Leeds v Izzard
[2018] QCATA 85
•4 June 2018
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Leeds v Izzard & Anor [2018] QCATA 85
PARTIES:
CHRISTOPHER DOUGLAS LEEDS
(applicant/appellant)v NEIL WILLAIM IZZARD
(first respondent)
ROY JOHN IZZARD
(second respondent)APPLICATION NO/S:
APL397-17
ORIGINATING APPLICATION NO/S:
CHARLEVILLE CLAIM Q3/17
MATTER TYPE:
Appeals
DELIVERED ON:
4 June 2018
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Justice Carmody
ORDERS:
1. Leave to appeal is granted.
2. The appeal is allowed.
3. The tribunal’s order is set aside.
4. The matter is remitted for reconsideration of the issues raised by the respondents’ set off claims in accordance with these reasons and directions or orders the tribunal considers appropriate in relation to the matter generally and the amendment of any filed documents in particular.
CATCHWORDS:
APPEAL – MINOR CIVIL DISPUTE – where the applicant’s minor debt claim for cattle agistment fees was dismissed due to his own performance breaches – where the applicant disputes any implied management or welfare responsibilities for the cattle – where the applicant refutes suggestions he agreed to agist the respondents’ cattle exclusively on the front paddock – where the applicant has not demonstrated any vitiating error of fact – where the respondents’ set off claim was accepted by the tribunal without adequate proof – where the tribunal erred in impliedly treating the agreement as a bailment – where the matter is remitted to the tribunal to be decided in accordance with the law
Fox v Percy (2003) 214 CLR 118APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
The applicant’s bid to recover unpaid cattle agistment fees as a minor civil debt failed because of his own performance breaches. He applies for leave to bring a facts appeal from that decision.
If the appeal tribunal rehears the case on appeal it has power to confirm, amend or set aside the order and substitute its own or, in the case of legal error, remit the matter to the tribunal for reconsideration.
The leave discretion is not expressly confined by the QCAT Act but in practice leave to appeal is not conditional unless there is some utility in correcting demonstrated error.
The order dismissing the applicant’s debt claim is vulnerable to appellate interference if it was based a legal error or findings of fact that were not reasonably open on the evidence.
The context
The applicant owns “Narran” a 102,000 acre grazing property outside Charleville. The respondents own cattle. They are brothers residing at Emerald 700 kilometres from Narran.
From July 2013 or 2014 the parties orally agreed to agist a mob of the respondents’ cattle at Narran at the weekly rate of $3.30 a head with half payable 45 days in advance and the balance 45 days in arears.
The dispute
The respondents paid a total $60,729 in invoiced fees up to 31 December 2016.
The applicant claims they still owe him $13,091.50 for the six month period from 1 January to 30 June 2017 due but unpaid since 15 May 2017 (including filing fees).
Arrears of $12,775 are admitted but liability for the disputed sum is denied because about 70-80 head (60 plus estimated weaners) were still unaccounted for as at termination on 7 June 2017.
The respondents contend that an essential condition of the agistment was that in return for payment as agreed the applicant would “ensure that the cattle were watered and could graze on the area allocated … being the front (also known, according to the respondents, as the lake) paddock” (14,000 acres) and that “… at the end of the agistment arrangements … we would be able to collect (all) our cattle from the property”.
The applicant disavows any implied management or welfare responsibilities for the missing cattle and complains that it “(s)eems rather convenient that after (the respondents) get six months behind in agistment payments (they) all a sudden have all these concerns about (their) cattle”.
More specifically he refutes any suggestion that he advertised or agreed to agist the respondents’ cattle exclusively on the front paddock. He says the so called lake paddock is located on the southern block of the Yarramanbar part of the Narran aggregation well away from the Canegrass and Middle paddocks primarily allocated to the respondents’ herd. In all, the cattle had access to about 18,000 acres including two holding paddocks.
The respondents’ count of only 82 head at the last muster on 10 June 2017 conflicts with a signed waybill (dated 11 June 2017) recording a total of 121 being moved from Narran to Texas. On this basis, the number of any missing cattle would be closer to 30 than the asserted 70.
In its reasons the tribunal accepted the “assertions of the respondents with respect to the verbal agreement” and made specific findings that the applicant “… breached the agreement by not providing one secured (properly fenced) paddock with water available, and through his actions, the (missing) cattle have scattered, and consequently, the respondents have lost (them) despite several musters”.[1]
[1]T1-26:1-15.
The grounds
The form 39 is littered with general comments about the adequacy and quality of the evidence the tribunal acted on as well as claims that the respondents’ evidence was a “complete blatant distortion of the facts”.
Also, under the heading ‘further submissions’ in the document filed 9 February 2018 the applicant raises procedural fairness issues. He complains of having only 30 minutes to review new material, the unavailability of deponents of two statutory declarations for cross examination and late notice of the respondent’s application to be represented at the hearing so as “… to prevent the applicant form cross examining the respondents directly”.
The merits
Failure to afford a fair opportunity to prepare and present a case is an error of law but leave to correct it on appeal will not be granted except to remedy substantial consequential injustice.
The applicant was given 20 minutes to consider the respondents new material and without applying for an adjournment or objecting to the tender informed the tribunal at T1-5:10 that he was ready to proceed. The tribunal’s remark at T1-5:20 shows that he was mindful that the unavailability of witnesses for cross examination can reduce the weight of their evidence and the applicant had ample chance to fully explain his case and was cross examined at length.
The applicant declined two invitations to question the respondents at T1-23:10 and 20 and raised no objection when asked about the hearing procedures adopted by the tribunal.[2]
[2]See T1-23:40.
In these circumstances there is no arguable case of unfair prejudice or forensic disadvantage to the applicant.
Appeal proceedings are for correcting errors that matter. They are not de novo hearings. Accordingly, the tribunal findings or inferences of fact stand as long as there is sufficient evidence and reasons to support them.
Whether the cattle should have been kept together in the front paddock for the duration of the agistment is a credit-based question of fact. So is the adequacy of the respondents’ performance of the agreed terms and dollar value of breach related losses.
As the tribunal noted (at T1-26:5) the applicant conceded responsibility for ensuring the cattle’s security “… you know, like, someone doesn’t pinch them and things like that and that they’ve got adequate feed and water”.[3]
[3]T1-6:10.
The tribunal rejected the applicant’s version of the agreement (T1-26:15) where it conflicted with the respondents’ including by implication what was put to him at T1-7:25 about the front paddock feed and water and the state of the fencing.
The tribunal also relied (at T1-26:5) on “some (hearsay) comment” the applicant’s son made to the respondents about where the cattle should have been kept when he was acting as caretaker.
For these, admittedly contestable, findings to be overturned on a rehearing based on the same material the appeal tribunal would have to be satisfied that they were “glaringly improbable” or “contrary to compelling inferences”[4] due to some confusion in understanding or weighing the evidence or an evident logical flaw in the reasons. As they do not meet that description the applicant has failed to demonstrate that the tribunal’s findings of fact are even arguably affected by vitiating error.
[4]Fox v Percy (2003) 214 CLR 118 [29].
However, the tribunal did not address the important legal question of whether the breach of contract relieves the respondents from the liability to pay the contract price altogether or merely reduces it. Under the law of performance a wrongful party to a substantially performed severable contract is entitled to claim compensation for economic loss arising naturally from the breach or within the parties’ mutual expectations (less any contributory negligence) but is not released from liability for the contract price.
In their filed response the respondents claim an offset of $90,000 (including $21,585 in fees over paid and accrued since 11 April 2016 plus $4,039.20 in wasted mustering including helicopter hire costs) but did not produce any proof of loss or causation.
A counter-application cannot be made in response to an application for a minor debt claim under QCAT rule 48(3) but if there are circumstances suggesting that a respondent has a cross claim the tribunal may hear it or suspend enforcement of a debt until the counter-application is determined.
Alternatively, the respondent’s damages claim could have been pleaded in the response as a set off against their debt to the applicant but the onus would have been on them to prove how many cattle were lost due to the applicant’s breach and their market value.
In dismissing the applicant’s debt claim in toto the tribunal impliedly treated the agistment as if it were a bailment and returning the full complement of cattle to the respondents as a condition precedent of the contract price.
This is contrary to legal liability principles.
Leave to appeal should be granted to correct it and remedy the resulting substantial injustice to the applicant. The tribunal’s orders are set aside and the matter remitted for reconsideration of the issues raised by the respondents’ set off claims in accordance with these reasons and directions or orders the tribunal considers appropriate in relation to the matter generally and the amendment of any filed documents in particular.
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