defendant's costs as agreed or assessed.
CATCHWORDS:	Appeal decision of Local Court Magistrate - alleged overpayment for poker machines
LEGISLATION CITED:	Local Courts Act 1982 (NSW) - s 73
CASES CITED:	Allen v Kerr & Anor (1995) Aust Torts Reports 81-354 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 BP Refinery (Westernport) Pty Limited v Hastings Shire Council (1977) 180 CLR 266 Carr v Neill [1999] NSWSC 1263 David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 Devries v Australian National Railways Commission (1993) 177 CLR 472 Henjo Investments Pty Ltd and Ors v Collins Marrickville Pty Ltd (1988) 79 ALR 83 Jebeli v Modir and Golyaei [2005] NSWCA 184 Jones v Dunkel (1959) 101 CLR 298 R L & D Investments Pty Ltd v Bisby [2002] NSWSC 1082 Ronald Wallace Gould and Another v Peter Vaggelas and Others (1984) 157 CLR 215 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) (1999) 160 ALR 588 Swain v Waverley Municipal Council [2005] HCA 4 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd and Ors (2004) 211 ALR 342
PARTIES:	Brush Park Bowling Club Limited - Plaintiff The Leasing Centre (Aust) Pty Limited - Defendant
FILE NUMBER(S):	SC 11340/2006
COUNSEL:	Mr S A Benson - Plaintiff Mr J M White - Defendant
SOLICITORS:	Kenneally & Co Lawyers - Plaintiff Swaab Attorneys - Defendant
LOWER COURT JURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	1367/2005
LOWER COURT JUDICIAL OFFICER :	James E Garbett LCM
LOWER COURT DATE OF DECISION:	27 February 2005

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

FRIDAY, 15 DECEMBER 2006

11340/2006 - BRUSH PARK BOWLING CLUB LIMITED
v THE LEASING CENTRE (AUST)
PTY LIMITED
JUDGMENT (Appeal decision of Local Court Magistrate
- alleged overpayment for poker machines)

1 HER HONOUR: By summons filed 23 March 2006 the plaintiff seeks firstly, to appeal the decision of His Honour Magistrate James E Garbett LCM dated 27 February 2005 in proceedings 1367/05 and secondly, an order that the judgment in favour of the defendant on 27 February 2005 be set aside and in lieu thereof verdict and judgment be entered for the plaintiff.

2 Brush Park Bowling Club Limited (Brush Park) is the plaintiff in this Court as well as in the Local Court. The Leasing Centre (Aust) Pty Limited (The Leasing Centre) is the defendant in this Court as well as in the Local Court. Brush Park relied on the affidavit of Belinda Kenneally sworn 17 May 2006 and an affidavit of Terence Sperber dated 28 August 2006.

3 At the outset, it may be helpful to make some brief comments concerning the remedy pursued by the plaintiff. Section 73 of the Local Courts Act 1982 (NSW) (the Act) permits a party who is dissatisfied with a judgment as being erroneous in point of law to appeal to this Court. The onus lies on the plaintiff to demonstrate that there has been an error of law. What is a question of law (as opposed to a question of fact) was considered, inter alia, in Allen v Kerr & Anor (1995) Aust Torts Reports 81-354; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156; Carr v Neill [1999] NSWSC 1263 and R L & D Investments Pty Ltd v Bisby [2002] NSWSC 1082. It cannot be said that the judicial officer acted on evidence inconsistent with facts incontrovertibly established by the evidence - see Devries v Australian National Railways Commission (1993) 177 CLR 472 per Brennan, Gaudron and McHugh JJ at 479 and State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) (1999) 160 ALR 588.

4 Section 74 permits an appeal against the judgment or order on the ground that involves a mixed question of law and fact, only by leave. The plaintiff seeks leave in accordance with s 74.

5 In Swain v Waverley Municipal Council [2005] HCA 4, the Chief Justice at [2] reiterated that, in the common law system of civil justice, the issues between the parties are determined by the trial process. The system does not regard the trial as merely the first round in a contest destined to work its way through the judicial hierarchy until the litigants have exhausted either their resources or their possibilities of further appeal.

6 Section 75 of the Act provides that the Court may determine an appeal either by (a) varying the terms of the judgment or order, (b) setting the judgment or order aside, (c) setting the judgment or order aside and remitting the matter for determination in accordance with the Court’s directions ,or (d) by dismissing the appeal.

Grounds of appeal

7 Brush Park appealed from the whole of the judgment of the Magistrate dated 27 February 2005. There are 26 grounds of appeal. They can be summarised into five main areas. Firstly, there are factual matters that supported Brush Park’s claim of mistake and misleading and deceptive conduct and the Magistrate erred in not finding such conduct (Grounds 1, 2, 6, 7, 10-12, 15, 18, 23 and 24); secondly, the Magistrate made factual findings without evidentiary basis and/or inferences drawn where Brush Park’s witnesses were not cross examined (Grounds 8, 9, 14, 16, 17, 19-21 and 25); thirdly, the Magistrate made findings which were not relevant to any issue (Grounds 3, 5 and 13); fourthly, the Magistrate applied the wrong legal principle to the misleading and deceptive conduct; and lastly, the Magistrate erred in finding that there was no general duty to draw the plaintiff’s attention to the terms of the agreement and in particular Clause 23 (4, 26).

8 The Leasing Centre has filed a notice of contention which is also multi-faceted. It pleads that the Magistrate’s decision should be affirmed, as Brush Park did not plead any causal connection between the conduct alleged and its loss, adduce evidence that any officer or employee of Brush Park was aware of the existence of clause 23 of the rental agreement, nor did Brush Park demonstrate that it was induced to enter into the rental agreement in reliance upon the Leasing Centre’s conduct.

9 Brush Park’s central complaint was that it had entered into a prior contract, which had identical terms and conditions to the second contract, but the second contract was treated differently by the Leasing Centre. While there was a cross claim in the Local Court, it does not form part of this appeal.

Local Court proceedings

10 The parties entered into an agreement dated 5 February 1999 (the first agreement) and a later agreement dated 30 June 1999 (the second agreement – Tab 11). In the Local Court, Brush Park claimed for moneys for an overpayment to the Leasing Centre in the sum of $35,549.02. The Magistrate entered judgment for the Leasing Centre.

11 In the Local Court, Brush Park relied upon an affidavit of Robert Norris Sessions, Club Director and Treasurer and an affidavit of John Frederick Richardson, Club Secretary both sworn 18 November 2005 (Tabs 9 and 10). The Leasing Centre did not call any evidence.

12 Mr Sessions described the first agreement as being a hire purchase agreement with The Leasing Centre to purchase two poker machines. The first agreement was completed on 5 February 2002.

13 There is a reference to the Club minutes of 11 March 1999, (Aff, Richardson 18/11/2005, p 247 of bundle) which states “Letter to the Leasing Centre in relation to final figure payable at settlement on the purchase of our 2 new poker machines. Total payable within 7 days of 4/3/99, $25,996.00.” In relation to that entry, the Magistrate said [Reasons at 36-37]:

“…Did this refer to the two poker machines in the First Agreement and, if so, what does it mean? If the payment was made in relation to those machines it may explain why the First Agreement was “ completed ” after 36 months despite clauses 1 (a) and 23. No evidential weight can be placed on this entry except that it adds to other unexplained circumstances.

37. Presumably there was some form of quotation or correspondence or communication between the parties prior to the commencement of the First Agreement. It may have been helpful in resolving the issues to know if there was, and to see it, if it still existed. The court is left to speculate why the parties did not apparently adhere to the clear terms of the First Agreement, if they did not do so.”

14 The Magistrate, in effect, found that there was no conclusive evidence as to why the parties did not adhere to the clear terms of the first agreement, if they did not do so.

The second agreement

15 In about April 1999 Brush Park decided to buy a further three poker machines. Mr Richardson contacted Mr Ian Benson of The Leasing Centre requesting a quote. The quote (Aff, Richardson 18/2005, p 134 of bundle) reads:

“John, Rates on 3 machines @ $13,400
Cost Price $40,200 “Rental”
Residual value $1.00
Period 36Mths
Monthly Rental $1325.14
The Above Rental includes Stamp Duty &F.I.D.”

16 Mr Richardson deposed [Aff, 18/11/2005, para 29-30]

“29. In reliance upon the contents of the fax sent by the Defendant to the Plaintiff dated 30 April 1999, and the discussions I had with Ian Benson prior to the entry into of the second agreement, I understood that after the expiry of 36 months, and the payment of the residual, ownership of the machines would vest in the Plaintiff and the second agreement would accordingly come to an end.
30. The three machines were delivered to the Plaintiff some time in or about June 1999, and, pursuant to the direct debit authority, the Defendant commenced debiting the sum of $1,367.27, rather than $1,325.14, from the Plaintiff’s Westpac bank account.”

17 Mr Richardson gave evidence to a similar effect in Court. He stated that he believed that the original agreement was for a period of 36 months, with a residual of $1.00 and at the end of that period title would be conferred upon the Bowling Club. Further, he stated that had he formed the belief that the Club would not be conferred title to the poker machines under the second agreement, but would instead have only been renting them, he would not have entered into that agreement. He would have sought finance elsewhere (Local Court, t 31-32).

18 The parties entered into the second written agreement which, like the first agreement, makes no mention of a $1.00 residual or that upon payment of $1.00 title to the machines would be transferred to Brush Park. Clause 1(b) of the agreement was to the contrary. Clause 1(b) says that ownership of the equipment will remain with the owner during the term, expiration or termination of the agreement and the renter is only the bailee of the equipment.

19 There was also a letter in evidence dated 13 August 2004 (Aff, Sessions 18/11/2005, p 114 of bundle) from Mr Moses, the Leasing Centre’s financial controller, which stated:

“…Because the Club has never given notice in accordance with the terms and conditions of the Rental Agreement, the agreement has been renewed for three additional terms of 12 months each…At no time was it ever indicated to you that we considered that we were not entitled to that payment.
…Further, our decision to refund the payment of $1,367.27 and to take no steps to enforce any other rights under the Rental Agreement was done on the assumption that you have acted in good faith throughout the agreement. Now that we are aware that you have not done so, we believe that we are entitled to take action to recover the remaining rental under the renewed period of the rental, being from July 2004 to June 2005.
…Clearly, by virtue of the Rental Agreement, you were required to make the payments and there is no basis to claim a refund…”

Unjust enrichment and mistake

20 Brush Park submitted that, in accordance with the decision in David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353, once the overpayments were made by reason of mistake, the onus shifted to The Leasing Centre to show why it would be unjust for them to repay those moneys to Brush Park. Brush Park submitted that The Leasing Centre, having called no evidence on the issue, failed to discharge its evidentiary onus in regard to this claim. On the other hand, the Leasing Centre contended that the payments made by Brush Park after the initial term of the Second Agreement were not made by mistake, but rather were made in accordance with the express written terms of the agreement and thus there had been no unjust enrichment.

21 The Magistrate addressed the issue of unjust enrichment and mistake in his written reasons at [20]-[30]. His Honour stated:

“20 The Plaintiff relies on the principle enunciated in David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 a suitable summary of which appears in the majority judgment, at p 379:
The fact that the payment has been caused by a mistake is sufficient to give rise to a prima facie obligation on the part of the respondent to make restitution. Before that prima facie liability is displaced, the respondent must point to circumstances which the law recognises would make an order for restitution unjust…the law will not provide for recovery except where the enrichment is unjust .

21. A party claiming that the enrichment of another is unjust must do more than meet a simple subjective test as to what is fair or unconscionable. They must establish a qualifying or vitiating factor, in this case, mistake.

22. The Plaintiff does not specifically allege, and I do not find, that the Defendant was aware of the Plaintiff’s alleged mistake.
23. The Plaintiff asserts and must prove mistake. There is some evidence in its favour. There is the Board Minute dated 20/05/95 referred to above. The Plaintiff also apparently disposed of the machines, as an owner. Unfortunately details of this transaction are unknown so little weight can be given to it. It also insured the machines, but as that is a contractual requirement under clause five (5) of the Second Agreement, nothing further can be read into this action. The Plaintiff’s failure to give notice under the Second Agreement may be consistent with its mistake claim, or due to the way the Defendant treated the First Agreement, or because it was simply unaware of clause 23.
24. On the other hand, there is a large body of evidence in conflict with the Plaintiff’s assertion. The Second Agreement is a formal signed agreement duly executed by Mr Richardson for the Plaintiff. Mr Hosking, who was the Plaintiff’s then President, witnessed his signature. Both parties ostensibly adhered to and performed the terms of the Second Agreement for over five (5) years. The Plaintiff paid the lower rental provided for by the Second Agreement and not the higher amount in the Facsimile, as when required.
25. Only after performing the terms of the Second Agreement for that lengthy period, did it then claim to have made the alleged mistakes.
26. At the expiration of the initial thirty-six (36) month term the Plaintiff did not attempt to pay the $1 residual and formally take title. There is no evidence it ever made or caused to be made any diary note or record to do these things. It did not revoke the automatic bank payment after 36 months.
27. The Plaintiff describes the arrangement between the parties as “…a finance agreement in every sense” but one would suspect that a finance agreement would surely refer to an applicable interest rate, and in the formal document probably detail a default interest rate, principle and interest instalments, provision for early repayment, provision for passing of title, and other finance agreement terms. The Defendant’s office receipt entry, “as per finance agreement” establishes nothing because any staff member may have used that expression in the loosest sense.
28. A Court will not, without good reason, interfere with a contract, the terms of which are clear and unambiguous. I find that is the case here. The Second Agreement entitled the Plaintiff, on notice, to end it and return the machines after 36 months. If the machines were then obsolete or unwanted for some other reason, this was to the Plaintiff’s advantage. The plaintiff says it was a logical absurdity for the Second Agreement to run for further terms as occurred. At the time of signing the contract that was never the inevitable course of events. It was totally within the Plaintiff’s own control to terminate the Second Agreement after the initial term.
29. There is an objective presumption that a written document, executed by the parties, is the true record of their agreement. There are two many conflicting and unexplained factors over too long a period of time.
30. I find that the Plaintiff has not proved mistake, and is not entitled to the relief sought under this head.”

22 The Magistrate made findings of fact, some of which supported the plaintiff’s case. However, there were significant gaps in Brush Park’s evidence. Neither affidavit filed on behalf of Brush Park refers to a payment of $1.00 being made to the Leasing Centre in relation to either agreement. There was no evidence as to the circumstances which led to Brush Park entering into the first agreement. The affidavits do not mention whether title to the poker machines passed to the Club upon completion of the first agreement and/or whether the poker machines were sold by it. There was no evidence that, after the expiration of the 36 month period stipulated in the second agreement, Brush Park attempted to pay the sum of $1.00, nor that it made a request for the titles to the poker machines be transferred to it.

23 The Magistrate correctly applied the law pertaining to mistake and unjust enrichment. The Magistrate found that Brush Park did not discharge its onus of proof to establish that it had made a mistake. That being so, the onus did not shift to the Leasing Centre to show why it would be unjust for it to repay those moneys to Brush Park. There is no error of law. Leave to appeal on mixed fact and law is not warranted.

Misleading and deceptive conduct

24 Brush Park submitted that the conduct of The Leasing Centre, namely silence on behalf of The Leasing Centre, supported a misleading and deceptive conduct claim. Brush Park submitted The Leasing Centre’s silence in regard to (i) the Second Agreement differing in nature from the First Agreement (in relation to that The Leasing Centre’s reliance on cl 23) and (ii) the Second Agreement being inconsistent with the 30 April 1999 quote, makes out the misleading and deceptive conduct claim. Brush Park also submitted that it relied on the conduct of The Leasing Centre and that, as a result, it suffered loss.

25 The Leasing Centre contended that a failure to bring an express term of the agreement (cl 23) to the attention of Brush Park does not amount to misrepresentation by silence. The Leasing Centre also denied the inclusion of the April 1999 quote as a term of the agreement. The Leasing Centre contended the quote was not incorporated into the agreement as a (promissory) term and further, that the inclusion of any term did not satisfy the five-stage test from BP Refinery (Westernport) Pty Limited v Hastings Shire Council (1977) 180 CLR 266 (at 283) for the implication of a term.

26 Brush Park needed to establish firstly, conduct on the part of the defendants; secondly, conduct that is misleading or deceptive; thirdly that there was reliance on the conduct; and fourthly, loss or damage caused by the conduct – see Ronald Wallace Gould and Another v Peter Vaggelas and Others (1984) 157 CLR 215 and Jebeli v Modir and Golyaei [2005] NSWCA 184.

27 Section 52 of the Trade Practices Act 1974 (Cth) reads:

“52 Misleading or deceptive conduct

(1) A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

(2) Nothing in the succeeding provisions of this Division shall be taken as limiting by implication the generality of subsection (1).”

28 Section 42 of the Fair Trading Act 1987 (NSW) is in almost identical terms.

29 The Magistrate stated in his reasons, [at 39–42]:

“39. There must be conduct to breach the provisions. Silence may be relied upon “when the circumstances give rise to an obligation to disclose certain facts”. Henjo Investments Pty Ltd and others v Collins Marrickville Pty Ltd (1988) 79 ALR 83. In Demagogue Pty Ltd v Hambros Australia (1992) 110 ALR 608, 618 (1992) 39 FCR 31 Gummow J said, “…consistently with regard to the natural meaning of the terms of s 52, the question is whether in the light of all relevant circumstances constituted by acts, omissions, statements, or silence, there has been conduct which is or is likely to be misleading or deceptive.”

40. These authorities confirm that full knowledge of all the surrounding circumstances is crucial to assess whether the conduct complained of is or is likely to be misleading or deceptive. There are too many unanswered questions and unexplained circumstances in this case, most of which have been referred to above. For this reason I do not find the Plaintiff has proved the Defendant’s treatment of the First Agreement and both Agreements vis a vis each other evinces an intention not to rely on clause 23 in the Second Agreement and is or is likely to be misleading or deceptive.

41. It is unnecessary to deal with causation but, for the same reasons, I find that the Plaintiff has not proved the Defendant’s reliance on clause 23, a clear term of the Second Agreement, caused loss to the Plaintiff.

42. For these reasons the Plaintiff’s case fails.”

30 Brush Park’s evidence is that its relevant officers did not read the terms of the agreement before signing it, instead relying upon the quote and an assumption that the second agreement would not differ in its terms from the first agreement. The terms of the first agreement did not make provision for the payment of $1.00 nor the transfer of ownership of the poker machines and, as previously stated, the Magistrate had referred to the lack of evidence in relation to the reason why the parties did not adhere to the clear terms of the first agreement.

31 In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd and Ors (2004) 211 ALR 342 the High Court of Australia said [at 57]:

“If there is a claim of misrepresentation, or non est factum, or if there is an issue as to whether a document was intended to affect legal relations or whether, on the other hand, it was tendered as a mere memorandum of a pre-existing contract, or a receipt, or if there is a claim for equitable or statutory relief, then even in the case of a signed document it may be material to know whether a person who has signed it was given sufficient notice of its contents. The general rule, which applies in the present case, is that where there is no suggested vitiating element, and no claim for equitable or statutory relief, a person who signs a document which is known by that person to contain contractual terms, and to affect legal relations, is bound by those terms, and it is immaterial that the person has not read the document…”

32 The Magistrate reproduced earlier in this judgment] correctly applied the decision in Toll [Reasons at 28].

33 The next issue is whether or not the grounds relied upon by the plaintiff (the quote and the alleged different operation of the two agreements), constitute circumstances, such that there would be an obligation on the defendant to bring those matters to the attention of the plaintiff, or if the plaintiff should be bound by virtue of the fact that it executed the agreement as it was written. Further, if the defendant fails to bring those matters to the plaintiff’s attention, has it engaged in misleading and deceptive conduct by virtue of its silence?

34 In relation to the quote (also reproduced earlier in this judgment), the Magistrate commented that the Board Minutes of a meeting of 20 May 1999 are consistent with Mr Richardson’s evidence that Brush Park’s committee agreed that Brush Park should take the new poker machines “…in reliance of the contents of the fax”. Sometime after that meeting, Mr Richardson said to a representative of the Leasing Centre words to the effect “The Club is happy with the quote. Can you please prepare the lease documents?” The representative of the Leasing Centre replied “Ok we’ll get them to you as soon as we can.” [Reasons at 12]

35 The Magistrate went on to observe that, as the quote did not describe the machines’ model or serial numbers and the monthly rental was different from the second agreement, there was some additional contact between the parties, not in evidence. The monthly rental in the quote was $1,325.14 but the amount in the agreement was for a lesser amount, namely $1,243.72. Mr Richardson’s explanation was that “he thought the monthly rental rate of $1,243.72 would in fact be increased to $1,325.14 as a result of adding stamp duty and FID.” It was the Magistrate’s view that “This explanation is obviously wrong and demonstrates the risk in reconstructing events years later.” The Magistrate made a finding that the fax and agreement were obviously different in purpose, form and content [Reasons at 18] . This finding was open to the Magistrate.

36 In Henjo Investments Pty Ltd and Ors v Collins Marrickville Pty Ltd (1988) 79 ALR 83, the Federal Court said the following about silence constituting misleading and deceptive conduct [at 95]:

“At common law, silence can give rise to an actionable misrepresentation where there is a duty upon the representor to reveal a matter if it exists, and where the other party is therefore entitled to infer that matter does not exist from the silence of the representor: W Scott Fell & Co Ltd v Lloyd (1906) 4 CLR 572 at 577, per Griffith CJ; Halsbury's Laws of England , 4th ed, vol 31, para 1052. The circumstances in which silence may constitute misleading conduct under the Act were referred to in Rhone-Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1986) 68 ALR 77 ; 12 FCR 477. That case established that silence may be relied on in order to show a breach of s 52 when the circumstances give rise to an obligation to disclose relevant facts: see Bowen CJ (ALR) at 84; (FCR) at 490; Lockhart J (ALR) at 98–9; (FCR) at 504; and Jackson J (ALR) at 102–3; (FCR) at 508. The duty to disclose is not confined to cases where there are particular relationships, such as trustee and beneficiary or solicitor and client, principal and agent and guardian and ward. There is no useful purpose in seeking to analyse the circumstances in which the duty to disclose will arise as this must depend on the facts of each case.”

37 Clause 23 of the agreement (Ex 1) (which is in almost microscopic printing) is central to the dispute. It reads:

“ renewal This Agreement shall be automatically renewed following the expiration of the initial term for a new terms being either the period of the initial term or twelve (12) months whichever is the lesser unless the Renter:- (a) Delivers to the Owner written notice ninety (90) days prior to the expiration of the said initial term; and (b) Delivers at the Renter’s expense the Equipment to the Owner in accordance with the provisions of clause 4(1) hereof on or before the expiration of the initial terms of this Agreement. (c) In the Renter requests a variation (“Variation”) of the Term or of the Equipment rented under this Agreement, the Owner may in its absolute discretion agree to such Variation and forward an Acknowledgement of Variation of Rental Agreement to the Renter setting out the details of any such change. Any Variation shall be effective from the date specified there-in and shall be binding on the Renter upon signing of the Acknowledgment by the Renter. In the event that a copy of the Acknowledgment signed by the Renter is not received by the Owner within seven (7) days of Acknowledgment, the Owner may elect not to be bound by the Variation.”

(For legible copy see magnified copy at the end of this judgment)

38 The Magistrate stated [Reasons at 33]:

“Mr Richardson said he was not aware of clause 23 in the First Agreement, and, for the Second Agreement, he said “I do not recall whether I read any of the terms, which may have been attached to the proposed second agreement.” The Defendant could reasonably assume the Plaintiff was aware of terms in the two executed Agreements. I do not find the Defendant knew the Plaintiff was unaware of s 23 in either Agreement. In these circumstances, I find the Defendant’s conduct in not specifically telling the Plaintiff about section 23 in either Agreement, or that it intended to rely on it in the Second Agreement, is not or is not likely to be misleading or deceptive.”

39 The same problems in relation to lack of evidence arise here. While this Court may have a different view as to the significance of the small print size, the terms of the agreement (including clause 23) are clear. The Magistrate held that the Leasing Centre was under no obligation to bring to Brush Park’s attention terms that were clear on a reading of the agreement, particularly as the quote and the agreement were, in his view, different in purpose, form and content.

40 Finally, Brush Park submitted that, to the extent that there was conflicting or unexplained evidence on the Leasing Centre’s side, the Leasing Centre had an obligation to call witnesses to explain any confusion in the Court’s mind and did not do so. The Magistrate’s reference to “unanswered questions and unexplained circumstances” are references to gaps in the evidence from Brush Park’s camp. As such, it does not follow that a Jones v Dunkel (1959) 101 CLR 298 inference should have been drawn against the Leasing Centre.

41 It is my view that it was open to the Magistrate to make the findings he did and arrive at the decision he did. It is not warranted that leave be granted in respect to a mixed question of fact and law. There has been no error of law.

42 The decision of Magistrate Garbett dated 27 February 2005 is affirmed. The appeal is dismissed. The summons filed 23 March 2006 is dismissed. Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendant’s costs as agreed or assessed.

Orders

43 The Court orders that:

(1) Leave to appeal is refused.

(2) The appeal is dismissed.

(3) The decision of Magistrate Garbett dated 27 February 2005 is affirmed.

(4) The summons filed 23 March 2006 is dismissed.

(5) The plaintiff is to pay the defendant’s costs as agreed or assessed.

44 Paragraph [23] reads:

“ rental This Agreement shall be automatically renewed following the expiration of the initial term for a new terms being either the period of the initial term or twelve (12) months whichever is the lesser unless the Renter:- (a) Delivers to the Owner written notice ninety (90) days prior to the expiration of the said initial term; and (b) Delivers at the Renter’s expense the Equipment to the Owner in accordance with the provisions of clause 4(1) hereof on or before the expiration of the initial terms of this Agreement. (c) In the Renter requests a variation (“Variation”) of the Term or of the Equipment rented under this Agreement, the Owner may in its absolute discretion agree to such Variation and forward an Acknowledgement of Variation of Rental Agreement to the Renter setting out the details of any such change. Any Variation shall be effective from the date specified there-in and shall be binding on the Renter upon signing of the Acknowledgment by the Renter. In the event that a copy of the Acknowledgment signed by the Renter is not received by the Owner within seven (7) days of Acknowledgment, the Owner may elect not to be bound by the Variation .”
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