Brown & Anor v Bath Properties Pty Ltd [2014] QCATA 146

CITATION: Brown & Anor v Bath Properties Pty Ltd [2014] QCATA 146 PARTIES: Dean Anthony Brown Patricia Ann Marriage (Applicants/Appellants) v Bath Properties Pty Ltd (Respondent) APPLICATION NUMBER: APL081-14 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Thomas, President DELIVERED ON: 23 June 2014 DELIVERED AT: Brisbane ORDER MADE: The application for leave to appeal is refused CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where two versions of contract presented to the tribunal – where tribunal favoured one version over another – whether contract void for ambiguity or mistake – whether evidence supported tribunal’s findings – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 142(3)(a)(i) Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, applied Leibler v Air New Zealand Ltd [1999] 1 VR 1, cited Maye v Colonial Mutual Life Assurance Society Limited (1924) 35 CLR 14, cited Pickering v McArthur [2005] QCA 294, applied -- 1 of 5 -- 2 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] Bath Properties Pty Ltd sold a house to Mr Brown and Ms Marriage for removal. The tribunal had two versions of the sale contract. Both versions provided that Mr Brown and Ms Marriage had six months to remove the house. One version provided that Mr Brown and Ms Marriage would pay Bath $66 per day for every day the house remained after the six-month deadline. The other version had that clause crossed out and included a hand written clause ‘Wet weather delays excluded from above. Bath Trust to pay for Demolition and Removal Permit.’ [2] Mr Brown and Ms Marriage did not remove the house within the six-month time frame. Bath filed a claim for $13,332, being $66 per day for 202 days. A Magistrate, sitting as a member of the tribunal ordered Mr Brown and Ms Marriage pay Bath $13,398, being $66 per day for 203 days. [3] Mr Brown and Ms Marriage seek to appeal that decision. They say that the learned Magistrate should have construed any ambiguity in the contract against Bath, the party that prepared the contract. They say that the penalty clause was an addition to the contract, so Bath had the onus of proving that the clause was brought to their attention. They say that Mr Bath, who appeared for Bath, did not explain why he took the contracts away to be witnessed and failed to prove that he did not alter the contracts. Further, the Magistrate placed no weight on the fact that the witness to the execution of the contracts did not give evidence. They say the Magistrate erred because he did not consider that there was an honest but mistaken belief that each party had agreed to the contract and, therefore, there was no meeting of the minds. They say Bath’s delay in getting council consent was clear evidence that time was not of the essence. They say that their version of events is more credible, and that the learned Magistrate should have accepted and noted that, if the penalty clause was important to Bath, Mr Bath should have insisted on its inclusion. [4] Mr Brown and Ms Marriage have filed additional evidence with their application for leave to appeal. The appeal tribunal will only accept additional evidence if it was not reasonably available at the time the proceeding was heard and determined. To rely on such evidence, Mr Brown and Ms Marriage must satisfy three tests: with reasonable diligence, could the evidence have been obtained 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?1 1 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408. -- 2 of 5 -- 3 [5] No explanation has been offered as to why this evidence was not available before the learned Magistrate, nor has it been explained why the evidence is relevant. Mr Brown and Ms Marriage have produced documents from third parties, but those parties have not given statements and they were not cross-examined by the respondent at the hearing. That evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence that was before the learned Magistrate. [6] Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.2 The principles the appeal tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as his Honour then was) in Pickering v McArthur: There are numerous authorities, in varying language but with unvarying emphasis, that 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.3 [7] The rule that a court or tribunal should construe an ambiguity against the person who prepared a contract was explained by Isaac ACJ in Maye v Colonial Mutual Life Assurance Society Limited.4 If the contract is unambiguous on its face, the court or tribunal must give effect to those terms. The rule applies if the terms of the contract are in conflict, are ambiguous, or, can be interpreted in different ways. The contracts were not ambiguous on their face. The rule does not apply where the court or tribunal is faced with two different versions of the same contract, each in clear terms. Which contract version applies is a question of fact (which may turn on questions of credit), which the learned Magistrate had to resolve based on the evidence before him. [8] There is no evidence that the penalty clause was an addition. In both versions of the contract, it appears as clause 2.3, between clauses 2.2 and 2.4. It was not inserted later. It was not a handwritten amendment. The only addition is the amount of $66 per day, but this figure appears in both versions of the contract. Mr Bath did not have had any special obligation to bring the clause to the attention of Mr Brown and Ms Marriage. [9] Mr Brown and Ms Marriage’s argument that Bath did not explain why he took the contracts away does not show any error by the learned Magistrate. Mr Bath denied taking the contracts away.5 The learned Magistrate noted that the deletion of the penalty clause and the insertion of a wet weather clause were particularly crucial to Ms Marriage, as she indicated she had had experience with these things.6 He could not understand, in those circumstances, why Ms Marriage did not get Mr Bath 2 QCAT Act, s 142(3)(a)(i). 3 [2005] QCA 294 at [3]. 4 (1924) 35 CLR 14 at 22. 5 Transcript page 1-11, lines7-8. 6 Transcript page 1-19, lines 20-23. -- 3 of 5 -- 4 to initial these crucial changes.7 Even if there was uncontradicted evidence that Bath did take the contracts away, that evidence would not affect the learned Magistrate’s findings. [10] Those findings are also an answer to Mr Brown and Ms Marriage’s argument, that the independent witness did not give evidence – that person witnessed only one of the contracts - that evidence would still not explain why Mr Brown and Ms Marriage did not ensure that both versions of the contract were altered and signed. [11] The phrase ‘honest but mistaken belief’ is more commonly used in criminal law. In matters of contract, there are three types of mistake that may void a contract. The first is mutual mistake; the parties have consensus but they are mistaken as to some fact, or, contractual assumption, that lies at the basis of the contract. That is not the sort of mistake that Mr Brown and Ms Marriage say occurred. Mr Brown and Ms Marriage argue that the parties did not have consensus. [12] The second is unilateral mistake. The principles which govern an application for rectification of a contract on the ground of unilateral mistake are: If (1) one party, A, makes an agreement under a misapprehension that the agreement contains a particular provision which the agreement does not in fact contain; and (2) the other party, B, knows of the omission and that it is due to a mistake on A's part; and (3) lets A remain under the misapprehension and concludes the agreement on the mistaken basis in circumstances where equity would require B to take some step or steps, depending on those circumstances, to bring the mistake to A's attention; then (4) B will be precluded from relying upon A's execution of the agreement to resist A's claim for rectification to give effect to A's intention...8 [13] The test is an objective one. The learned Magistrate had a copy of a simple agreement that both parties had signed. There was no evidence before the learned Magistrate that Bath knew its version of the contract was not the same as Mr Brown and Ms Marriage’s version of the contract. As the learned Magistrate observed, Mr Brown and Ms Marriage had the ability to ensure that both versions of the contract were the same but they did not take that step. [14] The third type of mistake is non est factum; a party was misled into signing a document essentially different from the document he intended to sign. Once again, the evidence does not support a finding that Mr Brown and Ms Marriage were misled into signing Bath’s version of the document. They had the opportunity to change both versions of the contract. They did not. [15] The contract provides, in clause 6.4, that the house was sold ‘as it stood’. Clause 6.6 provides that the purchaser, that is Mr Brown and Ms Marriage, has the responsibility to comply with all notices, requisitions and requirements. Therefore, Mr Brown and Ms Marriage had to obtain 7 Transcript page 1-19, lines 23-25. 8 Leibler v Air New Zealand Ltd [1999] 1 VR 1. -- 4 of 5 -- 5 Council consent, not Bath. Even on Mr Brown and Ms Marriage’s version of the contract, Bath’s obligation was limited to paying for, not obtaining, the necessary permits. If there was a delay in obtaining the permit, it was Mr Brown and Ms Marriage’s delay, and it is not evidence that Bath considered time not of the essence. [16] Mr Brown and Ms Marriage’s last submission is unclear – Bath did insist on the inclusion of the penalty clause – by inserting it into the contract that both parties signed. It did not initial the deletion of the clause in Mr Brown and Ms Marriage’s version. [17] The learned Magistrate carefully considered the material which was before them. The findings that they made were open on the evidence. There is no reasonably arguable case that the learned Magistrate erred. Leave to appeal should be refused. -- 5 of 5 --