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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Wright v Milne & Anor  QCATA 144
ERIN EDITH PATRICIA WRIGHT (t/a ATLAS HOUSE REMOVERS AND RESTUMPING)
DAVID MILNE and GIULIA CHIODO
ORIGINATING APPLICATION NO:
MCDO484 of 2019 Beenleigh
16 October 2019
On the papers
Dr J R Forbes, Member
APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – house removal and repositioning – where purchaser required to clear access to new site – where cost of providing access unexpectedly and substantially increased – where purchaser seeks to cancel contract and recover deposit moneys – where vendor – removalist accepts cancellation of order but claims costs of storage of dismantled house – where costs claimed by vendor exceed amount of deposit – whether vendor entitled to storage costs for extended period claimed – whether storage costs term remains in force notwithstanding vendor’s acceptance of cancellation – whether contract may simultaneously negated and affirmed – where claim for storage costs up to time of cancellation of purchase allowed – where vendor’s appeal allowed in part
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 142
Davis Contractors Ltd v Fareham Urban District Council  AC 696.
Scottish Navigation Co Ltd v W A Souter & Co  1 KB at 249
Scanlan’s New Neon Ltd v Tooheys Ltd (1943) 67 CLR 169
Hillcrown Pty Ltd & Anor v O’Brien & Anor  QCA 129
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
- Queensland’s traditional timber houses can survive removal, dissection, repositioning and redecoration on another site. That is a thriving trade, and it is the business of the intending appellant Erin Wright (trading as Atlas House Removers) (hereinafter `Atlas’).
- On 16 June 2016 Atlas made an agreement in writing to sell a dismantled house to David Milne and Giulia Chiodo (`Milne’), and to transport it to Flying Fox, near Beechmont, (`the site’) and reposition it there for a total payment of $80,000.
- In unnumbered clauses the agreement materially provided:
This quotation is subject to satisfactory site inspection by [Atlas] allowing for unhindered access for exit and entry requirements.
[Milne] is responsible for providing a clear thoroughfare for the transportation of the house, including but not limited to vegetation works and roadside furniture.
If the house is currently in storage and the client fails to obtain the necessary council approvals within 90 days of the date of this contract a charge of $165 per week shall apply for each week or part that the house is stored at the storage facility.
This quotation becomes a firm contract upon the purchaser signing the original and returning the same to [Atlas] ...
- Following an inspection of the site by Atlas the parties agreed that a particular tree would have to removed to allow the house (in two sections) to be put in position. Milne applied to the local authority for a permit to remove the tree. The local authority issued a permit for that purpose on 11 November 2016. Removal of the tree would cost Milne $2,375. The cost of the proposed further clearance is not stated.
- However, in or about late March 2017 Atlas required the removal of additional trees at Milne’s expense. `That [tree is] the least of your problems’, Milne was then told, `we need it 10 metres wide’. Atlas was not satisfied with the site inspection; a condition precedent was not fulfilled.
- Alternatively, for access purposes, Atlas offered to cut the house into three parts instead of two. In that case the additional cost to Milne would be $15,000.
- Milne’s reaction was immediate:
- A few minutes later he repeated that statement to Erin Wright, the proprietor of Atlas:
It was only supposed to be the one tree when you first came around. Now, it’s the whole embankment ...
- That evidence is not disputed.
Milne seeks cancellation
- According to Milne he followed up his original `cancellation’ in several telephone messages to the Atlas office in April 2017, seeking a return of his $20,000 `deposit’, but received no reply.
- On 19 May 2017 Milne repeated his `cancellation’ and requested a refund, this time in writing. On 22 May 2017 he sent a copy of the same letter to Atlas by registered post. He received no reply.
- To date, no part of the $20,000 deposit has been refunded. Atlas claims that it is offset – or more than offset – by storage charges amounting to $22,275.
- On 25 July 2917 Milne commenced these proceedings, claiming $20,000 as moneys had and received.
- Some 18 months later, on 14 January 2019, Atlas filed a cross-claim for $22,275 plus costs, alleging that the subject house remained stored at Atlas’ premises for a period of 135 weeks.
- Subsequently the claim and cross-claim were consolidated, so that Atlas’ proceedings formally became a counterclaim.
Hearing and decision
- The hearing took place on 13 February 2019, when the Tribunal awarded Milne $22,761 including costs and interest, and dismissed the counterclaim. In the course of his extempore decision the learned Adjudicator observed:
This contract is a contract which is subject to and conditional upon the parties finding out whether or not it can be achieved. ... When it was discovered that the contract in its form could not be achieved that was the end of the contract, and it was validly terminated by Mr Milne. It was terminated orally, because he told them he did not want to proceed and he could not afford the extra money, and it was terminated in writing because he wrote in April  advising of the cancellation, advising why. ... [Atlas] enters into a contract that cannot be achieved ....
- And further:
Ms Leeson who’s an honest witness, said, `Yes, the deposit’s got to go back’ ... and that was the discussion that was had on the day, but she [adds] `Just a minute, there could be some costs. Well, there could have been a discussion about costs in 2017. There wouldn’t have been any holding fees, or it [sic] might have been minor ... The whole of the money has now been held since 2017 to 2019, and Ms Wright thinks by doing that and not answering any correspondence she can charge $22,935 in holding fees. That just not bear any logic whatsoever.
- While Ms Wright asserted that Milne’s transfer of $20,000 was a part payment, not a deposit, she accepted in principle that it was refundable:
I said to Mr Milne, I’m happy to give him a refund less ... our holding fees.
- Notably, there was no insistence on completion of the contract, or damages for Milne’s refusal to proceed.
- The ratio of the Tribunal’s decision is not entirely clear. While the expression `frustration of the agreement’ is not explicitly used, the Adjudicator seems to have had that doctrine in mind: `When it was discovered that the contract in its form could not be achieved that was the end of the contract’.
- The doctrine of frustration involves a change of essence, not merely a matter of degree. It occurs when an event occurs that makes performance of a contract something fundamentally different from that anticipated by the parties. Essentially it is the implication of a term that the transaction will end when `it is impossible to hold that reasonable men could have contemplated that event ... and entered into the bargain’. The test is not the subjective hindsight of a party, but the objective test of the hypothetical reasonable man – a concept familiar to aficionados of the expansive law of negligence.
- Absent a special term setting a limit to the cost of clearing required, I am unable to see that an increase in that respect can reasonably be seen as resulting in a fundamental or radical difference to the subject agreement. The event, if not foreseen, was foreseeable.
- However, it is interesting to consider the conduct of Atlas after Milne told it, in or about May 2017, that he was `cancelling’ the agreement because he could not afford another $15,000 to clear more trees or to have the house further dissected.
Having it both ways? – negation yet affirmation
- Curiously Atlas purports to negate and (in part) affirm the agreement. There was no insistence on performance or payment for the entire contract. Only the term relating to `storage’ of the house, it was suggested, would remain alive. It is questionable that Milne was strictly entitled to withdraw from the agreement, but it is unnecessary to pursue that matter because the principal of Atlas, Ms Wright, told Milne that she was `happy to give him a refund less my cost (unspecified) ... and our holding fees’. And Wendy Leeson, Atlas’ office administrator, testified:
Our conversation when we were doing the contract was the fact [sic] that they were paying the deposit ... and they at that time said, `What will happen if we don’t go to fruition?’ And I said, `Well, you’ll be responsible for any costs that have been incurred. We don’t just give the deposit back’. ... I didn’t put that correctly. `You will be responsible for any costs’.
Adjudicator: So you made it clear to them that ... they didn’t just get the money back, that any costs that had been incurred would be to their account?
Adjudicator: And the balance would be returned to them?
If there was a balance.
- This ambiguous attitude of Atlas is reflected in the framing of its case when the long delayed counterclaim was filed in January 2019. Its pleading does not seek to recover the full price of the agreement ($80,000), but only storage charges `for a period of 135 weeks at $165 per week or part thereof ... the sum of $22,275’.
- There is no claim for the unspecified `costs’ earlier mentioned by Ms Wright and Ms Leeson, and any question that storage charges are still accruing is left in the air. By the date of the counterclaim the amount of those charges demanded had already eroded Milne’s deposit of $20,000. Otherwise the contract was abandoned. It may reasonably be inferred that on assessment of Milne’s financial position, or for some other reason, Atlas was content to terminate the contract, provided that `holding charges’ eventually absorbed the deposit that it was determined to retain.
- Just when the holding charges would cease to run is unclear. According to Atlas’ logic, they continued for at least 2 years and 31 weeks and, on that rationale they may accrue until the house s sold. It was advertised for resale in September 2017 but there is no evidence of efforts to sell it, or of when, if ever, it was resold.
- Milne withdrew from the agreement in late March or April 2017, and confirmed that position in writing on 19 May 2017. Atlas accepts that since then (storage aside) the agreement was at an end; Ms Wright was `happy’ to give Milne a refund, and her colleague Ms Leeson agrees. At the same time Atlas maintains that the storage-charges remain alive, if not indefinitely, then until January 2019 at least. But Atlas having decided, correctly or incorrectly, that the house transaction would not proceed, and that the deposit would be repaid, justice required that the refund be made without two years’ and 31 weeks’ delay, lending colour to a huge claim for storage. Thus was removed with one hand what Wright was `happy’ to give with the other.
- An agreement cannot be at once terminated and selectively affirmed. In the words of the Adjudicator, `it does not bear one moment of logic’.
- Difficult as it is to construe the ambiguity of Atlas’ case, it transpires that the sale and purchase were abandoned no later than May 2017. It follows that storage charges began, after 90 days’ grace, in mid-September 2016 and continued until mid-May 2017, a period of 8 months. Incidentally, it is by no means clear that the `days of grace’ apply even if the contract is not completed. However, Ms Wright affirmed that they did. I accept that statement contra proferentem, as did the Adjudicator.
- At the rate of $165 per month, the total charge for 8 months is $1,320. When that amount is deducted from the $22,761 previously awarded the balance of the deposit repayable to Milne is $21,441. There will be judgment for Milne in that amount.
- The appeal by Atlas is allowed, but only to the extent stated in Order 2.
- The order that Atlas pay Milne the sum of $22,761 is set aside, and in lieu thereof it is ordered that Atlas pay Milne the sum of $21,441 within 14 days of this order.
- There is no order as to costs.
 Leave is a prerequisite in cases of the present kind: QCAT Act s 142(3)(a)(i).
 See eg Transcript of hearing 13 February 2019 (`T’) at pages 3, 34, 43, 46, 47, 53, 55, 56, 57, 59, 60, 61,
 T page 46 at lines 41 and 45.
 As in fact it was.
 The council was prepared to pay 50% of the total cost, namely $4,750.
 T page 6 line 39 (Wright).
 Apparently Milne’s parents agree with Milne to finance his house-moving project.
 T page 26 lines 15-16, 20 (Milne).
 T page 26 lines 18-20.
 Letter Milne to Atlas 28 April 2017.
 T page 62 lines 11-36.
 An Atlas employee.
 Scil in late March or early April 2017, when Milne first informed Atlas that he could not afford an
 Proprietor of Atlas.
 T page 63 lines 16-24.
 T page 54 lines 21-22.
 Davis Contractors Ltd v Fareham Urban District Council  AC 696 at 723 (`the emergence of a
fundamentally different situation’), 729 (`a thing radically different’).
 Scottish Navigation Co Ltd v W A Souter & Co  1 KB at 249, cited with approval in Scanlan’s New
Neon Ltd v Tooheys Ltd (1943) 67 CLR 169 at 198; Hillcrown Pty Ltd & Anor v O’Brien & Anor  QCA 129 at .
 Hillcrown Pty Ltd & Anor v O’Brien & Anor, above at .
 T page 54 lines 21-22.
 Annexure to counterclaim filed 14 January 2019 paragraphs 17-18.
 T page 54 line 23 (Wright).
 T page 54 line 21.
 T page 62 line 34.
 T page 55 lines 34-35.
 T page 61 line 44.
- Published Case Name:
Wright v Milne & Anor
- Shortened Case Name:
Wright v Milne
 QCATA 144
Dr J R Forbes, Member
16 Oct 2019