Poulton v Claudia Tiller Holdings Pty Ltd t/a Luxury Gold Coast Pools
[2013] QCATA 209
•11 July 2013
| CITATION: | Poulton v Claudia Tiller Holdings Pty Ltd t/a Luxury Gold Coast Pools [2013] QCATA 209 |
| PARTIES: | Ivana Poulton (Appellant) |
| v | |
| Claudia Tiller Holdings Pty Ltd (t/as Luxury Gold Coast Pools) (Respondent) |
| APPLICATION NUMBER: | APL357-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr J R Forbes, Member |
| DELIVERED ON: | 11 July 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for leave to appeal is granted. 2. Appeal allowed. 3. The order made on 14 August 2012 is set aside. 4. The application for a minor civil dispute, filed on 26 February 2012, is dismissed. |
| CATCHWORDS: | APPLICATION FOR LEAVE TO APPEAL – agreement to construct swimming pool governed by Domestic Building Contracts Act 2000 and standard form of Master Builders’ Association of Queensland – notice of withdrawal – whether notice effective under sections 72 and 75 of that Act – whether notice effective under section 90 of Act – whether appellant liable upon contract made as agent – fundamental legal error – incorrectly joined defendant – point not raised by parties – whether Tribunal may raise jurisdictional issue ex mero motu – leave to appeal granted – appeal allowed Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 3, 4, 20, 32 Wilson v Bury (1880) 5 QBD 518 Leggo v Brown & Dureau Ltd (1923) 32 CLR 95 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 257 Thorpe v Charles Sturt City Corporation (1999) 103 LGERA 395; [1999] SASC 10 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
On 5 August 2011, by contract in writing, the respondent (“Tiller”) agreed to construct a swimming pool at 5 Bexley Place, Helensvale, Queensland for Eve Poulton (“Eve”), as “owner”. The contract is in a form approved by the Master Builders’ Association of Queensland, subject to the Domestic Building Contracts Act 2000 (“the Act”).
Red Herrings
The ultimate issue contested at the trial was whether the respondent-appellant, Ivana Poulton (“Ivana”) was liable upon that contract. As we shall see[1], she was merely an agent, but the significance of that finding was overlooked.
[1] Paragraph [15], below.
The decision concentrates on these terms of the agreement:
5.1 Owner may withdraw from contract during cooling off period: Subject to Clause 5.2, the Owner may withdraw from the contract within five (5) business days after receiving both a signed copy of the contract and a copy of the Contract Information Statement approved by the [Queensland Building Services] Authority.
5.2 Requirements for owner to withdraw: In order to withdraw from the contract the owner must give a written notice to the contractor stating that owner withdraws from the contract under section 72 of the Domestic Building Contracts Act 2000.
21.1 Owner’s right to terminate contract under section 90 of the Act. The owner may terminate this contract in accordance with section 90 of the Act if a) the contract price increases by 15% or more after the contract is entered into because of the operation of a cost escalation clause (as that term is defined in section 11 of the Act) ...
21.2 To end the contract under this clause the owner must give to the contractor a signed written notice stating that the owner is ending the contract under section 90 of the Act, and stating the ground, and the details of the ground, on which the owner relies.
Ivana purported to exercise a right of withdrawal on 12 August 2011. Initially the hearing focused upon Clause 5.1, despite the fact that Ivana’s notice of withdrawal invoked Clause 21.1, thus: “The reason I am withdrawing is due to the increased site costs since the contract has been signed.”[2]
[2] Letter Ivana to Tiller dated 11 August 2011.
Tiller contended that Ivana’s notice was out of time, but the Adjudicator found[3], in the light of the Acts Interpretation Act 1954,[4] that the notice was timely. However, the Adjudicator went to hold that, in its reliance on Clause 21, it was not a valid exercise of the right in Clause 5.[5]
[3] Decision 14 August 2012 paragraph [14].
[4] Acts Interpretation Act 1954 s 38.
[5] Decision paragraph [19].
Attention then turned to the notice, as one given under Clause 21, to which no time limit applies. That defence also failed, on the ground that the increase in price was well below the 15% needed to justify a withdrawal.[6]
[6] Decision paragraph [23].
It could also have been held that the notice did not state, as required, that it was given under section 90 of the Act; nor did it give details of the ground relied on.[7]
[7] As required by contract Clause 21.2 and s 90(4)(c)-(e) of the Act.
In a reserved decision the Adjudicator found that the purported termination of the contract was unlawful, and that Tiller was entitled to recover the amount of its lost profit, consultancy fee, planning and administration costs, amounting, in all, to $7,107.
Grounds of Appeal
From that decision Ivana appeals on 12 grounds. Ground 1 (failure to accord procedural fairness) offers no particulars. (Discontent with a judgment does not demonstrate a denial of natural justice). Ground 5 is factually incorrect; the Adjudicator disallowed Tiller’s claim for legal expenses.[8] Grounds 6 and 7 (alleging an excessive award) are repetitious. Grounds 8 and 11 erroneously assert that the contract “says only that you can only withdraw under section 72”; see, however, Clause 21. Ground 12, (Ivana’s resort to an interstate lawyer) is immaterial.
[8] Decision paragraph [28].
Ivana’s submissions on appeal seek to raise three matters not mentioned at the hearing:
a)That the contract is unfair and unenforceable under the Australian Consumer Law. This broad allegation is spiced with such scattergun complaints as “the whole judgment was unfair”, “this judgment has a significant imbalance” and “causing significant financial detriment”. But an application for leave to appeal is not an opportunity to re-try the case de novo, or to introduce arguments that might have been employed at the trial, but were not.
b)That she is “financially unable to proceed with the contract”, within the meaning of Clause 23.1(a). Suffice it to say that this ground of termination is not mentioned in the notice of 11 August 2011. It is an afterthought introduced in October 2012.[9]
c)That Tiller’s record with the QBSA shows that it received 11 infringement notices in the period March-July 2009. There is no evidence that any infringement relates to the subject contract. This submission is irrelevant and vexatious.
[9] Letter Ivana Poulton to Tiller 10 October 2012.
Ivana’s claim that the notice of withdrawal was erroneously found to be invalid is incorrect. The relevant terms of the agreement simply reflect the corresponding provisions of the Act[10], and serve as a warning of those provisions to Tiller’s customers. The notice does not meet the requirements of the Act. But ultimately, in view of what follows, that does not matter.
[10] Sections 72, 75, 90.
A Fundamental Point Overlooked
It becomes unnecessary to dwell on the validity of the notice, or other grounds of appeal, when it is seen that the decision turns upon a fundamental error of law, namely, a silent premise that an agent is personally liable upon a contract made for another.
It is a curious fact that, several times at the hearing, and elsewhere, Ivana spoke as a principal, rather than an agent.[11] But the “owner” named in the contract is Eve, and Ivana signed it “for and on behalf of the owner”.[12] Ivana testified:
Actually, my parents were paying for the pool because it’s their house, it’s not even my house. I was doing it on behalf of them. [Eve] knew what was going on and I was talking to her and my father about the issues we were having about the price rise ... and we were in agreement that I should cancel this until we could further resolve this dispute. ... I faxed her a letter in Canberra. She knew what was going on ...”.[13]
[11] “My property” (transcript 13), “my land” (transcript 14), “my house” (transcript 16).
[12] Pool Building Contract schedule dated 5 August 2011.
[13] Transcript page 30, lines 1 - 6.
Ivana as Agent
Clearly the Adjudicator accepted that evidence as the basis of her unequivocal finding of agency, a finding that she was entitled to make:
The property was owned by [Ivana’s] parents and [Ivana] entered into and signed the contract ... on their behalf.”[14]
[14] Reserved decision delivered 11 September 2012, paragraph [1]. In fact, only Ivana’s
mother appears as “owner” in the contract.
Eve was present at the hearing[15], but did not give evidence.
[15] Transcript page 1.
Agents Normally Not Liable on Contracts Negotiated
It is an elementary principle of law that an agent normally incurs no personal liability upon a contract made for the principal.[16]
The contract is the contract of the principal, not that of the agent, and prima facie at common law the only person who can sue is the principal and the only person who can be sued is the principal.[17]
[16] Wilson v Bury (1880) 5 QBD 518; NE Timber Importers v Arendt & Sons and Impresa
Cerrito [1952] 2 Lloyd’s Rep 513.
[17] Montgomerie v United Kingdom Steamship Association [1891] 1 QB 370 at 371 per
Wright J; Paquin v Beauclerk [1906] AC 148; Harvey v Ottoway [1915] VLR 520.
It is true that the rule has some exceptions. The most obvious is where an agent expressly agrees to be bound as well as the principal.[18] Another is where the agent does not have the authority professed (breach of warranty of authority).[19] Yet another is the case of the undisclosed principal.[20] However, there is no evidence, nor any suggestion, that those exceptions apply here. In view of the fact that no one considered the defence of agency, that is hardly surprising.
[18] Montgomerie v United Kingdom Steamship Association [1891] 1 QB 370 at 372.
[19] Leggo v Brown & Dureau Ltd (1923) 32 CLR 95 at 99.
[20] Saxon v Blake (1861) 29 Beav 438; Air Tahiti Nui Pty Limited v McKenzie (2009) 77
NSWLR 299 at 307.
Should Leave to Appeal be Granted?
On an application for leave to appeal one must examine the proceedings at first instance to see whether there is a reasonably arguable case of error which, if uncorrected, will cause substantial injustice to the applicant.[21] In this case there is a point of legal error that is not merely arguable, but unanswerable. The Tribunal cannot ignore it, although the parties have done so. As a matter of justice, and in the absence of jurisdiction the Tribunal itself must raise it.[22] Tiller has no cause of action against Ivana, and so, in this case, the Tribunal lacks jurisdiction to make an order against her. Tiller has simply chosen the wrong defendant.
[21] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 257 at [6]; Drew v
Bundaberg Regional Council [2012] QPELR 350; [2011] QCA 359 at [18].
[22] Thorpe v Charles Sturt City Corporation (1999) 103 LGERA 395; [1999] SASC 10 at
[6]; Nunn v Baker (1987) 518 So Jo 711 at 712; QCAT Act s 4(c).
Leave must be granted, and the appeal allowed. There will be orders accordingly.
ORDERS
The application for leave to appeal is granted.
Appeal allowed.
The order made on 14 August 2012 is set aside.
The application for a minor civil dispute, filed on 26 February 2012, is dismissed.
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