DISTRICT COURT OF QUEENSLAND
CITATION: Mantonella Pty Ltd v Thompson [2008] QDC 92 PARTIES: MANTONELLA PTY LTD Appellant v
MYLES THOMPSONRespondent FILE NO: 288 of 2007 DIVISION: Civil PROCEEDING: Appeal ORIGINATING Magistrates Court, Cairns COURT: DELIVERED ON: 2 May 2008 DELIVERED AT: Cairns HEARING DATE: 1 April 2008 JUDGE: K S Dodds, DCJ ORDER: The appeal is dismissed CATCHWORDS: APPEAL – challenge to Magistrate’s findings on credibility –
where Magistrate accepted respondent’s evidenceUniform Civil Procedure Rules 1999 (Qld) r 765 Cases cited: Devries v Australian National Railways Commission (1993)
177 CLR 472Warren v Coombes (1979) 142 CLR 513
Adamson v Williams [2001] QCA 38Owners of the Steamship Hontestroom v Owners of the
Steamship Sagaporak [1927] AC 37COUNSEL: A Jorgensen (self represented) for the appellant company
M Sumner-Potts for the respondentSOLICITORS: A Jorgensen (self represented) for the appellant company
Myles Thompson Lawyers for the respondent
This is an appeal from a decision of a Magistrate delivered on 18 September 2007. Her Honour found for the respondent/ defendant on the appellant’s/ plaintiff’s claim and for the respondent/defendant on his counterclaim.
One Alan Jorgensen (Jorgensen) appeared on behalf of the appellant. He informed that he was the controlling mind of the appellant. For the purposes of this appeal it may be accepted that at all material times the appellant and at an earlier time when the transaction central to this proceeding occurred, another company Freeway Management Pty Ltd (Freeway) was the corporate vehicle of Jorgensen.
The appeal is by way of rehearing.[1] It is a rehearing on the evidence before the Magistrate. The court has power to draw inferences from facts which are undisputed or which having been disputed are established by the findings of the judicial officer at trial.[2]
[1] Uniform Civil Procedure Rules1999 (Qld) rule 765.[2] Warren v Coombes (1979) 142 CLR 513 at 551.The grounds of appeal set out in the notice of appeal all contend the Magistrate’s findings of fact were erroneous. This necessarily involved the assertion that Her Honour should have accepted Jorgensen’s evidence at trial rather than as she did, the respondent’s.
Her Honour’s reasons for judgment were lengthy, detailed and thorough. She correctly directed herself about the law. She accepted the evidence of the respondent rather than that of Jorgensen about disputed factual matters central to her findings. Findings of fact based on credibility are not to be set aside by an appellate court unless it is shown the judicial officer at trial “has failed to use or has palpably misused (her) advantage”[3] or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.[4]
Background
Before dealing with the grounds of appeal it will be useful to provide a background.
On 4 August 1994 Jorgensen became aware that…
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- AGLC
- Mantonella Pty Ltd v Thompson [2008] QDC 92
- Case
- [2008] QDC 92
- Decision Date
CaseChat Overview and Summary
Mantonella Pty Ltd brought an appeal against a decision made by Thompson, the respondent, in the Magistrates Court of Queensland. The central dispute revolved around the sale and subsequent non-completion of a restaurant business, Royce’s Restaurant, which was part of a deceased estate. The appellant, represented by Jorgensen, sought to purchase the restaurant, signing a contract of sale for $15,000. The contract contained a reservation of right for the executor to rescind it, which was never exercised. The respondent, acting as the executor’s solicitor, signed the contract on behalf of the vendor. Issues arose concerning the failure to assign the lease of the restaurant premises to the appellant, which the respondent attributed to the appellant's inability to meet the financial requirements and provide a necessary bank guarantee.
The legal issues before the court involved the interpretation of the contract, the respondent’s fiduciary duties, and the credibility of the evidence provided by both parties. Specifically, the court had to determine whether the respondent acted appropriately in representing the vendor and whether the appellant's claims of improper conduct by the respondent were substantiated. The court also needed to assess the credibility of the evidence presented by the appellant and the respondent and whether the respondent’s findings were reasonably open to her on the evidence provided.
The court's reasoning was detailed and methodical, focusing on the respondent's findings of fact based on the credibility of the evidence. The judge highlighted that findings of fact based on credibility are not easily overturned by an appellate court unless there is a clear error in the assessment of the evidence. The court found that the respondent's assessment of the evidence was thorough and that the findings were reasonably open to her on the evidence presented. The court also noted that the respondent had acted within her authority and did not find any misdirection in the law applied. Consequently, the appeal was dismissed as it did not demonstrate any error in the respondent's assessment or reasoning.
The final orders of the court were that the appeal brought by Mantonella Pty Ltd against Thompson was dismissed. The court upheld the respondent’s findings and conclusions, affirming that the respondent had acted appropriately and within the bounds of her fiduciary duties.
The legal issues before the court involved the interpretation of the contract, the respondent’s fiduciary duties, and the credibility of the evidence provided by both parties. Specifically, the court had to determine whether the respondent acted appropriately in representing the vendor and whether the appellant's claims of improper conduct by the respondent were substantiated. The court also needed to assess the credibility of the evidence presented by the appellant and the respondent and whether the respondent’s findings were reasonably open to her on the evidence provided.
The court's reasoning was detailed and methodical, focusing on the respondent's findings of fact based on the credibility of the evidence. The judge highlighted that findings of fact based on credibility are not easily overturned by an appellate court unless there is a clear error in the assessment of the evidence. The court found that the respondent's assessment of the evidence was thorough and that the findings were reasonably open to her on the evidence presented. The court also noted that the respondent had acted within her authority and did not find any misdirection in the law applied. Consequently, the appeal was dismissed as it did not demonstrate any error in the respondent's assessment or reasoning.
The final orders of the court were that the appeal brought by Mantonella Pty Ltd against Thompson was dismissed. The court upheld the respondent’s findings and conclusions, affirming that the respondent had acted appropriately and within the bounds of her fiduciary duties.
Orders
Orders of the court
The appeal is dismissed
Background
Background to the litigation
Her Honour’s reasons for judgment were lengthy, detailed and thorough. She correctly directed herself about the law. She accepted the evidence of the respondent rather than that of Jorgensen about disputed factual matters central to her findings. Findings of fact based on credibility are not to be set aside by an appellate court unless it is shown the judicial officer at trial “has failed to use or has palpably misused (her) advantage”[3] or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.[4] [3] Owners of the Steamship Hontestroom v Owners of the Steamship Sagaporak [1927] AC 37 at 47. [4] Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479. Background Before dealing with the grounds of appeal it will be useful to provide a background. On 4 August 1994 Jorgensen became aware that a restaurant (Royce’s Restaurant) was for sale. It had been operated from leased premises and Jorgensen was made aware of that on 4 August 1994 when he approached the respondent, interested in buying the business. Royce’s Restaurant was part of a deceased estate. Mr Royce Dunbar whose business the restaurant had been, had died. The respondent had been Mr Dunbar’s solicitor. He was acting as solicitor for the executor of Mr Dunbar’s estate. On 5 August 1994, Jorgenson signed a contract of sale for the purchase of the business for $15,000 (the business contract). The purchaser was Freeway. The respondent signed the contract on behalf of the vendor. A condition of the contract reserved the right in the executor, to not ratify the contract, but rescind it. At an earlier time, the respondent had acted as the purchaser’s solicitor for conveyance when Jorgensen purchased a substantial residential property at Clifton Beach. From that time and throughout the respondent had been of the view, Jorgensen was an experienced business man and financially very well-off. On 5 August 1994, Jorgensen gave the respondent 3 cheques; one for $500, for the respondent’s fees, one for $5000 as a deposit, which the Magistrate found the respondent held as stakeholder for both parties pending completion and another post-dated 26 August 1994 for $10,000 for settlement funds. The price negotiated for the business was $15,000. It had been offered at $30,000. Trust account receipts were provided for the cheques, the funds being for the purpose of settlement with respect to the purchase from Dunbar. The lease of the restaurant premises was never assigned to Freeway by the lessor (the Sofia’s). The Magistrate found on the evidence that was because a bank guarantee required under the lease was never provided by Freeway or Jorgensen and as it emerged Freeway was unable to satisfy the lessor of an acceptable financial status. The matter became mired in legal proceedings in an attempt to compel assignment. The inability of Jorgensen/Freeway to provide the bank guarantee required by the lease allied with their inability to satisfy the lessor of an acceptable financial status was a central aspect of the Magistrate’ assessment of the evidence and of the appellant’s claim. For a considerable period of time as she found the respondent continued to believe Jorgensen was financially very well-off and continued to accept his assurances that these requirements of the lessor would be attended to.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
This ground assumes the Magistrate found there was consent to assignment of the lease. There never was and the Magistrate did not find there was. What she found was that at about 8 August 1994, the lessor, through solicitors was in all probability prepared to consent, subject to being satisfied the appellant was respectable and financial and the bond required by the lease was provided. This finding was plainly open on the evidence. Consent to assignment was available to Freeway and obtaining it was within the power (if not the ability) of Freeway and/or Jorgensen. The fact consent was not forthcoming was due to Jorgensen’s/Freeway’s failure to meet these requirements. Conclusion It has not been shown that the Magistrate’s findings were not reasonably open to her on the evidence. Her reasons for preferring the evidence of the respondent to that of Jorgensen do not demonstrate any error. They reveal a thorough consideration of the evidence after seeing and hearing the witnesses. There appears no misdirection about the law. Her conclusions regarding the appellant’s pleaded case were reasonably available to her on the evidence she accepted. The criticisms Jorgensen made in argument on the appeal do not displace Her Honour’s reasoning nor persuade me that I should reach a different view about the appellant’s case as pleaded. The appeal is dismissed.
Ratio Decidendi
Legal Principle Established
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