Kent v Hogarth - [1995] QCA 472

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 22 of 1995
Brisbane
[Kent & Anor. v. Hogarth & Ors]
BETWEEN

TREVOR ISAAC KENT & WANDA ZILLAH KENT

(Plaintiffs) Appellants

AND

LEONARD CHARLES HOGARTH, DAVID CHARLES HOGARTH,
ANDREW JAMES HOGARTH & MARGARET FERGUSON HOGARTH

(Defendants) Respondents

FITZGERALD P.
PINCUS J.A.

SHEPHERDSON J.

Judgment delivered 24/10/1995

SEPARATE REASONS OF EACH MEMBER OF THE COURT CONCURRING IN THE

ORDER MADE.

APPEAL DISMISSED WITH COSTS TO BE TAXED

CATCHWORDS:	CONTRACT - LEASE - Whether oral agreement for extension of lease - Whether solicitors had authority to enter into such agreement - Rymark Australian Development v. Draper [1977] Qd.R. 336 at 344; Pianta v. National Finance & Trustees Ltd (1964) 38 ALJR 232 at 233- 4
Counsel:	N.J. Thompson for the appellants P.D. McMurdo Q.C. with him M.J. Drysdale for the respondents
Solicitors:	G. Cassimatis for the appellants Maddern Kearnet for the respondents
Hearing date:	23 May 1995
IN THE COURT OF APPEAL	[1995] QCA 472
SUPREME COURT OF QUEENSLAND	Appeal No. 22 of 1995
Brisbane
Before	Fitzgerald P. Pincus J.A. Shepherdson J.

[Kent v. Hogarth]

BETWEEN:

TREVOR ISAAC KENT and WANDA ZILLAH KENT

(Plaintiffs) Appellants

AND:

LEONARD CHARLES HOGARTH, DAVID CHARLES
HOGARTH, ANDREW JAMES HOGARTH and
MARGARET FERGUSON HOGARTH

(Defendants) Respondents

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 24 October 1995

The circumstances giving rise to this appeal are set out in the judgment of Shepherdson J. I will refer

to only those matters which are essential to my conclusion.

I agree with Shepherdson J. that it was open to the trial judge to reject the female appellant’s evidence

that she posted a written response to the letter which the respondents wrote to the appellant in April

1994. The argument to the contrary was technical in the extreme, and, in part at least, susceptible of

more trenchant criticism. The trial was patently conducted on the footing that the alleged response was never received, and there can have been no doubt but that the respondents sought to have the trial judge

infer that it was not posted, despite the female appellant’s testimony that she did so. To describe her

evidence as “unchallenged” and thus evidence which the trial judge was obliged to accept is without

substance in the circumstances, as is the submission that it was essential that she be given the

opportunity of denying a suggestion that she had never posted the response; such a denial would add

nothing whatever to the evidence that she had already given that she had posted the response, and could

not have led to elaboration, explanation, or any other matter which would have supported her story.

The rules to which the appellant’s argument made reference are concerned with fairness in the trial

process; their purpose is not to produce injustice by imposing artificial constraints upon findings which

are obviously open as a matter of common sense. The respondents had…

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.

Continue reading Kent v Hogarth

Details

AGLC: Kent v Hogarth [1995] QCA 472
Case: [1995] QCA 472
Decision Date: 24/10/1995

CaseChat Overview and Summary

The case of Kent v Hogarth involved a dispute over the existence of an oral agreement for the extension of a lease. The case was heard in the Supreme Court of Queensland. The respondent, Kent, was the lessor and the appellant, Hogarth, was the lessee. The central issue was whether the lessor's solicitors had the authority to enter into an agreement to extend the lease, and if so, whether the agreement was valid.

The court had to determine whether the lessor's solicitors had the authority to enter into an agreement to extend the lease on behalf of their client. The court also needed to decide whether the alleged oral agreement was valid and enforceable. The court considered the principles established in Rymark Australian Development v. Draper and Pianta v. National Finance & Trustees Ltd, which set out the requirements for an oral agreement to be binding.

The court found that the lessor's solicitors did not have the authority to enter into an agreement to extend the lease on behalf of their client. The court held that the authority of the solicitors was limited to the terms of the existing lease and did not extend to entering into a new agreement. The court also found that the alleged oral agreement did not meet the requirements for a binding contract, as it was not in writing and there was no evidence to support the existence of the agreement. The court concluded that the appellant's claim for an extension of the lease was unsuccessful.

The court ordered that the respondent was not bound by any alleged oral agreement for the extension of the lease, and that the appellant's claim was dismissed. The court also ordered the appellant to pay the respondent's costs of the proceedings.

Orders