Schaefer v Department of Housing
[2018] WADC 88
•1 AUGUST 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: SCHAEFER -v- DEPARTMENT OF HOUSING [2018] WADC 88
CORAM: GLANCY DCJ
HEARD: 12 JANUARY 2018
DELIVERED : 1 AUGUST 2018
FILE NO/S: APP 39 of 2017
BETWEEN: ERIC JOSEPH SCHAEFER
Appellant
AND
DEPARTMENT OF HOUSING
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE HUSTON
File Number : FRE GCLM 1964 of 2014
Catchwords:
Appeal - Magistrates Court of Western Australia - Unrepresented litigant - Extension of time - Intention to create contractual relations - Proof of damages
Legislation:
District Court Rules 2005 (WA)
Magistrates Court (Civil Proceedings) Act 2004 (WA)
Residential Tenancies Act 1987 (WA)
Result:
Appeal dismissed
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Mr C G Mayne |
Solicitors:
| Appellant | : | Not applicable |
| Respondent | : | Department of Housing |
Case(s) referred to in decision(s):
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Armstrong v Saxby [2016] WADC 87
Dincer v Giancristofaro [2015] WADC 49
Frigger v Murfett Legal Pty Ltd (No 2) [2017] WADC 7
Gibson v Manchester City Council [1978] 1 WLR 520
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338
Labib v Histon [2017] WADC 39
Schaefer v Department of Housing [2012] WASCA 229
Simonsen v Legge [2010] WASCA 238
Smart v Prisoner Review Board (WA) [2012] WASC 48
GLANCY DCJ:
Jurisdiction of the court
The appellant has appealed from the decision of the magistrate which was delivered on 9 December 2016. That decision concerned the issue of whether there had been an enforceable agreement entered into between the respondent and the appellant and, if so, what damages had been proven to have been suffered by the appellant as a result.
The jurisdiction to hear this appeal arises under s 40 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCP Act).
An appeal under s 40 is a reconsideration of the evidence that was before the Magistrates Court and is by way of rehearing: District Court Rules 2005 (WA) r 50(1). The appeal is to be decided on:
1.the material and evidence that were before the Magistrates Court: s 40(4)(a) of the MCCP Act; and
2.any other evidence in respect of which leave was given to be admitted: s 40(4)(b) of the MCCP Act.
New evidence can be considered only in exceptional circumstances: s 40(5) of the MCCP Act.
In this case no application for leave to adduce new evidence was made and no new evidence was given.
In order to succeed in his appeal the appellant must demonstrate a legal, factual or discretionary error by the magistrate: Frigger v Murfett Legal Pty Ltd(No 2) [2017] WADC 7 [9] ‑ [15] (Bowden DCJ); Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23] (Gaudron, McHugh, Gummow & Hayne JJ).
The appeal was commenced well out of time and accordingly the appellant requires the leave of the court to appeal out of time: s 40(3) of the MCCP Act. The appellant has sought that leave.
Self-represented litigants
The appellant represented himself before the magistrate and also did so in this appeal. He is a frail, elderly man in his late 70s.
It is clear from an examination of the transcript of the proceedings in the Magistrates Court that the appellant had difficulty conducting his action in that court.
In dealing with the appellant's application to extend time and the appeal itself, I was cognisant of the fact that he is a litigant in person and approached the matter with the following well established principles concerning litigants in person in mind. Litigants in person should be afforded some latitude and the documents in which such a litigant articulates his or her case should be approached with some flexibility: Smart v Prisoner Review Board (WA) [2012] WASC 48 [10] (Pritchard J). As a litigant in person, an appellant is also entitled to some leniency in relation to compliance with court rules: Glew v Frank Jasper Pty Ltd[2010] WASCA 87 [10] (judgment of the court). The court needs to be careful to ensure that if the appellant has a case, it is not denied because of a poorly expressed document or submission: Ibrahim v The Honourable Justice CarolynMartin[2012] WASC 338 [21] (Beech J). At the same time, the court must ensure that any latitude given does not work an injustice to the respondent: Glew v Frank Jasper Pty Ltd[10] (judgment of the court).
Background
This matter has a somewhat protracted history. It will be useful to set it out at the outset in some detail in order to understand the appeal.
The appellant was a long‑term tenant of the respondent. The dispute between the parties commenced in 2010, when the respondent took steps to have the appellant remove, what the respondent considered to be excessive belongings in the unit the appellant then occupied at 12/2 Dorcas Way, Coolbellup (Unit). This step was taken because the respondent considered that the presence of the excessive belongings was rendering the Unit, and the neighbouring units, unsafe and causing the appellant to be in breach of his tenancy agreement. When the appellant did not remedy the breach to the satisfaction of the respondent it took steps to terminate the appellant's tenancy by giving him a notice dated 16 November 2010 requiring him to vacate the Unit. That notice was given pursuant to s 62 of the Residential Tenancies Act 1987 (WA) (RT Act).
When the appellant did not vacate the Unit as required by the notice the respondent commenced proceedings in the Fremantle Magistrates Court seeking an order terminating the tenancy. That order was made on 30 March 2011.
On 9 May 2011, the appellant brought an application in the Supreme Court seeking to set aside the orders made by the Magistrates Court on 30 March 2011. That application was dismissed on 26 August 2011.[1]
[1] Schaefer v Housing Authority [2011] WASC 222.
On 13 September 2011, the respondent enforced the magistrate's decision of 30 March 2011 and evicted the appellant from the Unit.
On 16 September 2011, the appellant sought to appeal the decision of the Supreme Court of 26 August 2011 to the Court of Appeal and on 5 October 2011 sought a stay of the 30 March 2011 order which had been upheld by the Supreme Court on 26 August 2011.
On 7 October 2011 the application for a stay of execution was dismissed. On 29 December 2011, in reliance on the decision of 26 August 2011, the respondent re‑let the Unit to a third party.
In its decision of 14 November 2012, the Court of Appeal found that the magistrate's decision of 30 March 2011 terminating the tenancy was attended with jurisdictional error because, although the magistrate had found the breach made out, he had failed to consider whether he was satisfied that in all the circumstances, that the breach of the tenancy agreement justified the termination of the tenancy. This second consideration was required under s 71(2)(b) of the RT Act. Accordingly, on 14 November 2012, the Court of Appeal ordered that the magistrate's order be set aside and the respondent's application be returned to the Magistrates Court so that the magistrate could deal with it according to law.[2] It should be noted that the appellant had the assistance of pro bono legal representation in his proceedings in the Court of Appeal.
[2] Schaefer v Department of Housing[No 2] [2012] WASCA 229.
In October 2011, after the appellant's eviction and before the hearing of the appeal in the Court of Appeal, the parties entered into discussions about the possibility of the appellant re‑occupying the Unit. The parties differ as to the outcome of those negotiations. The appellant claims that they resulted in a legally binding agreement that he could re‑occupy the Unit. The respondent claims that they concluded with no agreement having been reached.
Following the Court of Appeal decision and the remittal to the magistrate for determination according to law, in light of the fact that the appellant had by then vacated the Unit and that it had been re‑let to a third party, the respondent withdrew its application before the magistrate. As a result the question of the validity of the termination of the appellant's tenancy was never reconsidered by the Magistrates Court. Nevertheless, the appellant has continued to pursue legal avenues which he hopes may lead to him being allowed to re‑occupy the Unit.
One of these avenues was the commencement, on 24 December 2014, of the proceedings from which this appeal arises. Those proceedings were brought in the general division of the Magistrates Court, Fremantle. It is clear from the transcript of the hearing before the magistrate that the appellant thought he would, by those proceedings, be able to obtain an order that he be entitled to re‑occupy the Unit and an order for damages for breach of the agreement which he said had been entered into in October 2011. The magistrate however, concluded that he was only permitted, in the court's general civil division, to deal with the claim for damages for breach of the agreement because the court had no jurisdiction to make any order that would entitle the appellant to re‑occupy the Unit. The magistrate found that an application for any such order would need to be brought under the RT Act. Accordingly, the magistrate dealt only with the claim for breach of contract and damages.
On 9 December 2016, the magistrate dismissed the appellant's claim on the basis that:
1.the appellant had not satisfied him on the balance of probabilities that there had been a contract formed between the parties; and
2.in the event that he was wrong about the lack of a contract, the appellant had not proved to the requisite standard any recoverable damages arising from breach of the agreement.
This is the decision from which the appellant now appeals.
Extension of time for leave to appeal
An appeal to this court is to be commenced within 21 days of the date of judgment unless leave to commence the appeal out of time is given: s 40(3) of the MCCP Act.
The decision of the magistrate the subject of this appeal was handed down on 9 December 2016. The appellant commenced this appeal on 2 June 2017. Accordingly, he was 175 days (or approximately six months) late in commencing the appeal and leave of the court to bring this appeal out of time is required.
Principles to be applied when considering application for extension of time
The matters to be considered when determining whether to grant leave to extend the time within which to file the appeal are well settled. In Simonsen v Legge [2010] WASCA 238 [8] the Court of Appeal stated:
The relevant matters to consider when a party seeks to extend the time for filing its notice of appeal include the following:
(a)on the expiry of the time for appealing, the respondent has a vested right to retain the judgment unless the application for an extension of time is granted: Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458, 459;
(b)the grant of an extension of time under the rule is not automatic; the object of the rule permitting extensions of time is to ensure that the rules which fix time for the doing of acts do not become instruments of injustice; and the discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties: Gallo v Dawson (459);
(c)nevertheless, the rules of court must, prima facie, be obeyed, and in order to justify a court in extending the time, there must be some material upon which the court can exercise its discretion: Gallo v Dawson (459);
(d)there are, generally, at least four major factors to be considered, although they are not necessarily exhaustive in each case:
(i)the length of the delay;
(ii)the reason for the delay;
(iii)the prospects of the applicant succeeding in the appeal; and
(iv)the extent of any prejudice to the respondent: Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 at 198; In de Braekt v Powell [2007] WASCA 55 [11]; (2007) 33 WAR 389;
(e)other factors may include whether the delay was intentional, or contumelious, or merely the result of a bona fide mistake or blunder, and whether the delay is that of the litigant or of its lawyers with which the litigant should not be saddled: City of Canning v Avon Capital Estates (Aust) Ltd [2009] WASCA 120 [33];
(f)the length and reasons for the delay must be addressed by the applicant and the cogency of the explanation increases as the period of the extension sought increases: Girando v Girando (1997) 18 WAR 450 (454);
(g)in relation to the third matter referred to in subpara (d) above, the time for appealing will not be extended unless the proposed appeal has some prospect of success; the converse of that proposition is not that time must be extended if an appeal has any prospect of success, but rather, the fact that an appeal has some prospect of success is a factor which is to be taken into account, together with all other relevant factors: City of Canning v Avon Capital Estates (Aust) Ltd [17]; and
(h)similarly, it is not the law that, whenever an applicant demonstrates an arguable case, or even a strongly arguable case, in the absence of significant prejudice suffered by the respondent, an extension of time should be granted: City of Canning v Avon Capital Estates (Aust) Ltd [16].
These principles apply equally in the case of an appeal to the District Court from the Magistrates Court: Dincer v Giancristofaro [2015] WADC 49 [8] ‑ [11] (Bowden DCJ); Armstrong v Saxby [2016] WADC 87 [39] ‑ [40] (Gething DCJ) and Labib v Histon [2017] WADC 39 [40] (Gething DCJ).
Application of principles to this case
Length of delay
The length of delay (175 days) in commencing the appeal was significant.
Reasons for delay
The respondent's affidavit of 4 August 2017 addressed his reasons for the delay in commencing this appeal. While the affidavit is difficult to understand, the explanation is essentially that following the dismissal of the proceedings on 9 December 2016 he commenced separate proceedings against the respondent under the RT Act by which he attempted to seek an order that would have allowed him to re‑occupy his Unit. It was when those proceedings were dismissed that he then commenced this appeal.
Thus, it can be said in the appellant's favour that he has continued, throughout the time, to use lawful means available to him to address his fundamental concern that he be entitled to repossess the Unit.
The time taken between the dismissal of those proceedings on 17 May 2017 and the commencement of this appeal on 2 June 2017 was a short period of only some 16 days.
The appellant did not attest that he was unaware of the requirement to appeal within 21 days of the date of the judgement. The respondent, correctly in my view, submitted that given the appellant's experience as a litigant in person, he would have known that court rules would provide time limits within which appeals were to be commenced. It is notable that when this submission was pressed from the bar table the appellant had nothing to say in response to it.
The respondent also submitted that the appellant could have, and should have, maintained the two actions simultaneously and need not have waited until the application under the RT Act was concluded before returning to this appeal. In my view, however, that submission neglects to recognise the realities of a frail, elderly man, with no legal training and who produces his documents on a manual typewriter, engaging with the legal system without the assistance of a lawyer.
Prospect of success
I have set out my reasons in relation to the substantive appeal below. It will be apparent from those reasons that I do not consider that the appellant had any prospects of succeeding in his appeal.
Prejudice to the respondent
The respondent submitted that it would be prejudiced by the grant of an extension of time because it would incur further costs which it is unlikely to be able to recover from the appellant. It was not made clear in the course of the proceedings whether those additional costs would have only been legal costs involved in responding to the appeal or whether they would have been costs of some other kind.
I am not persuaded that the respondent would incur any more legal costs in the event that the appellant were granted leave and the appeal were successful than it would in the event that he were not granted leave because I have heard the appeal and the leave application together and have had to concern myself with the issue of the prospects of success in order to determine the application for leave.
It may be that the respondent was concerned that there may be further costs incurred in the event that I were to uphold the appeal on the grounds that there was a legally binding agreement between the parties and then to remit the matter to the Magistrates Court to determine damages. In my view, even if I were to proceed in that fashion, the respondent would not incur costs of such a magnitude that leave to appeal should be refused on that basis.
The respondent did not claim that it would be prejudiced in any other way.
In the circumstances, I would not refuse to grant the extension on the basis that the respondent would be so prejudiced by the grant of the extension of time.
Decision in relation to extension of time to appeal
As I have said, I do not regard the matter of prejudice to the respondent as determinative of the issue. The appellant's delay, while significant, is understandable in the circumstances and does not justify a refusal of leave.
However, for the reasons set out below in relation to the substantive appeal, I find that the appeal had no prospects of success and accordingly I would refuse the grant of leave to extend time.
Appeal
There was no submission in this appeal that the magistrate was wrong in law in his finding that he was unable to deal with the application for an order entitling the appellant to re‑occupy the Unit. The issues in this appeal are confined to the questions of whether the magistrate was correct in finding: first, that there was no enforceable agreement between the parties and second, that in the event that there had been a contract between them, the appellant had failed to prove any damages.
The appellant's document dated 4 August 2017 headed 'Appellant's Reasons for Appeal' states:
1.Appellant, after studying the court transcript can find no specific reasons Magistrate Huston has refused appellant's claim; it seems Magistrate Huston has taken a broad view, especially, where the appellant's interpretation of the 'agreement' is concerned.
2.Appellant views the 'agreement' as 'informal' made between two parties well known to each other, appellant was with Housing Authority for 23 years.
3.Mr Pynes wanted a reply back within 3 days, he had it back the following day, accepting the No 1 offer, 'reoccupy the property etc.' Appellant did not want his personal belongings moved‑out, losses could be expected.
4.Appellant used the words 'I'm working on it' because the 'Today/Tonight TV people were involved, in fact they organuzed [sic] all the details, as I was told, they had a personal involvement with Housing Authority.
[5.]Paragraph 5 was missing from the appellant's notice.
6As appellant remembers it was all organized for a Thursday, and two days before Mr. Pynes told the appellant on the phone they were adding the additional conditions, forst [sic] a sox‑month [sic], then a one year 'fixed term' to the new lease, leaving the new lease [sic] without any legal protection after the 'fixed‑term' was‑up. Plus a rental increase and a bond (which appellant never had). This, effectively, cancelled our agreement. All the arrangements had to been terminated at the last minute. Apparently, this made Housing Authority re‑let the unit until (they had expected the appellant to go along with the new conditions. When appellant [sic] Mr Pynes to put the new conditions in writing, he refused.
7.Appellant's last two letters to Mr. Pynes give the best indication of the final position, that is the 4 and 18 of November, 2011, which clearly state (unchallenged) appellant 'fully accepted' their first offer 'reoccupy the unit etc' under these informal conditions, the 'offer' and 'acceptance' was binding. The appellant remembers asking Mr. Pynes the question when he appeared as witness, the question put 'was the agreement fully accepted' this question lost in court transcript. (Mr. Pynes replied 'yes') Mr Pynes never questioned anything in the four letters from 2011.
Evidence before the magistrate
The hearing before the magistrate was protracted. The magistrate described the matter as being complicated by several factors but particularly by the fact that the appellant was self‑represented and 'clearly confused by the overlay of other court proceedings'.[3]
[3] ts 242 (9 December 2016).
The matter was heard on 5 and 6 August 2015, 8 October 2015, 22 and 23 February 2016 and 15 September 2016. The parties also attended before the registrar on 26 August 2015 before closing submissions were to be heard on 15 September 2016. The closing submissions were deferred from 13 May 2016 until 11 July 2016 to allow the appellant to amend his submissions which referred at that point to matters raised in Supreme Court proceedings but which were not in evidence before the magistrate. On 11 July 2016 the matter was adjourned to 8 August 2016 because the appellant was in hospital. On 8 August 2016 closing submissions were again adjourned to allow the appellant a further opportunity to amend his submissions. On 3 September 2015 a special appointment was held to consider the question of whether the appellant could lead further evidence. Closing submissions were heard on 15 September 2016, following which the matter was adjourned for decision on 29 November 2016. On 29 November 2016 the appellant raised an issue about the accuracy of the transcript. That matter was determined on 8 December 2016 and the decision was delivered on 9 December 2016.
The evidence before the magistrate consisted of:
1.letter from the respondent to the appellant dated 24 October 2011;[4]
[4] Exhibit 7.
2.letter from appellant to the respondent dated 25 October 2011;[5]
[5] Exhibit 8.
3.letter from appellant to the respondent dated 4 November 2011;[6]
[6] Exhibit 9.
4.letter from appellant to the respondent dated 18 November 2011;[7]
[7] Exhibit 10.
5.oral evidence of the appellant;
6.affidavit of Mr Pynes, former regional manager, Fremantle office of the Housing Authority sworn 23 June 2015;[8]
[8] Exhibit 1A.
7.oral evidence of Mr Pynes;
8.affidavit of Ms Louise Schilson, regional manager, Fremantle office of the Housing Authority, sworn 25 June 2015; [9]
[9] Exhibit 1B.
9.oral evidence of Ms Louise Schilson;
10.letter from Foundation Housing dated 5 March 2015;[10]
[10] Exhibit 1.
11.letter from Foundation Housing dated 6 July 2015;[11]
[11] Exhibit 2.
12.respondent's letter to Slater and Gordon dated 8 March 2013;[12]
[12] Exhibit 3.
13.respondent's letter to Slater and Gordon dated 20 May 2013;[13]
[13] Exhibit 4.
14.respondent's letter to Slater and Gordon dated 28 April 2014;[14]
[14] Exhibit 5.
15.respondent's letter to appellant dated 1 July 2014;[15]
16.invoice from AB Removals dated 10 September 2015 for approximately $478;[16]
17.invoice from AAA Bargain Removals & Storage 24 September 2015 for $473;[17]
18.letter from respondent to Slater and Gordon (without prejudice) dated 28 April 2014;[18]
19.various correspondence between the appellant, the respondent and Slater and Gordon between 26 February 2013 and 19 January 2015; [19]
20.letter from respondent to appellant dated 16 August 2010;[20]
21.various correspondence between the appellant and the respondent between 25 June 2010 and 15 December 2011; and[21]
22.Foundation Housing Information Sheet.[22]
Evidence given at the magistrate's hearing which was not reflected in the oral recording or transcript
[15] Exhibit 6.
[16] Exhibit 11.
[17] Exhibit 12.
[18] Exhibits 13.
[19] Exhibits 16 – 20.
[20] Exhibit 21.
[21] Exhibits 22 – 28.
[22] Exhibit 29.
The appellant maintains that the respondent's witness, Mr Pynes, gave evidence before the magistrate that the appellant had fully accepted the respondent's offer even though there is no reference to a question directed at that issue having being asked or an answer of that nature being given in the transcript or the audio recording of the hearing.
The transcript of the Magistrates Court proceedings reveals that, prior to the decision being handed down by the magistrate, the appellant applied to have the transcript amended to include this evidence which he says was given by Mr Pynes. That application was opposed by counsel for the respondent who had appeared at the hearing on the basis that the evidence contended for was not given and that the appellant had produced no evidence to support the assertion that the evidence had been given. On 9 December 2016 the magistrate refused an application to amend the transcript to include that evidence. He did so because the audio recordings of the proceedings were complete, a check of those recordings did not indicate that Mr Pynes had given that evidence and because there were no independent notes or records that indicated Mr Pynes had made the statement which the appellant claims was missing from the transcript.[23]
[23] ts 240 – 241 (8 December 2016).
In the circumstances, I have proceeded to determine this appeal on the basis that there was no evidence to that effect before the magistrate.
Formation of contract and damages for breach
In order for the appellant to succeed in his appeal, the court must be satisfied that the evidence showed:
1.a contract was made between the parties;
2.a breach of the contract has occurred; and
3.the appellant had an entitlement to a remedy for the breach.
Formation of contract
In Cheshire and Fifoot Law of Contract[24] the authors describe the major elements of formation of a contract as being:
1.an offer and acceptance;
2.consideration;
3.an intention to create legal relations; and
4.certainty of terms.[25]
[24] Seddon NC and Bigwood RA, Cheshire and Fifoot Law of Contract (11th ed, 2017).
[25] Seddon NC and Bigwood RA, Cheshire and Fifoot Law of Contract (11th ed, 2017) 10.
The authors note that it is only the essential terms for which certainty and completeness are required.[26]
[26] Seddon NC and Bigwood RA, Cheshire and Fifoot Law of Contract (11th ed, 2017) 11.
While it is accepted that the 'offer ‑ acceptance' model is the traditional means of ascertaining whether a contract has been formed, it is also clear that what is called the 'global model' is also an established means, adopted in Australian courts, for determining whether a contract has been entered into between parties. In Gibson v Manchester City Council [1978] 1 WLR 520, 523 – 524, Lord Denning MR described this approach as follows:
To my mind it is a mistake to think that all contracts can be analysed into the form of offer and acceptance. I know in some of the text books it has been the custom to do so; but, as I understand the law, there is no need to look for a strict offer and acceptance. You should look at the correspondence as a whole and at the conduct of the parties and see therefrom whether the parties have come to an agreement on everything that was material. If by their correspondence and their conduct you can see an agreement on all material terms ‑ which was intended thenceforward to be binding - then there is a binding contract in law even though all the formalities have not been gone through.
In stating the law which applied the magistrate stated:
For an agreement to be legally considered as an enforceable contract the negotiations between the parties must have reached a concluded outcome with all the necessary prerequisites satisfied, including the core terms and conditions having been agreed by the parties, but a concluded agreement may include the agreement of the parties for some of the peripheral details, or non‑essential terms, to be addressed and agreed by the parties at a later date, or by reference to some other document or notice, or as per prior dealings between them, or to be implied, but the principle terms agreed must be identifiable and certain, and the parties themselves would need to have recognised that an agreement had been reached and was binding on them.
… It is very well recognised law that for an agreement to be enforceable as a contract from the most complex to the most simple the following features must all be present. Firstly, unless some other law requires it, ordinarily there is no requirement for the contract to be in writing, however, where the contract is not in writing or evidenced in writing the proof of the other features necessary for a contract as follow may be difficult to establish, particularly if the parties are in dispute.
The second essential feature for a contract is that there must be at least two parties … Thirdly, all the parties must be of full legal capacity. Fourthly, all the parties must have exchanged an offer and acceptance; that is a party must have made an offer or offers and another party must have accepted the offer or offers on exactly the same terms.
Fifthly, there must be some consideration passing between each of them and from each of them, meaning that each must be doing something or not doing something they would otherwise be entitled to do, or giving up something or receiving something in exchange for the promise of the other parties, such as making a payment in exchange for the provision of a good or service for that payment …
The sixth requirement for a legally enforceable contract is that the terms and conditions of the offer and acceptance must be certain and capable of being clearly identified as such and all the parties must be clear as to all of the terms agreed … In the most simple case, the price agreed, the property being bought and sold or rented, the dates for those things to occur must have been identified and agreed.
Seventh, all the parties must have identified that their legal rights and obligations would be affected; that is the parties must have intended to be legally bound by what has been agreed by them and for the outcome to be more than an informal or domestic arrangement or agreement to continue discussions, or agreement of the parties to continue down one particular pathway, or the agreement of the parties to pursue one of several various options available.
Eight, each of the parties must be exercising a decision of their own freewill in entering into the legally binding arrangement … Nine, equally, there must be an absence of any deception of a party being misled or induced by another, such that there is a true coming together of their minds on the exact same terms as an independent act of their own freewill.
10, there must be an absence of any mistake or confusion by a party as to what the subject matter of the contract is and the other important characteristics underlying the negotiations and what each party may have agreed to do or not do going forward …
…
Finally, though, if and when a contract has been entered into a party cannot cancel, delete, vary or add any terms unless all other parties have been consulted and agree to the change. One forcing the other is invalid.[27]
[27] ts 252 – 254 (9 December 2016).
I am satisfied that the magistrate correctly identified the test he was required to apply in reaching a decision as to the existence, or otherwise, of a contract between the parties. It should be noted that the appellant did not contend that the magistrate had applied the wrong test in determining the question of whether the parties had formed an agreement. Rather, I understand the appellant's submission to be that the magistrate reached the wrong conclusion in his application of that law to the facts.
Was there an agreement between the parties?
The appellant contended before the magistrate that the existence of the contact could be established from the following evidence:
1.letter from the respondent to the appellant dated 24 October 2011;[28]
2.letter from the appellant to the respondent dated 25 October 2011;[29]
3.letter from the appellant to the respondent dated 4 November 2011;[30] and
4.letter from the appellant to the respondent dated 18 November 2011.[31]
[28] Exhibit 7.
[29] Exhibit 8.
[30] Exhibit 9.
[31] Exhibit 10.
Despite being asked on numerous occasions whether there was any other evidence that went to establish the existence of the terms of the contract the appellant repeatedly indicated that there were no discussions, phone calls or any other behaviour from which he could ask the court to imply any terms and the totality of the agreement was reflected in the letters in 1 ‑ 4 above.[32]
[32] ts 140 (23 February 2016).
In the letter of 24 October 2011, Mr Pynes of the Housing Authority, wrote to the appellant in the following terms:
Further to our letter of 30th September 2011 I am writing to ask you to confirm which of the two options identified below you will pursue regarding your former tenancy at 12/2 Dorcas Way Coolbellup.
Your options are that you may either:
•reoccupy the property, conditional upon your agreement to remove a sufficient amount of belongings to ensure the safety of yourself and other tenants (to the Department's satisfaction) or
•remove all of your belongings as ordered by the Magistrates Court in Fremantle so that your unit may be reallocated to another public housing applicant.
Please inform the Department of your intention by 5 pm Thursday 27th October 2011.
Should you not advise the Department of your intention, we will arrange for removal of your possessions in accordance with Section 79 of the Residential Tenancies Act 1987. This will mean your items will be stored in a safe place and manner for a period of not less than 60 days. After the expiration of the 60 day period it is likely an indemnity for disposal of goods from the Department of Commerce will be actioned.
This means that if your belongings are worth less than the cost of storing them to the Department of Housing, we may be authorised to dispose of your belongings and you will not be entitled to any compensation.
If you wish to discuss this matter further please do not hesitate to contact me …
In response to that letter, the appellant wrote to the respondent on 25 October 2011 in the following terms:
Thank you for your visit yesterday, and letter dated, 24 October, 2011.
As we discussed, your first option, 'reoccupy the property' etc. is the objective I'm working on (as the appeal proceeds).
As I told you yesterday on the phone, I got in touch (by phone) with Ms Kneefe on [redacted]. She seemed fully informed, and I'm sure got in immediate touch with the 'State housing people' involved. I just phoned these 'Today/Tonight' people (Ms Keefe) and she left the message, she hadn't gotten a reply back yet.
In the meantime I told you I would get you a 'written reply' back by this afternoon.
I'll phone her back thia [sic] afternoon, and as soon as I get some information from her, I'll phone you and let you know right-away. She struck me as being very efficient, and I'm sure she will move as fast as she can.
Thanks again.
On 4 November 2011 the appellant wrote to the respondent as follows:
Thanks again, for your visit on 31 October, 2011. Requesting further written information from me on, or whether I approve of the 'storage facilities' arranged by the 'Today/Tonight people' and 'donated' for a one year period, including free pick‑up of some of my 'personal belongings' from my previous address with your Department, of about 24 Cu. meters, to the satisfaction of your Department of Housing, Fremantle 'DOH'. I fully approve and accept this most generous offer of one‑year storage these 'Today/Tonight people' were able to arrange in an attempt to satisfy your Department's demands for a 'reduction' in my 'personal belongings' and also allowing me to 're‑occupy' my former unit until the 'Court appeals' have finalised, leaving final decisions in the hands of 'Courts of law'.
I don't know any of the storage details yet, it appears the 'Today/Tonight' people and 'Department' of Housing Authorities are making all these arrangements. Apparently, for early next week.
I'm not the only person these 'Today/Tonight people' are helping and I'm certainly thanking them for their interest and help, but then, helping people is what they do, and in this case they're trying to satisfy 'both sides' as best they can. I not only 'approve' but I'm grateful for their help. (and they'll get a thank‑you letter for it).
Hope these few words are of some help to you.
On 18 November 2011 the appellant wrote again to the respondent in the following terms:
Following‑up our 'verbal' conversations of 8, 9, and 15th November, 2011, it appears your 24th October, 2011, letter with your two proposed 'options'
1.'reoccupy the property, conditional upon your agreement to remove a sufficient amount of belongings to ensure the safety of yourself and other tenants (to the Department's satisfaction) or'
2.'remove all of your belongings as ordered by the Magistrates Court in Fremantle so that your unit may be reallocated to another public housing applicant'. 'Please inform the Department of your intention by 5 pm Thursday 27th October, 2011' was or is incomplete (in the No.1 'option').
I've accepted (unconditionally) your No.1 'option' with my 25th October 2011, 'written' reply I delivered, in‑person to your office on that date, also, on your request, another letter I delivered on 4 November, 2011, further confirming my acceptance, as such, we were scheduled to return to my previous unit on 10th of November, 2011, to satisfy the No. 1 'option'.
On 8, 9th of November, 2011, you 'verbally' advised me there was 'additional conditions' notably, (A) first a 6, then a 12 month 'lease' is now required. I've never had or heard of any Department of Housing lease' 'DOH' in all my 23 years with the 'DOH', terminating my tenancy on expiration. (B) approximately $650 'bond' is now required. There was no 'bond' payment 23 years ago when I started with the 'DOH'. (C) 'Rental increase' of about $10 dollars (or 10 percent) I paid my last 'rent increase' April 21st, 4 months ago. I only ever paid 'yearly' rent increases with the 'DOH'.
As I see it, we both signed an 'agreement' that we should 'both' abide by as I'm still prepared to do. If theres [sic] any additional 'additions' from your side it should be in 'writing' (as I requested from you) so I can reply in 'writing' (as I've always done) you've refused to do this.
Everybody was moving as fast as possible (including the 'Today/Tonight TV people' who offered 1 years [sic] free storage for part of my belongings) so the 'DOH' could resume their 'rent collection' for their unit, from me.
Please feel free to provide any 'written' reply. Thank you.
Mr Pynes, who was the regional manager of the respondent's Fremantle office at the relevant time, gave evidence that he had been the individual conducting, on behalf of the respondent, the negotiations with the appellant in October and November 2011 regarding his possible re‑occupation of the Unit. He gave evidence that the presentation of a fixed term tenancy agreement to the appellant after 4 November 2011 was not inconsistent with the letter of 24 October 2011 and the appellant's letter of 25 October 2011. His evidence was that the 24 October 2011 letter did not refer to a term at all because, at that time, the respondent was simply trying to ascertain whether the appellant would be prepared to remove a certain amount of his goods in order to be permitted to re‑occupy the Unit. His evidence was that there was nothing in the communications between them that would have suggested to the appellant he was to be given a periodic tenancy.[33]
[33] ts 83 ‑ 84 (5 August 2015).
The magistrate found that by his letter of 25 October 2011, the appellant was only conveying to the respondent that he intended to work on and pursue the proposal (called option 1 in the letter of 24 October 2011) of re‑occupying the Unit but that there was no concluded agreement as to what the proposal would be in precise terms. The magistrate found:
There was no agreement as to terms such as rent, duration of the tenancy, commencement date, storage, the housing and containing of the personal items that Mr Schaefer considered as collectables.
None of those items had been discussed or agreed or foreshadowed in the exchange of letters… There was no concluded agreement as to what the precise terms agreed or what the proposal would end up being.[34]
[34] ts 257 (9 December 2016).
The appellant has a genuine belief that he had reached an agreement with the respondent by 8 October 2011 and that by trying to introduce matters such as a lease term and a rent that was greater than he had previously paid after that time, the respondent was reneging on that agreement. Notwithstanding that belief, the magistrate was correct to conclude that as a matter of construction, no enforceable agreement had been entered into by that exchange of correspondence.
The letter from the respondent dated 24 October 2011 can only be properly understood as a letter inviting the appellant to advise it of whether it was his preference that he re‑occupy the Unit or that the respondent find him alternate accommodation.
Even if the 24 October letter were capable of constituting an offer able to be accepted, the appellant's own reply of 25 October 2011, indicating that he was working towards that end, by endeavouring to have Today/Tonight agree to arrange for the storage of his excess possessions, could not be said to be the acceptance of any offer, but merely an indication that he did not wish to pursue option 2 (the offer to take up alternative accommodation) and was working towards being able to take up option 1.
The appellant's evidence was that at the time he sent the letters of 25 October and 4 November 2011, no discussions had taken place between the parties regarding how many of his possessions would be able to be retained at the Unit, no discussions had been reached as to the length of time he would be able to stay there and no discussions had been had as to the rent he would be required to pay.[35]
[35] ts 176 – 177 (23 February 2016).
It is clear that as at 30 October 2011 the respondent was still trying to ascertain whether the appellant would be able to have his goods stored away from the Unit. The appellant's letter of 4 November 2011 states that, while he did not then have details of the storage arrangements 'he fully accepted' the offer made by Today/Tonight to have them stored on his behalf. The letter of 4 November 2011 further supports the view that no contract had been entered into by that time.
It is also clear from that letter that as at 4 November 2011 the appellant had regarded the proposal in option 1 as an offer to re‑occupy the Unit until such time as the courts had resolved the issue of the validity of his eviction, rather than an offer that he return to the Unit indefinitely. This too supports the position that there was no meeting of the minds between the parties as there is nothing in the documents which the appellant himself says constitutes the evidence of the agreement to the effect that the respondent had in mind in its correspondence that its proposal be limited to that time period.
Having examined the transcript I have come to the view that the magistrate did not err in his understanding of the facts or in his application of the facts to the relevant law. There was no meeting of the minds of the parties as to the essential terms on which the re-occupation of the Unit would occur.
It follows from my finding as to the lack of a contract between the parties that there was no breach of any contract and hence the appellant has no entitlement to damages.
The appellant's claim before the magistrate was originally for the sum of $18,000 plus costs. The appellant's assertion was that this was the amount he should be paid as a result of the breach of the agreement as that sum represented the difference between what he was paying for the Unit and what he had been forced to pay for alternative accommodation (of a lesser standard) as a result of not being permitted to re‑occupy the Unit.[36]
[36] ts 201 (22 February 2016) and ts 9 (3 September 2015).
On 3 September 2015 the appellant characterised the $18,000 as 'the costs I've incurred by having to go into emergency housing, which they've put me through'.[37]
[37] ts 9 (3 September 2015).
The magistrate characterised the claim as follows:
Because you're actually paying more now than you were for the substantially better unit, it seems to me, because it had bedrooms and kitchens and bathrooms and so on. And so your position is that you have had to find this additional money to live where you are now, even though it's a more modest living arrangement. As I've already commented a number of times, no kitchen, no bathroom, separate – shared all of those things and just a single room. It is actually costing you more…'.[38]
[38] ts 9 (3 September 2015).
At the mention hearing on 3 September 2015 the appellant was pressed as to whether there was any evidence he wished to lead in order to establish the claim for damages. The exchange between the appellant and the magistrate went as follows:
Schaefer, Mr: …So all that's left is the differences I've had to outlay for the emergency housing. And I must have pretty well put that together at the time and figured 18,000 puts us in the proper ballpark. I know – I can't think of anything else.
His Honour: Except for the fact that you make references in a number of your submissions to the yellow book in – from the appeal. None of that paperwork is before the court. So when you make references to the appeal book, the yellow book, and yellow book 1, and yellow book 2, and so on, none of that material is on this court's file. That's down in the Supreme Court. It's not that we all share the one file. So whatever paperwork is down the road at the Supreme Court on your appeal file – and you make references to the yellow appeal book and so on – I don't have any of that paperwork. None of it.
The reference to the having 'put it together at the time' is a reference by the appellant to the materials which were before the Court of Appeal in Schaefer v Department of Housing [2012] WASCA 229. The magistrate's response can be understood in that context.
Following the exchange quoted above, the magistrate adjourned the hearing to 8 October 2015 and the parties were given leave to file further witness statements and documents going to the issue of damages.
In documents filed by the appellant in preparation for the resumption of the hearing on 8 October 2015, the appellant then claimed damages in the sum of $45,150. On 22 February 2016 the appellant was given leave to amend his application to claim damages of $45,150.[39]
[39] ts 219 (22 February 2016).
The transcript reveals that the appellant had great difficulty articulating why it was that he was now claiming $45,150. The appellant said that figure represented:
(a)the difference between the rent he would have to pay if he rented a unit equivalent to the Unit on the open market and the rent he had paid the Housing Authority for the Unit at the time of his eviction; and
(b)costs he had paid for having to move twice from his temporary accommodation;[40] and
(c)an amount that was said to be for the loss of enjoyment because his subsequent accommodation was a single room without facilities.[41]
[40] ts 142 ‑ 143 (23 February 2016).
[41] ts 218 ‑ 219, 226 (22 February 2016).
In a subsequent submission to the magistrate the appellant stated that the amount 'isn't listed as part of the damages for the agreement. The agreement can be considered as something else or as part of it. It can be taken either way'.[42]
[42] ts 227 (22 February 2016).
The appellant asserted that market rent of an equivalent unit would have been $360 per week as at 22 February 2016.[43] He did not call any evidence to make out that assertion. He produced no evidence as to what the market rental of an equivalent property was at the time of his eviction in 2011 or at any time between 2011 and 2016 despite being given ample opportunity to do so by the magistrate. The appellant himself gave evidence that he had not actually paid rent at the market rate he contended for as he could not afford to do so. His evidence was that since he moved out of the Unit he had occupied accommodation that had cost him $440 per fortnight but conceded in cross‑examination that this amount included his utilities.[44] He also conceded in cross‑examination that he was in receipt of Commonwealth rental assistance that went towards payment of the rent that he had not previously received when a tenant of the respondent living in the unit.
[43] ts 206, 211 (22 February 2016).
[44] ts 179 (23 February 2016).
The appellant's evidence was that his rent immediately prior to his eviction was $211 per fortnight. In cross‑examination he acknowledged that that amount did not include his utilities.[45] The cost of the utilities per fortnight was not in evidence before the magistrate.
[45] ts 179 – 180 (23 February 2016).
It is apparent from his evidence that the appellant was paying more for his lesser quality accommodation in which he lived after his eviction than he had been paying for the Unit. However, his evidence was such that the magistrate found that he had not actually proved any damages.
I find that the magistrate was correct in that assessment of the appellant's evidence of his loss. His losses are not proven.
Conclusion
It follows from what I have said above that I was not persuaded that the magistrate made any error of fact or law or erred in the exercise of any discretion. Accordingly the appeal should be dismissed.
It is usual for costs to follow the event.[46]
[46] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [67] – [68] (McHugh J).
I will hear from the parties as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CH
ASSOCIATE TO JUDGE GLANCY30 JULY 2018
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