Fair Developments Pty Ltd v Council of the Shire of Noosa [1991] QSCFC 66

xVoVV 10 IN THE SUPREME COURT OF QUEENSLAND “ ;SC; :7P f FULL COURT BEFORE: Mr. Justice Demack Mr. Justice Thomas Mr. Justice Mackenzie BRISBANE, 28 JUNE 1991 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter, Court Reporting Bureau.) 20 30 BETWEEN : FAIR DEVELOPMENTS PTY . LTD. (Plaintiff) -and- COUNCIL OF THE SHIRE OF NOOSA (Defendant) No. Appellant Respondent 2817 of 1989 BETWEEN: 40 COUNCIL OF THE SHIRE OF NOOSA (Plaintiff) -and- FAIR DEVELOPMENTS PTY. LTD. (Defendant) Respondent Appellant 50 60 •• ? 6 SEP ig g j f ... ........... No. 2008 of 1989 OG. 30 JUDGMENT MR. JUSTICE DEMACK: In this appeal I have reduced my reasons to writing which I now publish. In my opinion the appeal should be dismissed with costs, 'including reserved costs. I publish my reasons. MR. JUSTICE THOMAS: I agree the appeal should be dismissed with costs, including reserved costs. I publish my reasons. MR. JUSTICE MACKENZIE: I agree the appeal should be 40 50 Govt. Printer, Old. 60 [1991] QSCFC 66 -- 1 of 15 -- ] 10 20 30 40 50 60 1 10 20 30 40 50 60 dismissed with costs, including reserved costs. I agree with the reasons published by my brother Demack. Govt. Printer, Qld. 2 -- 2 of 15 -- IN THE SUPREME COURT M, OF QUEENSLAND FULL COURT Writ No. 2008 of 1989 BETWEEN : FAIR DEVELOPMENTS PTY.LTD. (Plaintiff) Appellant AND : COUNCIL OF THE SHIRE OF NOOSA (Defendant) Respondent Writ No. 2817 of 1989 BETWEEN : COUNCIL OF THE CITY OF NOOSA (Plaintiff) Respondent AND : FAIR DEVELOPMENTS PTY.LTD. (Defendant) Appellant DEMACK J THOMAS J MACKENZIE J Reasons for Judgment delivered by Demack J and Thomas J on 28 th June, 1991. Mackenzie J concurring with the reasons of Demack J. All concurring as to the orders . "APPEAL DISMISSED WITH COSTS INCLUDING RESERVED COSTS ." -- 3 of 15 -- -- 4 of 15 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT No. 2008 of 1989 Before the Full Court Mr. Justice Demack Mr . Justice Thomas Mr. Justice Mackenzie BETWEEN: FAIR DEVELOPMENTS PTY . LTD. (Plaintiff) Appellant AND: COUNCIL OF THE SHIRE OF NOOSA (Defendant) Respondent No. 2817 of 1989 BETWEEN : COUNCIL OF THE SHIRE OF NOOSA (Plaintiff) Respondent AND: FAIR DEVELOPMENTS PTY. LTD. (Defendant) Appellant JUDGMENT - DEMACK J. Delivered the 28th day of June, 1991. CATCHWORDS: Contract - Management agreement - Protracted negotiations - terms of concluded contract - Pleadings Counsel: Mr. R. Wensley for appellant Mr. R. Mack for respondent Solicitors: N.R. Barbi for appellant Wakefield Sykes for respondent Hearing date: 5th June, 1991 -- 5 of 15 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT No. 2008 of 1989 BETWEEN: FAIR DEVELOPMENTS PTY. LTD. (Plaintiff) Appellant AND: COUNCIL OF THE SHIRE OF NOOSA (Defendant) Respondent No. 2817 of 1989 BETWEEN: AND: COUNCIL OF THE SHIRE OF NOOSA (Plaintiff) FAIR DEVELOPMENTS PTY. LTD. (Defendant) Respondent Appellant JUDGMENT - DEMACK J. Delivered the 28th day of June, 1991. This is an appeal from the decision of G.N. Williams J. in two actions which were heard together. In action 2008 of 1989, Fair Developments Pty. Ltd. ("Fair") sought specific performance of a management agreement allegedly made between it and Noosa Shire Council ("the Council"). That action was dismissed. In action 2817 of 1989, the Council contended that Fair had remained in occupation of certain land, notwithstanding notice given by the Council that it vacate the land. Orders were made requiring Fair to vacate. -- 6 of 15 -- 2 The land in question is situated on the Noosa River. ,, It is . a reserve for camping and recreational purposes ("the reserve") under the control of the Council, as trustee. The Council operated a caravan park on the land for a number of years. In 1985 the Council decided to call tenders for the right of private management of the caravan park. The tender documents comprised tender specifications, general conditions of tender, a plan of the management area, a draft management agreement, statistics and a form of tender. The tender specifications included the following:- " THE PROPOSAL Council presently owns as trustee for camping and recreation, land described in 1 and 2 above on which the Munna Point Caravan Park is situated. It is Council's intention to cease direct management and operation of this Caravan Park and to enter into an agreement with the successful tenderer who will assume responsibility for the day to day management of the Park. Applicants are invited to submit tenders for the right to operate and manage the Caravan Park in accordance with these specifications, general conditions of tendering and the Agreement to be entered into which will be substantially in the form of the draft Agreement attached hereto (refer Appendix B). Council owns an onsite Mobile Home which will be made available for use by the successful tender." The draft management agreement was a 23 page document. It incorporated a survey plan of the reserve. Part of that area, said to be delineated in red, was described as "the management area". However the plan included in the tender documents (ex. 2) and stamped with Fair's seal was not marked in red. Fair was the successful tenderer. The human face of Fair was Mr. and Mrs. Stagg, and they took up duties in February 1986. Thereafter, they managed the caravan park, received the rents riiu adieu -- 7 of 15 -- 3 paid by occupiers and paid the fee to the Council in accordance with the tender. However, no written management agreement was ever signed, although seven different "agreements", unsigned or signed only by one party, were tendered in evidence. Eventually in June 1989, Fair commenced an action for specific performance of an agreement which it contended was embodied in ex. 42, one of the seven. The statement of claim pleaded the agreement in this way:- "5. The said agreement was made partly in writing and partly orally, and was made in or is to be inferred from: (a) the defendant's 1986 invitation to tender, including a form of management agreement; (b) the plaintiff's tender; (c) conversations between Mr. Stagg, on behalf of the plaintiff and Mr. Philpott> on behalf of the defendant on or about 4th February 1986; (d) the defendant's letter of 20th February 1986; (e) the plaintiff's solicitors' letter of 8th May 1986 with a form of 1986 management agreement enclosed; (f) the defendant's letter of 19th May 1986; (g) a form of the management agreement furnished by the defendant to the plaintiff on or about 11th June 1986; ’ (h) the plaintiff's solicitors' letter of 11th ' June 1986; (i) the plaintiff's solicitors' letter of 4th August 1986; (j) the plaintiff's solicitors' letter of 24th September 1986; (k) the plaintiff's solicitors' of 22nd June 1987; -- 8 of 15 -- 4 *.... (1) the ^defendant's 4 letter, of » 9th ^September 1987; (m) the plaintiff's solicitors' letter of 7th October 1987; (n) the defendant's letter of 22nd October, , 1987; (o) the defendant's letter of 6th November 1987; (p) the plaintiff's solicitors' letter of 12th November 1987; (q) the defendant's letter of 30th November 1987; (r) a meeting between Mr. & Mrs. Stagg, on behalf of the plaintiff, and officers of the defendant in early January 1988; (s) the defendant's letter dated 15th January 1988. 6. The management agreement was subsequently varied by agreement between the parties, which variation is recorded in letters passing between the parties dated 25th October and 2nd November 1988 and 12th and 13th April 1989. 7. It was a term Of the management agreement that the terms of the agreement would be recorded in a formal written instrument, which would be executed by both parties . 8. The plaintiff prepared a formal written instrument recording the terms of the management agreement as varied, executed the instrument and, under cover of the plaintiff's solicitors' letter of 18th April 1989, submitted it to the defendant for execution by the defendant. 9. By its letter dated 28th April 1989 the defendant refused to execute the instrument recording the management agreement submitted by the plaintiff." The trial before Williams J. involved the tendering of a substantial number of letters, as well as the seven "agreements", through the Council's Deputy Shire Clerk. The Shire Clerk also gave evidence as did the Council's Accountant. Mr. Kennedy, the Assistant Work's Engineer, also gave evidence about discussions -- 9 of 15 -- 5 with Mr. and Mrs. Stagg in June 1988 concerning the stockpiling of sand. Surprisingly, not all the letters set out in para. 5 of the statement of claim were tendered. Mr. Philpott and Mr. and Mrs. Stagg did not give evidence. The issue upon which Fair concentrated was the stockpiling of sand on the management area. This was said to be a new issue introduced in June 1988. Mr. Kennedy gave evidence of an agreement he said he reached with Mr. and Mrs. Stagg. Thereafter the Council wanted a clause in the management agreement about the matter. Williams J. found there was no concluded agreement embodied in ex. 42. On appeal, Mr. Wensley argued for the appellant that there was a concluded agreement expressed in the letter of 15th January 1988, the last document referred to in para. 5 of the statement of claim. He had not appeared at the trial, and he mounted an attractive argument, demonstrating that by 15th January, 1988 there were wide areas of agreement. However, he could not take the argument to the point required by the statement of claim. Exhibit 42 has a plan of the relevant land which indicates that the management area covers the whole of the reserve. The form of management agreement referred to in para. 5(g) of the statement of claim (ex. 4) includes a plan which shows the management area to be only part of the reserve, albeit a substantial part. Of the documents tendered in evidence, only ex. 4, among the documents referred to in para. 5, delineates the part of the reserve referred to as the management area. Thus, -- 10 of 15 -- 6 if there was a concluded agreement within the ;documents.i,listed-~e^&©j^u in para. 5, it was in respect of a different management area from . that in ex. 42. Also ex. 42 provides for a management period of two years from February 1988, with an option in cl. 12.10 for another two years. Exhibit 4, to which I have referred, provides a management period of two years from February 1986, with the option of another three years. Thus the period allowed for in ex. 42 is longer than that found in the documents itemised in para. 5 of the statement of claim. It seems to me that these two basic matters are fatal to Fair's claim. I have not referred to the reasons for judgment of Williams J. which deal in considerable detail with the other documents referred to in the statement of claim. In my opinion, His Honour has analysed these documents correctly. There never was a point at which all the issues, which the parties sought to reduce to writing, were mutually agreed. This does not mean that - there was not a series of binding agreements about the fees to be charged or the payments to be made by Fair or the charges to be met by Fair. It simply means that ex. 42 did not embody the matters on which they had agreed. The appeal should be dismissed with costs. -- 11 of 15 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT Before the Full Court Mr. Justice Demack Mr. Justice Thomas Mr. Justice Mackenzie BETWEEN: AND: BETWEEN: AND: NO. FAIR DEVELOPMENTS PTY. LTD. (Plaintiff) COUNCIL OF THE SHIRE OF NOOSA (Defendant) No. COUNCIL OF THE SHIRE OF NOOSA (Plaintiff) FAIR DEVELOPMENTS PTY. LTD. (Defendant) JUDGMENT - THOMAS J. Delivered the 28th day of June, 1991. CATCHWORDS : Appeal - Ground not taken below Counsel: R. Wensley for appellant R. Mack for respondent Solicitors: N.R. Barbi for appellant Wakefield Sykes for respondent 2008 of 1989 Appellant Respondent 2817 of 1989 Respondent Appellant Hearing date: 5th June, 1991. -- 12 of 15 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT BETWEEN: AND: BETWEEN: AND: No. 2008 of 1989 FAIR DEVELOPMENTS PTY. LTD. (Plaintiff) Appellant COUNCIL OF THE SHIRE OF NOOSA (Defendant) Respondent No. 2817 of 1989 COUNCIL OF THE SHIRE OF NOOSA (Plaintiff) Respondent FAIR DEVELOPMENTS PTY. LTD. (Defendant) Appellant JUDGMENT - THOMAS J. Delivered the 28th day of June, 1991. I agree with the reasons proposed by Demack J. The relief sought by the plaintiff (appellant) was: "(i) by way of specific performance of the management agreement as varied, an order that the defendant execute and return to the plaintiff the form of management agreement submitted under cover of the plaintiff's Solicitor's letter dated 18th April 1989;" That is a reference to ex. 42 which was the final document based on the facts pleaded in paras. 4-8 of the statement of claim. Upon the appeal Mr. Wensley for the appellant conceded that he could not support any alleged final agreement to the -- 13 of 15 -- 2 effect of ex. 42. Instead he submitted that an agreement had been reached between the parties evidenced by the respondent's letter of 15th January, 1988, and that nothing that happened thereafter could take away its validity. He submitted that it was "pleaded" in para. 5 of the statement of claim. It is true that that document was mentioned (along with many others) in para. 5, but it was never pleaded as an agreement in its own right, and the plea of subsequent variation of the composite management agreement further emphasises that no such case was made at the trial. Quite simply, no such case was made or litigated. The notice of appeal sought the setting aside of the order of the learned trial Judge, and a substitution of the order sought in the statement of claim. The impossibility of the appellant's situation in relying upon such an argument was underlined when Mr. Wensley submitted that if the court upheld his argument some different form of relief than that framed in the notice of appeal would have to be formulated. Were different relief based upon a different contract to have been suggested at trial, significant amendment would have been required, and it is by no means certain that the same evidence would have been led. If the statement of claim had been amended to allow reliance to be based upon that particular letter, further defences may have been pleaded such as mutual rescission. The submission that because the respondent's letter of 15th January, 1988 was mentioned in para. 5 of the statement of claim it was open to His Honour to find a concluded bargain in terms of such letter and to give relief -- 14 of 15 -- upon it, should be rejected. No such question was litigated and it cannot be raised now. No other basis was suggested that could justify the setting aside of the decision of the learned trial judge. Accordingly the appeal should be dismissed with costs, including reserved costs. 3 -- 15 of 15 --