Wenn v. Cafe San Paul Pty Ltd; Cafe San Paul Pty Ltd v Wenn

[2007] QDC 217

DISTRICT COURT OF QUEENSLAND

CITATION:	Wenn v Café San Paul Pty Ltd; Café San Paul Pty Ltd v Wenn [2007] QDC 217
PARTIES:	GERALD JAMES WENN
Appellant and
CAFÉ SAN PAUL PTY LTD
Respondent
and
CAFÉ SAN PAUL PTY LTD
Appellant and
GERALD JAMES WENN
Respondent
FILE NO/S:	BD2683/06
DIVISION:	Civil
PROCEEDING:	Appeal
ORIGINATING  COURT:	Commercial and Consumer Tribunal
DELIVERED ON:	28 September 2007
DELIVERED AT:	Brisbane
HEARING DATE:	24 August 2007
JUDGE:	Samios DCJ
ORDER:	Leave to appeal the decision of the Tribunal by Gerald James Wenn refused
Appeal subject to leave by Café San Paul Pty Ltd allowed
CATCHWORDS:	Building and Engineering Contracts – Breach – Damages Commercial and Consumer Tribunal Act 2003 s 100(1)
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64
Devries and Another v Australian Railways Commission and Another (1992-3) 177 CLR 472
Holland v Wiltshire (1954) 90 CLR 409
COUNSEL:	Mr Wenn self-represented Mr Otto for Café San Paul Pty Ltd
SOLICITORS:	Mr Wenn self-represented Scoglio Law for Café San Paul Pty Ltd

1. Mr Wenn was ordered by the Commercial and Consumer Tribunal to pay Café San Paul Pty Ltd $7,587 for damages for breach of contract.

2. Mr Wenn and Café San Paul appeal, subject to leave, to the District Court against the decision of the Tribunal.

3. There are 26 grounds of appeal by Mr Wenn. Café San Paul’s appeal is on the ground the Tribunal made an error in the calculation of the damages.

4. Before the Tribunal Mr Martins, a director and shareholder of Café San Paul, gave evidence Café San Paul leased a café in a shopping centre at Mount Ommaney. The lessor gave notice to Café San Paul to vacate the café. The lease required the space occupied by the café to be restored to its original condition.

5. Mr Martins said he sought a quote for the work from Qld Project Professionals (QPP). QPP provided a quote for $21,120 together with a specification and schedule of works.

6. Café San Paul was under financial pressure and was concerned about the amount of the quote. Mr Martins told his friend, Mr Braulio de Araujo about the quote from QPP and the problem he faced. Mr de Araujo suggested that Mr Martins approach Mr Wenn.

7. Mr Martins said after a discussion with Mr Wenn and after Mr Wenn was shown the specification Mr Wenn agreed to do the work for $6,600. Because Mr Wenn agreed to do the work for significantly less than QPP, Mr Martins engaged Mr Wenn. Mr Martins’ mother considered that there should be a written contract with Mr Wenn which was, in any event, required by the shopping centre management.

8. On the hearing of the appeal, Mr Wenn accepted he signed a minor works contract in writing to do the work for $6,600 but claimed it was not to be binding as it was to be used only to satisfy the shopping centre management’s requirements.

9. The terms of the minor works contract are that the work was to commence on 29 July 2005 and be completed within seven days, at which time the $6,600 was to be paid to Mr Wenn. The description of the work in the contract is “return shop to original state. Demolishing, Electrical work, Plumbing work. Building work.”

10. Mr Martins’ evidence was that he paid Mr Wenn $2,000 in cash prior to the work commencing and Mr Wenn was to use that money to pay his workers after each shift.

11. Mr Martins and Mr de Araujo gave evidence that on Sunday, 31 July 2005 Mr Wenn asked Mr Martins for another $1,000. Mr Martins told Mr Wenn that amount would be available the following Monday, 1 August 2005. However, they said Mr Wenn said he would not complete the work.

12. Evidence from Mr Martins, Mr de Araujo and Mr Taee was to the effect that Mr Wenn could not be contacted on the Monday. Mr Martins therefore urgently engaged another contractor to complete the work.

13. At the hearing before the Tribunal Mr Wenn’s evidence was that the written contract he signed was not to be binding. Also he said he was not shown the QPP specification for the work, that Mr Martins engaged Mr Wenn’s workers, that the agreement between Café San Paul and Mr Wenn was an oral agreement and that Café San Paul was to pay Mr Wenn and his workers at the end of each shift.

14. Mr Wenn cross-examined Mr Martins at the hearing. Mr Martins said it was agreed between Mr Wenn and Mr Martins that Mr Wenn’s workers were to be paid after each shift. However, when it was suggested to Mr Martins by Mr Wenn the written agreement was not in force, Mr Martins did not accept that proposition. Concerning the $2,000 paid by Mr Martins to Mr Wenn, Mr Martins said the $2,000 was paid to be strictly used for the assistance labourer’s wages. When Mr Wenn suggested the $2,000 was not enough for four people Mr Martins replied not all of Mr Wenn’s labourers worked all the shifts and Mr Martins said Mr Wenn said to give Mr Wenn the $2,000 for Mr Wenn to retain his staff on a nightly basis. Finally, Mr Martins said he paid the $2,000 as a deposit to cover Mr Wenn for his labourers.

15. The Tribunal accepted the evidence of Mr Martins, Mr de Araujo, Mr Taee and Mr Martins’ brother. The Tribunal found Mr Wenn was not a credible witness and did not accept his evidence. The Tribunal accepted the oral evidence of a Mr Starkey who was called by Mr Wenn.

16. The Tribunal found that contrary to the minor works contract between the parties, Mr Wenn sought from Café San Paul $1,000 on Sunday, 31 July 2005 and said he would not complete the work until the $1,000 was paid. Despite being told the money would be available next day, Mr Wenn did not complete the work and was not contactable on Monday, 1 August 2005. Therefore the Tribunal found Mr Wenn demonstrated an unwillingness to perform the minor works contract between the parties.

17. The Tribunal found Mr Wenn’s actions amounted to a repudiation of the contract which entitled Café San Paul to terminate the contract and engage another contractor to complete the work. The Tribunal found Café San Paul was entitled to damages.

18. An appeal to the District Court against the decision of the Tribunal is with the court’s leave only on the ground of –

“(a)	error of law; or
(b)	excess, or want, of jurisdiction.”

(Section 100(1) Commercial and Consumer Tribunal Act 2003)

1. There was no suggestion of excess or want of jurisdiction of the Tribunal on the hearing of this appeal. Therefore, if leave is to be given to Mr Wenn or Café San Paul to appeal against the decision of the Tribunal it must be on the ground of error of law on the part of the Tribunal.

2. Many of Mr Wenn’s grounds of appeal relate to the same issue but are differently stated.

3. Grounds 2, 3, 6, 7, 8, 12, 14, 16, 22, 23, 24, 25 and 26 relate to an issue that the Tribunal should have accepted Mr Wenn’s evidence rather than accept the evidence of Mr Martins and his witnesses.

4. In Devries and Another v Australian Railways Commission and Another (1992-3) 177 CLR 472, at 479 the court said:

   “More than once in recent years, this Court has pointed out that 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 of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’.”

5. Ground of Appeal No 2 is that the chairperson had erred in law by not ascertaining if the appellant had in fact received a copy of the minor works contract after it was revealed at the hearing that Mr Martins had supplied the minor works contract.

6. In my opinion, even if Mr Wenn did not receive a copy of the minor works contract that does not mean the Tribunal could not accept Mr Martins’ evidence.

7. Ground of Appeal No 3 is that the chairperson had erred in law by not applying caution to the claim Mr Wenn did not want to sign a contract for labour only and that trickery and lies were used to obtain the minor works contract and that Mr Martins maintained to Mr Wenn that it was not binding in any way, it was purely to show the centre management because they were harassing him.

8. Even if it were accepted by the Tribunal that Mr Wenn was reluctant to sign the contract, that does not, in my opinion, mean the Tribunal could not accept Mr Martins’ evidence.

9. Even if the Tribunal accepted Mr Wenn was reluctant to sign the contract the fact remains Mr Wenn did sign the minor works contract.

10. Further, to say that trickery and lies were used to obtain the contract and that Mr Martins maintained to Mr Wenn that it was not binding in any way, it was purely to show centre management because they were harassing him, are essentially credit questions which the Tribunal decided against Mr Wenn.

11. Ground of Appeal No 6 is that the chairperson had erred in law by not applying any weight to a prior principle (sic) verbal contract that the respondent and his men wanted to be paid after each shift worked and that both parties acknowledged this was the principle (sic) contract between the parties.

12. It is correct to say Mr Martins accepted when cross-examined there was an oral agreement to pay Mr Wenn’s workers after each shift. Even accepting this was part of the agreement between the parties, Mr Martins said in cross-examination the $2,000 was paid to Mr Wenn as a deposit for his workers which did not include Mr Wenn (Transcript p 8-p 10.2). Further, Mr Martins took issue with how many workers were engaged in the work until the demand was made by Mr Wenn for the further $1,000 (Transcript p8.4).

13. In my opinion, Mr Martins’ answers in cross-examination could be taken to mean he was not in breach of the contract even though he agreed the workers were to be paid after each shift.

14. Ground of Appeal No 7 is that the chairperson had erred in law by not applying any weight to the fact that Mr Martins did not disclose he and the business were insolvent and should not have entered into any contract verbal or written.

15. Even if the Tribunal accepted this that does not necessarily lead to the conclusion Mr Wenn’s credibility is to be preferred to Mr Martins’ credibility.

16. Ground of Appeal No 8 is to the effect that because Mr Martins was prepared to source a further $1,000 the following day this lends weight to Mr Wenn’s contentions.

17. In my opinion, it does not necessarily follow that because Mr Martins was prepared to source a further $1,000 the following day this lends support to Mr Wenn’s contentions. In my opinion, the Tribunal could conclude although Mr Martins was not obliged to pay another $1,000 at the point in time Mr Wenn demanded the further $1,000, he was prepared to obtain another $1,000 to keep in good faith with Mr Wenn.

18. Ground of Appeal No 12 is that the Tribunal erred in law by not administering any penalty toward Mr Martins and his witnesses for continually contradicting themselves and telling untruths.

19. This ground is really a claim that Mr Wenn’s evidence should have been preferred to that of Mr Martins and his witnesses.

20. Ground of Appeal No 14 is that the chairperson had erred in law because the evidence was Mr Martins did not terminate the contract, in fact his mother’s partner engaged another party to take over the work on Monday, 1 August 2005 and the contract was signed the following day.

21. In my opinion, even if Mr Taee engaged another contractor that does not mean Mr Martins did not ratify and accept Mr Taee’s actions on behalf of Café San Paul. Mr Martins did not have to engage another contractor personally for the engagement of that contractor to be a valid engagement.

22. Ground of Appeal No 16 is that the chairperson has erred in law by the unfounded claim Mr Wenn had stated that he was not going to come back when it is undisputed that Mr Martins had stated that he was going to get money the next day from Brazil.

23. In my opinion, it does not follow that because Mr Martins was seeking more money the next day from Brazil that Mr Wenn could not have repudiated the contract. In my opinion, it was open to the Tribunal to conclude Mr Wenn repudiated the contract, even though Mr Martins was seeking further money to pay Mr Wenn.

24. Ground of Appeal No 22 makes reference to evidence from Mr de Araujo.

25. These are matters of evidence which did not require the Tribunal to reach a different conclusion on the evidence before it.

26. Ground of Appeal No 23 contains Mr Wenn’s argument about how $2,000 would be insufficient to pay himself and his workers at the end of each shift and the rate per hour they would be working for.

27. The Tribunal accepted the evidence of Mr Starkey and Mr de Araujo that Mr Wenn’s labourers were not paid for the third shift they did on Saturday, 30 July 2005. However, Mr Wenn’s calculations about how he himself and his labourers were being paid per hour does not mean the Tribunal could not accept Mr Martins’ evidence the agreement was that the money was to be used to pay Mr Wenn’s labourers and not Mr Wenn and his workers and at that stage the $2,000 ought to have been sufficient to pay the labourers (Transcript p 8.1-8.4).

28. Ground of Appeal No 24 is that the chairperson erred in law by not allowing for the four and a-half months it took Mr Martins to pursue this matter and the fact that he has in the meantime switched from the verbal contract as the principal contract to the written contract as the principal contract between the parties.

29. In my opinion, it does not follow that the Tribunal could not accept Mr Martins’ evidence in preference to that of Mr Wenn’s evidence.

30. Ground of Appeal No 25 is that the chairperson erred in law by accepting Mr Martins’ argument that because he was insolvent and had suppliers and debt collectors pursuing him he was entitled to renege on a verbal contract and use the contract he induced to go to Plan B without anyone’s knowledge.

31. In my opinion, even if Mr Martins did not have the money at the time required by Mr Wenn it does not follow Mr Martins would not have paid the balance of the price on time.

32. Ground of Appeal No 26 relates to Mr Wenn’s argument that the Tribunal should not have found the written contract the principal contract.

33. In my opinion, the Tribunal was bound to find on the basis of Mr Martins’ answers in cross-examination the contract between the parties was subject to a term that Mr Wenn’s workers were to be paid after each shift. However, even accepting this was part of the agreement between the parties, it was also part of the agreement if Mr Martins’ evidence was accepted that the $2,000 was only for Mr Wenn’s labourers and as a deposit for their payments. On the basis of Mr Starkey’s evidence, the Tribunal could conclude the labourers were being paid $250 a shift (Transcript p 34.4), and on the basis of Mr Martins’ evidence and Mr Wenn’s statements in cross-examination, six labourers worked the three shifts (Transcript p8.1-8.4); therefore, $1,500 of the $2,000 was used at the point in time when Mr Wenn demanded the further $1,000.

34. The Tribunal’s findings in this case are based on credibility. The evidence of the witnesses was not glaringly improbable. Mr Wenn has raised in his grounds of appeal a number of reasons why his evidence ought to have been preferred. None of these reasons compelled the Tribunal to accept Mr Wenn’s evidence. In my opinion, no ground exists for concluding the Tribunal failed to use or palpably misused its advantage.

35. The only issue not expressly addressed by the Tribunal was that despite the written agreement, Mr Martins’ answers in cross-examination lead to a conclusion that the agreement between the parties was subject to a term that Mr Wenn’s workers were to be paid at the end of each shift. However, accepting Mr Martins’ evidence leads to a conclusion the $2,000 was paid for Mr Wenn’s workers only and as a deposit for their payment. On the evidence, Café San Paul was not in breach of the agreement at the point in time Mr Wenn demanded the further $1,000.

36. Grounds of Appeal numbered 4 and 5 of the appeal relate to the dating of the contract. In my opinion, the difference in the dates does not necessarily call for the Tribunal to reach a conclusion favourable to Mr Wenn.

37. Grounds 18, 19, 20 and 21 of the Grounds of Appeal relate to issues about the formalities of the contract and the authority of certain people to act on behalf of Café San Paul. On this issue at the commencement of the hearing the Tribunal amended the name of the applicant to read Café San Paul in lieu of Mr Martins junior.

38. In my opinion, no error is shown by the Tribunal taking the step it did. Further, there was evidence from which the Tribunal could infer Mr Martins and Mr Taee had legal authority to act for Café San Paul and had authority to terminate the contract and engage another party. There is no error accepting a company name as the proprietor.

39. Grounds numbered 13, 15 and 17 of the Grounds of Appeal relate to an issue that the contract was not validly terminated because Mr Wenn was not given written or verbal notice of termination.

40. It was not in dispute between the parties that no written or verbal notice was given to Mr Wenn that Café San Paul was electing to terminate the contract.

41. However, written or verbal notice is not required to elect to terminate a contract. Repudiation of a contract can be accepted by conduct.

42. In Holland v Wiltshire (1954) 90 CLR 409 a vendor called on a purchaser to complete a contract for the sale of land. The vendor gave a notice to the purchaser specifying a date for completion and informed the purchaser if settlement did not take place by that date, the vendor would take proceedings against the purchaser for breach of contract. The purchaser failed to complete the purchase and the vendor re-sold the land at a lower price. The vendor claimed as damages the difference between the contract price and the sale price less the deposit.

43. Dixon CJ in that case held the vendor’s election to treat the contract as discharged by the purchaser’s breach was sufficiently manifested by his proceeding to advertise the property for sale and by selling it.

44. Therefore, it was not essential for Café San Paul to give Mr Wenn written notice or verbal notice it was accepting Mr Wenn’s breach and was terminating the contract. The Tribunal was entitled to act on the evidence of Mr Martins and Mr de Araujo that Mr Wenn said he was not coming back and was not contactable on the Monday and Café San Paul’s conduct by engaging another contractor as proof of Mr Wenn’s repudiation of the contract and acceptance of that repudiation by Café San Paul.

45. If the law were otherwise, then a defaulting party could place themselves in an uncontactable position and frustrate the termination of a contract by an innocent party.

46. In my opinion, there was nothing inconsistent in Mr Martins seeking moneys to pay Mr Wenn a further $1,000 on the Monday and trying to contract Mr Wenn on the Monday on the one hand and terminating the contract on the other hand. Mr Martins may have been trying to keep the contract alive by seeking the further moneys and trying to contact Mr Wenn up to the point Mr Martins elected to engage another contractor.

47. Ground of Appeal No 1 is that the Tribunal erred in law by not allowing Mr Wenn to examine his own witness, whilst allowing Mr Martins an opportunity to examine his witness.

48. Mr Starkey was Mr Wenn’s witness. He was dismissed, Mr Wenn says, without him having an opportunity to examine Mr Starkey.

49. It is not the case the Tribunal refused to allow Mr Wenn to examine Mr Starkey. Mr Starkey was given an opportunity, just as other witnesses were given, to say whether their statement was complete or not. Mr Martins was invited to re-examine one of his witnesses. The same was not said to Mr Wenn.

1. However, in my opinion, Mr Wenn was not denied natural justice. He had the opportunity to put forward the evidence which he led from Mr Starkey. There is no evidence Mr Wenn says Mr Starkey could have given that was not given.

2. Ground of Appeal No 9 relates to the chairperson erring in law by not following the chartered guidelines of the Tribunal. That is, a lengthy extension was granted to Mr Martins on the last day of his first direction was due, he was allowed to fax in his material on the last day of the second direction and he was allowed to still submit all his evidence and his witnesses’ statements a month after his third direction deadline.

3. Even if this is so, I do not accept it can be implied the Tribunal favoured Mr Martins over Mr Wenn. Further, there is no injustice demonstrated by Mr Wenn how his case could not be promoted and how different findings might have been made by the Tribunal.

4. Ground of Appeal No 10 relates to what Mr Wenn says was an error of law in that the Tribunal based a lot of its decision on slanderous remarks regarding Mr Wenn’s statements and actions.

5. In my opinion, none of these statements or actions by Mr Wenn can be shown to have in any way influenced the Tribunal in the outcome of the proceedings.

6. Finally, Ground No 11 is that the Tribunal erred in law by not deducting a further $4,600 off the damages awarded, as this is still outstanding money from Mr Wenn’s alleged contract.

7. Subject to one point, the Tribunal correctly assessed the damages and there is no error of law to not take into account the $4,600.

8. Where the Tribunal did err is by not taking into account the $2,000 in the calculation of the damages. The right test was applied, namely that by Deane J in Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64, 116.

9. In this case Café San Paul paid $2,000 for work to be done and paid a further $13,970 to complete the work. These two items ought to be added together to reach a sum of $15,970 from which is to be deducted the $6,600. That leaves a sum of $9,370. To this is to be added $217 for the filing fee. The final sum is $9,587.

10. In all the circumstances, I find there has been no error of law on the part of the Tribunal in reaching the conclusions it did, that Mr Wenn was liable to Café San Paul for damages. Therefore, I do not give Mr Wenn leave to appeal against the decision of the Tribunal.

11. However, I do find the Tribunal did make an error in the calculation of the damages. In my opinion, Café San Paul should be given leave to appeal against the decision of the Tribunal and that error should be corrected.

12. I allow Café San Paul’s appeal and order that in lieu of the sum of $7,587 in the order made 30 August 2006 there be inserted the sum of $9,587.