Dyne v Bravans Pty Ltd t/a Cavalier Homes Whitsundays [2016] QCATA 61

CITATION: Dyne v Bravans Pty Ltd t/a Cavalier Homes Whitsundays [2016] QCATA 061 PARTIES:` Alan Harry Dyne (Applicant/Appellant) v Bravans Pty Ltd T/A Cavalier Homes Whitsundays (Respondent) APPLICATION NUMBER: APL517-15 MATTER TYPE: Applications and Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Carmody DELIVERED ON: 10 June 2016 DELIVERED AT: Brisbane ORDERS MADE: THE APPEAL TRIBUNAL ORDERS THAT: 1. Leave to appeal is refused. CATCHWORDS: APPEALS – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where the applicant was employed by the respondent as a salesman – where the applicant claims he was entitled to a commission for a sale – whether the Appeal Tribunal should overturn findings of fact – whether the applicant was afforded a fair hearing – where the applicant seeks to adduce new evidence Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 26, 32, 142(3) Bolea v Savu’s Immigrations Solutions [2014] QCATA 83 Cachia v Grech [2009] NSWCA 232 Chambers v Jobling (1986) 7 NSWLR 1 Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435 -- 1 of 9 -- 2 Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 Metcalfe v Hall & Anor [2015] QCATA 43 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Warren v Coombes (1979) 142 CLR 531 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 (Qld) (“QCAT Act”). REASONS FOR DECISION [1] This claim is for real estate sales commission of $19,800 (3 x $6,000 plus $1,800 GST) allegedly payable on housing contracts for three (3) lots – 2, 8 and 15 – of the Shelly Sands Subdivision in the Whitsundays. [2] The respondent formerly conducted a project home design, planning and construction business trading as Cavalier Homes and built the homes on the three lots in issue. The applicant worked for Cavalier as a salesman, providing marketing services from 16 May 2013 until 24 April 2015 under a Sales Contractor Agreement. [3] The services the applicant was to provide as part of his contract are listed in Item 3 of Schedule 1 and include, inter alia: a. to sell and market homes and other products developed by the company; b. to prepare, complete and execute all relevant documentation as directed by the company pursuant to sales made by the contractor. [4] Payment of a commission is provided for under Clause 11 of the agreement and specifically at Clause 11.3, which provides “the tax invoice is to contain details of all contracts entered into by the company with customers of the company that have become unconditional contracts during the preceding month, and that were introduced by the contractor”. [5] Commission rates are paid in accordance with the Payment Schedule contained in Schedule 3, which states that “the commission to be paid once a contract has been fully executed and approved by Bravans Pty Ltd management and will be 3% of the contract sale price”. -- 2 of 9 -- 3 [6] It was also a term of the applicant’s contract that “the company will provide a fixed selling price for its products” and “the contractor will endeavour to procure sales of these products at the selling price set by the company at all times”. [7] The properties in question were actively marketed by the developer, Homecorp, who finalised the sales between April and May 2015. Neither Cavalier nor the applicant were involved in direct negotiations with the buyers. [8] The applicant’s case is that he is entitled to his commission because he (a) made initial introductions between the two companies and that Homecorp would not have contacted Cavalier1 but for his involvement “and (b) started the procedure” that resulted in the ultimate sales. He says that he had a side “deal” with Mr Brady, a director of Cavalier, to work to supply homes through Cavalier to Homecorp for marketing “together as a team”2 but Brady reneged by “going round” him and dealing directly with Homecorp. More specifically Brady failed to carry out his required duties to supply him with fixed sales prices for contracts ready to be signed by the applicant’s clients. [9] The respondent denies liability (but does not contest the quantum) on the basis that the applicant did not procure, introduce, sell or market Lots 2, 5 and 18 in the Shelly Sands subdivision to entitle him to a commission because Brady and the general manager of the developer Homecorp Pty Ltd, Marc Fritzsche, agreed in February 2015 that Cavalier would construct the Shelly Sands subdivision for 30 homes (including Lots 2, 5 and 18) similar to those the developer had built at Springfield Circuit. [10] Also, Brady disputes any collateral agreement with the applicant and asserts that “the reason Fritzsche contacted us was because we had done another lot of 10 homes with another third party sales ground and the solicitor that recommended us to Homecorp… The applicant has intercepted a phone call with Fritzsche, had given his generic sales advice… the sale is between the builder and the client … then the third party has made the sale which is Homecorp”.3 Original decision [11] The applicant lost at first instance for want of proof. He did not establish to the Tribunal’s satisfaction that he had been the victim of a breach of an oral contract he had with the respondent via Brady’s agency to work together to sell the three lots in question. [12] The Magistrate found that the applicant received an initial phone call from Fritzsche and provided him with general sales information about the 1 T 1-15: 10 20/11/2015. 2 T 1-15: 15 20/11/2015. 3 T 1-16 20/11/2015. -- 3 of 9 -- 4 respondent’s products, but was not entitled to the commission because he did not establish that he:  introduced the buyers of any of the three lots in question to the respondent;  had any further dealing with the buyer in relation to the sales; or  executed the contracts for which he claims the commission and had resigned before the contracts came into existence. The leave principles [13] As this is an appeal from a decision of the Tribunal in its minor civil jurisdiction, leave is necessary.4 [14] Leave to appeal will only be granted where there is some question of general importance upon which further argument and a decision of the Appeal Tribunal is to the public advantage;5 there is a reasonably arguable case that the primary decision made an error;6 and, there are good prospects that the applicant would be granted orders in its favour,7 or to correct a substantial injustice to the applicant caused by error.8 [15] That the Tribunal might have exercised the discretion differently is not a basis for changing the decision.9 A finding of fact will generally not be disturbed on appeal, if the evidence before the Tribunal supports the inferences drawn and facts found. The leave grounds [16] The applicant’s stated grounds supporting his application for leave to appeal are:  the QCAT hearing before the Magistrate was ‘too short’, and he was no afforded an opportunity to cross-examine the respondent about false and misleading statements to the Tribunal he allegedly made;  the respondent adduced evidence to the Tribunal that the applicant was not aware of, viz. the 16 May 2013 Sales Contractor Agreement and Fritzsche’s statement;  he was uncertain as to which of Fritzsche’s statements was put before the Tribunal;  he was not afforded fair time before the hearing to analyse Fritzsche’s statements properly; and 4 QCAT Act, ss 26, 142(3). 5 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578 and 580. 6 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 7 Cachia v Grech [2009] NSWCA 232 [13]. 8 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; Fox v Percy (2003) 214 CLR 118 [32] (Gleeson CJ, Gummow and Kirby JJ). 9 Metcalfe v Hall & Anor [2015] QCATA 43 [31]. -- 4 of 9 -- 5  he misunderstood that the hearing had been adjourned and he thought would be given further opportunity to present his case. [17] The respondent submits that the applicant’s application for leave ought to be dismissed on the basis that he has not provided satisfactory grounds for leave to be granted by the Appeal Tribunal. [18] The respondent’s written submissions were filed10 on its behalf by solicitors without leave having first been obtained. The applicant objects to them on these grounds. The contract document [19] The applicant submits he was denied natural justice and prejudiced by the late presentation of a contract by Mr Brady at the original hearing.11 However, the document exhibited in the Tribunal hearing was signed by the applicant and witnessed by his wife, Vivian. [20] It is therefore not a case of genuine surprise and any late production is unlikely to have caused any real forensic disadvantage given that the contract was not a material consideration in coming to the decision in issue. Fritzsche’s statements [21] A statement by Fritzsche dated 16 November 2015 was admitted into evidence by the Tribunal. According to him: “6. (A solicitor) referred me to Cavalier Homes Whitsundays as Homecorp were (sic) interested in developing a similar housing subdivision to the Springfield Circuit development that they had done. 7. I accessed the Cavalier Homes Whitsundays website and called the office number provided on the website with the intention of speaking with the principal of Cavalier about a potential building contract for the Shelley Sands subdivision. 8. My telephone call was answered by a Sales Representative, whom I now know to be Mr Alan Dyne, who was able to answer some of my preliminary questions about generic designs and costings for Cavalier Whitsundays Homes. I left a message for the principal of Cavalier to return my call to speak further, as I was interested in speaking specifically about the Springfield Circuit subdivision and Homecorp’s ideas with respect to the Shelley Sands subdivision. 9. Following this, I was contacted by Mr Michael Brady, the director of Cavalier Homes Whitsundays, and I entered into e-mail and telephone negotiations with Mr Brady about the particular sort of 10 15 February 2016. 11 Applicant’s appeal submissions dated 22 January 2016. -- 5 of 9 -- 6 design, specifications and pricings that Cavalier Homes Whitsundays could offer for the Shelley Sands subdivision. 10. After some initial discussions with Mr Brady about various designs and costings, I sent Mr Brady a copy of our own building plans and it was decided that Homecorp would use their own plans and Mr Brady would work with those to come up with a good price for the build to secure the contract. 11. I continued to negotiate with Mr Brady throughout February and March over telephone and e-mail regarding the specifics of the contract. 12. Mr Brady and I successfully came to an agreement about the precise terms of the building contract, namely the design plans and specifications, the building materials, pricing of the build, payment obligations and building timeframes. 13. Consequently, a building contract to construct 30 homes in the Shelley Sands Subdivision was secured by Cavalier Homes Whitsundays. 14. I believe it was as a result of my in-depth negotiations with Mr Brady that Cavalier Whitsundays Homes were able to secure the Shelley Sands building contract. 15. On 20 March 2015 a Guarantee and Indemnity, and Deed was signed and executed by the parties giving effect to the terms of the building contract as settled between myself and Mr Brady. 16. I continue to liaise with Mr Brady directly regarding the progress of the Shelley Sands subdivision due to his central involvement in the formation and performance of the building contract.” [22] The applicant argues he was prejudiced by the statement of Fritzsche and it ought to have been disregarded by the learned Magistrate. This is a question of admissibility and weight which were both matters for the Magistrate to decide. [23] The difference in the two versions about whether the applicant received the first telephone call from Fritzsche on the office phone12 or on his mobile13 is immaterial. This ground fails. Insufficient time in court [24] The applicant claims he requires extra time in court to present his submissions and that he expected the parties would be recalled at a later date. The transcript, especially at 1-14: 27 or 1-22:35, does not bear out this complaint. Fresh evidence 12 Statement of Marc Fritzsche dated 16 November 2015 para 8. 13 Ibid. -- 6 of 9 -- 7 [25] Contrary to Direction 4 of the QCAT Appeal Tribunal Directions dated 5 January 2015, the applicant seeks to support his application for leave with further evidence (namely, Attachments 3A and 10) that was not before the original decision maker. He has also sought to rely upon a Contract and Deed between Homecorp and the respondent to strengthen his contention that there was a scheme against him by the respondent to deny him commission payments for their own gain.14 [26] The respondent opposes any application by the applicant for leave to adduce fresh evidence for the following reasons: a) Attachment 3A (submissions filed 14 December 2015) consists of email correspondence between Fritzsche and the applicant dated 11 February 2015 which would have been reasonably available to him for the original hearing. b) Attachment 10 is without prejudice correspondence dated 26 November 2015 sent to the applicant for the purpose of negotiating a settlement. Accordingly, aside from being irrelevant, it is protected from disclosure. c) The Contract and Deed between Homecorp and the respondent (attached to the applicant’s submissions dated 22 January 2016) has no logical bearing on any issue to be resolved on appeal. [27] New evidence will only be allowed on appeal which could not, by reasonable diligence, have been obtained for the original hearing; is credible; and might have produced an opposite result.15 There is no legal basis or justification for admitting this evidence on appeal. It is not an appealable error for the Tribunal not to consider evidence it was unaware of. In any event, no explanation for non-production of these documents is given. Even if this material was allowed on appeal, it would probably not produce an opposite result. Factual issues [28] The Appeal Tribunal will not usually disturb findings of fact if the evidence is capable of supporting the conclusions made by the judge at first instance.16 In Chambers v Jobling,17 Kirby P outlined the scope of an appeal judge’s examination of a finding of fact based on credit: “[S]uch review is always to be performed with proper regard to the advantages which the trial judge enjoyed. Especially is this necessary (as Brunskill lately reminds us) where issues of credibility are raised for 14 Applicant’s submissions dated 22 January 2015, attached contract Homecorp and Cavalier Homes Whitsundays Builder’s Introduction Fee Contract. 15 Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435. 16 Dearman v Dearman (1908) 7 CLR 549,561. 17 (1986) 7 NSWLR 1, 10; citing Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 62 ALR 53, 57. -- 7 of 9 -- 8 decision, directly or indirectly. Particularly is it so where the credibility of a witness is determined by the trial judge, expressly or by inference, on the basis of his impressions of the witness whose credibility is under attack. In such cases, the appellate court is not released from its duty to review the trial judge's conclusions. But the circumstances in which it may reverse those conclusions are very narrowly defined indeed. They are confined to those few cases where the trial judge's decision is “glaringly improbable” or “contrary to compelling inferences”.” [29] Later in Fox v Percy,18 the High Court added that: “In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process.” [30] This was reiterated in Warren v Coombes:19 “[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.” [31] The Tribunal’s disputed findings of fact and related inferences were rational and logically open on the evidence and depended on intermediate credibility conclusions which have not been shown to be so unreasonable or counterintuitive. [32] The Magistrate found that the applicant did not introduce the client to Cavalier Homes Whitsundays, and did not secure the sales of the Lots 2, 8 and 15. The evidence clearly supports that finding. [33] By his own admission, the applicant acknowledges receiving a telephone enquiry from Fritzsche asking for information,20 after which he referred him to Brady “to go over some special discounts” and “give … some useful information” to further negotiate the sales for the respondent.21 18 (2003) 214 CLR 118 [29]. 19 (1979) 142 CLR 531, 538. 20 Applicant’s appeal submissions dated 18 December 2015. 21 Applicant’s submissions to the Tribunal dated 3 December 2015, and attachment 3a. -- 8 of 9 -- 9 [34] It is also evident that he had no part in the preparation or execution of the contracts for Lots 2, 8 and 15 and had no knowledge of the terms and conditions of these sales. The invoices the applicant sent for payment of his commission on these Lots were sent prior to a selling price being settled with Homecorp for these contracts.22 Indeed, these contracts went unconditional after the applicant terminated his contract with the respondent on 24 April 2015.23 [35] The application for leave to appeal is devoid of merit. While the applicant alleges the respondent made many ‘untrue’ statements in the original hearing, the evidence he furnishes is nowhere near enough to make out such claims and he has not identified any other factual or legal error in need of correction on appeal to remedy a substantial injustice. [36] Rather, the applicant has largely sought to rehash evidence from the first hearing in seeking a new decision. This will not be cause for the Tribunal to grant leave to appeal.24 [37] Accordingly, there is no reasonably arguable case presented by the applicant that the learned Magistrate was in error or that the Appeal Tribunal ought to disturb the findings of fact. [38] Leave to appeal the decision in MCD32/2015 is refused. 22 See applicant’s Application for Leave to Appeal, attachment 1, 3 and 4. 23 Respondent’s Response filed 6 October 2015, Annexure A paragraph 6(f), (g) and (h). See also the applicant’s appeal submissions dated 22 January 2016 attachment Robins/Callaghan house sale contract. 24 Bolea v Savu’s Immigrations Solutions [2014] QCATA 83. -- 9 of 9 --