Dangerfield v Rowland [2016] QCATA 40

CITATION: Dangerfield v Rowland [2016] QCATA 40 PARTIES: Berniece Deborah Dangerfield (Applicant/Appellant) v Tristan Rowland Samantha Rowland (Respondents) APPLICATION NUMBER: APL041-16 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe OAM DELIVERED ON: 3 May 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal granted. 2. Appeal allowed. 3. Paragraph 1(b) of the order of 11 January is set aside. 4. To the extent that Ms Dangerfield has paid any part of that order, Place 2108 Pty Ltd atf Rowland and Conroy Trust shall repay that sum to Ms Dangerfield within 21 days of today’s date. CATCHWORDS: APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – whether grounds for leave to appeal – where agent appointed to sell property – where owner withdrew property from sale – where dispute about marketing agreement – where dispute between typed and handwritten terms in contract - where relief from payment sought – where allegation of bias and denial of natural justice – where failure to give adequate reasons – where payment awarded in absence of claim – where leave to appeal granted and appeal allowed – where part of original decision set aside Dearman v Dearman (1908) 7 CLR 549 -- 1 of 8 -- 2 Fox v Percy (2003) 214 CLR 118 Pickering v McArthur [2005] QCA 294 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 Chambers v Jobling (1986) 7 NSWLR 1 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] On 19 September 2015, Berniece Dangerfield appointed Place Aspley as agent for the sale of her home. She agreed to an advertising campaign costing $2252.95. Section 8 of the Form 6 appointment, which deals with advertising, had two notations. The first, typewritten note, said: Refer to attached marketing campaign, $1,666 payable on signing this agreement and the balance of marketing payable on settlement or withdrawn. [2] The second, handwritten note, said: $2,252.95 however $1666 payable immediately with the balance payable at settlement. [3] Ms Dangerfield paid the $1,666. The property did not settle because Ms Dangerfield terminated the appointment and withdrew her property from sale. Place claimed the balance of the cost of the marketing campaign. Ms Dangerfield filed an application claiming relief from that payment and a refund of the $1,666. The Tribunal ordered that Ms Dangerfield pay the balance of the marketing costs; it did not order that she be refunded the costs already paid. [4] Ms Dangerfield wants to appeal that decision. Because this is an appeal from a decision of the Tribunal in its minor civil disputes jurisdiction, leave is necessary.1 Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.2 [5] Ms Dangerfield submits that she did not have a proper opportunity to put her case. She says that the Tribunal erred in interpreting the appointment; where there is a conflict between the handwritten and the typed terms, the Tribunal should have preferred the handwritten terms. She says the hearing was biased against her. She says she was denied natural justice. She says 1 QCAT Act, s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294 at [3]. -- 2 of 8 -- 3 the Tribunal erred in failing to set aside the appointment because of unconscionable conduct. [6] Mr and Ms Rowland have filed fresh material with their response to the application for leave to appeal. The Appeals Tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant seeking leave to adduce such evidence must satisfy three tests. Could the parties have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?3 [7] The fresh material deals with Ms Dangerfield’s submission that she was misled into signing the appointment, and that the Rowlands acted unconscionably. Ms Dangerfield raised these issues in her original application. The evidence that the Rowlands now want to produce would have been available at the hearing with reasonable diligence. For reasons that follow, they do not have an important impact on the results of the case. The evidence should not be admitted. Did the Tribunal allow Ms Dangerfield to put her case? [8] Ms Dangerfield was represented at the hearing by John Saffigna. Ms Dangerfield did not apply for leave to be represented and the Tribunal did not consider, as required, whether Ms Dangerfield was entitled to be represented4 or whether Mr Saffigna was an appropriate person to represent her.5 To that extent, Ms Dangerfield received a benefit from the conduct of the hearing. [9] The transcript of proceedings shows that Mr Saffigna had ample opportunity to put Ms Dangerfield’s case to the Tribunal.6 His submissions, with interruptions from the Tribunal, span about 7 pages of the transcript. The Tribunal gave him a right of reply. Unfortunately, but not, in my view, fatally, the Tribunal then allowed the Rowlands a further opportunity to speak. While the conduct of the hearing was not ideal, I am satisfied that Ms Dangerfield had sufficient opportunity to put her case. [10] Ms Dangerfield further submits that she was not given an opportunity to present her case on the refund of the $1,666 because the Tribunal had already made up its mind. [11] One of the learned Justices of the Peace did tell the parties:7 3 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408. 4 QCAT Act s 43(3). 5 QCAT Act s 43(4)(b). 6 Transcript of Proceedings, Berniece Deborah Dangerfield v Tristan Rowland and Samantha Rowland (Queensland Civil and Administrative Tribunal, MCD2638/15, Mr Francis and Mr Snow, 11 January 2016). 7 Transcript, page 1-14, line 46 to page 1-15, line 1 -- 3 of 8 -- 4 Okay. Let me tell you how I’m feeling at the moment, as opposed to what my colleague’s feeling. .. I don’t think you’re up for the refund of the 1666. I’m satisfied that you’ve given a service. [12] That comment came in the middle of the Rowlands’ submissions. It is true that Mr Saffigna had not yet made any submissions about unconscionable conduct but, as the extract shows, the Tribunal’s view was preliminary only and Mr Saffigna did later address the Tribunal about unconscionable conduct. I am not persuaded that the Tribunal predetermined the case or that it prevented Ms Dangerfield making submissions about unconscionable conduct. Did the Tribunal err in interpreting the appointment? [13] The Tribunal’s reasons are short. It did not make any finding about whether the typewritten note or the handwritten note prevailed. Instead, it found that the marketing costs had been incurred and, therefore, Ms Dangerfield should pay them. [14] That finding ignored Ms Dangerfield’s submission. Her interpretation of the appointment was that she was not required to pay the balance of the marketing costs unless and until settlement. The Tribunal was in error in not considering Ms Dangerfield’s submissions. [15] Which version of the clause should prevail? Chitty on Contracts provides the answer: Where the contract is contained in a printed form with writing superaddded, the written words, if there should be any reasonable doubt about the sense and meaning of the whole, are to have greater effect attributed to them than the printed words, inasmuch as the written words are the immediate language and terms selected by the parties themselves for the expression of their meaning and the printed words are a general formula adapted equally to their case and that of all other contracting parties upon similar occasions and subjects. (Citations omitted) 8 [16] The handwritten version of the appointment prevails. Ms Dangerfield was only liable to pay the balance on settlement. The property did not settle; she was not liable to pay the $586.95. If that is not what the Rowlands intended, then they should not have added the handwritten section on the appointment. [17] Leave to appeal should be granted and the appeal allowed. Was the Tribunal biased? [18] Bias is a very serious allegation. The test is: 8 Joseph Chitty, Chitty on Contracts: General Principles (Sweet & Maxwell, 26th ed, 1977) at 826. -- 4 of 8 -- 5 … if a fair-minded lay bystander might reasonably apprehend that the decision-maker might not bring an impartial mind to the determination of the issues that he or she must decide.9 [19] Ms Dangerfield says the Tribunal was biased because she was not given time to respond to an allegation of defamation. She also says that Mr Rowland was allowed to make recklessly false and/or fraudulent statements to the Tribunal about houses in the local area. [20] The Tribunal made it clear that it was not interested in the issue of defamation.10 Its decision did not refer to the issue of defamation. The decision did not depend upon the credit of the parties. I can find no evidence of bias in the way the Tribunal dealt with the defamation issue. [21] Ms Dangerfield also suspects collusion between the Tribunal and the Rowlands after Ms Dangerfield and Mr Saffigna left the hearing room. She says that the Tribunal’s decision said nothing about the $586.95 and yet the published order requires her to pay that sum to the Rowlands. [22] The transcript ends shortly after Ms Rowland asks for a suppression order. There is no discussion between the Tribunal and the Rowlands about the $586.95. The Rowlands had not filed a claim for the $586.95, so the Tribunal’s decision to order the payment, in the absence of a claim and in the absence of a specific order at the hearing, was in error. It was probably not, however, a result of bias but of inattention. Did the Tribunal fail to provide natural justice? [23] Ms Dangerfield’s submissions are, essentially, a reframing of her submissions about bias and whether she was allowed to put her case. I do not propose to comment further on these matters. Should the Tribunal have set aside the appointment because of unconscionable conduct? [24] I have already noted that the Tribunal’s reasons for decision do not deal with this issue. The failure to give reasons is an error of law. Leave to appeal should be granted and the appeal allowed. [25] In considering whether a party has engaged in unconscionable conduct, the Tribunal may have regard to: a) The relative strengths of the bargaining positions; b) Whether Ms Dangerfield was required to comply with conditions that were not reasonably necessary for the protection of the reasonable interest of the Rowlands; 9 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. 10 Transcript, pages 1 to 32, lines 31 to 45. -- 5 of 8 -- 6 c) Whether Ms Dangerfield was able to understand the appointment document; d) Whether the Rowlands exerted any undue influence or pressure, or used unfair tactics; and e) The amount for which Ms Dangerfield could have acquired identical services from another party. 11 [26] Mr Saffigna told the Tribunal Ms Dangerfield was a vulnerable member of society because she was a 61 year old single lady.12 Ms Dangerfield’s age and relationship status do not immediately mark her as vulnerable; something more is required. [27] Mr Saffigna told the Tribunal the appointment was “unfair”. I note, however, that she met with Mr Rowland almost eight months earlier to discuss the sale of her home.13 The appointment document contained a warning that she should seek legal advice before signing. There is nothing to suggest that the Rowlands pressured Ms Dangerfield into signing the appointment. [28] Ms Dangerfield says Mr Rowland fraudulently represented (in section 3 of the appointment) that he guaranteed he would sell the property for between $800,000 and $900,000. [29] That is not what section 3 of the appointment states. The price for which it was to be sold had “for sale now”. That is a defect in the appointment, as clause 4.1 of the appointment conditions states that the Rowlands were obliged to offer to sell the property at the price nominated in that section. One interpretation of that section of the appointment might be that Ms Dangerfield did not nominate a price. I find, however, that was unlikely. [30] The reference to $800,000 to $900,000 was for placement in electronic listing; that is, the point at which the property would show up in a search of a website. [31] Item B to the schedule notes that Ms Dangerfield received a comparative market analysis, which might indicate the likely sale price. Even if Mr Rowland did say that he could sell the property within that range, the statement may not amount to a fraudulent statement. In deciding whether a person has engaged in unconscionable conduct, the Tribunal must look to the circumstances existing at the time. The mere fact that the statement is not ultimately trues does not mean that Mr Rowland did not honestly believe that it was true when he made it. Ms Dangerfield must provide much more to demonstrate that the statement was made fraudulently and she failed to do so. 11 Competition and Consumer Act 2010 (Cth) s 21. 12 Transcript, pages 1 to 4, lines 42 to 43. 13 Transcript, pages 1 to 11, lines 39 to 40. -- 6 of 8 -- 7 [32] Ultimately, Ms Dangerfield’s complaint about the appointment was caused by these events: a) The house did not sell at the price she hoped for. b) In late November, Mr Saffigna looked at the terms of the appointment and gave Ms Dangerfield certain advice.14 c) Ms Dangerfield found out that a property can be listed on the website for less than quoted by the Rowlands.15 d) Ms Dangerfield found out that other agents will charge less for marketing and a lower commission. [33] Ms Dangerfield was able to compare real estate agents before she signed the appointment. She was able to ask Mr Saffigna for advice before the appointment. She was able to find out about the marketing costs before the appointment. That she did none of those things does not make the appointment unfair. That the house was not generating interest at the nominated price range, does not necessarily make the appointment unfair. [34] Although Ms Dangerfield might argue that she had no bargaining power, the fact is that she was able to do a deal on the advertising. I do not accept that she lacked bargaining power. [35] I can find no evidence that Ms Dangerfield was required to comply with a term or condition that was not reasonably necessary. I can find no evidence that Ms Dangerfield did not understand the appointment. I can find no evidence of undue influence. Ms Dangerfield could have obtained the same service from another real estate agent for less but that was her choice; it is not evidence of unconscionable conduct. [36] Ms Dangerfield received the service she bargained for. Mr Rowland did not achieve a sale but Ms Dangerfield cannot renege on her part of the bargain simply because she was disappointed with the result. The sum of $1,666 was properly paid and is not refundable. [37] Ms Dangerfield asked for her filing fees to be paid. As Ms Dangerfield was only partly successful in her claim, I am inclined to let the costs lie where they fall. [38] I note that Ms Dangerfield filed her claim against the Rowlands personally. That was an error. The agent is clearly identified as Place 2108 Pty Ltd atf Rowland and Conroy Trust. The company should have been the proper respondent. [39] Leave to appeal is granted and the appeal allowed. Paragraph 1(b) of the order of 11 January is set aside. To the extent that Ms Dangerfield has paid 14 Transcript, pages 1 to 7, lines 13 to 16. 15 Transcript, pages 1 to 21, lines 25 to 27. -- 7 of 8 -- 8 any part of that order, Place 2108 Pty Ltd atf Rowland and Conroy Trust shall repay that sum to Ms Dangerfield within 21 days of today’s date. -- 8 of 8 --