Griffiths v LMM Holdings Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Griffiths v LMM Holdings Pty Ltd [2017] FCA 1212

File number(s): QUD 747 of 2016
Judge(s): GREENWOOD J
Date of judgment: 11 October 2017
Catchwords:

CONTRACTS – consideration of the question of whether an agreement for the purchase of a motor vehicle included a term that the vehicle be delivered “by the end of August 2015” – consideration of whether a representation as to the time for delivery was relied upon by the purchaser in purchasing the vehicle – consideration of whether an election on the part of the buyer to terminate the contract constituted a repudiation of the purchase contract – consideration of whether the purchaser discharged the burden of proof in relation to the reliance

PRACTICE AND PROCEDURE - consideration of the principles to be applied by an appeal court in undertaking a re‑hearing – consideration of the principles to be applied in determining challenges to findings of fact – consideration of the observations of the High Court in Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679; 331 ALR 550 and especially the observations at [43]
Cases cited:

Allesch v Maunz (2000) 203 CLR 172

Coulton v Holcombe (1986) 162 CLR 1

CSR Limited v Della Maddalena (2006) 224 ALR 1

Gould v Vaggelas (1984) 157 CLR 215

Lacey v Attorney-General (Qld) (2011) 242 CLR 573

Meehan v Jones (1982) 149 CLR 571

Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679; 331 ALR 550

University of Wollongong v. Metwally [No. 2] (1985) 59 ALJR 481

Warren v Coombes (1979) 142 CLR 531

Whittaker v Child Support Registrar [2010] FCAFC 112
Date of hearing: 24 February 2017
Date of last submissions: 24 February 2017
Registry: Queensland
Division: General Division
National Practice Area: Commercial and Corporations
Sub-area: Regulator and Consumer Protection
Category: Catchwords
Number of paragraphs: 99
Counsel for the Appellant: R J Oliver
Solicitor for the Appellant: Mark Treherne & Associates
Counsel for the Respondent: C G C Curtis
Solicitor for the Respondent: Results Legal

ORDERS

QUD 747 of 2016
BETWEEN:

LIZA ANN GRIFFITHS

Appellant
AND:

LMM HOLDINGS PTY LTD AS TRUSTEE FOR BRISBANE BMW TRUST ACN 448 408 349

Respondent

JUDGE:

GREENWOOD J

DATE OF ORDER:

11 OCTOBER 2017

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The costs of and incidental to the appeal are reserved for later determination. 

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

GREENWOOD J:

Background

  1. This proceeding concerns an appeal from the judgment and orders of the Federal Circuit Court of Australia (the “Federal Circuit Court”) in Griffiths v LMM Holdings Pty Ltd as the Trustee for the Brisbane BMW Unit Trust [2016] FCCA 2322 (“the primary judgment”). The appellant in this proceeding, Dr Liza Ann Griffiths (“Dr Griffiths”), who was the unsuccessful applicant in the principal proceeding, brings the appeal pursuant to s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth).

  2. The relevant background facts are these.

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Details
Case
[2017] FCA 1212
Decision Date

CaseChat Overview and Summary

In the matter of Griffiths v LMM Holdings Pty Ltd, the respondent, the seller, sought to enforce a contract for the sale of a motor vehicle against the appellant, the purchaser. The appellant, Dr Griffiths, argued that the contract was void due to uncertainty and that she had relied on a representation made by the respondent's employee regarding the delivery date of the vehicle. The primary judge dismissed the application and found in favour of the respondent, ordering the appellant to compensate the respondent for the loss sustained by the refusal to complete the purchase contract. The appellant appealed, contending that the primary judge erred in finding that she did not rely on the delivery representation and that the purchase contract was not void for uncertainty.

The court was required to determine whether the primary judge's findings of fact were erroneous. The court considered the principles of appellate review of findings of fact, as articulated in Robinson Helicopter Company Inc v McDermott and Warren v Coombes, and held that an appellate court should not reverse a finding of fact unless it is convinced that it is wrong. The court examined the primary judge's reasons and found that the primary judge had considered the relevant evidence and made findings based on appropriate inferences.

The court concluded that the primary judge's findings of fact were not erroneous. The court found that there was no direct evidence of the conversation between the parties regarding the delivery date, and the appellant's own evidence did not support a finding of reliance. The court also found that the primary judge's conclusion that the contract was not void for uncertainty was supported by the evidence.

The appeal was dismissed, and the costs of and incidental to the appeal were reserved for later determination.

Orders

Orders of the court

1. The appeal is dismissed.

2. The costs of and incidental to the appeal are reserved for later determination.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

More recently the High Court, in Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679; 331 ALR 550, restated the role of appellate courts in considering challenges to fact‑finding. Their Honours, French CJ, Bell, Keane, Nettle and Gordon JJ, said this at [43]:… A court of appeal conducting an appeal by way of rehearing is bound to conduct a “real review” of the evidence given at first instance and of the judge’s reason for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by “incontrovertible facts or testimony” or they are “glaringly improbable” or “contrary to compelling inferences”.[citations omitted; emphasis added] These observations of the High Court in 2016 are entirely consistent with earlier authority. In Warren v Coombes (1979) 142 CLR 531, Gibbs ACJ, Jacobs and Murphy JJ; Stephen and Aickin JJ dissenting, set out the relevant principles, which were those discussed by Barwick CJ and Windeyer J in Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192 (and subsequently in Edwards v Noble (1971) 125 CLR 296). The relevant passages are as follows:The question is not whether the appellate court can substitute its view of the facts which, of course, it is empowered to do: but whether it should do so. In any appeal against a finding of fact, whether or not by way of rehearing, however much the appellate court may be in an equal position with the trial judge as to the drawing of the inferences, in my opinion, the appellate court ought not to reverse the finding of fact unless it is convinced that it is wrong. If that finding is a view reasonably open on the evidence, it is not enough in my opinion to warrant its reversal that the appellate court would not have been prepared on that evidence to make the same finding”.…But, in any case, the appellate court in my opinion is not bound to reverse the primary judge’s finding of fact merely because it held a different opinion to that of the primary judge.[emphasis added] The primary judge gave thorough and carefully considered reasons. The primary judge recognised that the “absence” of direct evidence on a question in issue requiring findings of fact to be made on that issue is not necessarily “fatal”: primary judgment at [79]‑[80]. His Honour said that it was open to him to make findings by drawing “appropriate inferences from other proven facts”, citing Gould v Vaggelas (1984) 157 CLR 215 at 236; Dominelli Ford (Hurstville) Pty Ltd v Karmot Auto Spares Pty Ltd (1998) 38 FCR 471 at 483; and Barnes v Forty Two International Pty Limited (2014) 316 ALR 408 at [184] as authority: primary judgment at [80]. His Honour was not prepared to infer either reliance or inducement, given (primary judgment at [82]):(a)the recognition by Mr Griffiths and Dr Griffiths that the vehicle might not be delivered by the end of August 2015 as revealed by the uncontroversial conversation with Mr Johnson concerning what would occur if the vehicle was not delivered by the end of August 2015 (i.e., the provision of a loan car);(b)the apparent satisfaction that Dr Griffiths and Mr Griffiths had with Mr Johnson’s answer to that question; (c)the failure by the parties, and in particular Dr Griffiths, to set out an estimated delivery time for the vehicle in that part of the form specifically reserved for that purpose; and(d)Dr Griffiths’ own evidence in her affidavit filed on 15 February 2016 that she felt assured that the vehicle would “arrive by approximately early September [2015]”.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Judge Jarrett therefore dismissed the application of 9 September 2015 and found in favour of the respondent in relation to its cross‑claim. The applicant was ordered to compensate the respondent for the loss it sustained by virtue of Dr Griffiths’ refusal to complete the purchase contract (plus interest), with the damages assessed at $14,204 (reduced by $2,000 being the amount of the deposit already paid by Dr Griffiths).The primary judgment For the sake of completeness, these are the matters about which the primary judge was satisfied (primary judgment at [4]):(a)Dr Griffiths agreed to purchase a BMW motor vehicle from the respondent;(b)the purchase contract is not uncertain, nor is any term of it unfair for the purposes of the ACL;(c)before the contract of purchase was formed, Brisbane BMW’s salesman did make a representation to Dr Griffiths and her husband that the vehicle she wished to purchase would be delivered by the end of August 2015;(d)the representation did not become a term of the purchase contract;(e)the representation does not give rise to any operable estoppel against Brisbane BMW;(f)the representation was a prediction or a representation as to a future matter;(g)the salesman did not have reasonable grounds for making the representation;(h)by the making of the representation, Brisbane BMW, by its servant or agent, engaged in misleading and deceptive conduct contrary to s 18 of the ACL;(i)Dr Griffiths did not rely upon the representation when she entered into the purchase contract;(j)Dr Griffiths’ purported termination of the purchase contract on 8 July 2015 was ineffective to bring the purchase contract to an end; and(k)Brisbane BMW effectively terminated the purchase contract by letter dated 3 September 2015 when it accepted Dr Griffiths’ repudiation of the purchase contract.The current proceeding Dr Griffiths contends in her grounds of appeal that, put simply: the learned trial judge erred in not finding that she relied on the delivery representation; and that his Honour erred in finding that the purchase contract for the vehicle was not void for uncertainty (due to contended deficiencies with the “subject to finance clause”). In the course of the hearing before this Court, counsel for the appellant, Mr Richard Oliver, observed that there are “… only two points in this appeal” (T, p 2, ln 43). Given that the appellant’s pleaded case challenges various findings of fact made by the primary judge, it is necessary to set out several passages from the primary judgment which relate to those grounds which are the subject of this appeal. I will separately deal with the findings of fact made by the primary judge in relation to the “reliance point” and the “uncertainty point”.Findings of fact by the primary judge: reliance point As an overall observation, the primary judge was critical of the affidavit evidence put before the Court by each party. His Honour explained that there was “considerable difficulty” with the affidavit evidence of Mr Johnson and that “[t]here was no attempt by Mr Johnson to set out the conversations that he alleges were had by him with the Griffiths”: primary judgment at [14]. His Honour further remarked that whilst the “affidavit speaks of his usual practice … there is no direct evidence from him about what it was that he in fact said to the Griffiths on the relevant occasion”: primary judgment at [14]. The primary judge went on to say that although Mr Johnson “denies having made assurances about a delivery time, his evidence does not set out what he actually said to them”: primary judgment at [14].

Ratio Decidendi

Legal Principle Established

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