Donovan v TIC Realty Pty Ltd - [2011] QCA 90

SUPREME COURT OF QUEENSLAND

CITATION:

Donovan v TIC Realty Pty Ltd [2011] QCA 90

PARTIES:

PAUL RICHARD DONOVAN
(applicant)
v
TIC REALTY PTY LTD
ACN 084 801 418
(respondent)

FILE NO/S:

Appeal No 13035 of 2010
DC No 2100 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

10 May 2011

DELIVERED AT:

Brisbane

HEARING DATE:

20 April 2011

JUDGES:

Margaret McMurdo P and Chesterman JA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal refused with costs

CATCHWORDS:

GUARANTEE AND INDEMNITY – THE CONTRACT OF GUARANTEE – CONSTRUCTION AND EFFECT – GENERALLY – where the applicant entered into a contract with the respondent for the appointment of a real estate agent – where the contract referred to a number of annexures that dealt with commission and other special conditions – where the contract included a guarantee signed by the applicant – where the applicant argued that the applicant’s guarantee was limited to the payment of commission in the event that the respondent found a purchaser who completed a contract to buy land from it – where the applicant argued that the special conditions within the agreement made the contract an unintelligible hybrid so that it was impossible to comprehend what obligations the applicant had guaranteed – whether the primary judge erred in finding that there was no ambiguity or uncertainty in the appointment of the real estate agent and the written guarantee

EVIDENCE – GENERALLY – CREDIBILITY AND WEIGHT – where the applicant argued that the primary judge erred by admitting documents into evidence that included copies received by facsimile transmission – where the applicant argued that the ‘best evidence rule’ made the copies inadmissible in the absence of proof that the original had been destroyed or could not be found – whether the trial judge erred in admitting the documents into evidence

Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424; [2004] HCA 28, cited
Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (1987) 162 CLR 549; [1987] HCA 15, cited
Hillas & Co Ltd v Arcos Ltd (1932) 147 LT 503; [1932] UKHL 2, considered
Masquerade Music Ltd v Springsteen [2001] EWCA Civ 513, considered

Evidence Act 1977 (Qld), s 116
Uniform Civil Procedure Rules 1999 (Qld), r 394

COUNSEL:

P Travis for the applicant
R J Anderson, with A R Lonergan, for the respondent

SOLICITORS:

Fitz-Walter Lawyers for the applicant
TIC Realty Pty Ltd for the respondent

[1] MARGARET McMURDO P: I agree with Chesterman JA’s reasons for refusing leave to appeal with costs.

[2] CHESTERMAN JA: The respondent, as plaintiff, commenced proceedings in the District Court against a company, Donovan Developments Pty Ltd (“Developments”) and the applicant, Mr Donovan, claiming respectively monies owed pursuant to a written agreement for the performance of services by the respondent for…

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: [2011] QCA 90
Decision Date: 10 May 2011

CaseChat Overview and Summary

The applicant, Donovan, entered into a contract with the respondent, TIC Realty Pty Ltd, for the appointment of a real estate agent. The contract included a guarantee signed by Donovan, which Donovan argued was limited to the payment of commission in the event that the respondent found a purchaser who completed a contract to buy land from it. Donovan contended that the special conditions within the agreement made the contract an unintelligible hybrid, thus making it impossible to comprehend what obligations Donovan had guaranteed. The primary judge found that there was no ambiguity or uncertainty in the appointment of the real estate agent and the written guarantee. Donovan further argued that the primary judge erred by admitting documents into evidence that included copies received by facsimile transmission. Donovan contended that the 'best evidence rule' made the copies inadmissible in the absence of proof that the original had been destroyed or could not be found.

The court was required to decide whether the primary judge erred in finding that there was no ambiguity or uncertainty in the appointment of the real estate agent and the written guarantee. The court also needed to determine whether the primary judge erred in admitting the documents into evidence, particularly those that were copies received by facsimile transmission. The court considered the language of the contract, the guarantee, and the special conditions to ascertain whether there was any ambiguity or uncertainty. The court also examined the application of the 'best evidence rule' in relation to the admissibility of the facsimile copies.

The court found that the primary judge did not err in finding that there was no ambiguity or uncertainty in the appointment of the real estate agent and the written guarantee. The court held that the language of the contract and the guarantee were clear and unambiguous, and that the special conditions did not create any confusion or uncertainty. The court also held that the primary judge did not err in admitting the facsimile copies into evidence, as the 'best evidence rule' did not apply in this case. The court found that the copies were admissible as they were reliable and the originals were not necessary for the determination of the issues.

The application for leave to appeal was refused with costs. The court held that there was no error in the primary judge's decision and that the appeal had no reasonable prospect of success. The costs of the appeal were awarded to the respondent, TIC Realty Pty Ltd.

Orders

Orders of the court

Application for leave to appeal refused with costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Donovan v TIC Realty Pty Ltd [2011] QCA 90
PARTIES:	PAUL RICHARD DONOVAN (applicant) v TIC REALTY PTY LTD ACN 084 801 418 (respondent)
FILE NO/S:	Appeal No 13035 of 2010 DC No 2100 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	10 May 2011
DELIVERED AT:	Brisbane
HEARING DATE:	20 April 2011
JUDGES:	Margaret McMurdo P and Chesterman JA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal refused with costs
CATCHWORDS:	GUARANTEE AND INDEMNITY – THE CONTRACT OF GUARANTEE – CONSTRUCTION AND EFFECT – GENERALLY – where the applicant entered into a contract with the respondent for the appointment of a real estate agent – where the contract referred to a number of annexures that dealt with commission and other special conditions – where the contract included a guarantee signed by the applicant – where the applicant argued that the applicant’s guarantee was limited to the payment of commission in the event that the respondent found a purchaser who completed a contract to buy land from it – where the applicant argued that the special conditions within the agreement made the contract an unintelligible hybrid so that it was impossible to comprehend what obligations the applicant had guaranteed – whether the primary judge erred in finding that there was no ambiguity or uncertainty in the appointment of the real estate agent and the written guarantee EVIDENCE – GENERALLY – CREDIBILITY AND WEIGHT – where the applicant argued that the primary judge erred by admitting documents into evidence that included copies received by facsimile transmission – where the applicant argued that the ‘best evidence rule’ made the copies inadmissible in the absence of proof that the original had been destroyed or could not be found – whether the trial judge erred in admitting the documents into evidence Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424; [2004] HCA 28, cited Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (1987) 162 CLR 549; [1987] HCA 15, cited Hillas & Co Ltd v Arcos Ltd (1932) 147 LT 503; [1932] UKHL 2, considered Masquerade Music Ltd v Springsteen [2001] EWCA Civ 513, considered Evidence Act 1977 (Qld), s 116 Uniform Civil Procedure Rules 1999 (Qld), r 394
COUNSEL:	P Travis for the applicant R J Anderson, with A R Lonergan, for the respondent
SOLICITORS:	Fitz-Walter Lawyers for the applicant TIC Realty Pty Ltd for the respondent