Stair Holdings Pty Ltd v Celestino
[2000] VSC 235
•7 June 2000
| SUPREME COURT OF VICTORIA |
| Not Restricted |
No.7397 of 1999
| Stair Holdings Pty Ltd | Appellant |
| V | |
| Vince Celestino | Respondent |
---
JUDGE: | Smith J. | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 May 2000 | |
DATE OF JUDGMENT: | 7 June 2000 | |
CASE MAY BE CITED AS: | Stair Holdings Pty Ltd v Celestino | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 235 | |
---
Appeal – VCAT – building dispute
Contract – terms - parties – misrepresentation.
---
APPEARANCES: | Counsel | Solicitors |
For the Appellant | Mr. J. Selimi | Jack Cohen, Serry & Co |
| For the Respondent | Mr. S. Palmer | Vincent Verduci & Assoc. |
HIS HONOUR:
Background
On 28 July 1999, Stair Holdings Pty Ltd (the appellant) filed an application in the Victorian Civil and Administrative Appeals Tribunal (Domestic Building List) to recover $8,000 from Vince Celestino (the respondent). It alleged that the respondent owed that amount as the balance owing under two quotations number 9922 of 30 October 1998 and 19903 of 23 February 1999.
The application by the appellant was dismissed on 30 September 1999. The appellant appeals from that order.
The appeal
The notice of appeal filed in this matter on the 15th February 2000 identifies two questions of law for determination:
"1.Did the Tribunal err in holding that the respondent was not the 'signatory' as defined in Clause 9 of each agreement?
3.(Sic) Is the appellant entitled to pursue a claim against the respondent notwithstanding lodging a 'proof of debt' against V & M Celestino Investments Pty Ltd (in liquidation)."
It emerged in the course of submissions that the second question of law raised in the notice of appeal is not pursued by the appellant. As to the remaining question, the notice of appeal describes the ground of appeal in the following terms:
"The Tribunal erred in holding that the respondent was not 'the signatory' to the agreements as he had only signed same as a director or agent of B & M Celestino Investments Pty Ltd."
The Tribunal's reasons
In the Tribunal's reasons it was noted that the contracts were entered into in their terms with "V & M Celestino Investments" and "V & M Celestino" and that both were signed by Mr Celestino. The Tribunal noted that Mr Celestino claimed that the quotes were signed by him as a director of V & M Celestino Pty Ltd and that the deposit and all payments on both contracts were paid for by company cheques (the deposits being paid at the time he signed the acceptance of each quote). The Tribunal also noted that Stair Holdings Pty Ltd argued that in signing the contracts Mr Celestino agreed to be bound by the terms of Condition 9 on the reverse of each of the "quote/contract" which provided:
"The client is considered to be the signatory to the acceptance of this quotation and such client is considered to be personally liable for the settlement of the goods supplied in the event of the client's company defaulting on payments."
The Tribunal then stated the following findings:
"(i)The quotations were accepted by the respondent Vincent Celestino on behalf of the company V & M Celestino Pty Ltd.
(ii)Although the client was variously described on the quotes, the house drawings provided to the Applicant for quotation purposes and the Applicant's client record card, all payments were made by company cheque, including the deposits which were paid at the time the quotes were signed by Mr Celestino.
(iii)The Applicant acknowledged that the contracts were with the company by lodging a proof of debt with the liquidator at the creditors' meeting on 25 June 1999. The Applicant is included in the list of creditors."
The Tribunal then stated:
"(iv)I do not accept that Mr Celestino is bound by the provisions of Condition 9 of the quote. I accept his sworn evidence that he was asked to sign the quotes but that at no time was his attention drawn to the provisions of Condition 9. I accept Mr Celestino's evidence that he thought, and was told by representatives of the applicant company, that he was accepting a price for the works in signing the quote. Although it is well established that a party will be bound by the terms of a contract they have signed even if they fail to read them, this situation is quite different. Mr Celestino signed the quote as a director of the company. He was not on the face of it a party to the resulting contract and, in fact, believed and understood on the basis of representations made to him on behalf of the applicant, that he was signing the quotes on behalf of the company to signify acceptance of the price. In such circumstances, it is my view that it was incumbent upon the applicant to draw his attention to Condition 9."
The Tribunal then expressed the following conclusion:
"5. It seems to me that the applicant having first attempted to recover against the company and discovering that in excess of $300,000 is owing to creditors, that it has sought a means of recovering against the directors of the company personally. However, I am not satisfied on the balance of probabilities that Mr Celestino knew or ought to have known that he was agreeing to be personally bound to pay the contract sum when he indicated acceptance of the quotes on signing them.
6. Accordingly this application is dismissed."
The Issues
A fair reading of the Tribunal's decision points to the Tribunal holding that the respondent, Mr Celestino, was not bound by the provisions of Condition 9 because of representations made to him that he was signing the quotation on behalf of the company. It concluded that the respondent was not bound by the contracts.
Arguments have been addressed to me on a number of issues. The immediate question raised by the Notice of Appeal, however, is whether the Tribunal erred in holding that the respondent was not the "signatory" as defined in cl 9 of each agreement. In raising that issue the appellant seeks to challenge the decision of the Tribunal that the respondent was not a party to the contract by arguing that the Tribunal was obliged to find that cl 9 had the effect of binding him to the contracts and binding him personally because he was a "signatory". The appeal could be disposed of on the basis that the Tribunal proceeded on the basis that the respondent was a "signatory". I proceed, however, on the basis that the appellant argues that the respondent, being a "signatory" within the meaning of cl 9, the Tribunal was obliged to find he was bound by the contract.
The clause in question has been quoted above and is in the following terms:
"9.The client is considered to be the signatory to the acceptance of this quotation and such client is considered to be personally liable, for the settlement of the goods supplied in the event of the clients company defaulting on payments."
The appellant argues that this clause is obviously intended to bind to the terms of the contract any individual who signed a contract on behalf of a company. Counsel submits that it was not in dispute that the respondent had signed the relevant documents and that he was therefore a "signatory" for the purpose of cl 9.
Counsel submits that it is not to the point that the clause was not brought to the respondent's attention. The respondent, having signed the documents, he is bound by their terms (e.g. Wilton v Farnworth (1948) 76 CLR 646).
The appellant is left with the problem, however, that the Tribunal found that representations were made by the appellant to the respondent that he was signing on behalf of the company and that as a result he was not bound by the contracts. The Tribunal did not articulate in detail the basis on which those representations had the effect of preventing the contracts binding the respondent. A fair reading of the Tribunal's reasons, however, points to the conclusion that the Tribunal, after considering the evidence of the negotiations, including the representations, and the signing of the documents, came to the conclusion that the correct contractual analysis was that the contracts were partly oral and partly in writing and that the parties agreed that the respondent executed the quotations as a director of the company and not in any personal capacity. The Tribunal reasoned that to avoid that result, it was necessary for the applicant, because of the representations made, to have expressly drawn the respondent's attention to condition 9 if a different contractual result was to follow. Those findings were plainly open.
I note that there are other possible bases on which the decision, may be supported; for example, because of the representations, the respondent was entitled to and had avoided the contract or the appellant was estopped from relying on cl 9. Alternatively, I note that in any event it can be argued that cl 9 rendered the company a signatory, not the respondent; for it makes "the client" "the signatory" and the company was the "client". In the alternative, it is arguable that cl 9 is meaningless and therefore uncertain and should be severed using cl 22.
For the foregoing reasons error of law cannot be shown and the appeal should be dismissed.
0
1
0