Walden v Higginbottom
[2014] QCATA 289
•13 October 2014
| 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 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 Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 |
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 Esanda Limited (Esanda). It is not clear that the mortgage permitted assignment or parting with possession of the boat, but that is not an issue here.
Another point of some obscurity is the identity of the boat’s owner. Esanda addressed its customer as ‘Boatshed Pontoon Boats Trustee for Dennis Walden Family Trust’.[2] Higginbottom considers that the subject agreement was not with the female appellant, but with her husband, Dennis Walden.[3] However, the primary hearing and decision assume that Mrs Walden was the proper applicant. I shall deal with the present application on that basis.
[2]Chattel mortgage Boatshed Pontoon Boats Pty Ltd to Esanda 24 September 2008; Letter Esanda to Walden Family Trust 25 September 2008.
[3]Response of Higginbottom to initial application, 31 March 2014, paragraphs 2, 4; Statement of Higginbottom Exhibit 1, page 1; Transcript of hearing 3 June 2014 (Transcript) page 16 line 22.
The original agreement
Higginbottom says that in July 2007 he met Dennis Walden, who asked him whether he ‘would like to look after and hire out [the boat] with the rest of my 22 boat fleet’.[4] Higginbottom accepted the proposal and ‘to keep it legal I drew up an agreement’[5] between himself and Dennis Walden, dated 1 August 2007, a copy of which is in evidence.
[4]Transcript page 16 lines 22 – 24.
[5]Ibid line 28.
In substance that agreement provides that Higginbottom will ‘take charge’ of the boat for 12 months from 1 August 2007 and hire it to customers of Mirage Boat Hire, charging Walden a commission of one third of hiring charges earned. The agreement further states that Walden will pay Higginbottom a berthing rental of $654 per month, insurance, maintenance and servicing (other than ‘major work’), and that Mirage Boat Hire will advertise the boat ‘so as to get as many hires as possible’.
The Adjudicator found that Higginbottom faithfully accounted to Walden in accordance with that agreement.[6] There is no evidence to the contrary. In months when expenses exceeded earnings, Higginbottom bore the losses himself.
[6]Ibid page 37 lines 16 – 20.
The agreement continues
When the written agreement expired on 31 July 2008, the boat remained by mutual consent in Higginbottom’s hands. It is Higginbottom’s case that the hiring arrangement continued, on the above terms, as an oral arrangement, until it ended on 2 June 2010. As the Adjudicator found,[7] that event occurred when Walden decided to repossess the boat, which had ceased to attract any hirers.
[7]Ibid page 38 lines 45 – 47, page 39 line 1.
An alleged variation
It is Walden’s case that Higginbottom agreed to pay Esanda its chattel mortgage instalments from 1 March 2010 to 30 June 2010, totalling $3,500.24.[8] Higginbottom denies liability.
[8]Ibid page 3 lines 33 – 35.
As the Adjudicator found, there was no alteration to the original agreement of August 2007 that required Higginbottom to pay Esanda.[9] Walden bases her case to the contrary on an exchange of emails between the parties in January and February 2010.
[9]Ibid page 41 lines 4 – 6.
On 22 January 2010, noting Walden’s request to ‘return pontoon on 1st March’, Higginbottom emailed to her:
If you are getting pontoon back because you don’t make any money in winter months I understand but I am willing to assist you if you agree. From March 1st I would pay the monthly lease for you which I believe is about $800. I would also pay berth rental and pay you back 50% of remainder after expenses etc. Some months you would get nothing but at least [the] boat will be looked after, the lease would be paid and in a position for you to try and sell or if we can come to an agreement after winter for me to purchase. Please confirm to me if you agree or I will put on trailer and return in March otherwise.
On 5 February 2010 Higginbotham sent another email to Walden:[10]
I am interested in leasing from Esanda if you can get them to call me again, or I am interested in buying for $35,000 or I will keep operating for you as follows: I would hire as normal, I would pay lease berthing, maintenance, fuel, rego and insurance, give you back 30% of what’s left.
As you know in slower months you will not get anything but your lease, rego and insurance will be paid therefore you are not out of pocket at all ... Please email or mail to me SMS are hard to understand.
[10]Email 5 February 2010, annexure B to application for leave, emphases added.
It is reasonable to infer that the words ‘your lease will be paid’, in the paragraph following the three alternative proposals, is contingent. In other words, it assumes that if the first idea comes to fruition – namely, that Higginbotham takes over the “lease” from Esanda, if ‘you can get them to call me again’, and if Esanda accepts that arrangement.
According to Walden, she emailed Higginbottom on 28 February 2010 in these terms:
Dear Mark – The Esanda manager name is Glenn Price ... Please let me know if you have any news from Esanda, then I will tell you what option we do choose, but we can start last option from 1 March 2010.
It appears that the words ‘let me know if you have any news from Esanda’ are responsive to the first option in Higginbottom’s email of 5 February, namely, a possible takeover of the “lease” (scil loan and chattel mortgage) with Esanda. The following words: ‘then I will tell you what option we do choose’ clearly imply that no choice has yet been made. The expression ‘last option’ is apt to refer to the third of the three suggestions in Higginbottom’s email of 5 February 2010, namely ‘I would hire as normal ...’ – a proposal that makes no mention of paying the mortgage instalments.
The language of the emails quoted above is more suggestive of an invitation to treat[11] – that is to say, unfinished negotiations, or a process to set the ball rolling[12] – than a firm offer on Higginbottom’s part. In my respectful view, it was open to the Adjudicator to find that there was no offer capable of acceptance, whether or not Higginbottom received the alleged email of 28 February 2010:
The courts will not lend their aid to the enforcement of an incomplete agreement because it is no more than an agreement ... to agree at some time in the future.[13]
[11]John Howard & Co (Northern) Ltd v J P Knight Ltd [1969] 1 Lloyd’s Rep 364; Ormwave Pty Limited & Anor v Smith (2008) Aust Contract R 90-286; [2007] NSWCA 210 at [66]; HG & R Securities Pty Limited v Sayer [2009] NSWSC 427 at [77].
[12]McDonald v State of South Australia (2008) 172 IR 256; [2008] SASC 134 at [336] per Anderson J.
[13]Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600 at 604 per Gibbs CJ, Murphy and Wilson JJ.
Non-receipt of alleged acceptance
However, Higginbotham denied that he received Walden’s email of 28 February 2010, and that evidence was accepted by the Adjudicator.[14]That was a finding of fact and credit for him to make. As a reasonable decision, it is not open to revision on an application for leave to appeal.
[14]Transcript page 39 line 25.
According to the long-standing postal rule, an acceptance sent by post is effective at the time of posting.[15] But that rule has not been extended to instantaneous communications such as emails and telex messages.[16] The latter, to be effective, must actually reach the alleged offeror.[17] It follows from the primary findings of fact that, even if the above emails amount to a firm offer by Higginbotham, no acceptance occurred, and therefore the alleged variation of the contract did not occur. That suffices to dispose of this application for leave.
[15]Adams v Lindsell (1818) 1 B & Ald 681; Household Fire and Carriage Insurance Co (Ltd) v Grant (1879) LR 4 Ex D 216.
[16]Entores Ltd v Miles Far Eastern Corporation [1955] 2 QB 327; Mendelson-Zeller Co Inc v T & C Providores Pty Ltd [1981] 1 NSWLR 66; Brinkibon Ltd v Staghagstahl GmbH [1983] 2 AC 34; Pivot v Hoechst [2000] VSC 262 at [16].
[17]Flemming v Marshall (2011) 279 ALR 737; [2011] NSWCA 86 at [72]; Candy v GIO General Limited [2013] NSWSC 810 at [44].
Limitations of an application for leave
An application for leave to appeal is not an occasion for a retrial, or for “second guessing” questions of fact or credit that are the prerogative of the primary decision-maker. The object of the “leave” proviso is to preclude attempts to retry cases on the merits, or to introduce evidence or arguments that might have been led in the first place, but were not.[18]
[18]As the applicant seeks to do in her submissions of 26 July 2014.
On an application for leave the essential question is whether there is a reasonably arguable case of error which, if not corrected, will cause substantial injustice to the applicant.[19] It is not nearly enough for an applicant to express disappointment, or to entertain a subjective feeling that justice has not been done.[20] It is not an appellable error to prefer one version of the facts to another, or to give less weight to one party’s case than he or she thinks it should receive. Findings of fact will not be disturbed if they have rational support in the evidence, even if another reasonable view is available.[21] Where reasonable minds may differ, a decision is not erroneous, simply because one conclusion has been preferred to another possible view.[22]
[19]Drew v Bundaberg Regional Council [2012] QPELR 350; [2011] QCA 359 at [18]; Johnson v Queensland Police Service [2014] QCA 195.
[20]Robinson v Corr [2011] QCATA 302 at [7].
[21]Fox v Percy (2003) 214 CLR 118 at 125 – 126.
[22]Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at [131]; In Re W (an infant) [1971] AC 682 at 700; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1025.
Applying those principles to this case, I find that no reasonably arguable error has been demonstrated. Accordingly, the application for leave must be dismissed.
ORDER
The application for leave to appeal is dismissed.
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