Vista Papers Pty Ltd v Carbonless Papers (Australia) Pty Ltd
[1999] WASCA 212
•16 AUGUST 1999
VISTA PAPERS PTY LTD -v- CARBONLESS PAPERS (AUSTRALIA) PTY LTD [1999] WASCA 212
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASCA 212 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:84/1999 | 16 AUGUST 1999 | |
| Coram: | MALCOLM CJ IPP J PARKER J | 16/08/99 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application refused | ||
| PDF Version |
| Parties: | VISTA PAPERS PTY LTD CARBONLESS PAPERS (AUSTRALIA) PTY LTD |
Catchwords: | Contract Application for leave to appeal against District Court judgment which allowed appeal from Local Court Claim for breach of contract in failing to pay for paper Applicant's counterclaim asserted oral agreement for respondent to purchase chemicals from applicant No evidence of concluded contract Applicant also defended claim on basis that paper supplied not of merchantable quality No admissible evidence |
Legislation: | Nil |
Case References: | Wing Luck Foods v Lim (1989) WAR 358 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : VISTA PAPERS PTY LTD -v- CARBONLESS PAPERS (AUSTRALIA) PTY LTD [1999] WASCA 212 CORAM : MALCOLM CJ
- IPP J
PARKER J
- Applicant (Defendant)
AND
CARBONLESS PAPERS (AUSTRALIA) PTY LTD
Respondent (Plaintiff)
Catchwords:
Contract - Application for leave to appeal against District Court judgment which allowed appeal from Local Court - Claim for breach of contract in failing to pay for paper - Applicant's counterclaim asserted oral agreement for respondent to purchase chemicals from applicant - No evidence of concluded contract - Applicant also defended claim on basis that paper supplied not of merchantable quality - No admissible evidence
Legislation:
Nil
(Page 2)
Result:
Application refused
Representation:
Counsel:
Applicant (Defendant) : Mr W L Goodlet
Respondent (Plaintiff) : Mr P Redding
Solicitors:
Applicant (Defendant) : Unmack & Unmack
Respondent (Plaintiff) : Williams & Hughes
Case(s) referred to in judgment(s):
Wing Luck Foods v Lim (1989) WAR 358
Case(s) also cited:
Nil
(Page 3)
1 MALCOLM CJ: The Court has before it an application by the applicant (incorrectly called the appellant in this case) for an adjournment of the application for leave to appeal. The adjournment is sought for the purpose of amending the grounds of appeal upon which it is sought to have leave to appeal.
2 The documents in the application book indicate that on 21 June 1999 the solicitors for the applicant filed a notice of appeal in this Court from a judgment by the learned District Court Judge dated 3 June 1999 by which her Honour allowed an appeal from a decision in the Local Court. In the Local Court, the respondent commenced an action against the applicant based upon an alleged oral agreement between a Mr Ascot, the director of the respondent, and a Mr McNamee, the company secretary of the applicant, made in February 1996. It was said that the respondent agreed to sell, and the applicant agreed to purchase, such quantities of paper as the applicant might order ("the agreement").
3 It was alleged that, between 16 February 1996 and 3 July 1996, the respondent supplied paper to the applicant and invoiced the applicant a total amount of $11,482.05. The respondent alleged that the applicant was in breach of the agreement and, despite demand, failed to pay that amount. The respondent claimed that sum and interest at 8 per cent. The claim was disputed and the applicant claimed that, in late November 1995, the respondent owed the applicant the sum of $8,478.75.
4 The applicant claimed that it offered to accept reduction of the outstanding amount payable by the respondent by setting off against the account the price of carbonless paper which the applicant might require from time to time. It was said that this was orally agreed between Mr McNamee and Mr Ascot.
5 The learned Magistrate found that the respondent had paid the $8,478.75 to the applicant. The applicant admitted that the quantities of paper outlined had been supplied and invoiced but only one shipment was delivered to the applicant. One other shipment was delivered to another business organisation called Charters Paper and the others were uplifted by the applicant from another organisation called Dominion One and delivered to Ultra Print.
6 There was a counterclaim by the applicant which related to an alleged contract between the applicant and the respondent by which the respondent contracted to purchase 10,000 kilograms of a chemical called "CB Slurry", but failed to take delivery of 3,600 kilograms. The applicant
(Page 4)
- made attempts to resell 3,600 kilograms of chemical but, being unable to do so, had no alternative but destroy them and claim the cost of the destroyed chemical. The respondent denied the applicant's claim that there was such a contract. The applicant also alleged that two shipments of paper delivered to its clients, Charters Papers and Ultra Print respectively, were not of merchantable quality.
7 The learned Judge rejected the counterclaim that there was a contract between the respondent and the applicant for the purchase and sale of 10,000 kilograms of chemical. In relation to the unsuitability point, the learned Judge found that the learned Magistrate erred in finding on the evidence that the paper supplied to Charters Paper was unsuitable for the purpose, and likewise made a finding that the paper supplied to Ultra Print was not shown to be unsuitable.
8 The conclusion reached by the learned Judge was that the judgment on the claim be set aside and that there be judgment in favour of the present respondent in the sum of $11,482.05 and that there be judgment for the respondent on the counterclaim.
9 An appeal lies to this Court from a judgment of the District Court on an appeal from the Local Court only by way of leave. The notice of appeal which was filed, therefore, was incompetent. This fact was only brought to the attention of the solicitors for the applicant on or about 5 July 1999, as appears from the affidavit which has been filed in support of the present application. An application for leave to appeal was required to be made under the provisions of O 64 r 4(1)(a) of the Rules of the Supreme Court. By 5 July 1999, the application was out of time. By notice of motion dated 6 July 1999, application was made for leave to appeal notwithstanding that the time has expired. Clearly, the applicant now needs an extension of time within which to make an application for leave to appeal.
10 We have been informed by counsel for the applicant that the grounds of appeal are not as yet in proper form and require amendment. Ground 2 of the original grounds of appeal will not be proceeded with and it follows that ground 3 likewise will not be proceeded with. Only two points remain, they being par (a) and par (b) of ground 1, although some unspecified amendment to the grounds of appeal has been foreshadowed. Ground 1(a) is:
"The learned Judge in the District Court erred in law and in fact in finding (a) that the parties had not concluded a complete and
(Page 5)
- final and irrevocable contract for the purchase by the respondent plaintiff from the appellant defendant 10,000 kilograms of chemicals."
11 As to that, the learned Judge, having reviewed the evidence, said:
"In my view, the evidence establishes that there were discussions about Vista Papers supplying chemical to Carbonless Papers. The evidence relating to those discussions is very sketchy. However, Mr Ascot said that he wanted some chemical to try it out, given that chemicals supplied by other manufacturers were not satisfactory. This is confirmed by the purchase order dated 26 September 1994 (number 1490) which indicates quite plainly that 3000 kilograms of chemical was ordered subject to a shipment of 200 kilograms being dispatched first for 'trials as discussed', and, in effect, advice that if the 200 kilograms was satisfactory, Mr Ascot would contact the chemist regarding the balance.
It is clear that Mr Ascot made inquiries about the price which Vista Papers could not give unless there was some indication as to the quantity of chemical required. Carbonless Papers gave 'some idea' of the quantity it would require. That cannot amount to an offer to purchase that amount of chemical. Thereafter it is not in dispute that Vista Papers provided 7697 kilograms of chemical to Carbonless Papers. The evidence outlined is the only evidence relating to whether or not there was a contract for the provision of 10 kilograms of slurry to Carbonless Papers.
In the absence of other evidence as to what amount of chemical was agreed to be supplied, the exchange of information as to the price does not constitute a contract. The response according to Mr McNamee of a price after the notification by Mr Ascot of the likely quantities required cannot be construed as an offer to sell at that price. Harvey v Facey (1883) AC 552. In my view, the facsimile dated 5 September 1994 cannot be construed as an offer to buy 10,000 kilograms, nor acceptance of an offer to sell 10,000 kilograms of chemical."
12 In my view, it has not been demonstrated that there is a seriously arguable case that the conclusions reached by the learned Judge in the District Court, regarding the status of the evidence, was in error. The
(Page 6)
- ground of appeal does not descend to any particulars in relation to any error of fact or law said to have been made by the learned Judge in reaching her conclusion, which was that the evidence established only that there were a number of agreements relating to the purchase and sale of a total of 7,697 kilograms of chemical. As the learned Judge put it:
"The evidence before the learned Magistrate is a long way from establishing a 'complete and final concluded and irrevocable contract'. Clifton v Palumbo (1944) 2 All ER 497 at 502. There was no evidence of orders, verbal requests for more chemical, invoices, delivery slips or any other evidence which might be evidence of a contract to purchase 10,000 kilograms of chemical."
"That the claim of the appellant-defendant must fail to the extent that it was not proven that the goods supplied by the respondent-plaintiff were unsuitable for the purpose for which they were on-sold, when there was evidence before the learned trial Magistrate that the respondent-plaintiff accepted the complaint of the appellant-defendant that the paper supplied by the respondent-plaintiff had been rejected as unsuitable for the purpose for which it was sold and undertook to replace the same but failed to do so."
14 As to the counterclaim by the applicant, the learned Judge noted that although the Magistrate made no specific observations in relation to the reliability or credibility of the respective testimony of Mr Ascot and Mr McNamee, her Worship accepted the evidence of Mr McNamee and accepted that Mr Ascot was notified that these goods were unsuitable for the purpose for which they were on-sold, and he agreed at some stage to resupply Vista Papers with acceptable goods but did not do so. On the appeal, the learned Judge said:
"I must take into account the unique position the learned Magistrate was in, being able to see and hear the witnesses and assess demeanour and other factors which might have an impact on whether to accept or reject the oral evidence of the witnesses. The learned Magistrate made no specific observations in relation to the reliability or credibility of the respective testimony of Mr Ascot and Mr McNamee.
(Page 7)
- Therefore, apart from her Worship's statement as to whose evidence she accepted, there is no material which this court can take into account in deciding issues, apart from the evidence in the transcript."
15 Her Honour went on to note that the evidence was diametrically opposed. Mr McNamee said that he advised Mr Ascot that the paper delivered to Charters Paper was unsuitable and Mr Ascot offered to replace it. On the other hand, Mr Ascot said, during a conversation between himself and Mr McNamee, that Mr McNamee complimented him on the quality of the paper and raised no complaint, either then or later, concerning the quality.
16 Her Honour then referred to correspondence which had passed between the parties in which there was no mention of any complaint about the quality of paper or any mention of the alleged offer by Mr Ascot that he would replace it. Her Honour also pointed out that there was reference to the amount allegedly owing to the respondent and a reference to that amount as being off-set against moneys owing by the respondent to the applicant for chemical supplied in November 1994. Mr McNamee said that no reference was made to the issue of quality of the paper because Mr Ascot had offered to replace it. Nevertheless, Mr McNamee continued to order paper from the respondent.
17 The learned Judge said, as to whether the paper was in fact unsuitable for Charters Paper's purposes, the evidence on that issue was very unsatisfactory. The learned Judge concluded that the evidence did not establish, on the balance of probabilities, that the paper supplied to Charters Paper was in fact unsuitable. As to its suitability or otherwise, there was simply no admissible evidence. It was for those reasons that the learned Judge found that the Magistrate had erred in finding on the evidence that the paper supplied to Charters Paper was unsuitable for its purposes.
18 However, the counterclaim in respect of Vista Papers involving Ultra Print was that the decision of the learned Magistrate also be set aside for similar reasons. Her Honour concluded that it was:
" … totally unsatisfactory to rely on that evidence as proving on the balance of probabilities that the paper supplied to Ultra Print was unsuitable for its purposes."
19 On the face of it, her Honour's conclusions are compelling. In this case it has not been shown that there has been, on the face of it, an error
(Page 8)
- on the part of the learned District Court Judge, nor has it been shown that there is a seriously arguable case for error. In those circumstances, it does not appear to me that there is any substantial injustice that calls to be rectified such as would justify the grant of leave to appeal from the decision of the learned District Court Judge.
20 It follows, therefore, in my opinion, that no useful purpose would be served by granting the applicant an adjournment. For those reasons, I would dismiss the application.
21 IPP J : I agree with everything his Honour the Chief Justice has said. I would further simply add that the amount involved in this case is relatively low. In my view, there is no special circumstance which requires the grant of leave, and that is irrespective of the merits of the appeal. I simply have not been satisfied in accordance with the criteria laid down in Wing Luck Foods v Lim (1989) WAR 358 at 361 that leave to appeal should be granted.
22 PARKER J: I, too, agree with the Chief Justice for the reasons that he has given.
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