Hodson v McFarland
[2014] QCATA 261
•8 September 2014
| CITATION: | Hodson v McFarland & Anor [2014] QCATA 261 |
| PARTIES: | Adrian Hodson (Appellant) |
| v | |
| Malcolm McFarland and Jane McFarland (Respondents) |
| APPLICATION NUMBER: | APL092-14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr J R Forbes, Member |
| DELIVERED ON: | 8 September 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for leave to appeal filed on 24 February 2014 is dismissed. 2. The application for miscellaneous matters filed on 5 September 2014 is dismissed. |
| CATCHWORDS: | APPLICATION FOR LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where transaction found void for uncertainty – whether appellable error demonstrated – whether allegation of bias well founded – whether disjoinder of co-respondent to initial process erroneous – where late and irregular attempt by respondents to cross-appeal by application for miscellaneous matters – whether such attempt a permissible adjunct to application for leave to appeal – whether application for leave should be granted Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 32, s 62, s 142 Associated Japanese Bank (International) Ltd v Credit du Nord SA [1989] 1 WLR 255 Fox v Percy (2003) 214 CLR 118 Johnson v Queensland Police Service [2014] QCA 195 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 Nu Line Construction Group Pty Ltd v Fowler (aka Grippaudo) [2012] NSWSC 587 Robinson v Corr [2011] QCATA 302 Roxborough & Ors v Rothmans of Pall Mall Australia Pty Limited (2001) 208 CLR 516 W (an infant), In Re [1971] AC 682 Wentworth v Graham (2003) 57 NSWLR 741 York Air Conditioning and Refrigeration (Australasia) Pty Ltd v The Commonwealth (1949) 80 CLR 11 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
This application for leave[1] to appeal was originally listed for an oral hearing at Brisbane on 25 August 2014.
[1]Leave is required by s 142(3)(a)(i) of the QCAT Act.
On that day the appellant (“Hodson”) was absent and the hearing was adjourned to 10 October 2014, in circumstances described in my interim decision of 25 August 2014.
On 2 and 3 September 2014 Hodson applied for a hearing on the papers, and Directions to that effect were issued on 4 September 2014.
Proceedings at trial
The application for leave arises from a decision of Adjudicator Gordon given on 21 January 2014. It was then ordered that Hodson pay to the respondents (“the McFarlands”) the sum of $13,277.40.
Of that amount, $12,000 represents a part payment or returnable deposit paid by the McFarlands towards the purchase of a Hino “motor home”. A counterclaim[2] (or joint minor debt claim) by Hodson for the balance of the purchase price ($50,000) was dismissed.
[2]Leave to pursue this claim as a separate minor debt claim was granted by order dated 21 January 2014, paragraph 2.
An application by Hodson for a stay of these orders was refused on 25 February 2014.
In October 2012 the McFarlands, who reside on Magnetic Island, were interested in acquiring a motor home. They noticed an advertisement by Hodson, of Benowa, on Queensland’s Gold Coast, offering such a vehicle for sale. On or about 1 November 2012 Mrs McFarland, on behalf of herself and her husband, telephoned Hodson[3] and arranged to inspect the vehicle at Benowa; she did so soon afterwards.[4]
[3]Transcript of hearing 21 January 2014 (“Transcript”) page 56 line 27.
[4]Ibid page 17 line 4; page 41 line 2.
At the time of her inspection Mrs McFarland paid Hodson the sum of $12,000 in cash, and Hodson gave her a document (typewritten and handwritten) headed “Sungroup (Aust)”, Hodson’s trading name.[5] It is entitled ‘Official Receipt/Heads of Agreement’. Although it is dated 1 November 2012, it was given to Mrs McFarland later, at the time of her inspection. The typewritten section states in part: ‘The buyer hereby agrees that the Item described herein is sold `As is’ with no guarantees or Warrantees [sic]’. However, a handwritten addition, with two sets of initials, reads: ‘Seller guarantees everything is in working condition on arrival and delivery at Magnetic Island on or before 11.12.12’. Other handwritten amendments record a payment of $12,000 and as an ‘amount owing’, $50,000, payable on 11 November 2012.
[5]Ibid page 2 line 25.
Much of the evidence is vague and conflicting. The Adjudicator observed that there are ’two versions’ of the receipt.[6] It is the McFarlands’ case that Hodson agreed to deliver the vehicle to them at Magnetic Island.[7] Hodson, for his part, maintains that ‘the delivery was only something that was thought up after the event’.[8] This issue is not resolved by a reading of the “receipt”, and the evidence did not enable the Adjudicator to decide when that document, in its final form, was created.[9]
[6]Ibid page 58 lines 4 – 5.
[7]Ibid page 57 lines 16 – 21.
[8]Ibid page 57 lines 29 – 30.
[9]Ibid page 56 lines 36 – 37.
The Adjudicator was left with the impression that ‘the parties ... are equally unsure about exactly what happened on 1 November 2012’,[10] when Mrs McFadden telephoned Hodson:
Exactly what was agreed on the telephone, I think, is extremely unclear. Although both parties are clear in their own minds about what happened, their views do not accord with each other, nor, indeed, with the contemporaneous document ...[11]
[10]Ibid page 56 lines 26 – 27.
[11]Ibid page 56 lines 20 – 24.
In hindsight Hodson regretted his failure to document certain features of the transaction. ‘I should have put on there that ... that the purchaser agrees that she will pay for the cost of the registration ... roadworthy ... tyres ... mechanical work ... fuel’.[12] ‘I should have put it on in hindsight’.[13]
[12]Ibid page 30 lines 21 – 28.
[13]Ibid page 31 line 20.
In the Adjudicator’s view the crucial – though by no means only point of uncertainty – concerns the arrangements for delivery:
[T]he crux of my decision today [is that] I don’t think there was any meeting of minds ... as to how this vehicle would get to Magnetic Island and who would pay the costs of it.[14]
[14]Ibid page 59 lines 41 – 44.
The Adjudicator’s emphasis on that point is hardly surprising. It is a matter of common knowledge that the distance between Benowa and Magnetic Island is considerable. The party responsible for delivery – whoever that was to be – would bear substantial costs of registration, fuel, tyres, travel, accommodation, and possible mechanical repairs.
The Adjudicator concluded:
This [alleged] contract is not really a contract. It’s not something that is certain enough to mean that the [transaction] is enforceable. ... The result of this [transaction] being ... void for uncertainty is that the parties must be restored to the position they were [in] before [it] was entered into. The position is ... that Mr Hodson will be ordered to pay [the McFarlands] the sum of $12,000.[15]
[15]Ibid page lines 23 – 31.
Whether the payment of $12,000 was a part payment or a deposit, it was clearly too large to be treated as a non-refundable holding deposit.[16] For that view there is ample authority;[17] even a holding deposit may be returnable.[18]
[16]Ibid page 60 lines 38 – 46.
[17]Pavey & Matthews Pty Limited v Paul (1987) 162 CLR 221 at 257; Roxborough & Ors v Rothmans of Pall Mall Australia Pty Limited (2001) 208 CLR 516 at [20]; Nu Line Construction Group Pty Ltd v Fowler (aka Grippaudo) [2012] NSWSC 587 at [255].
[18]Lewis v Orchid Avenue Pty Ltd [2014] FCA 739 at [12]. The “Official Receipt/Heads of Agreement” refers to “The amount of $12,000 as Part/Full payment”, with the words “Full Payment” struck out by hand.
Grounds of appeal
The application for leave, filed on 24 February 2014,[19] asserts the following grounds:
a)I believe the Adjudicator acted biasly [sic] to the [McFarlands].
b)I believe the Adjudicator and the [McFarlands] had discussion[s] prior to my conference call and because I was not privy to them I could not respond.
c)I have ordered a transcript ... to include in this application and will lodge the one received and read.
d)Mr McFarland should not have been an applicant.
[19]With the benefit of an extension of time.
Ground (a): Allegation of bias.
Bare allegations of bias, utterly devoid of particulars, as is this one, do not merit consideration. It is hardly necessary to stress that the subjective belief of an unsuccessful litigant is no proof of bias.[20] Unfortunately, some parties who enter the lists without professional counsel too readily confuse personal disappointment, or sheer unwillingness to accept a decision, with reasonably perceived unfairness. As the Supreme Court said of one local litigant:
In other words, because the decision went against Mr Renton there is a perception of bias. If that is the only basis for the allegation then it is doomed to failure.[21]
[20]S & M Motor Repairs Pty Ltd v Caltex Oil (Aust) Pty Ltd (1988) 12 NSWLR 358 at 374; Attorney-General for the State of Victoria v Shaw (No 5) [2013] VSC 106; Slinko v Guardianship and Administration Tribunal [2006] 2 Qd R 279. In the courts a person who makes frivolous allegations of bias may be declared a vexatious litigant: Wentworth v Graham (2003) 57 NSWLR 741.
[21]Renton v Magistrate Baldwin [2009] QSC 103 at [21].
It should be said at once that no evidence of apparent bias appears on the record of these proceedings. The Adjudicator, in his discretion, allowed Hodson to pursue his counterclaim, notwithstanding a difficulty presented by the QCAT Rules, and despite the fact that the McFarlands did not have due notice of that action.[22] In that regard he gave Hodson the benefit of the doubt: ‘I think Mr Hodson probably thought that he’d emailed [the counterclaim papers] to Mr and Mrs McFarland’.[23] The Adjudicator acceded to Hodson’s submission that his wife should be removed as a party to the proceedings.[24] Hodson was allowed, without any interruption, to open his case in a statement running from page 16 to page 19 of the transcript. Elsewhere, when the Adjudicator sought clarifications of Hodson’s submissions, the interventions were preceded by a polite: ‘Sorry to interrupt you Mr Hodson ...’[25]Hodson’s frequent (and not invariably polite) interruptions, including one during delivery of judgment, were patiently borne. Similar patience was shown when cross-examination of Mrs McFarland became argumentative speechmaking,[26] and even when a walkout was threatened: ‘I’m going to have to terminate this meeting’.[27] That outburst followed this exchange: ‘Adjudicator Gordon: Do you refuse to answer Mr McFarland’s questions? Mr Hodson: I don’t want to answer any questions of Mr McFarland, because he’s not a privy to anything that happened. Adjudicator Gordon: I’ll make a note of the fact ...’[28] At the conclusion of the hearing, when Hodson announced his intention to appeal, the Adjudicator helpfully advised him to note the relevant time limit.[29]
[22]Transcript page 55 lines 46 – 47.
[23]Ibid page 55 lines 12 – 13.
[24]Ibid page 54 lines 32 – 33.
[25]Ibid page 30 lines 13 and 30.
[26]Ibid pages 46 – 49.
[27]Ibid page 39 line 16 (Hodson, rejecting a ruling that Mr McFarland, as a party, would be heard).
[28]Ibid page 37 lines 30 – 38.
[29]Ibid page 64 line 1.
The unsupported allegation of bias is rejected.
Ground (b)
The allegation that ‘the Adjudicator and the [McFarlands] had discussion[s] prior to my conference call’ is an assertion entirely without particulars or support. Indeed, the very first lines of the transcript show that an audio-link with Hodson had already been established. There is no evidence to support this scurrilous assertion.
Ground (c)
This item of information does not express any ground of appeal.
Ground (d)
This assertion ignores the Adjudicator’s ruling to the contrary. That ruling accords with the facts of this case, the probabilities of human affairs and Hodson’s admissions[30]. Mrs McFarland testified: ‘[T]he purchase was between both of us. I ... had a look at the bus ... rang my husband [and had] a chat about it’.[31] And Mr McFarland gave uncontradicted evidence that ‘there was correspondence with me prior to ... Jane going down to inspect the bus’.[32] No error of law is revealed.
[30]Ibid 14 lines 15 – 22: Were you aware she was purchasing ... for both of them? Hodson: Yeah, I was. See also page 14 lines 34 – 37, page 15 lines 13 – 15.
[31]Ibid page 41 lines 1 – 2 (Mrs McFarland).
[32]Ibid page 40 lines 17 – 18, 47.
Appellant’s further submissions
Hodson filed “further submissions” on 5 May 2014. While in part they venture beyond the four corners of his application for leave, I shall consider them as Further Submissions (i) to (v).
Further Submission (i)
‘I objected to Mr McFarland being allowed to be a respondent [scil. applicant] and to give evidence’: See paragraph [22], above. Besides, the Adjudicator indicated that Mr McFarland’s evidence was of limited scope and minor importance.[33] The transcript reflects that view.
[33]Ibid page 40 lines 11 – 14.
Further Submission (ii)
‘The normal hearing procedure was dropped and the procedure used favoured the McFarlands’: The suggestion here is that the McFarlands should have been required to begin, and that the procedure adopted was seriously prejudicial to Hodson.
The legislation clearly states that procedure is generally at the discretion of the Tribunal, and that the Tribunal is not required to follow the practices of the courts.[34] No particulars are given to support the bare assertion of unfairness, and the procedure adopted is not intrinsically or self-evidently unfair. In reality each party was an applicant – the McFarlands in their quest for $12,000, and Hodson, in his claim for the much larger sum of $50,000. Noting that Hodson seemed ‘very anxious to tell me what happened’,[35] the Adjudicator gave him his head. Hodson then proceeded for almost 3 pages of uninterrupted, closely typed transcript to promote his claim. Overall, Hodson’s evidence, argument and frequent interruptions occupy almost 19 pages of a transcript of 64 pages (the first 15 pages record procedural matters). The submissions of the McFarlands, on the other hand, fill only some 5 pages. In his argumentative cross-examination of Mrs McFarland Hodson had further opportunities to assert and to re-assert his version of the case.
[34]QCAT Act ss 28(1), (3)(b).
[35]Transcript page 16 lines 26 – 27.
The assertion that Hodson was asked ‘approximately 238 questions’ is manifestly absurd. However, when parties are not legally represented, questions designed to clarify submissions, or to minimise irrelevancies are more likely to occur. Numerous questions to a party are no indication of bias; on the contrary, they may signal close attention to that party’s case. In this instance the Adjudicator was striving valiantly to distil a viable contract from numerous inconsistencies and uncertainties.
I discern no error of law in the procedure adopted.
Further Submission (iii)
’Neither party was sworn’: This assertion is patently incorrect. The administration of oaths to the McFarlands and to Hodson is recorded at page 16 of the transcript.
Further Submission (iv)
‘The [McFarlands’] whole case hinges on the allegation that ... I promised to pay for a roadworthy (etc)’: This submission is not related to any ground of appeal. It is merely an impermissible attempt to re-rerun the trial. The inadmissibility of such attempts is explained below.[36]
[36]In paragraphs [36] ff.
Further Submission (v) – Post-judgment events
This submission attempts to supply particulars of bias that are entirely absent from the application for leave. ‘The [Adjudicator] advised me that there are time limits on lodging an appeal’. That caution could hardly be seen as adverse to a combative appellant. ‘I can’t advise you on the time limits’.[37] That was a perfectly proper response; the Tribunal is an adjudicative body, not a legal advice bureau.
[37]Ibid page 64 line 10.
Hodson then proceeds, for the second time[38], to allege that, to his prejudice, the Tribunal gave to the McFarlands: ‘If I were you, I would urgently lodge your judgment in a court as fast as you can’. But once again the transcript records no such statement. The transcript is compiled by an independent agency[39] from an audio-recording that adjudicators do not control. I do not accept that the alleged statement was made.
[38]See paragraph [20], above.
[39]Auscript Australia Pty Limited.
Effect of the primary decision
The Tribunal has given a full, fair and considerate hearing to the versions of the appellant and the respondents respectively. The Tribunal simply found that the parties did not arrive at a consensus sufficient to constitute a legally enforceable contract – in other words, that the “contract” is void for uncertainty. In the Adjudicator’s judgment there was no discernible agreement upon an important part of the bargain, namely, the responsibility for delivery, and substantial related expenses. That a question of fact for the primary decision-maker,[40] and, as a reasonable decision, it is not one that an appeals tribunal is entitled to revisit or “second guess”.
[40]Biotechnology Australia Pty Ltd v Pace (1989) 15 NSWLR 130 at 135 per Kirby P; Sammimi v Mahboudi [2014] QCATA 204 at [8].
The modern law does its best to rescue ill-designed “contracts”,[41] but inevitably some are irredeemable.[42] The Adjudicator reasonably put the subject dealings in that category.
[41]Associated Japanese Bank (International) Ltd v Credit du Nord SA [1989] 1 WLR 255 at 268 per Steyn J; Lend Lease Financial Planning Limited v Southcap Pty Ltd [1998] QCA 117; York Air Conditioning and Refrigeration (Australasia) Pty Ltd v The Commonwealth (1949) 80 CLR 11; Meehan v Jones (1982) 149 CLR 571; Upper Hunter District Council v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 437.
[42]See, for examples, Mercantile Credits Ltd v Harry [1969] 2 NSWR 248, Re Nudgee Bakery Pty Ltd’s Agreement [1971] Qd R 24 and Custom Credit Corporation Ltd v Gray [1992] 1 VR 540.
When a “contract” is void for uncertainty, the presumption is that any part payment is refundable to the payer,[43] and I see nothing in this case to displace the prima facie position. There being no contract, the payment was for nothing at all. In legal terms, the moneys received by the payee are ‘moneys had and received to the use’ of the payer, and as such refundable, lest the payee be ‘unjustly enriched’.
[43]Nu Line Construction Group Pty Ltd v Fowler (aka Grippaudo) [2012] NSWSC 587 at [258].
Limitations of an application for leave to appeal
Understandably, and unfortunately, the legal limitations of applications for leave to appeal are not appreciated by many litigants in person. The legislative purpose of a leave-to-appeal condition is to ensure that the primary decision will normally be final. Before an appeal will be entertained, the appellant must demonstrate an arguable case of error, which, if left uncorrected, will result in substantial injustice. “Error” means an error of law, or a finding of fact that is not merely debateable, but rationally indefensible. Exceptionally, leave may be granted to examine a question of public importance, but very few minor civil disputes answer that description.
An application for leave to appeal is not an occasion for a retrial, or for “second guessing” questions of fact or credit that are the province of the primary decision-maker. The object is to preclude attempts to retry cases on the merits, or to introduce evidence or arguments that might have been led in the first place, but were not. On an application for leave the essential question is whether there is a reasonably arguable case of error which, if not corrected, will cause substantial injustice to the applicant.[44] It is not nearly enough for an applicant to express disappointment, or to entertain a subjective feeling that justice has not been done.[45] It is not an appellable error to prefer one version of the facts to another, or to give less weight to one party’s case than he or she thinks it should receive. Findings of fact will not be disturbed if they have rational support in the evidence, even if another reasonable view is available.[46] Where reasonable minds may differ, a decision is not erroneous, simply because one conclusion has been preferred to another possible view.[47]
[44]Drew v Bundaberg Regional Council [2012] QPELR 350; [2011] QCA 359 at [18]; Johnson v Queensland Police Service [2014] QCA 195.
[45]Robinson v Corr [2011] QCATA 302 at [7].
[46]Fox v Percy (2003) 214 CLR 118 at 125 – 126.
[47]Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at [131]; In Re W (an infant) [1971] AC 682 at 700; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1025.
Applying those principles to this case, I find that no reasonably arguable error is demonstrated. Accordingly, the application for leave must be dismissed.
An attempted cross appeal
On 5 September 2014 the McFarlands filed an application for miscellaneous matters[48] which is, in substance, a belated application for leave to cross-appeal. It seeks (i) an award of additional interest to the date of determination of this appeal and (ii) the restoration of Mrs Hodson as a respondent to their original application.
[48]QCAT Act s 62; QCAT Rules r 75, Form 40.
The informality of this de facto cross-appeal aside, it misconceives the nature of the present proceeding, which, as explained above, is limited to a search for appellable error (if any) in the primary decision. There is no appellable error in the Adjudicator’s award of interest, and an application for miscellaneous matters cannot be treated as a fresh action in the original jurisdiction of the Tribunal.
The Adjudicator has explicitly found that there was no, or no sufficient evidence that Mrs Hodson was a party to the “contract”, and there is no appellable error to be found in that ruling. The mere fact that she was the physical recipient of the part payment does not establish such an error. Nor do unsworn assertions that ‘Adrian Hodson is a previous bankruptee [sic] (several times) and has assets hidden in her name’[49]or that he ‘has a substantial amount of their assets in his wife’s sole name (namely their luxury river front house at ... Benowa Waters’.[50]For what they may be worth, those may be considerations for another jurisdiction, but they cannot be entertained here.
[49]Miscellaneous application filed 5 September 2014 Part C2.
[50]Submissions of the McFarlands filed 2 June 2014 pages 2 – 3.
ORDERS
1. The application for leave to appeal filed on 24 February 2014 is dismissed.
2. The application for miscellaneous matters filed on 5 September 2014 is dismissed.
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