Samimi v Maboudi
[2014] QCATA 204
•30 July 2014
| CITATION: | Samimi v Maboudi [2014] QCATA 204 |
| PARTIES: | Kamran Samimi (Appellant/Applicant) |
| v | |
| Saied Maboudi (Respondent) |
| APPLICATION NUMBER: | APL144-14 |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr J R Forbes, Member |
| DELIVERED ON: | 30 July 2014 |
| DELIVERED AT: | Brisbane |
ORDER MADE: | The application for leave to appeal is dismissed. |
| CATCHWORDS: | APPEALS – LEAVE TO APPEAL – MINOR CIVIL CLAIM – where associated proceedings in Magistrates Court – whether jurisdiction of QCAT thereby ousted – whether contract formed – whether condition subsequent performed – whether particulars of condition subsequent should be implied – whether appellant had a proper opportunity to meet respondent’s case – whether decision unsupported by evidence – whether decision affected by bias Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 52, s 142, Schedule 3 Associated Japanese Bank (International) Ltd v Credit du Nord SA [1989] 1 WLR 255 Nickelseekers Pty Ltd v Vance [1985] 1 Qd R 266 Robinson v Corr [2011] QCATA 302 Tiufino v Warland (2000) 50 NSWLR 104 Upper Hunter District Council v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 437 Vakauta v Kelly (1989) 167 CLR 568 W (an infant), In Re [1971] AC 682 |
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 (Qld) (QCAT Act).
REASONS FOR DECISION
Primary Decision
In this minor civil dispute the respondent (Maboudi) sued the appellant (Samimi) for return of a deposit of $5,000 paid under an agreement made on 22 June 2013, for the purchase by Maboudi from Samimi of an “alternative energy” company known as Next Wind Pty Ltd. Maboudi claimed that he was entitled to withdraw “due to incompletion of official and legal documents”.
The matter was heard and determined on 27 March 2014, when the Tribunal ordered Samimi to pay Maboudi $5,000 forthwith. A stay of that decision was refused on 28 April 2014.
Proposed grounds of appeal
In his application filed on 31 March 2014[1] Samimi seeks leave to appeal[2] on the following grounds:
a) want of jurisdiction;
b) that the decision has no, or no sufficient support in the evidence;
c) that the decision is contrary to law; and
d) that evidence was admitted to which the appellant had no proper opportunity to respond.
[1]Part C of Grounds of Appeal.
[2]As required by QCAT Act s 142(3)(a)(i).
Constitution of contract
It appears that the subject agreement was partly written, partly oral, and partly implied. The written component is a half-page document, containing just five unnumbered clauses, dated 22 June 2013, and entitled: “Receipt for Refundable Deposit – For Purchase of Next Wind Power Pty Ltd.” In view of its brevity it may conveniently be set out in full:
Received of Mr Saied Maboudi hereinafter referred to as “Buyer”, the sum of three [sic] thousand dollars, ($5,000) [sic] [Here the digit “3” is struck out and “5” inserted] as REFUNDABLE DEPOSIT toward the purchase of Next Wind Power Pty Ltd to be sold to Buyer by Mr Kamran Samimi, hereinafter referred to as “Seller”, owner of said company, on day of [sic] 22nd June 2013 for a total price of 50,000.00, this REFUNDABLE DEPOSIT being a part thereof.
Seller understands, acknowledges and agrees that if he fails to disclose the full wind data and information of Next Wind Power Pty Ltd to Buyer within four 4 of the date [sic] of this agreement, the REFUNDABLE DEPOSIT must be refunded to the Buyer by 12H [sic].
Seller understands, acknowledges and agrees that a remaining payment for the purchase of Next Wind Power Pty Ltd by Buyer is to be settled 24 hours after Buyer obtained [sic] the wind data and company information.
Buyer understands, acknowledges and agrees that a remaining payment of $45,000 for the purchase of Next Wind Power Pty Ltd to Seller is to be settled within five days (5) of the date of this agreement, in 27/6/13 payment/s.
Seller hereby agrees in consideration of payment of the REFUNDABLE DEPOSIT to withdraw said Next Wind Power Pty Ltd from the market until the above date and to transfer title to Next Wind Power Pty Ltd to Buyer on receipt of the remaining amount due.
The Principal Document
As noted above, this document is described not as an agreement or contract, but merely as a receipt. There is no reference to a purchase of shares in the company; the corporate entity itself is treated as the item sold. The essential “information” (2nd clause) or “company information” (3rd clause) is unspecified. The amount of the deposit (in words) is “three thousand dollars”, while the amount (in figures) is $5,000, after a striking out of the digit “3” and insertion of a “5”. That alteration is not initialled by either party. The time for payment of the balance is variously stated as 24 hours after delivery of “wind data and company information” (3rd clause) and “within 5 days of the date of this agreement” (4th clause).
“Company information” – Meaning?
It is immediately apparent that, if the agreement is to operate at all, it will be necessary for the Tribunal to divine the implied meaning of “company information”.
It might have been argued that the agreement is void for uncertainty[3], but no such submission was made. In the event, then the Adjudicator strove valiantly to distil a contract from the “receipt” and other fragmentary evidence placed before him. In so doing, he doubtless had in mind the contemporary view that inept agreements should be rescued whenever possible, and that “the law ought to uphold rather than destroy apparent contracts”[4]. Thus, in one case it was held that the terms of a mortgage were not an essential part of a contract of sale, but could be implied as a subsidiary means of carrying the sale into effect.[5]
Courts will not destroy the contract for the want of certainty where the content of that detail can be discovered by inference or implication from the arrangements actually made and the surrounding circumstances.[6]
[3]As in Groves & Anor v BMW Finance Ltd [2001] QCA 16 (chattel lease – “estimated final value” not specified); Bishop v Taylor (1968) 118 CLR 518.
[4]Associated Japanese Bank (International) Ltd v Credit du Nord SA [1989] 1 WLR 255 at 268 per Steyn J. See also Lend Lease Financial Planning Limited v Southcap Pty Ltd [1998] QCA 117; York Air Conditioning and Refrigeration (Australasia) Pty Ltd v The Commonwealth (1949) 80 CLR 11; Meehan v Jones (1982) 149 CLR 571; Upper Hunter District Council v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 437.
[5]Axelson v O’Brien (1949) 80 CLR 219; Godecke v Kirwan (1973) 129 CLR 629 at 646 per Gibbs J.
[6]Lend Lease Financial Planning Limited v Southcap Pty Ltd [1998] QCA 117 per Derrington J.
Ultimately, the question of whether or not an alleged contract is illusory or uncertain is a judgment of fact.[7] In this case the decisive question was whether or not Samimi fulfilled the condition subsequent requiring him to give Maboudi the “wind data and company information” – particularly “company information”.
[7]Biotechnology Australia Pty Ltd v Pace (1989) 15 NSWLR 130 at 135 per Kirby P.
The Adjudicator had before him an email from Maboudi to Samimi, dated 10 July 2013, reading in part:
My intention of paying you a deposit of $5,000 was to purchase Next Wind Power Pty Ltd provided all the documentation (company-related legal/commercial records, scientific studies, company specific electronic and hard-copy marketing mediums and collected electronic raw wind data) are passed on to me. I had provided you with a draft list ... As you can appreciate, purchasing company of this complexity ... is a high risk undertaking and I need to ensure what I am purchasing is legally sound ... [Y]ou failed to provide the requested and significant company-based documentation ... I therefore have no option to consider the situation as “no deal” and request for my deposit to be refunded, immediately.
The manuscript list to which that email refers is also before the Tribunal. It refers inter alia to mail box detail, telephone number, ABN, logo, letterheads, website, environmental requirements and regulatory restrictions, if any.
Implied meaning
In essence the Adjudicator found a condition subsequent implying that such information must be provided by Samimi before the buyer was bound to proceed. Those sequelae may be seen as the “surrounding circumstances” to which Derrington J refers in the Lend Lease case.[8] In support of the implication, the Adjudicator noted[9] some of the standard terms in the REIQ’s current sale-of-business form, such as GST registration, the taxation position,[10] provision for debts, assignment of existing contracts or licences, and freedom from encumbrances and liabilities.
[8]Lend Lease Financial Planning Limited v Southcap Pty Ltd [1998] QCA 117.
[9]Transcript of hearing 27 March 2014 page 14, lines 29-45.
[10]Ibid page 11 line12 (Maboudi) I said: “What about tax?’’.
The Adjudicator decided, as a fact, that Samimi did not give Maboudi any, or any sufficient “company information”,[11] and that accordingly the deposit was therefore refundable.
[11]Ibid at lines 42-45. See also page 15 lines 6-8.
The Adjudicator compared the “information condition” to the familiar “subject to finance” proviso in many land-sale agreements, residential and commercial. Such terms are an exception to the principle that contracts are to be construed objectively. As Gibbs CJ said in Meehan v Jones[12]:
The intention of such a clause in my opinion is to leave it to the purchaser himself to decide whether the terms and conditions on which finance is available are satisfactory. The condition prevents a purchaser from being obliged to go through with a sale when he does not believe he can raise the necessary funds.[13] Such a condition is generally entirely for the protection of the purchaser, not that of some hypothetical reasonable man ...
[12](1982) 149 CLR 571 at 580-581.
[13]Or here, mutatis mutandis, that the purchase is “legally sound”.
Condition not fulfilled
But that analogy aside, the Adjudicator found as a fact that the requisite information was simply not supplied. As judge of fact, that was a finding he was entitled to make, and it is not one to be re-contested in an application for leave to appeal. It cannot fairly be said that such a finding was unreasonable, so as to amount to an error of law. Similarly, the Adjudicator’s exposition of implied terms is consonant with such authorities as Associated Japanese Bank, Lend Lease Financial Planning and York Air Conditioning, cited above.[14]
[14]Footnote 4.
I may add that, if the Adjudicator had not found implied terms, as he did, the last state of Samimi would be no better than the first. In that event the deposit would be recoverable as moneys had and received to the use of the buyer for failure of consideration, instead of a refund due for non-fulfilment of a condition – a technical distinction without a practical difference.
Grounds of appeal considered
I turn now to the proposed grounds of appeal. Unfortunately the appellant has chosen to expand the allegations in the formal application for leave in a rambling and repetitious set of submissions filed two months later. In part, they seek to revisit the evidence and to re-run the trial, which is impermissible at this stage. This is a not uncommon feature of challenges to decisions in minor civil disputes, seemingly in the belief that an appeals tribunal must exhaustively pursue every just-discovered rabbit down every conceivable burrow. In part, they seek to introduce new evidence and argument which is not within the four corners of the application itself, notably a broad-brush allegation of bias.
Jurisdiction
The appellant relies on the fact that he has commenced a cognate Magistrates Court action against Maboudi for breach of contract to contend that QCAT lacks jurisdiction to deal with the latter’s claim for return of his deposit.
This Tribunal may hear and determine liquidated claims, and claims in contract between traders (or consumers and traders) not exceeding $25,000.[15] The present claim is well below that limit. QCAT’s jurisdiction depends on the amount of the present claim, not the alleged value of the contract to Samimi. The finding that each party is a trader is not contested.
[15]QCAT Act Schedule 3, definition of minor civil dispute, paragraph 1(a) and (b).
The mere fact that a court case is pending on issues properly before this Tribunal does not deprive the latter of jurisdiction, even if an issue estoppel may result.[16] Prior to the trial, Samimi might have made a formal application for a stay of the QCAT proceedings, or for them to be transferred[17] to the Magistrates Court. He did neither. The belated request for transfer in the present application is not appropriate. At the trial itself he did not specifically seek an adjournment, and if he had done so his application could properly have been refused. He merely told the Adjudicator: “I don’t know if you want to hear this case at all, because we are in the Magistrates Court now about the same matter.”[18] And a little later: “I just wanted to remind you again that we are in the Magistrates Court about this matter.”[19]
[16]Boyd v Halstead; Ex parte Halstead [1985] 2 Qd R 249 at 252; Tiufino v Warland (2000) 50 NSWLR 104.
[17]QCAT Act s 52.
[18]Transcript page 7 line 29.
[19]Ibid page 11 line 34.
Even if those observations were deemed an application for adjournment, the objection to jurisdiction is unfounded.
Is the decision contrary to evidence or law?
The parties presented the Tribunal with an ill-prepared transaction that left the Adjudicator with two alternatives; (i) preserving the contract, as counselled by the highest authority, by the reasonable implication of terms; or (ii) declaring it void for uncertainty, in which event, as noted above, the appellant would have been liable to refund the deposit. The allegations of error lack particulars. If ever a contract needed clarification by implications this was one. If, as Samimi suggests, he was not satisfied with Maboudi’s exercise in drafting, it was open to him to request amendments, or to insist upon a draft that was professionally prepared. There is certainly no evidence that his bargaining position was inferior to Maboudi’s.
The suggestion that the Adjudicator found “the arrangement to be a sham”[20] is nonsense that flies in the face of the Tribunal’s finding, albeit with difficulty, that the arrangements did amount to a contract.
[20]Appellant’s submissions filed 23 May 2014 paragraph 15.
The appellant has not demonstrated his broad-brush complaint of legal and factual error, and I discern no such defect. This ground is rejected.
Natural justice – prejudicial reception of evidence?
Samimi alleges that “[t]he member allowed in such prejudicial evidence not filed and served in a way that permitted [me] any opportunity to respond”.
Particulars of the “prejudicial” material (or of prejudicial production of it) are lacking. The material evidence was not extensive. In so far as it consisted of documents, they were in the possession of the appellant long before the trial. In particular, he had the “Receipt” (or a copy thereof), the list of data required by Maboudi, and the latter’s email of 10 July 2013, referring to that list. It was obvious that those materials would be the core of Maboudi’s case; the production of them in evidence could not conceivably cause surprise. The July email plainly stated that a refund was sought because “you failed to provide the requested and significant company-based documentation”. The hearing took place more than three months after the filing of the claim. Notice of the hearing was sent to the parties on 12 March 2014, a fortnight before the trial. The appellant had ample time to assemble his response to an uncomplicated, plainly foreshadowed claim.
This assertion of an insufficient opportunity to be heard is unfounded.
Natural justice – actual or apprehended bias?
The appellant’s submissions raise allegations of bias not foreshadowed in the application for leave, but asserted, without credible particulars, in submissions filed two months later. No application was made to the Adjudicator to recuse himself. Allegations of bias should be made at the first opportunity[21], not as a belated, broad-brush[22] reaction to an adverse decision. I do not overlook the fact that the appellant conducted his case in person, but if the perception of bias did not occur to him immediately, it is difficult to accept that it did not enter his head when he filed this application, but only when he made his submissions two months after the hearing.
[21]S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358; Vakauta v Kelly (1989) 167 CLR 568 at 572, 577; Nickelseekers Pty Ltd v Vance [1985] 1 Qd R 266 at 272.
[22]For example: “The member ... demonstrated absolute bias against [me] and did aid [Mahmoudi] as to his presentation of his claim”: Submissions paragraph 6.
An allegation of bias, particularly “absolute bias”, is a serious allegation that calls for cogent proof,[23] which in this case is signally lacking. The allegation is without substance, and so must be rejected.
[23]Re JRL; Ex parte CJL (1986) 161 CLR 342 at 356.
Conditions and limitations of an application for leave
Understandably, but unfortunately, the legal limitations of applications for leave to appeal are not appreciated by many litigants in person.
The legislative purpose of a “leave” proviso is to ensure that the primary decision will normally be final. Before an appeal will be entertained, the appellant must demonstrate an arguable case of error, which, if left uncorrected, will result in substantial injustice. “Error” means an error of law, or a finding of fact that is not merely debateable, but rationally indefensible (which is also an error of law). Exceptionally, leave may be granted to examine a question of public importance, but few minor civil disputes answer that description.
An essential, and much misunderstood point is that an application for leave to appeal is not an opportunity to re-run the trial. It is not an occasion to repeat and reargue evidence that was reasonably rejected by the first decision-maker, or to present material that could have been put before him, but was not.[24] Certainly it is not nearly enough for an applicant to express disappointment, or to make swingeing claims of bias, or to entertain a subjective feeling that justice has not been done.[25]
[24]Snell v Morgan [2011] QCATA 316 at [10]; Thompson and Anor v Jedanhay Pty Ltd [2012] QCATA 246 at [28].
[25]Robinson v Corr [2011] QCATA 302 at [7].
It is not an appellable error to prefer one version of the facts to another, or to give less weight to one party’s case than he or she thinks it deserves. Findings of fact will not be disturbed if they have rational support in the evidence, even if another reasonable view is available.[26] Where reasonable minds may differ, a decision is not erroneous simply because one conclusion has been preferred to another possible view.[27]
[26]Fox v Percy (2003) 214 CLR 118 at 125-126.
[27]Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at
[131]; In Re W (an infant) [1971] AC 682 at 700; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1025.
Those are the principles that apply here.
Conclusion
The appellant has not demonstrated an arguable error of law, or unreasonable finding of fact. The application for leave will be dismissed.
ORDER
The application for leave to appeal is dismissed.
8
19
0