Northside Motor Wholesale Pty Ltd v Motor Car Traders Claims Committee
[2013] VSC 373
•17 July 2013 (unwritten reasons given ex tempore); republished 23 July 2013
| IN THE SUPREME COURT OF VICTORIA |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2013 02836
| NORTHSIDE MOTOR WHOLESALERS PTY LTD | Plaintiff |
| – and – | |
| MOTOR CAR TRADERS CLAIMS COMMITTEE and GREGORY CORBETT | Defendants |
JUDGE: | MUKHTAR AsJ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 July 2013 | |
DATE OF JUDGMENT: | 17 July 2013 (unwritten reasons given ex tempore); republished 23 July 2013 | |
CASE MAY BE CITED AS: | Northside Motor Wholesale Pty Ltd v Motor Car Traders Claims Committee and anor | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 373 | |
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CONTRACT – Principal and agent – Sale of motor car by advertisement – Identification of seller by name – No other objective evidence identifying and disclosing another person as principal.
APPEAL – Appeal from Tribunal – Appeal permitted only on question of law – Findings of fact made by Tribunal about contract formation and identity of contracting parties – Findings entirely open on the evidence – Appeal dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr I. Hone | Darroll Nelson, solicitor |
| For the First Defendant | Mr B. Ussher | Consumer Affairs Victoria |
| For the Second Defendant | Mr L.M. Stanistreet | Oldham Naidoo Lawyers |
HIS HONOUR:
The plaintiff sought leave to appeal under s 148 of the Victorian Civil and Administrative Tribunal Act against an order made by the Tribunal (as constituted by Deputy President Lambrick) on 7 May 2013. The Tribunal affirmed a decision made by the Motorcar Traders Claims Committee to admit a claim made by the second defendant Gregory Corbett for $23 000 under the Motorcar Traders’ Guarantee Fund. That was the amount of his loss suffered in a dealing with the plaintiff, a licensed motor car dealer whose business was conducted solely by one Phillip Tullock. To be precise, the plaintiff is a car wholesaler. That is a distinction of significance to the case. The $23 000 was the purchase price of the car which, so it was found by the Committee and the Tribunal, the plaintiff had agreed to refund to the purchaser. The buyer returned the car but did not get his refund, hence the claim on the statutory Fund.
On 7 June 2013 I refused the application for leave to appeal and announced ex tempore my reasons for doing so. What follows is a recapitulation of those reasons with a little elaboration.
As is well known, appeals to this Court from the Tribunal can only be on a question of law. And even then, leave can only be granted where there is a real or significant argument to be put on that question at least to the extent of showing there is sufficient doubt about the decision: see Hulls.[1] Ultimately what governs is the justice of the case to all parties and not just the applicant. In making that assessment, it has been said recently that it is not the function of Associate Judges on leave applications to in effect adjudicate the appeal.[2] Of course, that must be so. But where, as here and as is not at all uncommon, respondents urge the Court to refuse leave on the grounds of the unsustainability of the proposed appeal, it is all but unavoidable to engage in the similitude of adjudication to a considerable extent. That is especially so where leave to appeal is sought on the ground that a factual finding was not open on the evidence. So, the approach to be taken, or its degree, depends on the nature of the case. In this case the Court has had the considerable benefit of comprehensive reasons from the Tribunal; a marshalling of all evidence; and clear statements of findings based on the evidence.
[1][1999] 3 VR 331at 337 [16]
[2]See Neely v Southern Cross Feeds [2013] VSC 238 at [4].
It is unnecessary to refer to the provisions of the Motor Car Traders Act 1986 under which the Committee and the compensation fund is established. It is a type of consumer protection legislation that licenses and regulates the responsibilities of car dealers, and allows claims to be made for financial compensation from the fund for the failures of licensed car dealers. It is sufficient for present purposes to refer to section 76(1)(g) of the Act which states where relevant:
Any person … may make a claim against the fund … in a form approved by the Committee and specifying as a ground that –
…
(g)loss has been incurred from a failure of a motor car trader to comply with an agreement to refund the whole or part of a deposit or any other amount following termination of a contract for sale of a motor car.
Putting it as succinctly as I can, the dominant question here was whether the plaintiff, who sold a defective used car to the second defendant, did so only as agent or as principal. The undisputed facts as recited by the Tribunal were uncomplicated. Corbett responded to an advertisement on eBay (a well-known online marketplace) offering for sale a 1986 Rolls Royce Silver Spur. The contact name was given as “Phil” and the contact mobile telephone number belonged to Tullock, the sole director of the plaintiff. Corbett and Tullock dealt with each other by phone and email only. They agreed on a cash price of $23 000. Corbett paid by a cheque payable to the plaintiff company as directed by Tullock. The cheque was banked into a bank account of the plaintiff company. The agreement, and payment under it, was made on 16 June 2011. There was no agreement or memorandum of agreement in writing. There was no mention of the involvement of any other party as owner or principal of the car. Correspondence about the roadworthy certificate was on the plaintiff’s letterhead. The invoice for the road worthy certificate from the vehicle tester was addressed to the plaintiff. Fourteen days after the sale, Tullock personally delivered the car to Corbett. Soon after delivery, Corbett complained to Tullock about the condition of the car. That led to a complaint to the Department of Consumer Affairs and a conciliation of the dispute on terms which later became the subject of dispute and legal issues before the Tribunal.
Some other facts need to be isolated because they formed the fulcrum of a submission by Mr Hone, counsel for the plaintiff, that this was a dealing by Tullock as agent for a disclosed principal. First, the eBay advertisement cited “dealer licence number 8173”, which is also known as a LMCT number. That licence number was held, until 28 June 2011, by one Anthony Carrucan under the business name KJC Car Sales. That licence was cancelled on 28 June 2011, after the sale and before the delivery. After then, and after the complaint to Consumer Affairs, contracts arrived in the mail to Corbett naming KJC as seller.
Questions of contract formation and agency can be regarded generally as questions of law. But the determination of such a question depends on matters of fact ― largely objective facts ― from which intention is to be ascertained. In this case, the Tribunal’s reasons articulated comprehensive findings of fact about the transaction and the dealings which led compellingly, I think, to the conclusion that legal relations were made between the plaintiff as seller and the second defendant. There were no facts to show that Tullock disclosed to Corbett that he was only selling the car as an agent for someone else. The citation of a LMCT number, which is innominate, was not a solitary fact capable of showing he was selling as agent for a disclosed principal. To the contrary, a prospective purchase seeing an advertisement from “Phil” with his telephone number, and citing an LMCT number is reasonably entitled to conclude that “Phil” was the LMCT especially if all dealings were with him and him alone. But it matters not because in any case, as the Tribunal found, all other objective evidence overwhelmed the significance of the LMCT reference.
Unfortunately for Tullock he was also ill favoured in an assessment of his credibility. The Tribunal said “Mr Tullock gave the impression of making his evidence up as he went along”.[3] It also formed the conclusion that “Mr Tullock was prepared to do anything to further his own interest”.[4] That adverse view extended to the Tribunal’s assessment of evidence given by the plaintiff’s putative principal, one Anthony Carrucan of KJC Car Sales. Of him it was said he had probably “constructed” documents in an attempt to give credibility to Tullock’s (discredited) version of the facts.[5]
[3]Reasons at para 86.
[4]Reasons at para 88.
[5]Reasons at para 84.
This all formed a foundation for the conclusion that the sale exercise was a means used by Tullock to try and circumvent the law. The plaintiff’s licence was restricted to wholesale sales. That is, it was precluded from selling except to another holder of a motor car traders licence. The citation of the LMCT on the eBay advertisement and the attempt to say that he was selling as agent on a consignment deal with Carrucan was viewed by the Tribunal, I think with justification on the evidence, as a means to avoid the conditions on his licence. As for the delivery of the contracts after the sale, that also was immaterial and not credible. They were sent after the event and no assent was given to them by Corbett.
The application to this Court was really a valiant attempt at a merits review for a case which the objective facts show was unmeritorious anyway. Findings of fact are not open to challenge as erroneous in law unless it can be said there was no evidence to support the findings or that they were not reasonably open. There is virtually no difference between the two: see S v Crimes Compensation Tribunal[6] and Roads Corporation v Dacakis.[7] The reasons of the Tribunal show not only that it was certainly open on the evidence to find that the plaintiff was acting as principal, but in my respectful view the Tribunal’s findings on this the dominant issue were irresistible. As a matter of legal principle, there were no objective facts to show that before the consummation of the sale, Tullock had disclosed both the existence and the name of his principal so as to show that he was acting as agent, and in turn, to lead to a conclusion that the buyer had intended to agree to make legal relations with someone other than the person with whom he had dealt. If it matters, this was no occasion to consider the principles concerning an agent acting for an undisclosed principal because under that principle, the agent may also be sued and sue.[8] The agent is not absolved from liability.
[6][1990] VR 83 at 89-90.
[7][1995] 2 VR 508 at 520 .
[8]See generally Dal Pont, Law of Agency (Butterworths 2001) at p 499-501.
In my view the Tribunal’s decision on the agency question was not attended with sufficient doubt. There was no basis for attacking the findings of fact as erroneous in law.
The second and third questions of law (to be found in paragraph 5 and 6 of proposed notice of appeal) concern events that occurred after Corbett made his complaint to the Department of Consumer Affairs. The Tribunal’s reasons at paragraphs 90 to 114 recite the evidence concerning the agreement that had been reached between Corbett and Tullock to refund the purchase price of $23 000. The fact is that Tullock re‑took possession of the vehicle and the question was whether he did so in exchange for an agreement to refund the purchase price within 60 days or whether the agreement was not as equivocal as that but only required Tullock to try and sell the vehicle and re-pay Corbett the purchase price from the proceeds of any re-sale. The only common ground seems to have been that Tullock agreed there was a 60 day time frame but he said regarded that as no more than a general estimate for how long it would take for the vehicle to be sold.
The Tribunal’s reasons articulate the evidence of conversations between Corbett and Tullock as well as some circumstantial facts concerning a conciliation with the Consumer Affairs Conciliator all of which was consistent with the version of facts as given by Corbett. It is worth noting in passing that it was not until March 2012, which is well after the conciliation and well after Corbett’s application to the Motor Car Traders Guarantee Fund, that Tullock ever suggested that the sale in the first place was conducted by him as agent for Carrucan under a consignment arrangement.[9]
[9]See Reasons at paragraph 107.
The Tribunal’s finding that an agreement had been reached for a return of the vehicle in exchange for a refund of the purchase price led collaterally or consequentially to the conclusion that the contract of sale originally made between the plaintiff and the defendant had therefore been rescinded. That is, rescission in its proper sense as signifying the parties would be put in the position as if the contract had not been made and substituted by a new agreement by which the plaintiff was bound to repay the sum of $23 000.
No more need be said about these grounds of appeal for Mr Hone conceded, as he had to, that it was not possible to say that these two findings were not open on the evidence. They clearly were. Accordingly, the Court refused leave to appeal on those two questions of law.
The next question of law put forward concerned a matter put forward as a proper construction of the Motor Car Traders Act 1986. As stated earlier, the Tribunal found Tullock was obliged by subsequent agreement to refund the $23 000 within 60 days. That agreement was reached in August 2011. Payment in full was due on 11 October 2011. The fact is that Corbett made his application to the Fund before the effluxion of the 60 day agreed period. His application to the Fund was dated 30 August 2011. In his application to the Fund, Corbett acknowledged that he was lodging his claim before the expiration of the 60 days because he had doubts whether Tullock would honour the agreement.
The question was whether Corbett was entitled to make his claim under s 76(1)(g) if he had not, at the time of application, yet incurred an actual a loss. There had not yet been an actual breach. The question was whether s 76 requires as a precondition to its operation that the claimant actually incur a loss. It might be thought of analogically similar (but analogies can be dangerous) to the situation where a plaintiff files a writ in a court which is legally incompetent because no loss and damage had yet been suffered under the alleged cause of action.
I doubt if what occurred here on the facts amounted to what the law of contract might regard as an anticipatory breach by Tullock. In essence, an anticipatory breach is a manifestation or an intimation of an unwillingness or an inability to pay before the performance is due: see Foran v Wight.[10] In this case, there was no such evidence against Tullock. It was more a case of an apprehension by Corbett, which it may be accepted was reasonably based, that he was not going to get his money. For as the Tribunal said: “Given a chequered history of dealings between the parties, it was open to Mr Corbett to anticipate that the agreement would not be honoured.”[11]
[10](1989) 168 CLR 385 at 433.
[11]See para 119.
The Deputy President gave s 76 a broad interpretation, or a purposive interpretation, to say that the section did not preclude consumers from making a claim when they anticipated a loss and had good reason for that anticipation. I do not doubt consumer legislation calls for an untechnical textual approach; indeed a beneficial approach having regard to the protective or remedial purposes of the Act. But I take leave to doubt whether words can by the technique of purposive statutory interpretation be inserted into s 76 to say that “loss has been incurred or is anticipated will be incurred”. That is a material enlargement. And it is not an obvious or incidental augmentation to the language.
But that does not mean a claim for an anticipated loss somehow de-legitimises a claim or takes away statutory power or jurisdiction from the Committee. All it means, as the Tribunal said, was that such a claim could be made but it could not be admitted by the Committee as a matter of statutory power. A loss has to be shown at the time of determination of the claim. And this where the question became an arid one, as seen by the Tribunal, because by the time the Committee came to consider Mr Corbett’s claim, his loss had well and truly crystallised. The 60 days had passed. By the time the claim came to be considered, he had not received his refund and therefore, to follow the language of s 76(1)(g), “loss had been incurred from a failure of a motor car trader to comply with an agreement to refund the whole or part of any other amount following termination of a contract for sale of a motor car.”
The fact that the loss had not been incurred actually at the time that Corbett lodged his application form does not therefore sterilise all that occurred subsequently or somehow remove the jurisdiction or power of the Committee to act as it eventually did. Under s 77 of the Act the Committee is given the power to admit or refuse a claim in whole or in part. Its power or jurisdiction depends upon proof that a loss had been incurred. When it came to decide whether to admit or refuse the claim a loss had been incurred. The Tribunal was correct to so decide.
In any event, it is impossible to see the utility of this point. Even if it were correct, it would be a simple matter for a claim to be made in the events that it occurred with the inevitable outcome that the claim would be admitted.
However, Mr Hone submitted that the premature lodging of the application by Corbett amounted to a repudiation of the agreement made between Corbett and Tullock (which Tullock had denied anyway). I reject that submission. Under the law of contract, to repudiate an agreement is to renounce it. It arises when a contracting party can be viewed as regarding itself as not bound by the agreement. There was no such evidence. Corbett had returned the car and done all that he was bound to do under the agreement. To renounce the agreement would have Corbett insisting on the return of the car. To accept the repudiation would have Tullock returning the car. None of that occurred.
What Corbett did was premature but in my view it did not invalidate the agreement to refund nor the ultimate action of the Committee in allowing the claim.
For those reasons, the Court viewed this part of the decision as not being attended with sufficient doubt, and refused leave to appeal.
The final question of law involved an argument that the Tribunal breached the rules of procedural fairness by declining the plaintiff’s request to adjourn the hearing. The procedural facts were as follows.
The application in the Tribunal was lodged on 30 May 2012. The matter came on for hearing on 16 November 2012 before the Deputy President. On that occasion the second respondent, Corbett, was joined to the proceeding and the matter was adjourned. There was nothing said on that occasion about Tullock’s availability on any future dates for the resumption of the hearing.
The matter was refixed for hearing on 26 February 2013. On 19 February 2013, the plaintiff applied for an adjournment on the grounds that Tullock would be unavailable because he was holidaying in Queensland. That application was refused in Chambers on 21 February 2013 for the following stated reasons:
(a)the respondents had already engaged counsel to appear;
(b)the second respondent had already booked flights to travel from interstate to attend the hearing; and
(c)the application for adjournment was made too close to the hearing date.
Arrangements were then made to have Tullock give his evidence by telephone and that is what occurred at the hearing.
The point was taken by the respondents that any applications for leave to appeal from this order is severely out of time as the order was made on 21 February 2013, well outside the 28 day time limit of the bringing of an appeal under s 148. The originating motion was filed on 4 June 2013.
In applications for leave to allow an application such as this to be heard out of time the Court takes into account the merits of the application as one factor in considering the prejudice that might be caused or suffered if leave to appeal out of time was or was not granted. In this case, I refused leave to appeal out of time on this question because there is no sustainable basis for contending that there had been a denial of procedural fairness. Tullock was able to give his evidence. The case came to be essentially decided on the objective facts and whilst adverse remarks were made about Tullock’s credibility (as well as about Carrucan, the putative principal), those remarks did not concern matters such as a witness’s demeanour when giving evidence or matters of mendacity, but rather credibility about the version of events and explanations given by Tullock. The disadvantage, if any, in the context of the forensics of trial was to the respondents who had to cross-examine by telephone.
It is for all these reasons that the Court refused leave to appeal and dismissed the proceedings.
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