- Unreported Judgment
- Appeal Determined (QCA)
COURT OF APPEAL
ANN LYONS J
Appeal No 2586 of 2015
DC No 2200 of 2014
URBAN HOMES PTY LTD Applicant
ACN 095 093 208
NERISSA EMMETT Respondents
THURSDAY, 20 AUGUST 2015
FRASER JA: The applicant builder sued the respondents in the Magistrates Court for liquidated and general damages pursuant to provisions of a building contract. The respondents contended they had brought the contract to an end, pursuant to a provision which made the contract subject to finance. The issues included whether the contract was subject to the respondents obtaining the necessary finance, and if so, by what date. The Magistrate dismissed the applicant’s claim. That decision was affirmed on appeal to the District Court.
The applicant applies for an extension of time within which to apply for leave to appeal from the decision in the District Court. The respondents accept that the delay is not substantial and is explained. The application is opposed only upon the ground that the proposed appeal lacks merit. Because the decision of the primary judge was given on appeal, the proposed appeal to this Court is not by way of rehearing, and the Court has no power to draw inferences which are inconsistent with the findings below. See District Court of Queensland Act 1967, sections 118(3) and 119(1), and see Gobus v Queensland Police Service  QCA 172.
At least on one view, the proposed appeal is limited to questions of law. See Gobus at  and Commissioner of Police v Al Shakarji  QCA 319 at . Presumably with that authority in mind, the applicant contends only for errors in law in the District Court. There are two suggested legal errors. The first suggested error is described in the draft notice of appeal as follows: “By not following the decision of the Supreme Court in Plummer v GPD Marina Village  QSC 9 to the effect that, as a matter of law, the entering into a contract which possesses a date for finance, the performance of which pre-dates a contract, results in a concluded agreement making no provision for finance.”
In argument, the solicitor for the applicant confirmed that the applicant’s contention was that Plummer v GPD Marina Village Pty Ltd established that entry into a contract with a subject of finance clause which has a date for notification of finance which precedes the date of the contract results, as a matter of law, in the contract not being subject to finance. Reference to Justice Cullinane’s reasons in Plummer confirms the absence of such a startling proposition.
In Plummer, the argument was that the date for finance having predated the contract, the Court should imply that finance was to be obtained within a reasonable time, which, in the circumstances of that case, should be taken to be any time until the completion date. Justice Cullinane rejected the argument, finding that it was not possible to accept such an implication because, in his Honour’s words, “It would, on the evidence before me be an uncommercial term.”
It would be difficult to make it clearer that the decision turned upon the evidence in the particular case.
The primary judge endorsed the decision of the Magistrate that this case was distinguishable from Plummer. One ground of distinction mentioned by the primary judge was that, in the present matter, building would not commence until finance had been approved and the deposit paid, so that the contract would not be completed until some undetermined date. Another ground of distinction was that, in this case, the contract provided “yes” in answer to a question whether the contract was conditional upon obtaining finance, a provision which conflicted with the expired date in the finance clause.
The primary judge referred to other evidence, and found an implication that finance was to be obtained within a reasonable time, which the primary judge specified. That was an entirely conventional process of reasoning. The proposition in this ground of appeal, that Plummer established a legal doctrine independent of the evidence in the particular case, is manifestly unsustainable.
The second ground of the proposed appeal is that the primary judge erred in law by failing to find that the Magistrates Court did not provide adequate reasons for its decisions. As the respondents pointed out, the applicant’s argument was, instead, that the reasons given by the Magistrate were insufficient. Furthermore, the proposed ground of appeal involves a misconstruction of the primary judge’s reasons. The primary judge found that the reasons of the Magistrate were insufficient, because the Magistrate did not discuss and apply the test for implying terms. The primary judge identified the appropriate test by reference to the High Court’s decision in BP Refinery (Westernport) Proprietary Limited v Shire of Hastings (1977) 180 CLR 266, and went on to consider the evidence for himself. Having performed that exercise, the primary judge was satisfied, for himself, that there was an implied term that finance was to be obtained by 19 May 2011. The primary judge concluded that “… despite the learned Magistrate not giving reasons by reference to the tests in BP Refinery applying those tests on the facts found by the learned Magistrate, as both parties intended the contract be subject to finance it is reasonable and equitable to imply a term that finance was to be approved by 19 May 2011.”
That implication was “necessary to give business efficacy to the contract and was necessary for the contract to be effective.” The implied term “goes without saying”. It was “capable of clear expression and does not contradict any express term of the contract” and “on the evidence” 19 May 2011 was the appropriate date. The primary judge found that the applicant’s submission that the parties had made a contract which was not subject to finance was “contrary to the evidence accepted by the learned Magistrate.”
The second ground of the proposed appeal therefore lacks merit because the finding it attributes to the primary judge was not made and because the primary judge decided the issues on the evidence.
I would add that there is, in any event, no sufficient basis for granting leave to appeal. Assuming, as was argued, that the contract was in a standard form, this case was decided upon its own peculiar facts. Notwithstanding Plummer and this case, it must surely be very unusual for a contract in this form to include a finance clause which specifies a past date for obtaining finance.
The applicant should not be permitted a third opportunity to litigate its claim. I would refuse the application for an extension of time within which to apply for leave to appeal.
GOTTERSON JA: I agree.
ANN LYONS J: I agree.
- Published Case Name:
Urban Homes Pty Ltd v Emmett
- Shortened Case Name:
Urban Homes Pty Ltd v Emmett
 QCA 150
Fraser JA, Gotterson JA, A Lyons J
20 Aug 2015
|Event||Citation or File||Date||Notes|
|Primary Judgment|| QDC 282||12 Dec 2014||QDC|
|Notice of Appeal Filed||File Number: 2586/15||13 Mar 2015||DC2200/14|
|Appeal Determined (QCA)|| QCA 150||20 Aug 2015||-|