JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SOIA -v- BENNETT [2014] WASCA 27
CORAM: PULLIN JA
NEWNES JA
MURPHY JA
HEARD: 19 NOVEMBER 2013
DELIVERED : 5 FEBRUARY 2014
FILE NO/S: CACV 108 of 2012
CACV 8 of 2013
BETWEEN: KIM PETER SOIA
First Appellant
PERSONALIZED TUITION SERVICES PTY LTD
Second AppellantAND
MARTIN LAWRENCE BENNETT
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :COMMISSIONER SLEIGHT
Citation :SOIA -v- BENNETT [No 5] [2012] WASC 289
File No :CIV 1130 of 2003
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :COMMISSIONER SLEIGHT
Citation :SOIA -v- BENNETT [No 5] [2012] WASC 289 (S)
File No :CIV 1130 of 2003
Catchwords:
Appeal - Contract - Whether trial judge failed to take into account post-contract conduct Fair Trading Act 1987 (WA) - Whether trial judge erred in dismissing application at end of trial to amend pleadings to rely on s 9 of the Fair Trading Act
Fiduciary duties - Whether any relevant fiduciary relationship existed between the parties
Costs - Whether successful litigant in person who is a lawyer is entitled to costs - Chorley exception - Whether Dobree v Hoffman should be overruled
Legislation:
Fair Trading Act 1987 (WA), s 9
Result:
CACV 108 of 2012: Appeal dismissed
CACV 8 of 2013: Appeal dismissed
Cross-appeal upheld
Category: A
Representation:
Counsel:
First Appellant : Mr E M Heenan
Second Appellant : Mr E M Heenan
Respondent: Mr J Schoombee & Mr N C Ebbs
Solicitors:
First Appellant : Galic & Co
Second Appellant : Galic & Co
Respondent: Bennett + Co
Case(s) referred to in judgment(s):
A & D Douglas Pty Ltd v Lawyers Private Mortgages Pty Ltd [2006] FCA 690
Atlas Corporation Pty Ltd v Kalyk [2001] NSWCA 10
Brott v Almatrah [1998] 2 VR 83
Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403
Coleman v Power [2004] HCA 39; (2004) 220 CLR 1
Dobree v Hoffman (1995) 14 WAR 408
Dobree v Hoffman (1996) 18 WAR 36
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
Garcia v National Australia Bank Ltd [1998] HCA 48; (1998) 194 CLR 395
Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478
Guss v Veenhuizen (No 2) [1976] HCA 57; (1976) 136 CLR 47
London Scottish Benefit Society v Chorley, Crawford & Chester (1884) 13 QBD 872
Lord Buddha Pty Ltd (in liq) v Harpur [2013] VSCA 101
Maguire v Makaronis [1997] HCA 23; (1997) 188 CLR 449
McIlraith v Ilkin [2007] NSWSC 1052
Motium Pty Ltd v Arrow Electronics Australia Pty Ltd [2011] WASCA 65
Pantorno v The Queen [1989] HCA 18; (1989) 166 CLR 466
Pilcher v H B Brady & Co Pty Ltd [2005] WASCA 159
Ricochet Pty Ltd v Equity Trustees Executors & Agency Co Ltd
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- AGLC
- Soia v Bennett [2014] WASCA 27
- Case
- [2014] WASCA 27
- Decision Date
CaseChat Overview and Summary
The court had to decide whether the trial judge erred in not taking into account post-contract conduct and in dismissing the application to amend the pleadings to rely on section 9 of the Fair Trading Act. The court also had to consider whether any relevant fiduciary relationship existed between the parties and whether a successful litigant in person who is a lawyer is entitled to costs, applying the Chorley exception, and whether Dobree v Hoffman should be overruled. The court noted that the evidence of conduct after an alleged contract can be taken into account to ascertain whether a contract was entered into and the terms of that contract. The court also noted that the law permits access to extrinsic evidence of the conduct of the parties for the limited purpose of ascertaining whether a contract, with the terms contended for, existed. However, the court found that the conduct post 30 June 1999 could not be used to find a different contract from that which was pleaded, as it was not the subject of any evidence to support it.
The court found that the trial judge did not err in refusing to allow further amendments to the amended statement of claim to refer to and rely upon section 9 of the Fair Trading Act. The court noted that in an appeal from a final order, an appellate court may correct interlocutory orders made before judgment which affect the final result. However, the court found that the proposed amendments to allow the appellant and PTS to plead reliance on section 9 of the Fair Trading Act would not have affected the final result, as the conduct in question was not pleaded at trial, not the subject of any proposed amendment to the pleadings, never alleged by the appellant at trial, and not the subject of any evidence to support it. The court also found that there was no relevant fiduciary relationship between the parties, and that a successful litigant in person who is a lawyer is not entitled to costs, applying the Chorley exception. The court did not consider it necessary to overrule Dobree v Hoffman.
The appeal was dismissed, with the appellant ordered to pay the respondent's costs of the appeal.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The trial judge observed in his reasons for decision:Evidence of conduct after an alleged contract, partly oral and partly in writing, can be taken into account both to ascertain whether a contract was entered into and the terms of that contract. The authorities on this issue were reviewed by Owen J in The Bell Group Ltd (in liq) v Westpac Banking Corporation [No 9] [2008] WASC 239 [2664] ‑ [2672] wherein his Honour concluded that the law does permit access to extrinsic evidence of the conduct of the parties for the limited purpose of ascertaining whether a contract, with the terms contended for, existed [324].His Honour then added:In this case it is not disputed by any party to the action that the conduct of the parties should be taken into account in deciding whether the parties had entered into contractual arrangements as at 30 June 1999 in terms as contended by [Mr Soia and PTS]. All parties rely upon subsequent conduct one way or the other to submit that a contract did exist or did not exist [325]. The contract alleged in this case was said to have come into existence on 30 June 1999. The trial judge referred to all of the evidence of events after 30 June 1999 which Mr Soia and PTS contended in their written submissions to this court should have been taken into account. This aspect of ground 1 must therefore be dismissed. As to the second aspect of the ground, it became clear that Mr Soia and PTS contended that the conduct post 30 June 1999 should be examined in order to have this court find that there was a different contract from that which was pleaded. This was to try and overcome the trial judge's finding that no agreement was reached on 30 June 1999 that Mr Soia would be paid a management fee. The submission put to this court was that his Honour should have found some contract whereby Mr Bennett agreed to pay management fees in circumstances where the feasibility prototype phase was abandoned. That is a submission which relies upon a contract not pleaded at trial, not the subject of any proposed amendment to the pleadings, never alleged by Mr Soia at trial, and not the subject of any evidence to support it. That aspect of ground 1 must therefore be dismissed. Ground 1 must be dismissed. These grounds allege, in effect, that the trial judge erred in Soia v Bennett [No 3] by refusing to allow further amendments to the amended statement of claim to refer to and rely upon s 9 of the Fair Trading Act. There is no doubt, as counsel for Mr Soia and PTS submitted, that in an appeal from a final order, an appellate court may correct interlocutory orders made before judgment which affect the final result: Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478, 482 ‑ 484 (Gaudron, McHugh & Hayne JJ), 494 ‑ 497 (Kirby & Callinan JJ). By these grounds of appeal, Mr Soia and PTS argue that the trial judge erred by disallowing the proposed amendments to allow Mr Soia and PTS to plead reliance on s 9 of the Fair Trading Act. That section provides that a person who makes a representation with respect to any future matter without reasonable grounds for doing so is deemed to have engaged in misleading conduct, and that the onus of establishing that there were grounds for making such a representation is on the person who made the representation.