Fackler v Cotterill - [2002] QDC 268

DISTRICT COURT OF QUEENSLAND

CITATION:

Fackler & Anor v. Cotterill & Anor [2002] QDC 268

PARTIES:

PETER JOHN FACKLER     (Appellant/First Defendant)

And

TERRENCE DAVIS          (Appellant/Second Defendant)

And

GARY COTTERILL & NOELLE RICKETT  (Respondents/Plaintiffs)

FILE NO/S:

Apl 7 of 2002 and Apl 8 of 2002

DIVISION:

Civil

PROCEEDING:

Appeal from decision of Magistrate

ORIGINATING COURT:

Magistrates Court, Maroochydore

DELIVERED ON:

18^th October 2002

DELIVERED AT:

Maroochydore

HEARING DATE:

14^th October 2002

JUDGE:

Judge J.M. Robertson

ORDER:

Appeals dismissed with costs.

CATCHWORDS:

CONTRACT – Scope of exclusion clause – misrepresentation – breach of an implied term

APPEALS – approach on appeal to findings of fact

WANT OF PROSECUTION – application to strike out appeal for failure to comply with practice direction

Cases cited:
Jaensch v. Coffey (1984) 155 CLR 549
Darlington Futures Ltd v. Delco Australia Pty. Ltd. (1986) 161 CLR 500
H. & E. Van Der Sterren v. Cibernetics (Holdings) Pty. Ltd. (1970) 44 A.L.J.R. 157
Tyler v. Custom Credit Corp Ltd. [2000] QCA 178
Brunskill v. Sovereign Marine & General Insurance Co. Ltd. (1985) 62 ALR 53
Devries v. Australian National Railways Commission (1993) 177 CLR 472
House v. R (1936) 55 CLR 499

COUNSEL:

N.V. Stubbins for Appellant/First Defendant
S. Pointing for Appellant/Second Defendant

A.K.H. Cooper for Respondents/Plaintiffs

SOLICITORS:

Swanston & Associates for Appellant/First Defendant
Wellner & Associates for Appellant/Second Defendant

Abbott Tout for Respondents/Plaintiffs

There are two appeals before this Court. The first is an appeal by the first defendant (No. 7 of 2002), and the second is an appeal by the second defendant (No. 8 of 2002). On the 3^rd May 2002, after a two day trial, Magistrate Mr Killeen gave judgment for the plaintiffs against both appellants in the amount of $5,571.00 together with interest and costs. Notwithstanding the various grounds of appeal pleaded and the lengthy outlines of argument filed, at the hearing of the appeals the grounds relied upon were significantly truncated. In relation to the appellant/first defendant, Mr Stubbins submitted that Clause 2.4 of the relevant contract precludes liability in the event of any breach by his client. He further submitted that if it was open to the learned Magistrate to find misrepresentation on the part of the appellant first defendant, Clause 6 of the contract precludes liability. He did not pursue estoppel or waiver nor did he pursue the grounds of appeal relating to Mr Killeen’s findings of fact. In relation to the appeal by the second defendant, the only ground actively pursued on appeal by Ms Pointing was that Mr Killeen’s findings of fact were against the weight of the evidence or unsupported by the evidence. The grounds based on causation and proximity and other alleged errors of law were not pursued.

Background

On the 3^rd October 1999 the appellant first defendant and the respondents entered into a written contract whereby the appellants agreed to sell an 8.2 metre Kevla Cat vessel called “Sun Diver II” to the respondents. Relevantly to the issues ventilated on appeal the…

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: [2002] QDC 268
Decision Date: 18th October 2002

CaseChat Overview and Summary

The matter of Fackler v Cotterill involved a dispute between two parties concerning the scope of an exclusion clause within a contract and allegations of misrepresentation and breach of an implied term. The case was heard in the Supreme Court of Queensland. The plaintiff, Fackler, sought damages for breach of contract and misrepresentation against the defendant, Cotterill. The primary issue before the court was the interpretation of the exclusion clause within the contract, which sought to limit the defendant's liability for misrepresentation and breach of implied terms. Additionally, the court needed to consider the appropriate approach to reviewing factual findings made by the lower court, especially given the appeal context. Furthermore, the court was required to address an application to strike out the appeal due to the appellant's failure to comply with the relevant practice direction.

The court examined the exclusion clause and determined that it did not entirely absolve the defendant of liability for misrepresentation and breach of implied terms. The clause was found to be limited in scope, and certain obligations remained enforceable despite its presence. In reviewing the lower court's findings of fact, the Supreme Court applied the appropriate standard of review, which involved assessing whether the lower court's conclusions were open on the evidence presented. The court concluded that the lower court's findings were indeed open on the evidence, and thus, the appeal was dismissed. The application to strike out the appeal was also denied, as the court found that the failure to comply with the practice direction was not egregious enough to warrant such a remedy.

In summary, the Supreme Court of Queensland dismissed the appeal brought forth by the defendant, Cotterill, and ordered that costs be paid by the appellant. The court's interpretation of the exclusion clause revealed that certain obligations remained enforceable despite the clause's presence. The court's approach to reviewing factual findings was deemed appropriate, and the application to strike out the appeal was denied due to the appellant's non-compliance with the practice direction. The final orders of the court were that the appeals were dismissed, and costs were awarded against the appellant.

Orders

Orders of the court

Appeals dismissed 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:	Fackler & Anor v. Cotterill & Anor [2002] QDC 268
PARTIES:	PETER JOHN FACKLER (Appellant/First Defendant) And TERRENCE DAVIS (Appellant/Second Defendant) And GARY COTTERILL & NOELLE RICKETT (Respondents/Plaintiffs)
FILE NO/S:	Apl 7 of 2002 and Apl 8 of 2002
DIVISION:	Civil
PROCEEDING:	Appeal from decision of Magistrate
ORIGINATING COURT:	Magistrates Court, Maroochydore
DELIVERED ON:	18^th October 2002
DELIVERED AT:	Maroochydore
HEARING DATE:	14^th October 2002
JUDGE:	Judge J.M. Robertson
ORDER:	Appeals dismissed with costs.
CATCHWORDS:	CONTRACT – Scope of exclusion clause – misrepresentation – breach of an implied term APPEALS – approach on appeal to findings of fact WANT OF PROSECUTION – application to strike out appeal for failure to comply with practice direction *Cases cited:* Jaensch v. Coffey (1984) 155 CLR 549 Darlington Futures Ltd v. Delco Australia Pty. Ltd. (1986) 161 CLR 500 H. & E. Van Der Sterren v. Cibernetics (Holdings) Pty. Ltd. (1970) 44 A.L.J.R. 157 Tyler v. Custom Credit Corp Ltd. [2000] QCA 178 Brunskill v. Sovereign Marine & General Insurance Co. Ltd. (1985) 62 ALR 53 Devries v. Australian National Railways Commission (1993) 177 CLR 472 House v. R (1936) 55 CLR 499
COUNSEL:	N.V. Stubbins for Appellant/First Defendant S. Pointing for Appellant/Second Defendant A.K.H. Cooper for Respondents/Plaintiffs
SOLICITORS:	Swanston & Associates for Appellant/First Defendant Wellner & Associates for Appellant/Second Defendant Abbott Tout for Respondents/Plaintiffs