Jessop v McInteer - [2003] QCA 170

SUPREME COURT OF QUEENSLAND

CITATION:

Jessop v McInteer [2003] QCA 170

PARTIES:

MICHAEL NORMAN JESSOP
(plaintiff /appellant)

v
MICHAEL DAVID MCINTEER
(defendant/respondent)

FILE NO:

Appeal No 7582 of 2002
DC No 214 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

24 April 2003

DELIVERED AT:

Brisbane

HEARING DATE:

31 March 2003

JUDGES:

McPherson JA, Fryberg and Muir JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Appeal dismissed with costs

CATCHWORDS:

CONTRACT – CONSTRUCTION AND INTERPRETATION – PAROLE EVIDENCE – BREACH – TERMINATION - DAMAGES – where parties’ agreements both oral and in writing – where termination and breach of contract by respondent alleged – whether terms of written contract binding – whether damages are payable for the loss of commission under the contract and loss of opportunity to recover expenditure by the appellant

Sale of Goods Act 1896 (Qld), s 41(1)(c), s 42

Boy Scouts of Canada v Doyle (1997) 149 DLR (4^th) 22, cited Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337, applied
Commonwealth v Amann Aviation Pty Limited (1991) 174 CLR 64, applied
Doe dem Bedford v White (1827) 4 Bing 276 (130 ER 773)
Gates v The City Mutual Life Assurance Society Limited (1986) 160 CLR 1, followed
FCT v Cooke (1980) 29 ALR 202, followed

Gillespie Bros & Co v Cheney Eggar & Co [1896] 2 QB 59, applied
Hope v RCA Photophone of Australia Pty Ltd (1937) 59 CLR 348, applied
Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41, followed
Hoyt’s Pty Ltd v Spencer (1919) 27 CLR 133, distinguished
L J Hooker Ltd v W J Adams Estates Pty Ltd (1977) 138 CLR 52, followed
Luxor (Eastbourne) Ltd v Cooper [1941] AC 108, followed
Majestic Homes Pty Ltd v Wise [1978] Qd R 225, cited
Masters v Cameron (1954) 91 CLR 353, cited
Murdoch (1975) 91 LQR 357, cited
Nemeth v Bayswater Road Pty Ltd [1988] 2 Qd R 406, followed
Poseidon Ltd & Sellars v Adelaide Petroleum NL (1994) 179 CLR 332, followed
Roadshow Entertainment Pty Ltd v C E LHome Video Pty Ltd (1997) 42 NSWLR 462, cited
Ross T Smyth & Co Pty Ltd v T D Bailey, Son & Co [1940] 3 All ER 60, cited
Smith v Hughes (1871) LR 6 QB 597, distinguished
State Rail Authority of New South Wales v Heath Outdoor Pty Ltd (1986) 7 NSWLR 170, followed

COUNSEL:

The appellant appeared on his own behalf
N V Stubbins for the respondent

SOLICITORS:

The appellant appeared on his own behalf
Heiner & Doyle for the respondent

McPHERSON JA: This is an appeal against a decision in the District Court dismissing the plaintiff’s claim for damages for breach of contract. The contract concerned what was called a…

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: [2003] QCA 170
Decision Date: 24 April 2003

CaseChat Overview and Summary

The appellant, Jessop, appealed against a decision of the Primary Judge that rejected his claim for loss of commission and opportunity to recover expenditure. The appeal was against the respondent, McInteer, who was alleged to have breached a written contract for the sale of real property. The dispute was heard in the Supreme Court of Queensland. The appellant contended that the written contract was not binding and that the respondent was liable for breach of contract in terminating the agreement. The respondent argued that the terms of the written contract were binding and that the appellant's claim for damages was not supported by evidence.

The court was required to determine whether the written contract was binding and whether the respondent breached the agreement by terminating it. The court was also required to decide whether the appellant was entitled to damages for the loss of commission and the opportunity to recover expenditure. The court had to consider whether the terms of the written contract were binding, despite the oral agreement that preceded it, and whether the respondent breached the contract by terminating it. The court had to assess the evidence presented by the parties and determine whether the appellant was entitled to damages for the loss of commission and the opportunity to recover expenditure.

The court found that the terms of the written contract were binding and that the respondent breached the agreement by terminating it. The court held that the appellant was not entitled to damages for the loss of commission and the opportunity to recover expenditure because the evidence did not support such a claim. The court found that the appellant had failed to establish that the terms of the written contract were not binding and that the respondent had breached the agreement by terminating it. The court also held that the appellant had not provided sufficient evidence to support his claim for damages.

The court dismissed the appeal and ordered that the appellant pay the respondent's costs. The court found that the terms of the written contract were binding and that the respondent had not breached the agreement by terminating it. The court held that the appellant had failed to establish his claim for damages and that the respondent was not liable for the loss of commission and the opportunity to recover expenditure. The court found that the evidence did not support the appellant's claim for damages and that the respondent was not liable for breach of contract. The court dismissed the appeal and ordered that the appellant pay the respondent's costs.

Orders

Orders of the court

Appeal 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:	Jessop v McInteer [2003] QCA 170
PARTIES:	MICHAEL NORMAN JESSOP (plaintiff /appellant) v MICHAEL DAVID MCINTEER (defendant/respondent)
FILE NO:	Appeal No 7582 of 2002 DC No 214 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	24 April 2003
DELIVERED AT:	Brisbane
HEARING DATE:	31 March 2003
JUDGES:	McPherson JA, Fryberg and Muir JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Appeal dismissed with costs
CATCHWORDS:	CONTRACT – CONSTRUCTION AND INTERPRETATION – PAROLE EVIDENCE – BREACH – TERMINATION - DAMAGES – where parties’ agreements both oral and in writing – where termination and breach of contract by respondent alleged – whether terms of written contract binding – whether damages are payable for the loss of commission under the contract and loss of opportunity to recover expenditure by the appellant Sale of Goods Act 1896 (Qld), s 41(1)(c), s 42 Boy Scouts of Canada v Doyle (1997) 149 DLR (4^th) 22, cited Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337, applied Commonwealth v Amann Aviation Pty Limited (1991) 174 CLR 64, applied Doe dem Bedford v White (1827) 4 Bing 276 (130 ER 773) Gates v The City Mutual Life Assurance Society Limited (1986) 160 CLR 1, followed FCT v Cooke (1980) 29 ALR 202, followed Gillespie Bros & Co v Cheney Eggar & Co [1896] 2 QB 59, applied Hope v RCA Photophone of Australia Pty Ltd (1937) 59 CLR 348, applied Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41, followed Hoyt’s Pty Ltd v Spencer (1919) 27 CLR 133, distinguished L J Hooker Ltd v W J Adams Estates Pty Ltd (1977) 138 CLR 52, followed Luxor (Eastbourne) Ltd v Cooper [1941] AC 108, followed Majestic Homes Pty Ltd v Wise [1978] Qd R 225, cited Masters v Cameron (1954) 91 CLR 353, cited Murdoch (1975) 91 LQR 357, cited Nemeth v Bayswater Road Pty Ltd [1988] 2 Qd R 406, followed Poseidon Ltd & Sellars v Adelaide Petroleum NL (1994) 179 CLR 332, followed Roadshow Entertainment Pty Ltd v C E LHome Video Pty Ltd (1997) 42 NSWLR 462, cited Ross T Smyth & Co Pty Ltd v T D Bailey, Son & Co [1940] 3 All ER 60, cited Smith v Hughes (1871) LR 6 QB 597, distinguished State Rail Authority of New South Wales v Heath Outdoor Pty Ltd (1986) 7 NSWLR 170, followed
COUNSEL:	The appellant appeared on his own behalf N V Stubbins for the respondent
SOLICITORS:	The appellant appeared on his own behalf Heiner & Doyle for the respondent