Von Risefer v Asia Pacific Realtors and Consultants Pty Ltd
[2000] QDC 33
•10 March 2000
DISTRICT COURT OF QUEENSLAND
CITATION: Von Risefer & Anor v Asia Pacific Realtors & Consultants Pty Ltd & Anor [2000] QDC 033 PARTIES: EUSTACE VON RISEFER and
ELIZABETH VON RISEFER (Appellants)
v
ASIA PACIFIC REALTORS & CONSULTANTS PTY LTD and
A.B. PACIFIC TRACING CO PTY LTD (Respondents)FILE NO/S: Appeal No. 39/1997
Appeal No. 620/1998DIVISION: District Court, Southport PROCEEDING: Appeals (2) ORIGINATING COURT: Magistrates Court, Southport DELIVERED ON: 10 March 2000 DELIVERED AT: Brisbane HEARING DATE: 31 January 2000 JUDGE: P.D. Robin, Q.C., D.C.J. ORDER: Appeals dismissed with costs CATCHWORDS: Appeal from Magistrate to District Court – Magistrate gave judgment for plaintiff vendors of land against (appellant) defendant purchasers for part of purchase price (alternatively money owing under a deed), moneys lent and stamp duty – area of land was less than originally represented to appellants, but correctly shown in contracts – appellants claimed purchase price was reduced by $20,000 and that a deed obliging them to pay that sum was a forgery – Magistrate disbelieved appellant’s evidence in that regard – whether Magistrate should have received unstamped documents in evidence considered – appellants claimed respondent companies had closed their offices and ceased to exist subsequent to the judgment, and were incapable of instructing legal representatives to resist the appeal - misstatement of ACN number of one respondent held not to justify setting judgment aside – appeal dismissed.
Appeal from Magistrate to District Court - costs of adjournment – Magistrate ordered appellant/defendants to pay costs of the adjournment they successfully sought of a trial on basis they bore responsibility for not advising the plaintiffs they faced other proceedings in the Court on the same day – appeal dismissed.
COUNSEL: SOLICITORS: Mrs E Von Risefer (in person) for appellants
Mr P Dooley for the respondent
There are two appeals before the court. The first, instituted on 17 December 1997, is against a Magistrate’s order that the appellants pay the respondents’ costs of the adjournment of a trial in which the respondents were plaintiffs, the appellants defendants. The amount of the costs, which apparently have since been paid (this was not suggested to affect the appeal) was $892.00. The adjournment was granted at the request of the appellants. The trial ultimately came on on 4 March 1998 and was completed, after a lengthy adjournment to enable the respondents to obtain expert evidence to support their contention that certain documentation was a forgery, on 6 May 1998. The Magistrate’s decision, which was against the appellants, was handed down on 22 July 1998. The second appeal before this court was instituted against that decision two days after it was made.
Progress made towards a hearing has been leisurely, to say the least. Mr Dooley asserted, and with justification, perhaps, that delay has come to suit the appellants’ purposes. This may be because of his clients’ somewhat zealous approach to enforcement of the judgment awarded by the Magistrate. They instituted bankruptcy proceedings, which led the appellants to seek and obtain a stay of execution. Another indirect effort to obtain satisfaction of the judgment was the lodging of a caveat, over the land whose purchase by the appellants from the respondents is the genesis of all of the litigation, the caveat being said to be based on a promise to give a mortgage, rather than on the judgment. Supreme Court proceedings are extant in respect of the caveat. The appellants claim the respondents have been dilatory in prosecuting their action in support of the caveat.
The subject land has an area of 9,219 square metres. The appellants say they agreed to purchase it in reliance upon the area’s being represented as 9,549 square metres. The discrepancy was discovered prior to completion of the contract. Nonetheless, the appellants proceeded to completion, they even obtained a loan of $10,000 from the respondents to enable them to complete. Progress towards completion was complicated. Indeed, the transaction was documented in three different ways. Originally, there was a contract for a price of $175,000 odd. The respondents say this failed because the “subject to finance” clause was not satisfied. The second form of documentation showed a purchase price of $155,000, this being accompanied by a separate deed under which the appellants and their company undertook to pay a further $20,000. The respondents’ evidence was that this was to satisfy a requirement of the appellants’ financier. The third set of documentation reverted to the notion of a contract for $175,000. The respondents say it was this third contract which was completed. All three sale contracts showed the true area of the land, but there was perhaps an ambiguity in the first one, which was accompanied by an erroneous (outdated) plan showing the larger area. It apparently overlooked the dedication of a considerable area to the local authority as parkland, which significantly reduced the road frontage of the property. There was some promotional material issued by the respondents which referred to the larger area as well. The respondents’ claim in the Magistrates Court was for $20,000, pursuant to the deed or as an unpaid balance of purchase price, $5,000, the part of the $10,000 loan to facilitate settlement not yet repaid, and $910 stamp duty, which, for the moment, the respondents have had to pay, it being related to the $20,000 “reduction” in the purchase price.
The appellants’ case essentially was that in deference to the discrepancy between the true area and the “represented” area, the respondents agreed to a reduction of $20,000 in the purchase price. By late amendment to their case, the appellants claimed the deed was a forgery. Mr Von Risefer gave no evidence. The Magistrate, whose reserved reasons reveal a good appreciation of the issues in the case, in my respectful opinion, formed a most adverse view of Mrs Von Risefer’s credit, being of the view she:
“ … would say anything in an attempt to afford her a defence to this action … On all of the evidence … a most untruthful witness … Her version lacks credibility and on the evidence I find it to be false.”
Mrs Von Risefer presented nothing on the appeal which indicates that the Magistrate ought to have accepted her evidence or to have rejected the respondents’. Even the document examiner’s evidence went only so far, time constraints apparently precluding his examining more than a couple of documents. It is not a case in which an appeal court ought to substitute its own view of the evidence. The outline of argument provided in support of the appeal contains some 29 particulars in which the Magistrate is said to have gone wrong, but these have not impressed me, either individually or collectively. The great issue was the genuineness of the deed and perhaps of the third contract of sale, as to which a trial occurred, producing confident findings of fact based on credibility of witnesses, which the Magistrate has made. The appellants cannot satisfy the test stated by the majority of the High Court in Devries v Australian National Railways Commission (1993) 177 CLR 472, as set out in the headnote:
“Per Brennan, Gaudron and McHugh JJ. A finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding. If the finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the judge has failed to use or has palpably misused his advantage, or has acted on evidence which was inconsistent with facts incontrovertible established by the evidence or which was glaringly improbable.”
Another argument I find devoid of merit is that the Magistrate ought not to have had regard to documents which were unstamped. If the Magistrate or this court was under some positive duty to protect the revenue by rejecting relevant evidence, I fail to see that the revenue has been deprived of anything of substance. It seems clear that ad valorem duty has been paid on a full consideration of $175,000, and that some documents may fairly be seen as collateral. I do not think this is a case, in any event, in which improper reception of evidence, if it happened, should lead to the result being changed.
Mrs Von Risefer, who represented herself and her husband, appeared on the appeal to take inconsistent stances. At times, she sought an adjournment of the appeal, which I made it clear I was refusing. The matter has been delayed long enough. At some points she appeared to indicate she was refusing to make any submissions, in protest against the refusal of an adjournment of the hearing of the appeal; at other times it seemed she was pressing ahead with her arguments.
The point on which she focused most strongly was the contention, new in the appeal, that the respondents were not entitled to be heard, or to retain their judgment, because they had ceased to exist. This was closely linked to an assertion that Mr Dooley was not entitled to appear for either company. His retainer was challenged. Mrs Von Risefer asserted from the bar table that the companies had in recent months vacated their premises. For the purposes of determining the appeal, this assertion (not supported by any evidence tendered to the court) may be accepted. Mrs Von Risefer embroidered upon it by claiming on a hearsay basis that the companies were disappearing to escape the attentions of persons who were victims of various commercial improprieties. In the unusual circumstances, Mr Dooley gave evidence on the appeal to the effect that he had seen the two principals of the companies as recently as four days before the hearing of the appeal, when his instructions had been confirmed, that is, instructions to resist the appeal, and he had been placed in funds. He swore he had no knowledge or notice of anything occurring to suggest that his clients no longer existed. He tendered photocopies of certificates of registration of the companies which show registration of A.B. Pacific Trading commenced on 13 September 1991, registration of Asia Pacific Realtors on 7 October 1993. He also tendered copies of the Memoranda of Association. An interesting discrepancy came to light in respect of the ACN of the latter company, which is 061 924 356, whereas the title of the proceedings refers to 051 924 355. I would infer that through some error in transcription, each of the sixes in the true number was reproduced as a 5. This may make appropriate an amendment of the title of the proceedings. No issue was taken in the Magistrates Court regarding the discrepancy, or indeed the incorporation of either of the respondents.
In the original proceedings (not instituted by Mr Dooley) little was forthcoming apart from a statement of the claims the respondents made. Incorporation was not pleaded. Unsurprisingly it was not denied. Having regard to the presumption of continuance, it seems to me that each of the respondents ought to be regarded as continuing in existence. I would think the important question was whether each existed at the point of commencement of the Magistrates Court proceedings, and at the point when judgment was given in their favour. It would surprise me if a judgment could be set aside, if otherwise regular, on the basis that a corporation entitled to it later ceased to exist.
Mrs Von Risefer’s assertions as to the lack of an office on the Gold Coast, in my opinion, go no way at all to impugning the companies’ judgment. A company is effectively fixed with its registered office, as registered from time to time, even if, physically, it has abandoned the relevant address. Mr Dooley, who had no advance notice of Mrs Von Risefer’s new assertion, indicated he could see no objection to some direction being made that, if the judgment stood, the judgment amount be paid to the Australian Securities Commission, to be dealt with according to law depending on the continued existence (or otherwise) of the respondent companies. Mrs Von Risefer’s point appeared to be that a company loses the right to retain a judgment or to instruct a legal representative to argue for retention of a judgment simply because it vacates an office, or its office is unmanned. That does not seem to me to be the law. Even if the company is liable to penalty for failing to maintain or man an office, the sanction of loss of the benefit of a judgment more than 18 months old when the matter comes to light seems quite inappropriate.
I indicated at the hearing I would make no decision in the appeal for seven days, during which time the parties might undertake searches in the Commission and apprise the court, and other side, of the results of searches, which would be accompanied by written submissions as to their effect. Mr Dooley responded with searches of records of the Australian Securities Investments Commission, showing both companies are still registered.
Mrs Von Risefer produced a long document entitled “Defence and Counterclaim Affidavit of Elizabeth Von Risefer”, with numerous documents attached. It is a rehash of the forgery allegations, with claims of negligence and fraud thrown in – given my views that no appealable error is shown against the Magistrate, there is no room for relitigation of these issues. The document goes on to counterclaim “$360,000 for loss of income and damages caused by the lodgment of the caveat for two years (and) Relief from the Magistrate’s Court judgment”. The principal relief sought is simply beyond this Court’s jurisdiction. No action can be taken by me based upon it. Mrs Von Risefer’s letter of 4.2.00 takes up my point regarding the incorrect ACN, indeed, demonstrating that it is reflected in proceedings in other courts and that it may go back to some of the contractual documents. It is in a mortgage, a notification of change of ownership and in correspondence at the time. She fails to satisfy me that the continuing error has any relevant effects helpful to her case. She says “We require from the District Court 15 days to complete investigations and counterclaim will be lodged … and we are going to be ready for the hearing of the Appeal before or after the 20 February 2000”. So far as this Court is concerned, both appeals have now been heard. To the extent the letter and “affidavit” assert or reassert that individuals acted in multiple capacities and had conflicts of interest, nothing has been shown which would make any such conflict relevant in these proceedings.
No appealable error having been shown which underlies the judgment of 22 July 1998, and there being nothing in the “continued incorporation” point in my opinion, the appeal against that judgment is dismissed with costs.
I turn to the earlier appeal. On 10 December 1997 there was listed for hearing the trial of this action, also the trial of an action against the same defendants by Thurecht, a supplier of timber. Mr Dooley and the respondents’ witnesses were ready for trial. Mrs Von Risefer sought an adjournment, on the basis of needing time to investigate claims of forgery. The adjournment was granted. The Magistrate’s endorsement on the file is as follows:
“Adjourned to 4/3/98 at 9.15 a.m. Mr Dooley tenders affidavit from Eustace. Von Risefer as original completed by her has not made it to the file. Mr Dooley applies for costs because the defendants were aware that the matter of Plaint 7711/96 was also proceeding today and did not object to this date when the date was set at the pretrial conference. Later Mr James (Witheriff Nyst) appears. Refers to order for affidavit of documents only lodged 2-12-97. Informed the solicitors. Mr Dooley refers to the mutual exchange of documents after affidavit. Defendants only filed 5th December and received on 8.12.97. Mention of refusal of discovery on affidavit.
It seems to me that there are no grounds for an adjournment in Mrs Von Risefer’s affidavit. I also consider that this trial date could have been avoided had the plaintiffs been informed. While I would not ordinarily award costs if the court was unable to hear a matter and the defendants are involved in another matter before me, exceptionally in this case I order the defendants to pay the sum set out below:
Scale F Item 7(a) $677.00
5 at $43.00 $215.00
$892.00
To be paid to the plaintiffs or their solicitors within seven days.”
Mrs Von Risefer asserts that impropriety (in fact, some kind of conspiracy as I understood it) had occurred involving the Registry of the court, with a view to listing two trials brought by different plaintiffs against the Von Risefers and their company for the same day. I understood her to say that she was in one court ready to handle one of the actions, her husband in another court ready to handle the other. This seems inconsistent with his non-appearance at any other time, although the Magistrate’s endorsement for 10/12/97 shows Mr Von Risefer was indeed present on that day. There is no evidence whatever to suggest that Mr Dooley or the respondents had anything to do with the date problem. Mrs Von Risefer strenuously sought to contradict Mr Dooley’s assertion that he had learned of the existence of the Thurecht trial only on the day, asserting he had known of it a few days before. Even accepting for purposes of the argument that Mr Dooley had known a few days before, he and his clients were surely justified in preparing for trial as they did, getting ready in case the court forced the matter on. It was not they who sought an adjournment, rather the appellants. Thus, it was the appellants who caused the day to be wasted. I understand the Magistrate’s misgivings, but consider that the costs order he made, for reasons he indicated, fell within the scope of the sound exercise of the costs discretion which he had. At the best for the appellants, he might have made an order that costs thrown away by the adjournment be costs in the cause, in which event, as things turned out, the appellants would have ended up paying the costs anyway. As in the case of the major appeal, the appeal against the costs order of 10 December 1997 is dismissed with costs.
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