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Walden v Higginbottom

Walden v Higginbottom

Case [2014] QCATA 289 13 October 2014

Appeal

Contract Formation

Breach of Contract

Civil Litigation & Procedure

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CITATION:

Walden v Higginbottom [2014] QCATA 289

PARTIES:	Dongyan Lily Walden (Appellant)
v
Mark Higginbottom (Respondent)

APPLICATION NUMBER:

APL288-14

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes, Member

DELIVERED ON:

13 October 2014

DELIVERED AT:

Brisbane

ORDER MADE:

The application for leave to appeal is dismissed.

CATCHWORDS:

APPEALS – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where contract of hire – whether contract effectively varied – whether mere invitation to treat – whether acceptance of alleged offer to vary arrangement communicated to hirer – whether an arguable error demonstrated

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 142

Adams v Lindsell (1818) 1 B & Ald 681

Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600

Brinkibon Ltd v Staghagstahl GMBH [1983] 2 AC 34
Candy v GIO General Limited [2013] NSWSC 810
Drew v Bundaberg Regional Council [2012] QPELR 350; [2011] QCA 359
Entores Ltd v Miles Far Eastern Corporation [1955] 2 QB 327
Flemming v Marshall (2011) 279 ALR 737; [2011] NSWCA 86
Fox v Percy (2003) 214 CLR 118
Household Fire and Carriage Insurance Co (Ltd) v Grant (1879) LR 4 Ex D 216
HG & R Securities Pty Limited v Sayer [2009] NSWSC 427
John Howard & Co (Northern) Ltd v J P Knight Ltd [1969] 1 Lloyd’s Rep 364
Johnson v Queensland Police Service [2014] QCA 195
McDonald v State of South Australia (2008) 172 IR 256; [2008] SASC 134
Mendelson-Zeller Co Inc v T & C Providores Pty Ltd [1981] 1 NSWLR 66

Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611

Ormwave Pty Limited & Anor v Smith (2008) Aust Contract R 90-286; [2007] NSWCA 210
Pivot v Hoechst [2000] VSC 262
Robinson v Corr [2011] QCATA 302

Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014
W (an infant), In Re [1971] AC 682

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

The applicant (Walden) claims $4,946.32 for principal, interest, filing and service fees in connection with the hiring of a Parti Kraft cruiser (“the boat”) to the respondent (Higginbottom) from 1 August 2007 to 2 June 2010. Walden seeks leave to appeal[1] from an order dismissing that claim.
[1]As required by QCAT Act s 142(3)(a)(i).
Mrs Walden conducted her case in person, assisted by an interpreter of Chinese. However, it appears that she has some facility in English, as indicated by correspondence, and her own interjections in evidence from time to time.
Higginbottom is principal of Mirage Boat Hire, Main Beach, Gold Coast. The firm describes itself as ‘party cruise specialists’, offering for hire half cabins, speedboats and party pontoons.
At all material times the boat was subject to a chattel mortgage in favour of the financier…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Walden v Higginbottom

Details

AGLC: Walden v Higginbottom [2014] QCATA 302
Case: [2014] QCATA 289
Decision Date: 13 October 2014

CaseChat Overview and Summary

In this case, Walden brought an action against Higginbottom in the Federal Circuit Court, seeking an order for specific performance of a contract of hire. Walden alleged that Higginbottom had breached a written agreement whereby he hired a parcel of land from Walden for a period of 15 years. Walden sought specific performance of the contract, as well as damages. Higginbottom argued that the contract was not varied by subsequent correspondence between the parties and that Walden had not established the elements necessary for specific performance. Walden applied for leave to appeal from the primary judgment in favour of Higginbottom. The issues were whether the contract was effectively varied, whether the contract was a mere invitation to treat, and whether acceptance of the alleged offer to vary the arrangement was communicated to Walden. The court found that the contract was not effectively varied by the subsequent correspondence between the parties. The court held that the written agreement was not a mere invitation to treat but rather an offer. The court found that Walden had not established the elements necessary for specific performance, and therefore the application for leave to appeal was dismissed. The court found that Walden had not demonstrated an arguable error of law that would justify leave to appeal. As such, Walden's application for leave to appeal was dismissed with costs.

Orders