Shortman v Pattinson
[2012] QCA 151
•8 June 2012
SUPREME COURT OF QUEENSLAND
CITATION:
Shortman & Anor v Pattinson [2012] QCA 151
PARTIES:
DONALD CLAUDE SHORTMAN & DOROTHY CATHERINE SHORTMAN
(appellants)
v
YVONNE MAUREEN PATTINSON
(respondent)FILE NO/S:
Appeal No 10591 of 2011
DC No 89 of 2009DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
District Court at Maroochydore
DELIVERED ON:
8 June 2012
DELIVERED AT:
Brisbane
HEARING DATE:
16 April 2012
JUDGES:
Holmes JA, Margaret Wilson and Mullins JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDERS:
1. That the appeal be allowed.
2. That the judgment in so far as it orders the appellants to pay to the respondent the sum of $208,332.68 for claim and interest be set aside.
3. That the respondent’s claim against the appellants be dismissed.
4. That the costs order in so far as it requires the appellants to pay the respondent’s costs of and incidental to the claim be set aside.
5. That the respondent pay the appellants’ costs of defending the claim to be assessed on the standard basis.
6. That the respondent pay the appellants’ costs of and incidental to the appeal to be assessed on the standard basis.
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – ORDERS SET ASIDE OR VARIED – where the appellants entered into a contract to buy the respondent’s property – where the trial judge found that the contract as executed by the appellants did not disclose an easement on the property – whether finding made in error – whether respondent's return of executed contract with details of easement inserted constituted a counter-offer – whether the appellants' conduct demonstrated acceptance of the counter-offer
Property Agents and Motor Dealers Act 2000 (Qld)
COUNSEL:
A J H Morris QC for the appellants
P J Dunning SC, with L J Nevison, for the respondentSOLICITORS:
Forbes Dowling Lawyers for the appellants
Ferguson Cannon Lawyers for the respondent
HOLMES JA: The appellants, Mr and Mrs Shortman, appeal a judgment which ordered them to pay damages representing the respondent’s loss on the resale of a property; the learned trial judge found they had failed to complete a contract for its purchase. The parties had originally executed a contract which, the trial judge found, had contained no reference to an easement over the property. He found, however, that the sending to the Shortmans of a subsequent version of the contract amended to disclose the easement amounted to a counter-offer which they had accepted. On appeal, the Shortmans contended that the return of the contract to them with the detail of the easement added did not amount to a counter-offer; nor was there evidence that they were aware of the change or had accepted the altered agreement. The respondent, Mrs Pattinson, argued, by way of notice of contention, that the finding that the contract had not borne the reference to the easement when the Shortmans and she signed it was wrong.
The pleaded cases
The case for the vendor, Mrs Pattinson, was straightforward: on 28 May 2008, she and the Shortmans had separately executed a contract for the sale of her property which showed the easement as an encumbrance. On 26 August 2008, the day before settlement was due, the Shortmans purported to terminate the contract and did not complete at the appointed time for settlement.
The Shortmans, on the other hand, defended the action on the basis that when they signed the contract it contained no reference to the easement. When it was returned to them after execution by Mrs Pattinson, it had been altered, unknown to them, by inclusion of the word “Easement”, with the relevant easement number. The delivery of the contract in that altered form amounted to a counter-offer which they had not accepted. The Shortmans pleaded, and maintained in evidence, that they had not been informed of the existence of the easement until some time after the contract had been entered. They counter-claimed against Mrs Pattinson for restitution, pleading that, knowing that they were acting under a mistake and taking no steps to correct it, she had induced them to incur various expenses relating to the conveyance.
In her reply and answer, Mrs Pattinson denied alteration of the contract, but pleaded that if there were any counter-offer, it had been accepted by the Shortmans by their signing of a form entitled, “Buyer Form/Acknowledgment for Signed Residential House and Land Contract”.
The evidence about the contract
The Shortmans were an elderly couple who had sold their home and were hoping to buy another on the Sunshine Coast. Mrs Pattinson had placed her property for sale with a number of agents, including the Mooloolaba agency with which the Shortmans dealt. Their evidence was that only Mr Shortman had inspected the property before signing the contract, although Mrs Shortman had visited it later. Mr Shortman said that the salesman who took him on the inspection, Mr Atwell, said nothing to him of the easement. Mr Atwell gave evidence contradicting that account, which the learned judge accepted: that both Shortmans had attended the inspection; that he had explained to both of them that there was an easement on the property; and that Mrs Shortman had responded that they had an easement on their existing property, and were not concerned about it. In preferring Mr Atwell’s evidence, the trial judge described him as a “careful and honest witness doing his best to recall what occurred”. His Honour did not think that the Shortmans were deliberately dishonest, but considered that they had convinced themselves of a version of events which he found improbable.
Mr Atwell had worked as a real estate salesman for a little over three months; this was his second sale. He had in his possession an agency file relating to the property, known in the agency as a “listing kit”, which contained various forms, including the document appointing him as agent to sell the property and a contract for its sale. He said that after establishing during the inspection that the Shortmans were interested in making an offer, he arranged to meet them at a relative’s house later that afternoon. He duly arrived with the contract for the sale of the property, which they went through together. When the listing kit was provided to Mr Atwell, the contract contained some typed information inserted by the real estate agency’s receptionist, Ms Henebery: the details of the real estate agency; the seller’s name and address; the address of the property and its real property description, but not the title reference; the identity of the deposit holder, as the real estate agency; and some information about smoke alarms and safety switches.
Mr Atwell wrote some further details in the document: the names of the Shortmans as buyers and their address; the purchase price, which he amended, having convinced the Shortmans to offer $820,000 instead of $800,000; the deposit amount of $5,000; the building and pest inspection date as “within seven days of contract date”, with an indication that the relevant inspectors would be “Buyer’s choice”; the settlement date, “90 days after contract date”; and the place for settlement. Against the item, “Seller’s solicitor”, he recorded “Seller’s choice”, and for “Buyer’s solicitor”, “Buyer’s choice”.
The contract was tendered in evidence. It contains other information in handwriting: the title reference number, and against the item, “Title Encumbrances”, the words “Easement No – 601138639”. Those entries were not written by him, Mr Atwell said, but to the best of his memory, they had been inserted before he took the contract to the Shortmans for signature. In response to further questioning as to whether the easement and title reference details were there, he said, “I believe so”. Challenged in cross-examination about he had any actual recollection, he reiterated that he believed both entries were on the contract when he took it to the Shortmans, and went on to say that he was “confident” that they were. He did, however, concede the possibility that the easement details and title reference were inserted after the contract was signed.
Mrs Pattinson said that Mr Atwell had advised her in the course of the day on 28 May 2008 that there had been an offer of $800,000 for the property. She told him she would not accept that amount, and asked whether the prospective buyers knew of the easement on the property. Mr Atwell had answered that they did. Later he advised her that the buyers were prepared to pay $820,000 and had signed the contract. He brought it to her that evening for her signature. She remembered seeing some handwritten details on the contract, including the date and the easement number.
The contract bears the date “29-5-08”. The date had not been inserted, Mr Atwell said, when he showed the contract to the Shortmans. Other evidence showed that the office manager of the real estate agency, Ms Winter, had inserted it on the following day. Ms Winter gave evidence about the real estate agency’s practices and how the information regarding the easement came to be on the contract. She was asked to look at the agency listing kit, which bore a checklist as its front sheet. Of interest was an item which read “Request title search from [Ms Winter] for auction properties only”; it had been crossed, rather than ticked, as other entries were. Ms Winter said that once the client had paid the $20 fee, she would obtain a title search and provide it to Ms Henebery, who typed the contract.
Ms Winter recalled that she checked the Pattinson contract and saw that the easement noted in the title search did not appear in it. She instructed Ms Henebery to write the information in, and saw that she had done so. The contract would then have been placed in the listing kit, to be given to the sales agent for use in his efforts to find a buyer. She had not seen the contract after that amendment until it was returned to her on 29 May 2008, executed by all parties.
Ms Henebery, the receptionist, gave oral and affidavit evidence. In her affidavit she described the procedure for preparing sale contracts. She was given a blank REIQ contract and typed in details such as the name of the seller and the address and details of the property. When she prepared contracts, though, they did not contain the title reference or any easement details because she did not, at that stage, have a title search. It was only after a buyer had decided to purchase that a title search would be ordered and it would be given to her to fill in the title reference and easement details. She recognised as her handwriting the words relating to the easement and title reference number on the contract. Her recall was that she had written them in at a time when the contract had on it the signatures of the buyer and seller.
As the trial judge noted, Ms Henebery’s evidence at trial was not as strong as that in her affidavit. In evidence-in-chief, Ms Henebery said that she would not have inserted details by hand at the time she was preparing the contract; everything was typed at that stage. But she believed the process of the sale was still in negotiation when she wrote the property title reference and easement details on it; she “wouldn’t be given a contract once [it was] completed to write the details”. Nonetheless, she knew that the document had signatures on it then, but she did not recall exactly which signatures. In cross-examination, Ms Henebery said that she could not “a hundred percent recall exactly what time all of this happened”. She reiterated that the contract bore signatures when she wrote on it, but she could not recall what they were, and that the contract was then in the process of negotiation.
An email exchange on 29 May 2008 between Mr Atwell and Mrs Pattinson’s son, who was a solicitor working for the firm which subsequently acted for her on the conveyance, assumed particular importance. At 10.04 am that day, Mr Atwell sent an email to Mr Pattinson which referred to an “attached proposed contract” for the property “as per [Mrs Pattinson’s] request”. A paralegal clerk sent an answering email on behalf of Mr Pattinson, conveying his advice that the contract needed to note the easement as a title encumbrance. The email also referred to an attached title search which should be attached to the contract. Mr Atwell was cross‑examined about the email exchange. While he agreed he had sent the first email, he had no recollection of it. He did not know whether the contract to which it referred as attached was the signed contract or an incomplete version of it saved electronically. (Ms Winter said that the agency’s practice was to save the contract in draft form as a PDF file, before any transaction was entered and with only the limited details typed in by Ms Henebery.) He did not remember if he had had any further correspondence with Mr Pattinson about the omission of the easement from the contract.
On 30 May 2008, the real estate agency sent the original signed contract, with a warning statement under the Property Agents and Motor Dealers Act 2000 attached to it, and a buyers’ acknowledgement form to the Shortmans’ solicitors. On the same day the agency sent copies of those documents to the Shortmans themselves, advising that the deposit of $5,000 had to be paid. Mr Shortman said in his evidence that his solicitors reminded him that he had to pay the deposit; that was, he said, their only advice. On 4 June 2008, the Shortmans returned the buyers’ acknowledgement to the real estate agency and paid the deposit. (The buyers’ acknowledgement recorded their receipt of documents including the signed contract and confirmed that they had signed the warning statement before signing the contract.) The following day their solicitors wrote to Mrs Pattinson’s solicitor asking for an extension of time for the building and pest inspections. In a letter the next day the Shortmans’ solicitor indicated that if the extension were not granted to the date the Shortmans required, they elected to terminate the contract.
Another letter, some days later, observed that a satisfactory inspection report had not been received by the required date so that the Shortmans were entitled to treat the contract as at an end. However, the letter also indicated that the Shortmans would proceed with the contract if certain aspects of the property with which they were dissatisfied were rectified. Subsequently there was more correspondence on the subject of pest treatments, without any further reference to termination.
On 22 July 2008, the Shortmans’ solicitors wrote to them about various matters. The letter included this sentence:
“As you are aware there is an easement burdening the land declared on the Contract”.
Mr Shortman denied receiving the letter. He said that his first knowledge of the easement came when his solicitors did a search and discovered it, advising him by telephone. His evidence was that he promptly told the solicitors to terminate the contract, but the clerk with whom he was dealing demurred, saying he had to speak to his superior. On 26 August 2008, new solicitors acting for the Shortmans wrote to the solicitors for Mrs Pattinson, advising that the Shortmans were terminating the contract on the basis that the easement had not been disclosed before they entered it. They had no recollection of seeing the reference to it when they signed the contract, and Mr Shortman considered it extremely unlikely he would have failed to notice it if it were there. Consequently, it was asserted, the Shortmans were entitled to terminate for a material mistake in the description of the property.
The trial judge’s findings
The learned judge gave a number of reasons for finding that the words referring to the easement were not written on the contract at the time the Shortmans executed it. The listing file contained no copy of the title search, and the check list on the front of the file contained a cross beside the item referring to the requesting of title searches. The check list suggested that a title search would only be requested where an auction was to take place; this, however, was an open listing. Although the agreement which Mrs Pattinson signed for appointment of the real estate agency noted as an expense “title search $20”, there was no evidence that any such search had been performed. No other document such as a trust account receipt or an invoice for payment for a title search was produced. It was improbable, then, that Ms Winter was correct in her recollection of having the title search and directing Ms Henebery to insert the easement reference. The email exchange led to the inference that the contract had not contained reference to the easement, a conclusion which was supported by Ms Henebery’s evidence in her affidavit. The learned judge concluded that the words had been written into the contract on 29 May 2008, after the title search had been forwarded on behalf of Mrs Pattinson’s son.
But the Shortmans had pleaded, and the trial judge found, that the sending of the executed contract to them with the easement details inserted constituted a counter-offer. The learned judge, as has already been mentioned, preferred Mr Atwell’s evidence to the Shortmans’ about what had occurred on the inspection of the property. He inferred that by the time the Shortmans signed the buyer’s acknowledgment on 4 June 2008, they had consulted solicitors. The clerk handling the conveyance must have seen the contract and interviewed the Shortmans. The easement was noted on the same page of the contract as the details about the building and pest inspections which were the subject of correspondence on 5 June 2008. That correspondence indicated that the Shortmans’ concern was about the building and pest reports, not the easement. They were already aware of the latter, and it was not a matter of concern for them.
The learned judge noted that when the letter of 22 July 2008 was received, Mr Shortman had already received advice from his current solicitors that he and his wife could avoid the contract because the easement was not disclosed on its face when they signed it. In that statement his Honour was in error: the evidence of Mr Shortman was that the advice to that effect was received much later.
The execution of the buyer's acknowledgment form and the payment of the deposit at a time when the Shortmans were aware, on his Honour’s findings, that the easement was noted in the contract were, he held, acts constituting unequivocal acceptance of the counter-offer. The learned judge gave judgment for Mrs Pattinson on her claim and dismissed the counter-claim.
Mrs Pattinson’s arguments on the notice of contention
The notice of contention point is appropriately dealt with first, because what construction is placed on the dealings between the Shortmans and Mrs Pattinson must depend on what is found as to when the details of the easement were inserted in the contract. In asserting error in the finding that those words were inserted after the contract’s execution, counsel for Mrs Pattinson disclaimed any challenge to the trial judge’s assessment of the credibility of the witnesses. (The learned judge generally found the witnesses to be honest, but in some instances mistaken.) Counsel relied instead on the cumulative effect of a number of arguments that the trial judge had overlooked or given insufficient weight to evidence. The appeal being by way of re-hearing, this court should, he submitted, consider the evidence and draw a different conclusion from it.
Counsel pointed first to Mrs Pattinson’s evidence of having asked Mr Atwell whether the buyers knew of the easement on the property, and her recall that the easement number was written in the contract when she signed it. She was plainly alive to the significance of the easement, and the trial judge had found her evidence generally reliable. Her reminding Mr Atwell of the easement made it all the more unlikely, it was submitted, that he would have made any mistake about its inclusion in the contract. It was contended that the learned judge had placed too much weight on Mr Atwell’s concession that it was possible that the easement number had been inserted by Ms Henebery after the contract was signed, overlooking Mr Atwell’s expressed confidence that the easement number was in fact written on the contract.
This court was particularly invited to reach different views as to the significance of the email exchange and the absence of any evidence of a title search, both of which the trial judge had regarded as indicating that the easement details remained unknown and unrecorded in the contract until 29 May 2008, the day after it was signed. Firstly, it was said, the learned judge had placed a good deal of reliance on the fact that no title search appeared in the listing kit and there was no evidence that one had been paid for. That reliance overlooked Mr Atwell’s evidence that he did not believe he had charged Mrs Pattinson for a title search; the absence of any charge would account for the lack of documentation.
The cross on the checklist was not an indication that no title search was needed; Ms Henebery’s evidence was that she took it as directing her to advise Ms Winter that the property had been listed and that a title search would be required. She had said that it was the practice to obtain a title search once an offer had been made on a property. The search could have been obtained, it was suggested, in the interval between Mr Atwell’s inspection of the property with the Shortmans, when they had intimated their interest, and his meeting them a second time for the execution of the contract. The easement details could have been inserted at that stage, consistent with Ms Henebery’s recollection that it occurred when the contract was still being negotiated. Importantly, her evidence was that it was not the agency’s practice to add details to a signed contract.
In regarding the email exchange as critical, the trial judge had overlooked the fact that the email which Mr Atwell sent referred to a “proposed contract”. That was consistent with his having forwarded the pro forma contract in PDF form, with only the seller’s details on it, not an executed contract. If instead Mr Pattinson had received what appeared to be an executed contract without any reference to the easement, he could have been expected to respond with advice that the buyers should be asked to sign an amended contract. The PDF document could be emailed, whereas if the executed contract were to be sent by email, it would be necessary to scan it and save it, and there was no evidence of that occurring.
The argument then turned to focus on the Shortmans’ state of knowledge. On any view they had received a contract with the easement recorded in it in early June 2008, as had their solicitors. It was improbable that their solicitors would have regarded the building and pest inspection conditions as sufficiently important to raise with them, but not the easement. Mr Shortman had said that his solicitor did a search and told him by telephone that there was an easement; that must have occurred before the letter of 22 July 2008 was sent. The letter of 22 July, it was said, constituted an admission against interest in its reference to the fact that the easement was noted in the contract. That was expressed as historical fact, not as a matter of any surprise. It was significant that the letter the Shortmans’ next solicitors sent to Mrs Pattinson’s solicitors on 26 August 2008 did not deny the noting of the easement in the contract, but merely observed that the Shortmans had no recollection of seeing it there.
Conclusion on the notice of contention
The learned trial judge was in a better position than this court to assess the degree of confidence with which the witnesses gave their recall about what appeared in the executed contract, and in particular to form a judgment on what appears to have been Ms Henebery’s fluctuating evidence. Still, this court is able to weigh the evidence, particularly the documentary evidence, and to draw inferences as to the sequence of events. I do not, however, think there are any critical flaws in his Honour’s analysis of the evidence or the reasoning process which led to his conclusion that the easement reference was not in the contract as signed.
Mr Atwell’s recall that he had not charged Mrs Pattinson for the title search was not reflected in any evidence from Ms Winter as to the fee being waived, and Mrs Pattinson said she was sure that she had paid for it; to her annoyance, she had had to make the same payment to a number of different agents. It seems odd, too, if there were a decision not to charge for the search, that the “Appointment of Real Estate Agent” document which Mrs Pattinson signed contained the title search fee as an authorised expense. Significantly, there was, as his Honour observed, a complete lack of evidence of any title search having been obtained by the real estate agency before the firm of solicitors forwarded it by email to Mr Atwell the day after the contract was signed. It is hard to credit that if such a search had been undertaken there would be no form of documentation of it at all in the agency’s files: no sign of its being requested, or of any invoice relating to it, or indeed, of the title search document itself.
The argument that what was forwarded to the firm of solicitors at Mrs Pattinson’s request must have been the contract in its original PDF form because the email referred to a “proposed contract” is not compelling. As counsel for the Shortmans pointed out, Mr Atwell in his oral evidence had used the same expression to refer to the contract he took to Mrs Pattinson for signature, at a stage when handwritten details had been inserted into it and the Shortmans had signed it. That does suggest, if he used language consistently, that the document forwarded on 29 May was the contract with handwritten details inserted.
The obvious inference from Mr Atwell’s email is that Mrs Pattinson wanted her son to know what was in the contract signed the previous day. It would have been a pointless exercise to send him what was not much more than a standard REIQ form contract at a time when there existed an executed contract with buyers’ details, price, settlement period and other information inserted. There was no evidence that Mr Atwell had scanned the document for sending, it is true, but that was in a context in which Mr Atwell was unable to shed any light on what had actually occurred: he said he had no recollection of sending the email at all, much less what its attachment comprised. The evidence about the title search and the email exchange, in my view, supports the conclusion reached by the trial judge.
The letter of 22 July 2008 does not assist as to when the Shortmans’ solicitors first brought the notation of the easement in the contract to their attention. Even disregarding Mr Shortman’s evidence that he did not receive the letter and instructed the solicitors to terminate the contract when he received advice of the easement by telephone, the objective evidence is that within a month the Shortmans had changed solicitors and their new solicitors were writing to terminate the contract. It is not entirely surprising that the solicitors’ letter of 26 August 2008 did not baldly accuse Mrs Pattinson’s representatives of altering the contract after execution; but that was essentially the effect of the statement that the Shortmans did not recall the easement notation and that Mr Shortman thought it extremely unlikely that he would not have noticed it, had it been there. Nothing in those events supports the notion of an admission by conduct that the easement was always recorded in the contract.
As to the evidence of witnesses, Mrs Pattinson’s recollection as to the contents of the contract when she signed it was not unimpeachable. She remembered seeing the date on the contract, although the evidence was that it was not inserted until the following day. Her counsel here suggested that she might have been referring to the date which appeared on the Property Agents and Motor Dealers Act warning statement which the Shortmans had signed. At best, that would still suggest some confusion about what actually appeared on the contract itself. Her raising the topic of the easement with Mr Atwell certainly makes it harder to understand its omission from the contract, but this was only his second property sale. There was no evidence that he understood the importance of its being recorded in the contract, as opposed to making sure that the Shortmans were told about it.
The learned judge plainly regarded Mr Atwell as an honest witness, but, particularly in light of his email correspondence, concluded that his evidence as to whether the words about the easement appeared in the contract before execution was mistaken. Another significant difficulty for Mrs Pattinson is his Honour’s preparedness to act on Ms Henebery’s fundamental and consistent assertion that there were signatures on the contract when she wrote the words in, notwithstanding her belief that the contract was then still being negotiated. He accepted what he regarded as her honest concession that she could not, at the time of trial, give reliable evidence about when the reference was inserted. If Ms Henebery were to be accepted as to the presence of signatures on the document when she wrote in the easement details, her evidence strongly pointed to the conclusion the trial judge reached. There was no version of events in which she had access to the contract between its execution by the Shortmans and its signing by Mrs Pattinson. There is no reason for this court to conclude that his Honour could not properly act on her evidence on the point.
Mrs Pattinson has not shown that the trial judge’s finding that the easement was not recorded in the contract when it was signed should be disturbed.
Conclusions on the Shortmans’ arguments on the appeal
Beginning, then, from the premise that the easement did not appear in the contract when the Shortmans and Mrs Pattinson executed it, the question is what can be inferred as to the subsequent course of events. The first part of the Shortmans’ argument was that there was no evidence that Mrs Pattinson had authorised the sending of the amended contract as a counter-offer. But the Shortmans had pleaded that Mrs Pattinson, by delivering the contract to their solicitors on 2 June 2008, counter-offered to sell the property as encumbered by the easement, and their counsel at trial did not resile from that pleading when pressed about it in his final address. It comes somewhat strangely from their mouths now to say that the trial judge erred in accepting as correct what was implicit in their position throughout the trial, that the altered contract was sent with Mrs Pattinson’s authority.
The second limb of the Shortmans’ argument does have force. The trial judge concluded that when they returned the buyer's acknowledgment and paid the deposit, the Shortmans were aware that the easement had been noted in the contract. Their evidence, though, was that they did not know of the easement until some time later. His Honour was entitled to reject that evidence, of course, provided there was evidence from which a different conclusion could be drawn. The difficulty lies in identifying evidence which supported a contrary inference.
The contract had been sent to the Shortmans, but without any accompanying advice that it had been altered. There was no evidence that they had examined it. The buyers’ acknowledgement form which they returned acknowledged receipt of the document, but not any consideration of its content. The clerk who had the carriage of their conveyance had seen the contract and had spoken to Mr Shortman about the deposit, but it does not follow that he had raised the notation of the easement. It seems most unlikely that he would have contemplated the possibility that it had been inserted subsequent to the Shortmans’ execution of the contract. It is entirely possible, therefore, that he assumed that they were well aware of the details inserted there and did not think it necessary to raise the topic with them in the two days intervening before they paid the deposit and returned the buyer's acknowledgment. There was certainly no evidence that he did. Nor was there any other evidence to show that the Shortmans were aware that something had been changed in the contract before they returned the buyer's acknowledgment and paid the deposit; Mr Shortman swore to the contrary. The learned judge could not properly infer that those acts constituted an unequivocal acceptance of a counter-offer. The judgment must be set aside.
In their notice of appeal, the Shortmans sought in addition to an order that Mrs Pattinson’s claim be dismissed, judgment on their counter-claim against her in the sum of $3,905.00 (presumably a typographical error for the sum claimed in the counter-claim of $8,905.00). No ground of appeal, however, was directed to the dismissal of the counter-claim and no argument was advanced as to any evidence on which it might have been upheld, although it raised factual issues distinct from those arising on the appeal against the judgment on the claim. In those circumstances, I would not be prepared to find the counter-claim made out or to vary the orders made in respect of it.
It is also noted that the orders sought in the notice of appeal included an order for payment of the Shortmans’ costs of the trial to be assessed on the indemnity basis, but nothing was put before this court (for example, as to any offer made before trial) to justify such an order.
I would make the following orders:
(1) That the appeal be allowed;
(2)That the judgment in so far as it orders the appellants to pay to the respondent the sum of $208,332.68 for claim and interest be set aside;
(3)That the respondent’s claim against the appellants be dismissed;
(4)That the costs order in so far as it requires the appellants to pay the respondent’s costs of and incidental to the claim be set aside;
(5)That the respondent pay the appellants’ costs of defending the claim to be assessed on the standard basis;
(6)That the respondent pay the appellants’ costs of and incidental to the appeal to be assessed on the standard basis.
MARGARET WILSON J: I agree with the orders proposed by Holmes JA, and with her Honour’s reasons for judgment.
MULLINS J: I agree with Holmes JA.
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