Wilson v Courtney

[1992] QCA 276

[1992] QCA 276

COURT OF APPEAL

PINCUS JA
MCPHERSON JA

THOMAS J

Appeal No 48 of 1992

ERNEST NOEL WILSON	Appellant (Defendant)
and
ALAN COURTNEY
SYLVIA ELIZABETH COURTNEY
COURTNEY ENTERPRISES PTY LTD	Respondent (Plaintiffs)
BRISBANE .. DATE 27/07/92
JUDGMENT

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McPHERSON JA: This is an appeal by the defendant against

a money judgment in favour of the respondent plaintiffs
given at the trial of an action in the District Court. The
action arose in this way. The plaintiffs, who are Mr and
Mrs Courtney and their company Courtney Enterprises Pty Ltd,
conducted a transport business in the Maryborough/Hervey Bay
area. Associated with that business was a sand and gravel
contract with Byrne Brothers, which, it seems, was thought
to be of a lucrative nature. In their business they used a
prime mover and a trailer which they held respectively under
a hire purchase agreement and a leasing agreement. It was
agreed that the defendant acquire the sand and gravel
carting contract for $20,000. His Honour found that that
was a distinct transaction, and no appeal is brought against
that finding.

The appeal before us concerns the terms of a different
agreement, which I will call the first agreement, also made
by those parties early in 1984, by which the defendant was
to take over the prime mover and trailer, as well as of a
further or second agreement made in February 1985 varying or
discharging the first agreement. Possession of the vehicles
was received by the defendant in February 1984, and he used

them thereafter for about a year.

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The plaintiffs' contention at the trial was that the terms
of the first agreement were contained in a written contract,
ex. 4, signed by the parties. It embodies terms to the
effect that the defendant was to undertake responsibility
for monthly payments in respect of the two vehicles, with a
right to buy them at a price to be agreed, or in default of
agreement determined by an independent valuer. The
agreement further provided that after attending to any
deficiencies in the vehicles before delivery and after a
mechanical inspection had been carried out, it would be for
the defendant to bear the responsibility for the maintenance
and outgoings associated with the vehicles. Because it has,
in my view, some relevance to later consideration, I think
it right to refer in full to the provisions of that clause
which is clause 4 of the written agreement ex. 4. It

provides:

“Ernest Noel Wilson to be responsible for all
insurance, registration, maintenance, running
costs, and other outgoings in respect of the
vehicle after the date of possession, or after any
deficiencies revealed by machinery inspection have
been carried out by Alan Courtney and Sylvia
Elizabeth Courtney."

The defendant's case at the trial was that ex. 4 did not accurately reflect the whole agreement of the parties, but that there was an oral agreement or arrangement that qualified it and which had been made at the time the

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document ex. 4 was signed. The point of difference was said
to be that, whereas ex. 4 spoke of a price to be ascertained
by agreement or valuation, the parties had, so the defendant
claimed, agreed that the price should be the pay-out figure
or figures in respect of the two vehicles. He said that the
plaintiffs, or at any rate Mrs Courtney, had assured the
defendant before he signed ex. 4 that they the plaintiffs
would not come back and ask for more money in the future.
In this he was supported by a Mrs Castle, who was the
defendant's de facto wife and business associate, who was
present at the time the agreement was signed. A Mr Bain was
also present. He was found by His Honour to be an
independent witness, although it should be added, perhaps,
that at the time in question he was not attending
particularly to what was being done in his presence, but was
watching television. On his own admission, he was not
conscious of the details of what were taking place. By
contrast, Mrs Courtney candidly conceded that she could not
recall the execution of the document, and so was not able to
contradict in terms the evidence of those other witnesses to
whom I have referred. The trial Judge nevertheless accepted
the evidence of the plaintiffs Courtney that they never
agreed to such a price as alleged by the defendant and,
indeed, they asserted that ex. 4 was an accurate record of

the agreement between the parties concerning those vehicles.

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His Honour reached this conclusion while at the same time

recognising that the witness Bain was an independent witness
and that his evidence was not contradicted.

For this he gave the following reasons. First, His Honour said he was impressed by Mrs Courtney's testimony that, if things had happened as alleged, she would have remembered it. Secondly, he said he was influenced by Mrs Castle's acknowledgment shortly after the defendant took delivery of the vehicles that the defendant - and it may be she (she referred to "we") - was, under the terms of the agreement, bound to bear the cost of fixing the differential of the prime mover which had apparently ceased to function. The Judge thought it unlikely that Mrs Castle would have made that comment if she had thought the agreement to be of no significance. He therefore concluded that ex. 4 did accurately record the principal parts of the agreement.

It was argued on behalf of the appellant that His Honour's findings were vitiated by the reasons he gave for them, which, it was said, were not persuasive. This argument might be thought to have some cogency; but what His Honour said, after referring to these matters was, "Even if I had come to a different conclusion on the signing of the heads of agreement, I would still have found that the parties'

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agreement was that the defendant might later buy the
equipment at a price to be agreed or independently
determined." He said he reached that conclusion because of
Mr Courtney's evidence which the Judge said he preferred. He
thought it "unlikely", bearing in mind that Courtney had
made a cash contribution of $8,000 to the price of the prime
mover, that he would agree to something which, in all
probability, would give someone else the benefit of that

payment.

There is no doubt that the plaintiffs had paid a deposit of
$8,000 on the prime mover. Courtney said so in his
evidence, and he is supported by ex. 1, which is the hire
purchase agreement in respect of that or the other vehicle,
which records the receipt of a deposit of $8,000. The Judge
therefore decided the critical issue according to what he
saw as the probabilities in the light of the conflicting
evidence in the point that had been placed before him. What
is said to be the critical issue here was, as I have already
indicated, whether the price was the pay-out figure or an
agreed or valuation price. I see no reason why His Honour
should not have reached his conclusion upon that basis,
notwithstanding the oral evidence before him that was
presented by the defendant. It does seem unlikely that the

plaintiffs would have surrendered for nothing the benefit of

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the "equity" of $8,000 which they had provided to the
financier in respect of the two vehicles. In any event, it
is in my mind open to doubt whether that matter really was

the critical issue at the trial.

Approximately a year after the defendant had taken delivery
of the vehicle he decided he wanted to obtain new vehicles
in place of them. An agreement was therefore reached in
February 1985 among the various parties to the transaction
that the defendant would return the original vehicles the
subject of ex. 4. The dispute at this point is whether, as
the defendant contended, the agreement was that the
plaintiffs would accept re-delivery of those vehicles in an
“as is" condition; or, as the plaintiffs contended, it was
for the delivery of those vehicles in a condition equivalent
to their original condition in February 1984 after they had
been repaired in accordance with ex. 4. On this occasion,
that is in February 1985, the parties attended the
defendant's solicitor, Mr Zemeck, of Corser Sheldon &
Gordon, solicitors, in Maryborough. He made notes of the
agreement that was reached at the conference. The notes in
question make no reference to the return of the vehicles in
an "as is" condition. It is equally true they do not say

that the vehicles were to be in their original 1984

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condition. However, on that point His Honour accepted Mr
Courtney's evidence. The appellant before us belatedly
sought to challenge this finding, and the Court on the
appeal gave leave to add a further ground enabling this to
be done. Again, however, when one looks at the facts of the
matter, the probabilities distinctly favour the conclusion
or finding arrived at by the learned Judge. Exhibit 4
required the defendant to maintain the two vehicles. By
1985 they were in a damaged, or perhaps more accurately, a
deteriorated state or condition. Not to accept Courtneys’
version would involve finding that the plaintiffs
surrendered their right to enforce ex. 4 in the respect

provided in clause 4 of that agreement.

It goes against the probabilities, in my view, that the
plaintiffs should first have foregone the $8,000 originally
paid in respect of those vehicles, and then a year later
have accepted the return of the vehicles in a diminished
condition without receiving any countervailing compensation
or benefit in return. The circumstances thus combine to
suggest that this is not what the parties agreed in 1985 and
that His Honour's findings as to credibility on both issues

ought therefore not to be disturbed.

I have gone at some length to the facts of the matter

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because of the challenge that was presented to the reasons
given by His Honour. However, in the end, the case is one
in which the appellant has attempted and, in my view, fails
to achieve the notoriously difficult task of upsetting
findings of credibility made by a Judge at trial who had the
advantage, which we do not share, of both seeing and hearing
the witnesses themselves. The costs of bringing the
vehicles back to their 1984 condition was proved at the
trial and was not in dispute. It has not been the subject
of challenge in the appeal before us. It represented the
amount for which judgment was given.

In all the circumstances, it must necessarily follow that the appeal should be dismissed, and I would recommend its dismissal with costs.

PINCUS JA: I agree.

THOMAS J: I agree.

PINCUS JA: The order of the Court will be appeal dismissed with costs.

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