Hawley Partners Pty Ltd v Harward

[1993] QCA 423

IN THE COURT OF APPEAL

[1993] QCA 423

SUPREME COURT OF QUEENSLAND

Appeal No. 105 of 1993

Before       The Chief Justice

The President

Mr Justice Cullinane

[Hawley Partners Pty. Ltd. v. Harward]

BETWEEN:

HAWLEY PARTNERS PTY. LTD.
  (Plaintiff) Respondent

- and -

KEITH HARWARD
  (Defendant)  Appellant

REASONS FOR JUDGMENT - THE COURT 

Judgment delivered 22/10/93

The appellant has appealed against a judgment in the District Court at Brisbane on 14 May 1993 whereby the respondent recovered a money judgment against the appellant. The short point on this appeal is whether or not the appellant should have succeeded with a plea of estoppel.  Paragraph 6 of his Amended Defence was in the following terms:

"6.In the further alternative, the Defendant says that:-

(a)in reliance upon the representation referred to in paragraph 5(c) hereof, he entered into and performed the terms of the said Deed of Compromise and Sale;

(b)in the premises, the Plaintiff  is estopped from making its claim herein."

Paragraphs 5(b) and (c) of the Amended Defence were as follows:

"(b)at the office of Mr Hatcher the Defendant further offered to settle the said dispute on terms that the Plaintiff and others would make payments or provide consideration as was ultimately provided for in the said Deed and that the plaintiff would abandon its said claim; and

(c)Mr Hatcher advised the Defendant by telephone that the Plaintiff and others accepted the offer referred to in sub-paragraph (b) hereof and that the Plaintiff would abandon its said claim in the compromise of the said dispute."

The Deed of Compromise and Sale referred to in the appellant's Amended Defence was executed by the parties on 17 October 1990.  It made no reference to the claim upon which the respondent succeeded below. It neither provided that that claim continued to be available to the respondent or that it was abandoned by the respondent.
     Briefly, what occurred was that on 10 October 1990 negotiation took place between the parties with Mr Hatcher, their accountant, acting as mediator.  Disputes had arisen and an earlier agreement had been entered into which was not performed.  This led to further disputes, with the appellant telling Mr Hatcher on the morning of 10 October that he proposed to commence litigation if there was no resolution by that afternoon. In the course of that discussion the appellant indicated that he required, or would accept, the assignment of a mortgage and the repayment of a loan account, of total value somewhere in excess of 1 million dollars.  At the instigation of the respondent, Mr Hatcher had raised with the appellant a contention by the respondent that he was indebted in a number of amounts totalling $33,254.55, the amount claimed in the action.  The appellant rejected that contention and refused to repay that sum or to have it deducted from the payment which he was to receive.
     Mr Hatcher then went to the respondent's premises, where he discussed the appellant's attitude with one or more of its directors, and was informed that the respondent would assign the mortgage and pay out the loan account and leave the claim for $33,254.55 for future resolution if it decided to pursue it.  The basis of the appellant's estoppel claim was that Mr Hatcher, on behalf of the respondent, then telephoned and informed the appellant that his offer of settlement, which involved the abandonment of the claim against him for $33,254.55, had been accepted by the respondent.
     It was obviously fundamental to the appellant's estoppel plea that he establish, accurately and with some clarity, what was said by Mr Hatcher when he telephoned after speaking to the respondent's directors.
     He completely failed to do this. There were three witnesses, Mr Hatcher, the appellant and his solicitor, at whose office the appellant was present when Mr Hatcher telephoned. 
     The appellant's solicitor made a diary note which was not tendered in evidence.  His oral evidence was that  he had no independent recollection of the telephone call and was uncertain whether he, or the appellant, had spoken to Mr Hatcher.  The diary note might have recorded what he was told by Mr Hatcher or what he was told by the appellant had been said by Mr Hatcher. Understandably, the trial judge held that the solicitor's evidence was of no assistance.
     Despite paragraph 5(c) of his Amended Defence, the appellant contended that he did not speak to Mr Hatcher when he telephoned but that Mr Hatcher had spoken to his solicitor.  The trial judge  rejected this evidence from the appellant, as he was entitled to do, holding that the material conversation was between Mr Hatcher and the appellant, not his solicitor. The difficulties in these circumstances in finding the necessary bases for an estoppel are obvious.
     These difficulties for the appellant were not lessened by Mr Hatcher's evidence, who gave different versions and seemed unsure of what he had said.  The trial judge held that he was unable or unwilling to make a finding in the terms necessary for the appellant if he was to establish the first element of his plea of estoppel.  That course was entirely open to the trial judge. The appellant failed to convince this Court that it was an error by the trial judge not to find that the representation for which he contended had been made.
     Without such a finding, the appellant cannot succeed. The appeal should be dismissed, with costs to be taxed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 105 of 1993

Brisbane  

[Hawley Partners Pty. Ltd. v. Harward]

BETWEEN:

HAWLEY PARTNERS PTY. LTD.
  (Plaintiff)         Respondent

- and -

KEITH HARWARD
  (Defendant)          Appellant

The Chief Justice

The President
  Mr Justice Cullinane

Judgment delivered 22/10/93

Judgment of the Court

APPEAL DISMISSED WITH COSTS TO BE TAXED.

CATCHWORDS:   ESTOPPEL - REPRESENTATION - Appeal against money - whether applicant/defendant ought to have succeeded with plea of estoppel - whether representation said to ground estoppel established accurately and clearly.

Counsel:Mr. D. Boughen for the appellant

Mr. R. Perry for the respondent

Solicitors:Biggs & Biggs Francis & McGregor for the appellant

McCullough Robertson for the respondent

Hearing Date: 23/09/93