Davie v Kemp and Denning Home Improvements Centre Pty Ltd
[1987] TASSC 60
•4 November 1987
Serial No 56/1987
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION:Davie v Kemp and Denning Home Improvements Centre Pty Ltd [1987] TASSC 60; A56/1987
PARTIES: DAVIE, Margaret
v
KEMP AND DENNING HOME IMPROVEMENTS CENTRE PTY LTD
FILE NO/S: 76/1986
DELIVERED ON: 4 November 1987
DELIVERED AT: Hobart
JUDGMENT OF: Nettlefold, Underwood and Wright JJ
Judgment Number: A56/1987
Number of paragraphs: 27
Serial No 56/1987
File No 76/1986
List "A"
MARGARET DAVIE v KEMP AND DENNING HOME IMPROVEMENTS CENTRE PTY LTD
REASONS FOR JUDGMENT FULL COURT
NETTLEFOLD J
UNDERWOOD J
WRIGHT J
4 November 1987
Orders of the Court
Appeal dismissed.
Serial No 56/1987
File No 76/1986
List "A"
MARGARET DAVIE v KEMP AND DENNING HOME IMPROVEMENTS CENTRE PTY LTD
REASONS FOR JUDGMENT FULL COURT
NETTLEFOLD J
4 November 1987
I have had the advantage of reading the draft of the reasons for judgment of my learned brother Underwood J. I agree that for those reasons the appeal should be dismissed.
Serial No 56/1987
File No 76/1986
List "A"
MARGARET DAVIE v KEMP AND DENNING HOME IMPROVEMENTS CENTRE PTY LTD
REASONS FOR JUDGMENT FULL COURT
UNDERWOOD J.
4 November 1987
The appellant carried on the business of hairdressing from a salon which formed part of her residence at 6 Seamew Avenue, Claremont. In 1984, she decided to expand the business by building an extension to the salon and employing three extra hairdressers. She spoke to a Mr Tiller of the respondent company, which was in the business of designing and constructing extensions and alterations to homes. At the request of the appellant, the defendant provided a plan for the extension of the existing salon and a quotation of $7,760 for the cost of building it. The appellant accepted the quotation and the respondent constructed the extension.
The appellant's property was in an area zoned "residential" by the Claremont Planning Scheme. Commercial use was prohibited unless it met the criteria spelled out by the Scheme for a 'cottage industry", which included a business such as a hairdressing salon provided "no assistance is given by a person not resident in the dwelling". The local authority issued an approval under the planning scheme, for the use of the extension as a hairdressing salon but only as a cottage industry. As a result of an administrative error on the part of the Council, notice of this approval did not come to the attention of either the appellant or the respondent until after the construction had reached the point of completion.
As the planning approval prohibited the appellant from employing non–resident staff, she claimed she was not liable to pay the respondent for the agreed cost of construction.
By the defence, this contention was put in a number of ways but, for the purposes of this appeal, it is only necessary to refer to paragraph 6 which provided:
"The defendant says that the agreement referred to in the Statement of Claim was wholly verbal but that it was an express condition of that agreement that the plaintiff would seek and obtain such approval as was necessary from the Glenorchy Council, to enable the addition to be used for the purposes of a hairdressing salon by the defendant and three (3) other hairdressers."
The trial was conducted on the basis that, paragraph 6 was an allegation that it was an express condition precedent to the agreement to construct the extension, that the plaintiff (respondent) would seek and obtain such approval as was necessary to enable the extension to be used by the defendant (appellant) for the purpose of a hairdressing salon and three other hairdressers not being residents of the property.
Almost all the evidence at the trial was directed to a factual issue; was the appellant aware of the planning restriction upon the proposed use of the extension before construction began, even though she did not receive notice of it from the Council until after the building was practically completed? On this issue there was a dispute between the evidence of Mr Tiller and Mr Bishop, a planning officer of the Glenorchy Council, both of whom said that the appellant was so aware of the restriction and the appellant and her husband who said she was not.
The learned trial judge's reasons for judgment are confined to this factual issue. He concluded:–
"On the whole of the evidence I am satisfied on the probabilities that Mr Bishop informed her of this state of affairs (the planning restriction) before any construction was started by the plaintiff company. Even if Mr Tiller did not specifically so inform her, she authorised and requested him to commence the work knowing that the planning approval would probably contain this restriction and choosing to run the risk that she could operate the extended salon with outside staff without interference from the Council".
His Honour awarded judgment for the plaintiff in the sum claimed, apparently on the basis that the factual issue referred to had been resolved in the respondent's favour. No finding was made as to whether or not the agreement made between the appellant and the respondent was subject to the condition precedent pleaded in paragraph 6 of the defence. No argument on this point was put to the learned trial judge. All the attention at the trial was focused on the appellant's knowledge of the planning restriction before work commenced.
The Notice of Appeal contained the following single ground:–
"THAT the learned judge erred in fact and in law in finding that the appellant was aware of local Council planning restrictions."
At the commencement of the hearing of the appeal, the appellant sought, and, with the consent of counsel for the respondent, obtained leave to amend the Notice of Appeal by adding the following further ground:–
"THAT the learned trial judge was wrong in law and in fact in not finding that paragraph 6 of the defence was established and thereby, the plaintiff was not entitled to recover from the defendant because of the non performance of the plaintiff's obligations under the agreement."
The last part of the amended ground is in conflict with the first part. If there was a condition precedent as pleaded, and it was not fulfilled, no agreement and consequently, no obligations by either party came into existence.
However, the short answer to the contention raised by Ground 2 of the Notice of Appeal is that, although the learned trial judge made no finding with respect to the alleged condition precedent, there is no evidence upon which a finding could have been made that there was such a condition.
It was common ground between the appellant and Mr Tiller, that, at the time of their first meeting, the appellant instructed Mr Tiller that she wished to extend the existing salon by doubling the present facilities. There was a dispute between the two of them about whether the appellant told Mr Tiller she wished to engage two extra staff to work in the salon after the extension had been built.
Mr Tiller said that he would arrange for a plan to be prepared and submitted to the Council. There was no evidence which tended to suggest that either party made any reference to an application or for approval under the Planning Scheme with respect to the proposed use of the development.
Mr Tiller engaged the services of an architect who drew a plan for the proposed construction. The plan incorporated 'a specification", clause 1 of which provided:–
"1 Obtain building permit and pay fees to Council before commencing work."
According to the appellant, Mr Tiller gave her a quotation for the cost of construction and showed her the plan. The appellant said that she told Mr Tiller she was "happy with the quote". She said that she then said to Mr Tiller, "All I have to do now is take the plans, have them approved by the Council" and that he said "No, no, I do all that, that's my job, that's what you pay me for."
Mr Tiller said that he took the plans to the Council and made application for a building permit in accordance with the Building Regulations. While at the Council, he was informed by an officer of the Council that it was necessary to submit a development application seeking approval for the proposed use of the extension in accordance with the terms of the Claremont Planning Scheme. Mr Tiller said he did not understand why this was necessary "since obviously planning approval had been given to the building". However, as a result of his discussion with the Council officer, he completed a development application form on which he showed himself as the applicant. On the form he disclosed the full name and address of the appellant as owner and in answer to the question, "What ultimate number of employees are envisaged in the proposal?" he initially wrote three females and then, altered it to write one male and one female. The application was dated 21 February 1984. In response to his inquiry, Mr Tiller was advised by the Council officer that no permit under the Building Regulations would be issued until the development application had been approved. Whether Mr Tiller advised the appellant, of the restriction on the proposed use after his visit to the Council was a matter of disputed evidence.
After a short period of time, the appellant ascertained, on her inquiry to the Council, that a building permit had been issued and her husband collected it from the Council offices. It was dated the 12 March 1984. The appellant contacted Mr Tiller and he collected the permit from her and the building work commenced shortly thereafter.
Mr Bishop gave evidence that, not long after the lodgement of the development application, he visited the site and spoke to the appellant. He said that he advised her of the planning restriction concerning her prospective employees. The appellant disputed that there had been any visit by Mr Bishop until after the work was completed.
The development application was approved and the document of approval, which spelt out the planning restrictions was dated the 9 April 1984. Unfortunately, it was sent to the wrong address with the result that neither the applicant nor the respondent were aware of its existence until after the building was either complete or nearly complete.
From the foregoing summary of the evidence it can be seen that there was no evidence that the appellant and the respondent expressly agreed that the respondent would obtain approval, pursuant to the provisions of the Claremont Planning Scheme, for the proposed use of the extension as a hairdressing salon in which three non–resident staff could be employed. On any view of the evidence, the necessity for a development application was not mentioned by either the appellant or Mr Tiller until after the agreement to build had been concluded. Counsel for the appellant acknowledged this to be the case but submitted that the condition precedent pleaded in paragraph 6 of the defence was in the first instance, to be implied from the knowledge Mr Tiller had that the appellant proposed to employ non–resident staff and subsequently became express by Mr Tiller's completion of the development application form without the appellant's assent. This submission is illogical and meaningless in law.
Ground 2 of the amended Notice of Appeal must fail as there was no evidence which could have supported a finding that there was a condition precedent to the agreement to build as pleaded in paragraph 6 of the defence. It follows that ground 1 is of no consequence; even if the appellant had been unaware of the existence of the planning restriction until after completion of the work, such ignorance would not enable her to avoid liability in the absence of the condition precedent pleaded in paragraph 6 of the defence.
However, the finding of fact referred to in ground 1 of the Notice of Appeal turned solely upon the credibility of the witnesses. This court will not lightly interfere with findings of primary facts made by a trial judge as a result of his view of the credibility of witnesses. See Powell v Streatham Manor Nursing Home [1935] AC 243; Benmax v Austin Motor Co Ltd [1955] AC 370; Warren v Coombes (1979) 142 CLR 531.
The conclusion reached by the learned trial judge was plainly open to him on the evidence. Apart from an inconsequential error concerning the address shown on the Council's development approval form, no flaw appears in the reasoning expressed by his Honour for preferring the evidence of Mr Bishop and Mr Tiller to the evidence of the appellant.
I would dismiss the appeal.
Serial No 56/1987
File No 76/1986
List "A"
MARGARET DAVIE v KEMP AND DENNING HOME IMPROVEMENTS CENTRE PTY LTD
REASONS FOR JUDGMENT FULL COURT
WRIGHT J.
4 November 1987
I agree with the reasons given by Underwood J. The appeal should be dismissed.
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