[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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AGLC
Googe v Spoljaric [2017] WADC 99
Case
[2017] WADC 99
Decision Date
CaseChat Overview and Summary
The case of Googe v Spoljaric involved the plaintiff, Mr Googe, who claimed against the defendants, Ms Spoljaric and her son-in-law Mr Ivkovic, regarding issues of contract variation, allocation of payments, and alleged breaches. The court was required to determine whether a subsequent agreement varied the initial contract, how payments made by the plaintiff should be allocated between two contracts, and whether there were any breaches of contract terms. Additionally, the court needed to consider if the plaintiff had repudiated the contract and what remedies were available in both contract and tort law.
The court examined whether the plaintiff and Ms Spoljaric had entered into a binding variation of the initial contract reducing the purchase price of a taxi plate. It was determined that the plaintiff failed to prove the existence of such a contract, as there was no evidence of consideration provided by the plaintiff for the alleged promise by Ms Spoljaric to reduce the price. The court also found that the plaintiff did not breach the terms of the CT 199 Contract by missing payments, as he had made all required payments, including the rank fees.
The court concluded that the initial contracts remained enforceable, and there was no enforceable variation to the terms. The plaintiff’s allocation of payments was assessed, and it was found that he had made all required payments according to the initial terms of the contracts. Therefore, the court dismissed the plaintiff's claims, finding no breaches or repudiations on either side.
The court ordered that the plaintiff take nothing by his claim and that the defendants pay the plaintiff’s costs of the proceedings, to be taxed if not agreed. This included the costs associated with the defence of the counterclaim, which the court found the plaintiff was not entitled to pursue.
Orders
Orders of the court
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Background
Background to the litigation
Background facts Many of the facts relevant to the determination of this dispute are not in issue. It is instructive to state these facts at the outset. Within this context, I will also identify the issues in dispute. The facts set out in this part are not in issue, and I find them to have been proven on the balance of probabilities. Mr Ivkovic (the second defendant) is the son-in-law of Ms Spoljaric (the first defendant), being married to her daughter Bozana. Ms Spoljaric has a son Tomislav Spoljaric. At the time of the events in question, Tomislav was married to Alicia Kingdom (though they have since separated). Also involved in the matters the subject of this case is Ms Spoljaric's former husband, Ivan Spoljaric. The two of them separated a number of years before the events in dispute. (For ease of reference, I will refer to Tomislav Spoljaric and Ivan Spoljaric by their first names). Ivan is Tomislav's father and Bozana's stepfather. For many years prior to the events in dispute Ms Spoljaric and Ivan operated a taxi business in Port Hedland. The taxi business was initially known as Carlindie Cabs. At some stage before the events in dispute, Ms Spoljaric commenced using a second business name, Hedland Taxis. Some advertising was done to promote the name Hedland Taxis. As at the beginning of 2013, between them Ivan and Ms Spoljaric owned or controlled 14 taxi plates. As at this time, Ms Spoljaric was the registered owner of five taxi plates and Ivan was the registered owner of four taxi plates. By controlled, I mean taxis that used either Carlindie Cabs or Hedland Taxis as their despatch service and which carried the livery of one or other business on the vehicle. Around the beginning of 2013, the day‑to‑day management of the combined business was in the hands of Mr and Mrs Ivkovic. Mr Ivkovic was primarily responsible for the cars, drivers and the allocation of work. Ms Ivkovic 'did the paperwork' (ts 266) for both businesses, including arranging advertising, organising maintenance, business development and managing customer complaints and enquiries. Any problems they could not deal with were elevated to either Ivan or Ms Spoljaric. Each of Carlindie Cabs and Hedland Taxis had a telephone number. The two telephone numbers went through to the same despatch operator who dealt with all the taxis owned or controlled by Ms Spoljaric and Ivan. The dispatch operator would answer telephone calls from members of the public and transmit job information via a private radio service to the taxi drivers. Specifically, the driver would receive the customer's pickup address, destination and other details. For this service, the drivers were charged a cab rank fee, which was a fixed amount per week. It included the provision of a two-way radio transceiver in the taxi car for the private radio service. At the beginning of 2013, Mr Googe was one of the drivers working for Carlindie/Hedland Taxis, and was known to all the people to whom I have referred so far.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
I find myself in the same position as Robson J in GT Corporation. At the close of evidence 'my mind is in equilibrium on the issue of whether or not the parties contracted' to reduce the purchase price for taxi plate CT 191: GT Corporation [162] - [165]; Re Peatling, deceased [1969] VR 214, 225 (McInerney J). Accordingly, the issue falls for determination based on the onus of proof. It is Mr Googe who has asserted the existence of an enforceable contract to reduce the purchase price for taxi plate CT 191. Is it he who has the onus of proving the existence of this contact. He has failed to do so. This has the effect that, notwithstanding the transfer of taxi plate CT 191, both the CT 191 Contract and the CT 199 Contract continued to be enforceable according to their initial terms. There is a further reason why Mr Googe's argument that there was an enforceable contract to vary the purchase price under the CT 191 Contract must fail. As I have mentioned, for there to be an enforceable variation contract, each party must receive consideration for any obligation or promise which it is said that they made: Ermogenous [105]; GEC Marconi [226]; GT Corporation [116], [166] – [167]. In the present case, even if I were to find that Mr Googe and Ms Spoljaric did make an agreement to reduce the purchase price for taxi plate CT 191, there is no evidence that Mr Googe gave any consideration for the promise by Ms Spoljaric to reduce the purchase price. In the absence of consideration, there is no enforceable contract. The situation in which the parties come to an informal arrangement to vary the way in which a contract is performed which does not constitute an enforceable variation to their contract is not uncommon. As Finn J remarked in GEC Marconi [230, reference omitted]:The need frequently arises in relational contracts of significant duration to adjust terms to accommodate changed or unforeseen circumstances. For that reason it is common for such contracts to make express provision for variation. Nonetheless, and notwithstanding their contract, parties in an ongoing business relationship equally commonly … regulate their relationships in accordance with what they consider is fair and reasonable or commercially necessary at particular points in time rather than by reference to a priori rights and duties arising under a contract … . Did Mr Googe breach the terms of the CT 199 Contract? Ms Spoljaric's position is that Mr Googe breached the term of the CT 199 Contract requiring him to pay the purchase price of $170,000 by monthly instalments of $4,000. This, she says, he did by missing the January, February, March and April 2014 payments. Mr Googe's position is that he made all monthly payments required, including one each month between January and June 2014. It is not in issue that Mr Googe paid all rank fees due on the CT 191 Contract and CT 199 Contract. Based on my findings in pt 5, from the commencement of each contract at least until 29 May 2014 both the CT 191 Contract and the CT 199 Contract continued to be in force according to the terms initially agreed. Each contained an ongoing obligation for Mr Googe to pay $4,000 per month.