Hookham Constructions Pty Ltd v Lindemann
[2013] QCA 274
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Appeal Determined (QCA)
- Hookham Constructions Pty Ltd v Lindemann[2013] QCA 274
- Add to List
Hookham Constructions Pty Ltd v Lindemann[2013] QCA 274
Hookham Constructions Pty Ltd v Lindemann[2013] QCA 274
SUPREME COURT OF QUEENSLAND
CITATION: | Hookham Constructions Pty Ltd v Lindemann [2013] QCA 274 |
PARTIES: | HOOKHAM CONSTRUCTIONS PTY LTD ACN 108 463 501 as trustee for the HOOKHAM FAMILY TRUST |
FILE NO/S: | Appeal No 9866 of 2012 DC No 558 of 2012 |
DIVISION: | Court of Appeal |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | District Court at Brisbane |
DELIVERED ON: | 24 September 2013 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 5 April 2013 |
JUDGE: | Fraser JA and Daubney and Peter Lyons JJ Separate reasons for judgment of each member of the Court, Fraser JA and Daubney J concurring as to the order made, Peter Lyons J dissenting |
ORDER: | Appeal dismissed with costs. |
CATCHWORDS: | CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – FORMATION OF CONTRACTUAL RELATIONS – MATTERS NOT GIVING RISE TO BINDING CONTRACT – VAGUENESS AND UNCERTAINTY – where both the director of the appellant and respondent signed their names to a handwritten note that the appellant purported, together with an oral agreement, included details of an arrangement for the sale of a property owned by the respondent – where the appellant argued that the trial judge had erred in not finding an agreement for the sale of the property had taken place on 30 July 2011 – where the appellant contends that the learned trial judge misunderstood its basis for formation of the contract, as being one which was partly oral, partly written and partly evidenced by conduct – whether a contract was formed at the meeting of 30 July 2011 APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – POINTS AND OBJECTIONS NOT TAKEN BELOW – GENERALLY – where the appellant sought to advance a case on appeal that was quite different from the case advanced at trial – whether by allowing the appellant to advance their case in that way would deny the respondent the opportunity to test the efficacy of alleged contractual documents – whether the general rule that the appellant is bound by the conduct of the case below is applicable Alford v Ebbage [2004] QCA 283, cited Auerbach v Nelson [1919] 2 Ch 383, cited Basma v Weekes [1950] AC 441, cited Bennett v Stewart [2008] QSC 20, considered Carmichael v National Power plc [1999] 1 WLR 2042; [1999] UKHL 47, cited Carr v Lynch [1900] 1 Ch 613, considered County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193, cited Di Biase v Rezek [1971] 1 NSWLR 735, cited Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; [2002] HCA 8, cited Gibbons v Wright (1954) 91 CLR 423; [1954] HCA 17, cited Hall v Busst (1960) 104 CLR 206; [1960] HCA 84, cited Kennon v Spry (2008) 238 CLR 366; [2008] HCA 56, cited Lym International Pty Ltd v Marcolongo [2011] NSWCA 303, cited Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (2008) 237 CLR 285; [2008] HCA 48, considered Multicon Engineering Ltd v Federal Airports Corporation (1997) 47 NSWLR 631; [1997] NSWCA 214, considered Park v Brothers (2005) 80 ALJR 317; [2005] HCA 73, cited Rosser v Austral Wine & Spirit Co Pty Ltd [1980] VR 313; [1980] VicRp 33, cited Rossiter v Miller (1878) 3 App Cas 1124, cited Stokes v Whicher [1920] 1 Ch 411, cited Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35, cited Toll (FCGT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52, cited Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12, considered Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598; [2003] HCA 48, considered |
COUNSEL: | C Wilson for the appellant C C Heyworth-Smith for the respondent |
SOLICITORS: | Cartwrights Lawyers for the appellant Macrossan and Amiet Solicitors for the respondent |
- FRASER JA: I respectfully agree with Daubney J’s reasons for concluding that the appellant’s case at trial was that an oral agreement was made on 30 July 2011 between the appellant as buyer and the respondent as seller of his house and that this case was correctly rejected by the trial judge. The critical question is whether the appellant should be permitted to advance a new case on appeal that there was a contract of sale between the appellant and the respondent made partly orally, partly by conduct (the handshake and acceptance of deposit) and partly in writing (the note made on 30 July and the document executed on 31 July).
- The relevant factual findings of the trial judge were not challenged:
- On 30 July 2011 the appellant’s director, Mr Hookham, had a discussion with the respondent at the latter’s house, which was to the following effect:
“Hookham:I hear you want to sell your house.
Lindemann:Yeah.
Hookham:What have you got on it, what do you want for it?
Lindemann:$470,000.00.
Hookham:What else do you want?
Lindemann:Well I want to sell the house as is and I want 3 months to vacate the property.
Hookham:Ok, do you want to put that info down on a bit of paper or something?
Lindemann:Yeah, Ok, no worries.
Hookham:Well, just jot down what you want.”
- Mr Hookham and the respondent then signed a handwritten note which read:
“Rod Lindemann
49 415685
0409756765
l0 Lawrence St
$470,000 3 months
home as is
30/7/2011
B Hookham
R Lindemann”
- At an unidentified time on 30 July 2011, Mr Hookham told the respondent that he would get a formal contract drawn up.
- On 31 July 2011, Mrs Hookham unexpectedly arrived at the respondent’s house, bringing with her a document she had created with a photocopier. At the top of the document was a copy of the note that her husband and the respondent had signed the day before, and at the bottom of the document was a copy of the cheque which she delivered on this occasion to the respondent. The printed name of the drawer on the cheque was the appellant “As Trustee for Hookham Family Trust”, the amount of the cheque was $6,000, and the cheque was signed for the appellant by Mrs Hookham.
- The respondent gave evidence that Mrs Hookham said to him “[h]ere’s Burt’s [a reference to Mr Hookham] cheque” and handed the cheque to him; the respondent said “Okay”; Mrs Hookham said “Here is the receipt. Could you sign it, please?”.
- The respondent accepted the cheque from Mrs Hookham.
- They discussed the receipt for the deposit and Mrs Hookham wrote in a space on the document between the copies of the note and the cheque the words “received from Hookham Constructions the sum of $6,000 as deposit on sale of [the respondent’s house]. (Six thousand dollars) ………. 31.07.11”. The respondent was able to read and understand that text and to understand that the deposit was from the appellant and not from Mr Hookham. He signed on the line immediately before the date.
- The respondent banked the cheque. He subsequently attempted, without success, to repay the $6,000 and he also offered to pay $6,500 as compensation for interest.
- Mr Hookham deposed that at all times he acted as director and representative of the appellant and that he had asked Mrs Hookham to draw the $6,000 deposit cheque on the appellant’s account. Mr Hookham was not challenged on either aspect of that evidence. Mrs Hookham gave no evidence on those issues and no questions were directed to her in cross-examination about the involvement of the appellant.
- A critical question is whether, as the respondent submitted, his conduct of the trial might have been materially different if the new case had been advanced at trial. Daubney J has summarised the matters which the respondent contends might have been approached differently as follows:
“(a)Evidence from the respondent concerning his meeting with Mrs Hookham on 31 July 2011;
(b)Evidence from the respondent as to the payment of a deposit or, more broadly, his expectations as to further steps to be taken after the conversation with Mr Hookham on 30 July 2011;
(c)Evidence as to Mrs Hookham’s involvement in the drawing of the deposit cheque on the appellant company’s bank account (i.e. questions directed to the issue of the contracting parties);
(d)Evidence as to the handshake now relied as conduct evidencing agreement (i.e. was it a handshake to ‘seal the deal’ or a social gesture or greeting or farewell);
(e)Evidence as to the placement of Mr Hookham’s name on the note (Exhibit 1) (i.e. whether he affixed his signature as a contractual act or wrote his name merely to inform the respondent, and provide a record of, Mr Hookham’s name).”
- As to (a) and (b), the events of the meetings of 30 and 31 July were explored in the affidavits and in cross-examination in apparently comprehensive detail. When asked at the hearing of the appeal what further questions might have been asked of Mr and Mrs Hookham if the appellant’s new case had been advanced at trial, the respondent’s counsel posited a number of questions:
- It might have been put to the respondent that he had agreed to sell his house by a combination of what was said and done on 30 and 31 July. Presumably the respondent would have disagreed, but it is difficult to see how any responsive answer he gave would have borne upon the questions, which were questions for the court rather than any witness, whether and how any contract had been concluded.
- The respondent could have been asked whether or not the proffering of the cheque and the writing of the receipt on the second day had any bearing upon what had happened on the first day. It was, apparent from the respondent’s evidence, which was accepted by the trial judge, that the respondent had not anticipated the events of 31 July. Whether or not there was any relationship between those events was to be determined by the court by reference to what was said and done rather than by the respondent’s subjective understanding.
- Similarly in relation to (d) and (e), what mattered was what Mr and Mrs Hookham and the respondent said and did, rather than what they thought was the effect of what was said and done. There is no ground for thinking that anything of significance in relation to these issues might have emerged if the new case had been run at trial.
- That leaves (c) of the summary, evidence about Mrs Hookham’s involvement in the drawing of the deposit cheque on the appellant’s bank account. The new case on appeal involves the difference from the case run at trial that the deposit cheque drawn by the appellant and the respondent’s receipt referring to the appellant’s deposit cheque form part of the alleged contract. On that case, as on the case run at trial, there were grounds for exploring the question whether the appellant, rather than Mr Hookham was the buyer: for example, there was no mention of the appellant in the evidence of the events of 30 July, the note of that date was signed by Mr Hookham without reference to the appellant, and there was no evidence of any statement on 31 July that the appellant, rather than Mr Hookham, would be the buyer. However the identity of the buyer was not explored in any detail by either party at the trial. That is readily explicable so far as the respondent is concerned by the obvious weakness in the appellant’s case that there was no evidence of an expression of agreement in the conversation on 30 July. It is therefore not difficult to accept that if the new and stronger case had been run at the trial the respondent might have explored in much more detail the question whether the appellant was a party to any contract. For example, the respondent’s counsel might then have thought it necessary to cross-examine both Mr and Mrs Hookham on the former’s evidence – which was not corroborated by any document or otherwise – that he acted throughout on behalf of the appellant. It would therefore be wrong in principle to permit the appellant to run its new case on appeal.[1]
- I agree with Daubney J that the appellant should not be permitted to run the new case on appeal and I agree with the order proposed by his Honour.
- DAUBNEY J: On 15 February 2012, the appellant filed an originating application in the District Court of Queensland at Brisbane seeking the following relief:
“Specific performance of an agreement dated 30 July 2011, between the applicant and the respondent, for the sale of land described as Lot 15 on CP M9737, county Grosvenor parish Moranbah, title reference 50119700, situated at 10 Lawrence Street, Moranbah in the State of Queensland.”
- Directions were subsequently made to progress the proceeding to trial. Pleadings were not ordered, but the respondent was required to deliver “Points of Contention”, which he did on 25 June 2012.
- The matter came on for trial on 2 August 2012. The evidence before the trial judge was primarily on affidavit, but a number of witnesses were also called to give evidence and be cross-examined.
- On 24 September 2012, the learned trial judge gave judgment dismissing the application. The appellant now appeals against that judgment.
Background
- As at 30 July 2011, the respondent had an interest in three properties. He owned the subject property at 10 Lawrence Street, Moranbah, but was thinking of selling it because he had bought a house in Mackay to be closer to his children. He had borrowed money from his sister to purchase the Mackay property, and wanted to repay her as soon as possible. He also had an interest in the property situated at 2 Turner Court, Moranbah, which adjoins the subject property. The respondent could not sell the Turner Court property, however, because it was encumbered by a caveat protecting his estranged wife’s interest in it. In July 2011, the respondent offered the Turner Court property for rent.
- In the week commencing 21 July 2011, the respondent had a discussion with a Mrs Hughes, who ultimately rented the Turner Court property. In the course of those discussions, the respondent mentioned that he might be interested in selling both Moranbah properties. The trial judge’s unchallenged statement of facts regarding this discussion recorded:[2]
“Mrs Hughes spoke of knowing Burt Hookham and of Burt Hookham buying properties on the spur of the moment. Mrs Hughes’ husband Garry was working for Hookham Concrete Pty Ltd at the time. The applicant company, Hookham Constructions Pty Ltd is related in some way to Hookham Concrete Pty Ltd. Mr Hookham goes by the name ‘Burt’. That was the first name Mrs Hughes used when speaking of Mr Hookham to Mr Lindemann. Mr Lindemann said to Mrs Hughes, ‘Send Burt around’. Mr Lindemann had not met Mr Hookham at the time of his conversation with Mrs Hughes.”
- On 30 July 2011, Mr Hookham visited Mrs Hughes at the Turner Court property. Mrs Hughes took him next door to meet the respondent. Mr Hookham and the respondent had a discussion about the respondent’s desire to sell his properties. On the trial judge’s unchallenged findings,[3] the relevant discussion between Mr Hookham and the respondent was to the following effect:
“Hookham:I hear you want to sell your house.
Lindemann:Yeah.
Hookham:What have you got on it, what do you want for it?
Lindemann:$470,000.00.
Hookham:What else do you want?
Lindemann:Well I want to sell the house as is and I want 3 months to vacate the property.
Hookham:Ok, do you want to put that info down on a bit of paper or something?
Lindemann:Yeah, Ok, no worries.
Hookham:Well, just jot down what you want.”
- Mr Hookham and the respondent then signed their names to a handwritten note which read:
“Rod Lindemann
49 415685
0409756765
10 Lawrence St
$470,000 3 months
home as is
30/7/2011
B Hookham
R Lindemann”
- The learned primary judge also found[4] that on 30 July 2011 Mr Hookham said that he would get a formal contract drawn up, but nothing enabled the trial judge to determine whether this was said before or after the note was made and signed that day.
- On Sunday, 31 July 2011, Mr Hookham’s wife attended at the respondent’s home and met with the respondent. She presented the respondent with a cheque drawn by her on the appellant’s bank account in the amount of $6,000 made payable to the respondent. On the face of the cheque the printed name of the payer was “Hookham Constructions Pty Ltd ABN 31005494809 as trustee for Hookham Family Trust”. The learned trial judge’s findings with respect to this meeting were as follows:[5]
“[41]Mr Lindemann was not expecting a visitor that Sunday morning. There was no evidence of any advice to Mr Lindemann that Mrs Hookham would attend that Sunday with a cheque. Mr Lindemann was not expecting a deposit cheque. Asked by counsel what he thought when offered the cheque, Mr Lindemann replied:
‘Well, I went – you know, it’s firstly asking you to make up your mind there and then ... She said, “here’s Burt’s cheque”, handed it to me and I went, “Okay”, and then she said, “here is the receipt. Could you sign it, please?” I – you know, you’ve sort of got to make a snap decision.’
[42]Mr Lindemann accepted the cheque from Mrs Hookham that Sunday morning.
[43]Mrs Hookham had brought with her a document she had created with a photocopier and the cheque and the note that had been signed the day before. At the top of the photocopy was a copy of the note that Mr Lindemann and her husband had signed the day before and at the bottom was a copy of the cheque she was delivering to Mr Lindemann. Mrs Hookham intended to leave the document with Mr Lindemann, but when the two discussed a receipt for the deposit, the photocopy document was at hand so Mrs Hookham decided to use it to create a receipt. In the space between the photocopies of documents at top and bottom, Mrs Hookham’s original handwriting appears as follows:
Received from Hookham Constructions the sum of $6,000 as deposit on sale of 10 Lawrence St, Moranbah 4744. (Six thousand dollars) ................... 31.07.11
Mr Lindemann claims that Mrs Hookham’s handwriting filled the space when Mrs Hookham produced the document. I accept the evidence of Mrs Hookham that she filled the space with her handwriting while she was there. The words and figures were obvious. Mr Lindemann saw them and understood them and understood that the deposit was from the buyer and not from Mr Hookham. He signed on the line Mrs Hookham created for his signature, immediately in front of the date.”
- The learned trial judge also accepted that the respondent was not expecting a cheque that day. The respondent banked the cheque, but subsequently tried to repay the $6,000 and also offered to repay $6,500 to more than adequately compensate for interest on that sum.[6]
- On 4 October 2011, Mr Hookham delivered an REIQ contract to the respondent. The respondent deposed that he was surprised when he looked at the contract because it did not have any of the special conditions that he had requested; specifically, it did not provide him with three months to leave the property and did not specifically say that the house was to be “as is”. The form of REIQ contract did, however, provide for settlement on 31 October 2011, which the learned trial judge noted was the first business day three months after the date of the alleged oral agreement of 30 July 2011.[7]
- On 27 October 2011, the respondent contacted Mr Hookham by telephone. Whilst there was a dispute between Mr Hookham and the respondent as to the precise contents of that conversation, it was clear that the respondent wanted more money to sell the property on the basis that it was worth considerably more.
- The respondent refused to sign the contract, and the appellant then commenced the present proceeding which sought specific performance of an agreement which the appellant asserted was reached on 30 July 2011 between the applicant and the respondent. The learned trial judge noted at the commencement of his judgment:[8]
“The primary issue is whether, in a conversation about terms for a sale of a house and land, the parties reached finality in arranging all the terms of their bargain and intended to be immediately bound to the performance of those terms.”
- The respondent resisted the claim for specific performance on a number of grounds, including lack of capacity (which was addressed by psychiatric evidence put before the Court below), non est factum, lack of intention to create a legally binding relationship, and, importantly for present purposes, an argument that the conversation on 30 July 2011 did not include an agreement to sell. It is not necessary for the purposes of this appeal to traverse the contentions below with respect to matters other than the trial judge’s determination as to whether an oral agreement was made on 30 July 2011 because it is to this aspect, and only this aspect, of the case that the present appeal was directed.
- As to that issue, the learned trial judge said:[9]
“[63]The primary issue is whether the two men made an oral agreement to sell on 30 July, before they put pen to paper. The buyer bears the onus of proof that the conversation was an agreement to sell. Before one considers the issue of the sufficiency of the memoranda in writing, the buyer must first establish an agreement to sell. The memoranda of 30 and 31 July 2011 are each circumstantial evidence of what was previously said. The buyer submits: ‘When the terms of the Receipt are considered in conjunction with the evidence as to the oral agreement, it is submitted that the objective conclusion is that an agreement to sell the property was made.’ While the note and other subsequent conduct and conversations can be considered as circumstantial evidence of what was said on 30 July 2011, direct evidence of the words of the alleged oral agreement is the first evidence to examine.
[64]As the case for the buyer is that the agreement to sell was made before the first memorandum was signed on 30 July 2011, it is instructive to set out the sequence of relevant events that day. The first event on the buyer’s case was the oral agreement, by which the parties had reached finality in arranging all the terms of their bargain and intended to be immediately bound. The second was the note which, on the buyer’s case, is evidence of the prior binding oral agreement. The third was the alleged conversation about a deposit. I am not satisfied that a deposit was discussed or offered on 30 July 2011.
[65]It is not critical for determining whether the parties agreed to a sale to resolve the conflict about whether a deposit was mentioned on 30 July. Parties can make an agreement for sale of land without a condition that the purchaser pay a deposit. But the fact that it was not discussed is a circumstance relevant to a consideration of whether, objectively assessed, the conversation revealed an intent to be immediately bound.”
- The trial judge then referred to Mr Hookham’s evidence, particularly evidence in which he purported to swear to the fact of an agreement having been reached on 30 July 2011, and specifically did not accept Mr Hookham’s evidence as to there being an “agreement” on that day. His Honour found:
“[70]That evidence would not satisfy me that the two men had made an agreement to sell. The affidavit evidence at paragraphs 6 to 11, if accepted, would not satisfy me that the two men made an agreement to sell, bearing in mind that I do not accept Mr Hookham’s assertions in those paragraphs of agreement. I do not accept the affidavit evidence of Mr Hookham where it is inconsistent with the evidence of Mr Lindemann set out at [16] of these reasons. I am not satisfied that there was more to the gist of the conversation than is set out at [16] of these reasons. The direct evidence of the conversation set out at [16] of these reasons does not persuade me that there was an oral agreement to sell on 30 July 2011.
[71]The subsequent conduct of Mr Lindemann including his writing the note on 30 July, shaking hands, accepting a deposit proffered on 31 July, giving a receipt for the deposit and banking it, does not satisfy me that the parties in their earlier conversation objectively reached finality in arranging all the terms of their bargain and intended to be immediately bound to the performance of those terms.”
Agreement on 30 July 2011
- The appellant’s primary argument was that the learned trial judge erred in finding that the parties had not reached a concluded agreement for the sale of the property because his Honour wrongly confined the appellant’s case to a contention that the appellant’s case was limited to an assertion that the parties made an oral agreement for the sale of the property on 30 July 2011. Counsel for the appellant contended that the appellant’s case below, in truth, was that the parties had reached agreement on 30 and 31 July 2011 for the sale of the property, and that this agreement was partly oral, partly in writing and evidence partly by conduct. It was argued that the learned primary judge should have realised that the appellant’s case was advanced on this broader basis because of the following submission made in the appellant’s final written submissions to the trial judge:
“[25]In the present case it is submitted that the only objective assessment of the conversation on 30 July, the handshake, the signing of the documents and acceptance of the deposit, is that the parties agreed to the sale and purchase of the property.”
- I am not persuaded that the case advanced on behalf of the appellant below was anything other than that identified by the trial judge, i.e. that Mr Hookham and the respondent reached an oral agreement on 30 July 2011 for the appellant to purchase the subject property from the respondent. On the contrary, and adopting a view which is neither narrow nor technical,[10] it is quite clear that this was the appellant’s case:
(a)As already noted, the originating application referred only to an “agreement dated 30 July 2011, between the applicant and the respondent”. There was no application by the appellant for leave to amend the relief sought to align with the case it now contends was advanced;
(b)In the course of the hearing, submissions were made to the learned trial judge by which it was made clear to him that the appellant’s case was, relevantly, limited to the existence of an oral agreement reached on 30 July 2011. Importantly, this point arose in argument at the commencement of the trial, because the existence of the document signed by the respondent on 31 July 2011 had only come to the attention of counsel shortly prior to the trial. The following exchange occurred between his Honour and counsel for the appellant (in which Exhibit 1 is the document signed on 30 July 2011 and Exhibit 2 is the document signed on 31 July 2011):
“HIS HONOUR: Mr Wilson, I was just trying to anticipate what the law is. I must say I haven’t looked at the Property Law Act to see what the effect of the note is, but isn’t it the case that the contract is the oral thing that’s agreed on the 31st and the note is the thing that stops you?
MR WILSON: It’s the memorandum. In fact, it’s referred to as a memorandum or note of – because your Honour asked me I won’t detain you at all, but I will be putting to your Honour and my learned friend may wish to consider it – this appears not only in Cheshire and Fifoot, at paragraph 16.35, they’re referring to section 59 – as it appears in every jurisdiction as one or the statute of fraud. ‘The words of the section speak of an agreement in writing or some note or memorandum in writing. Most of the case law has been concerned with the less demanding requirement of a note or memorandum rather than with contracts actually in writing. The agreement therefore need not itself be in writing.’ This case, is about a note or memorandum. It’s not about whether that document – by that I mean Exhibit 1 or even Exhibit 2, is of itself a contract.
HIS HONOUR: No. Your case is that the contract was formed orally.
MR WILSON: Orally.
HIS HONOUR: And the note is some evidence of it to satisfy the requirements.
MR WILSON: To satisfy the requirements of the statute of fraud.
HIS HONOUR: Thank you.
MR WILSON: Thank you, your Honour.”
That the learned trial judge understood that this was the case advanced was also apparent from a further exchange with counsel for the appellant after the oral evidence had concluded.[11]
(c)The appellant’s written submissions below expressly advance the case that the agreement was made orally on 30 July 2011:
(i)Paragraph 5 of the appellant’s submissions, under the heading “Background”, asserted:
“5.On 30 July 2011 the applicant’s director had a conversation with the respondent, during which the respondent agreed to sell the subject property for $470,000.00, settlement to be three months hence. Mr Hookham deposes (paras 9-11) that he and the respondent specifically agreed to a price of $470,000, together with a settlement period and an ‘as is’ provision. Mr Hookham deposes that the parties signed a note recording the agreement, and shook hands.”
(ii)In paragraph 9 of the appellant’s submissions, in which the appellant made submissions about the conduct of Mr Hookham as the alleged agent for the appellant, it was argued:
“Viewed objectively (see further below) the oral agreement and the document incorporating the note, cheque and receipt (exhibit 2), show that the contract was made by Mr Hookham as director and agent for the applicant.”
(iii)In the appellant’s submissions made to counter the argument that the respondent lacked capacity, the appellant referred to the rule concerning incapacity as stated by the High Court in Gibbons v Wright[12] and then submitted:
“The rule is expressed in the context of signing a document, but it is submitted that the same would apply to an oral agreement.”
(iv)In meeting the respondent’s “non est factum” argument, the appellant’s submissions stated:
“The respondent understood that he was signing a record of his conversation and a receipt respectively.”
(v)In addressing an argument that there was no sufficient memorandum of agreement for the purposes of s 59 of the Property Law Act 1974, the appellant commenced its submissions below by asserting:
“There is no requirement that the agreement for sale itself be in writing – an oral agreement is sufficient ...”
(vi)Similarly, in the appellant’s written submissions concerning the application of s 368A of the Property Agents and Motor Dealers Act, the appellant expressly submitted that “The statute is not applicable to an unwritten agreement for the sale of land”.
- Before this Court, however, counsel for the appellant argued that the learned trial judge ought have gleaned that the appellant’s case was significantly broader by reference to paragraph 25 of its written submissions below, which I have quoted above. Counsel conceded having made the oral submissions to his Honour, to which I have referred, but submitted that by paragraph 25 of the written submissions the appellant conveyed to the learned trial judge the notion that paragraph 25 “raised the matters which [had] come out in evidence and which ... the Court should have regard to in determining whether the parties have reached a contract”. Counsel referred to the judgment of the High Court in Toll (FCGT) v Alphapharm Pty Ltd[13] and contended that paragraph 25 of the submissions ought to have been understood as an argument that the contract was formed partly orally, partly by conduct and partly in writing, but said that his Honour below did not understand the submission in that way. Counsel also relied on the submissions made below in reply by the appellant, in which it was submitted:
“2.The respondent’s submissions focus upon the Note. However, the Receipt is the key document. It incorporates the terms of the Note, allowing the documents to be read together. The Receipt refers expressly to the sale of the property, and acknowledges the receipt of a deposit paid by the applicant to the respondent. When the terms of the Receipt are considered in conjunction with the evidence as to the oral agreement, it is submitted that the objective conclusion is that an agreement to sell the property was made.”
- Paragraph 25 of the appellant’s submissions below, on which the appellant now places so much reliance, needs to be read in context. It was a submission made under the heading “Intention to create legal relations”. The submissions cited Ermogenous v Greek Orthodox Community of SA Inc[14] for the proposition, affirmed subsequently in the Alphapharm case, that “intention” in this context is used in the same sense as in other contractual contexts, and describes “what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened” and that it is not “a search for the uncommunicated subjective motives or intentions of the parties”.
- The submissions also quoted passages from the Alphapharm case in which the High Court reaffirmed the principles of objectivity by which the rights and liabilities of parties to a contract are determined.
- It was in that context, and by reference to those authorities, that the appellant made its submission in paragraph 25. Properly understood, that submission was directed to whether the evidence, viewed objectively, revealed an intention of the parties to enter into legal relations on 30 July 2011. This submission did not, in my view, have the effect of fundamentally transforming the case otherwise advanced by the appellant below, which was that an oral agreement had been entered into on 30 July 2011.
- The learned trial judge did not overlook paragraph 25 of the appellant’s submissions below. Indeed, it is clear that his Honour understood the submission made in paragraph 25 in precisely the way I have just explained. So much is clear from the following passage from the reasons for judgment:
“[12]The buyer’s case: The buyer alleges a sale agreement was made by conversation. There were no pleadings, but it was the buyer’s case, explained during the trial, that the contract was formed orally on Saturday 30 July 2011 and that shortly after the agreement a note was signed which satisfied the requirements of the Property Law Act 1974 s 59. As the trial progressed it became clear to both counsel, for the first time, that a subsequent document, the original receipt for a deposit signed by Mr Lindemann on Sunday 31 July 2011, was a much more comprehensive record than the photocopy receipts briefed to counsel to prepare for trial. From that stage of the trial it was a reasonable inference that the buyer’s case relied also on the original receipt to satisfy the requirements of the Property Law Act 1974 s 59. After the evidence was complete, the buyer’s written submission included:
25.In the present case it is submitted that the only objective assessment of the conversation on 30 July, the handshake, the signing of the documents and acceptance of the deposit, is that the parties agreed to the sale and purchase of the property.
I interpret the buyer’s submission consistently with the buyer’s explanation given during the trial that the buyer relies upon an oral agreement made on 30 July 2011. I infer that the buyer does not allege that the agreement was made by a combination of the conversation, the note, the handshake, the acceptance of deposit and the receipt. I infer that the handshake, Mr Lindemann’s signing of documents on 30 and 31 July and his acceptance of a deposit on 31 July are submitted to be circumstantial evidence that the oral agreement of 30 July was a sale agreement and intended to be immediately binding. Consistent with that interpretation of the buyer’s case is the further written submission for the buyer:
There is no requirement that the agreement for sale itself be in writing – an oral agreement is sufficient: see Land Contracts in Queensland (3rd ed) page 188; Cheshire and Fifoot para [16.35].” (emphasis added)
- I reject the submission that the learned trial judge erred in his appreciation of the case presented below on behalf of the appellant.
- The next question is whether the appellant ought now be permitted to advance a case to the effect that “the sale agreement was made by a combination of the oral conversation, a written note, a handshake, the payment and acceptance of a deposit, and the signing of a receipt”,[15] or that “the agreement between the parties was partly oral, partly by conduct (the handshake, the acceptance of the deposit) and partly in writing (the note in Exhibit 1 and the receipt in Exhibit 2)”.[16]
- This is, for the reasons I have given, quite different from the case advanced at trial. In Park v Brothers,[17] the High Court, citing inter alia, Suttor v Gundowda[18] and Water Board v Moustakis[19] said:[20]
“In adversarial litigation, as a general rule, a party is bound by the conduct of his case. There are circumstances in which the interests of justice may lead an appellate court to permit a party to raise a point that was not taken at trial, but where the point is one that could have been met by calling evidence below then it cannot be raised for the first time on appeal.”
- In Water Board v Moustakis, the plurality (Mason CJ, Wilson, Brennan and Dawson JJ) had observed (omitting references):[21]
“More than once it has been held by this Court that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below. Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied.”
- Counsel for the appellant submitted:
(a)The agreement between the parties was partly oral, partly by conduct (the handshake and the acceptance of the deposit), and partly in writing (the note (Exhibit 1) and the receipt (Exhibit 2));
(b)The trial judge was satisfied:
(i)that the respondent had the requisite capacity to contract;
(ii)that the respondent understood the note and the receipt;
(iii)if the parties had agreed orally to a sale, the respondent had the intention to enter into a legally binding agreement;
(c)The written submissions of both parties below referred to the conversation and other events as comprising the contract;
(d)An objective test, applied to the conversation, handshake, documents and deposit, supports a finding that a contract was made.
- Counsel for the respondent argued that this Court ought not now permit the appellant to advance this new case for the first time on appeal. It was submitted that, if this had been the case to be met below, the respondent’s approach both to the evidence led on his behalf and cross-examination of the appellant’s witnesses would have been different. Counsel for the respondent identified a number of issues which would have been further, or differently, explored in evidence if the appellant’s case below had been as now presented:
(a)Evidence from the respondent concerning his meeting with Mrs Hookham on 31 July 2011;
(b)Evidence from the respondent as to the payment of a deposit or, more broadly, his expectations as to further steps to be taken after the conversation with Mr Hookham on 30 July 2011;
(c)Evidence as to Mrs Hookham’s involvement in the drawing of the deposit cheque on the appellant company’s bank account (i.e. questions directed to the issue of the contracting parties);
(d)Evidence as to the handshake now relied as conduct evidencing agreement (i.e. was it a handshake to “seal the deal” or a social gesture or greeting or farewell);
(e)Evidence as to the placement of Mr Hookham’s name on the note (Exhibit 1) (i.e. whether he affixed his signature as a contractual act or wrote his name merely to inform the respondent, and provide a record of, Mr Hookham’s name).
- Some of these contentions do not bear closer scrutiny. In respect of the handshake, for example, it was always clear enough from the appellant’s material that the handshake was said to signify “the deal”. In the affidavit sworn by Mr Hookham on 29 February 2012, which was adduced as part of his evidence in chief at the trial, he had said in reference to the note (Exhibit 1):[22]
“Mr Lindemann then wrote the agreed terms on the back of that plan while we both sat at the kitchen table in the house and we both then signed the Contract and we then shook hands on the deal.”
- His reference to “the Contract” was to the note (Exhibit 1), but it is also clear enough that, if the appellant had advanced a case at trial relying on the objective evidence of the fact of the handshake, the appellant would point to it as evidence of the parties reaching a contract.
- It seems to me, however, that there is substance in the respondent’s objection concerning evidence of the circumstances of Mrs Hookham drawing the deposit cheque on the appellant company’s account. There was no evidence at the trial from which it could be found or inferred that Mr Hookham mentioned the name, or even the existence, of the appellant company in the course of the discussion with the respondent on 30 July 2011. Mr Hookham accepted under cross-examination[23] that the note (Exhibit 1) did not refer either to the deposit or to the appellant, and that it would have been simple to write the appellant’s name on the note if he had wanted. Mr Hookham deposed[24] to asking his wife to draw a cheque for $6,000 for the deposit on the appellant’s account, but gave no explanation as to why the cheque was drawn on that account, nor was he cross-examined on this issue. Mrs Hookham gave no evidence in her affidavits as to the reason for the cheque being drawn on the appellant’s account. She was cross-examined on the form of the receipt (Exhibit 2), but no questions were directed to the involvement of the appellant company.
- Mr Hookham had deposed[25] that “[a]t all times, during the transaction the subject of these proceedings, I was acting as director and representative of [the respondent]”. It appears that the appellant’s position at trial was that Mr Hookham was, in the conversation on 30 July 2011, acting as agent for an undisclosed principal, namely the respondent. The fact that the name of the appellant was not mentioned in the conversation on 30 July 2011 was certainly a point made in the respondent’s submissions below.[26] But if, as the appellant would now seek to do, reliance is to be placed on the payment of the deposit by the appellant and the terms of the receipt (Exhibit 2) as integers of a contract said to have been made between the appellant and the respondent over the course of 30 and 31 July 2011, then it would have been legitimate and appropriate for the respondent to have the opportunity to investigate the circumstances of the drawing of the cheque on the appellant’s account and Mrs Hookham’s involvement in that process.
- On the case run below, the deposit and the receipt (Exhibit 2) were relied on as evidence from which it could objectively be concluded that an oral agreement had been reached on 30 July 2011. That case was rejected. The case now sought to be mounted is quite different – the deposit cheque and the receipt are to be given contractual force. Allowing the appellant now to advance that case would deny the respondent the opportunity to test the efficacy of those alleged contractual documents.
- Accordingly, it seems to me that this is a case for the application of the general rule that the appellant is bound by the conduct of the case below.
Agreement on 30 July 2011
- The appellant argued in the alternative, albeit somewhat faintly, that if the appellant’s case be confined to that of an oral agreement having been reached on 30 July 2011, the learned trial judge “ought to have found that the parties had reached finality and intended to be bound by that agreement, considering the facts of the handshake, the acceptance of the deposit, the signing of the receipt and the banking of the deposit”.[27]
- The fundamental difficulty with this submission, however, is the unchallenged finding by the trial judge as to the actual terms of the conversation between the respondent and Mr Hookham on 30 July 2011. The terms of that discussion are set out above. In respect of this conversation, the learned trial judge said:[28]
“The version above is a conversation about what Mr Lindemann wanted. Conspicuously absent are words of acceptance spoken by Mr Hookham or Mr Lindemann.”
- Either the parties made an oral agreement on 30 July 2011 or they did not. It is unnecessary for present purposes to engage in an analysis of the authorities to which we were referred which discuss the extent to which it is permissible to have regard to post-contractual conduct as an aid to construction. The terms of the conversation between the respondent and Mr Hookham, viewed objectively, simply did not amount to them reaching a bargain. That “non bargain” cannot be enhanced or somehow transformed into a bargain by reference to events which occurred subsequently.
- The approach of the trial judge was to examine the surrounding circumstances to ascertain whether, viewed objectively, they supported the fact that a bargain had been struck in the course of the conversation on 30 July 2011. In my view, there was no error in his Honour’s conclusion that the surrounding circumstances did not persuade him that there was an oral agreement reached between the appellant, by Mr Hookham, and the respondent on 30 July 2011.
Conclusion
- For the reasons I have given, I would order that the appeal be dismissed with costs.
- PETER LYONS J: I have had the advantage of reading in draft the reasons for judgment of Fraser JA and Daubney J. Save in one limited but important respect, I agree with the reasons of Fraser JA, including, to the extent his Honour does so, his agreement with the reasons of Daubney J. The question on which I respectfully disagree with their Honours is whether the appellant, on the appeal, should be precluded from advancing a case that a contract was formed by events which occurred on 30 and 31 July 2011 (new case), which differs from the case at trial that the parties entered into an oral agreement on 30 July 2011 (case at trial). Fraser JA, as I understand his Honour’s reasons, considered that the appellant was confined to its case at trial, because evidence as to Mrs Hookham’s involvement in the drawing of the deposit cheque on the appellant company’s bank account, and accordingly, questions directed to the issue of the contracting parties, might have been approached differently at trial had the new case also been advanced then.
- Daubney J has helpfully set out some authoritative statements of principle on the question whether a new case can be advanced on an appeal. In addition I would refer to the following statement from the majority judgment in Whisprun Pty Ltd v Dixon:[29]
“It would be inimical to the due administration of justice if, on appeal, a party could raise a point that was not taken at the trial unless it could not possibly have been met by further evidence at the trial. Nothing is more likely to give rise to a sense of injustice in a litigant than to have a verdict taken away on a point that was not taken at the trial and could or might possibly have been met by rebutting evidence or cross-examination. Even when no question of further evidence is admissible, it may not be in the interests of justice to allow a new point to be raised on appeal, particularly if it will require a further trial of the action.” (References omitted)
- The qualification that it may not be in the interest of justice to allow a new point to be raised on appeal, even where there is no question of further evidence, was supported by reference to Multicon Engineering Ltd v Federal Airports Corporation.[30] That case is a strong example of the application of the qualification. The appellant and the respondent had been parties to a major construction contract. In the ensuing litigation, the appellant had advocated for an order that the proceedings be referred to a referee under Pt 72 of the Supreme Court Rules 1970 (NSW). The respondent opposed the referral, unsuccessfully. The referral resulted in a hearing which encompassed 250 sitting days, the parties being represented by Senior and Junior Counsel. There was then a hearing which lasted nine days in the Supreme Court, to determine whether the report of the referee (adverse to the appellant) should be adopted. The appeal was against the order for the substantial adoption of the report. On the appeal, the appellant sought to advance, for the first time, the proposition that the Supreme Court did not have power to adopt the referee’s report, as it was exercising federal jurisdiction. Not surprisingly, it was held that it would not be in the interests of justice to permit it to do so.[31] The case explains the emphasis placed on the prospect of a further trial, in the passage previously quoted from Whisprun.
- On the other hand, in Minister Administering the Crown Lands Act v NSW Aboriginal Land Council,[32] the Court was considering whether the respondent could make a claim for the vesting of title in land under the Aboriginal Land Rights Act 1983 (NSW). That depended, in part, on whether or not the land was “lawfully used or occupied” at the time when the claim was made. In the High Court, the appellant sought to advance a case that the land was occupied at that time. It was submitted by the respondent, and would appear to be correct, that the litigation at first instance and in the Court of Appeal had been conducted on the basis that the appellant contended the land was used at the relevant time, without reference to occupation. At least four members of the court held that it could, there being no question that further evidence might have been called, on the ground that the question was “about the legal characterisation of the facts established in the courts below”.[33]
- Moreover, the question whether a discretion was to be exercised, when the trial judge had not had the opportunity to do so, has also been said to be relevant to the question whether a new point might be advanced on appeal.[34]
- It seems to me necessary to focus on the differences between the case at trial, and the new case. The identity of the purchaser was an issue raised by the case at trial. The proceedings were commenced by way of originating application, plainly on the basis that the appellant was the purchaser under the contract. It seems to me that the identity of the purchaser was a matter raised by the new case, but also by the appellant’s case at trial.
- It may be correct to say that the question of the identity of the purchaser arose in a different way in the new case. In the case at trial, the appellant appears to have been alleging that it was the undisclosed principal in relation to an oral contract made on 30 July 2011. In the new case, it contends that a contract was formed on that and the following day, by events including the payment and acceptance of the deposit, and the signing of the receipt, in the course of which it was disclosed that the appellant was the principal represented by the persons dealing with the respondent.
- For the case at trial, the appellant was entitled to prove that Mr Hookham was in fact acting as its agent when dealing with the respondent, and so enforce the contract, (even if any note relied upon for the purposes of s 59 the Property Law Act 1974 (Qld) (“PLA”) did not identify it as the purchaser).[35] Although it led evidence to the effect that Mr Hookham was the director of the appellant, and, at relevant times, was acting as its agent, the evidence of the events of 31 July 2011 was also relevant to that question. The evidence showed that Mrs Hookham was an employee of the appellant;[36] that it was she who drew the cheque that she delivered to the respondent, and that she was acting on the instructions of Mr Hookham, he having asked her to do these things.[37] On the basis of that evidence, the appellant contended that it drew a cheque for $6,000 which the respondent accepted as a deposit paid by the appellant, and it relied on this evidence as demonstrating that the parties had reached agreement for the purchase and sale of the property.[38] It is therefore difficult to see how the new case gives rise to any novelty, which should preclude the appellant from advancing it on appeal, particularly in relation to the identity of the purchaser.
- Even if it were to be accepted that the new case raised a question about the identity of the purchaser, not raised by the case at trial, it is difficult to see why the appellant should be precluded from advancing the new case. It was not suggested that the respondent could advance any evidence on that question. The receipt identified the appellant as the source of the deposit, demonstrative of its being the purchaser.[39] The cheque itself was also of some relevance. In light of these things, and in light of the evidence of Mr and Mrs Hookham, I do not see how it could be said that there was a possibility that evidence could have been obtained on cross-examination, casting doubt on the identity of the appellant as the purchaser. No specific question on this topic which might have been raised in cross-examination was identified by the respondent; and it is difficult to conceive of one. Indeed one might think there was more scope for challenging the identity of the purchaser when the case was one of an undisclosed principal, than in the new case where its identity appeared in the receipt, the signing of which was said to be one of the acts by which the contract was formed. Yet in the case at trial, the respondent did not seek to challenge, whether by cross-examination, submission, or otherwise, the identity of the purchaser.
- I am unable to conclude that the failure to explore any issue relating to the identity of the purchaser is explicable by the fact that there was no evidence of an expression of an agreement in the conversation of 30 July 2011. It seems to me that such a conclusion assumes an acceptance of the respondent’s evidence, a fact not known to the respondent or his Counsel during the hearing at first instance. The learned primary judge has recorded the evidence of the appellant, some of which points to an agreement on 30 July 2011.[40] At the trial, neither the respondent nor his Counsel was in a position to know that the learned primary judge would not ultimately accept that evidence as demonstrating the formation of an oral contract on 30 July 2011. His Honour’s tentativeness about evidence as to what was “agreed” may be understandable; but equally, his Honour may in due course have acted upon the view expressed by Lord Hoffmann in Carmichael v National Power plc,[41] adopted by Spigelman CJ in County Securities Pty Ltd v Challenger Group Holdings Pty Ltd[42] that evidence of a party as to what terms he understood to have been agreed, is some evidence to show that those terms, in an objective sense, were agreed. Finally, on the case at trial, there was a prospect that the learned primary judge may have found that the events of 31 July 2011 demonstrated the formation of an agreement, including acceptance, the previous day, notwithstanding the absence of any evidence which included an express acceptance by either party of a proposal of the other.[43]
- Accordingly, it seems to me there is no firm foundation for the conclusion that the failure to cross-examine on this matter is explicable by reference to the respondent’s evidence. But even if one were to accept the explanation, that falls short of demonstrating that some relevant evidence might have emerged.
- Accordingly, it seems to me that the question whether the appellant can now advance the new case is not to be determined adversely to the appellant by reference to the matters considered thus far.
- On the view to which I have come, no question of further evidence arises. What is required is an objective assessment of facts either found, or fully canvassed at first instance. The issue to be determined on the new case is the significance, from an objective point of view, of those facts; that is do they, or do they not, demonstrate the formation of a contract? It seems to me that that issue is sufficiently similar to the question of legal characterisation of the facts established, as occurred in Minister Administering the Crown Lands Act v NSW Aboriginal Land Council, to warrant permitting the appellant to advance the new case. That, however, is subject to some further considerations.
- There was no suggestion by the respondent that it would have advanced a different case, had the case at first instance included the case the appellant now seeks to advance on the appeal. That is not surprising, because the same facts were relied upon to prove a contract which appears to be to the same effect as that which the appellant now seeks to contend for. In particular, the respondent advanced arguments at the hearing at first instance to the effect that the document of 31 July 2011 was not a sufficient memorandum to satisfy the requirements of s 59 the Property Law Act 1974 (Qld) (“PLA”). The same might be said about the non est factum argument, which the learned primary judge understood to apply both to the note of 30 July, and the documents signed on 31 July 2011, which argument his Honour determined adversely to the respondent.
- I have referred previously to the relevance of the fact that the remedy sought by the appellant is discretionary, discussed in Suttor v Gundowda. It might be observed that the new point sought to be raised in that appeal was that the remedy should not have been granted on a discretionary ground not raised at first instance.[44] In the present appeal, the matter raised by the new case does not go to any discretionary consideration; nor was there any submission that it did. Indeed, no discretionary issue was raised at first instance. In Suttor,[45] the Court stated that specific performance is not to be lightly refused when a plaintiff has established the existence of a contract capable of specific performance, which a defendant has refused to complete. In the present case, it seems to me that the fact that specific performance is a discretionary remedy is not a reason to prevent the appellant from advancing the new case on appeal.
- The question which then arises is whether the conduct, including the conversations as his Honour found them to be, demonstrated the formation of a contract.
- In my view, the evidence demonstrated the formation of the contract. On the findings of the learned primary judge, it seems to me that on 30 July 2011, the respondent made it plain that he was prepared to sell the house for the sum of $470,000, if he had three months to vacate it. The note signed that day was intended by the parties to record those matters which the respondent considered to be of importance for the purpose of entering into an agreement. His acceptance on the following day of a cheque delivered by Mrs Hookham, and the execution of the document which included the note from the previous day, and which also acknowledged receipt of $6,000 “as deposit on sale” of the property, it seems to me, can only be understood as manifesting an intent to be contractually bound. Indeed the learned primary judge came close to making such a finding, though his focus was in part on the respondent’s state of mind; and in part on the significance of the events of 31 July 2011, as proof of the events of the previous day.[46]
- In particular, I place some weight on the fact that the note records a receipt of a sum of money with reference to the sale of the property. I also note the description of that sum as a deposit. It has long been accepted that a deposit is “not merely a part-payment, but is then also an earnest to bind the bargain so entered into, and creates by the fear of its forfeiture a motive in the payer to perform the rest of the contract”.[47]
- Of the document signed on 31 July 2011, the respondent, at first instance, contended that it was not sufficient to satisfy s 59 of the PLA. It was submitted that it did not identify the respondent as the owner of the property. Nor did it identify the purchaser. Nor did it identify the principal terms of sale.
- The subject matter of the sale, the property at 10 Lawrence Street, Moranbah, is in my view sufficiently identified. The nature of the transaction is clearly identified as a sale. It seems to me that a record of a payment to a person, as a deposit in respect of a sale of the property, prima facie indicates that the party receiving the money is the vendor of the property.[48] Accordingly, it seems to me that the respondent is sufficiently identified as the vendor. If that were not sufficiently clear, it seems to me that any ambiguity about the capacity in which the respondent received the deposit could be resolved by extrinsic evidence, including evidence that he owned the property. Thus in Carr v Lynch[49] a receipt for a sum of money recorded an agreement to grant a lease to “you”, being the payer. The name of the payer appeared on the receipt beside the expression “Witness:”. Farwell J would have been prepared to receive evidence that the name was that of the payer of the money, and that the use of the expression “Witness:” was a mistake, but for the fact his identity was established by an admission in the defence. In Bennett v Stewart,[50] a contract identified the buyer as “Bennett Superannuation Fund”. Two persons with the surname, Bennett, signed the contract as the buyers. Philip McMurdo J permitted the use of extrinsic evidence that these persons were the trustees of the Fund, thus establishing both that the contract was certain, and that it satisfied the requirements of the statute. The principle seems to be that extrinsic evidence is admissible to explain words in the memorandum; but not to prove independently the intention of a party to the document.[51] Here the name of the respondent appears on the receipt as the person to whom the deposit was paid. If necessary, evidence that he owned the property referred to in the receipt would confirm that his name appears, and that he signed the receipt, as the vendor of the property.
- In addition, the receipt identifies the sum of $470,000 immediately beneath a reference to the property; beside the words “3 months”; and immediately above the words “home as is”. The natural reading of the document, in my view, is that the price is $470,000.
- The appellant is clearly identified as the person paying the deposit. As mentioned previously, that is demonstrative of the fact that the appellant was the purchaser. The additional presence of Mr Hookham’s signature on the note dated 30 July 2011 may be said to raise some question about the identity of the purchaser in the receipt. However, the presence of Mr Hookham’s signature, without more, does not seem to me to dispel the effect of the recording of the fact that the appellant was the source of the deposit, as indicating that it was the purchaser.[52]
- For a sale of land, the three essential elements for a contract are the parties, the subject matter and the price.[53] However, if the parties made it apparent that they would not have entered into a contract unless they had agreed on some additional terms, those terms are also essential for a binding contract.[54] Here, the only terms which were identified as being of any significance were the time the respondent would have to vacate the property, and that the house would be sold “as is”. Some reference to these matters is found in the receipt.
- It seems to me that the words “home as is” sufficiently records one of the terms sought by the respondent. It is a little more difficult to come to a view about the effect of the note, “3 months”. However, on balance, bearing in mind its position in the note, it seems to me that it sufficiently conveys the intention of the parties that the respondent was to retain the property for three months.
- Accordingly, I would allow the appeal, and grant the appellant’s application.
Footnotes
[1] See Water Board v Moustakis (1998) 180 CLR 491.
[2] Judgment [5].
[3] Judgment [16] and [17].
[4] Judgment [34].
[5] Judgment [41] – [43].
[6] Judgment [46].
[7] Judgment [54].
[8] Judgment [3].
[9] Judgment [63] – [65].
[10] Water Board v Moustakis (1988) 180 CLR 491 at 497.
[11] Transcript 1-76.
[12] (1954) 91 CLR 423.
[13] (2004) 219 CLR 165.
[14] (2002) 209 CLR 95.
[15] As per the formulation in ground 3 of the Notice of Appeal.
[16] Para 3.9 of the appellant’s written submissions on appeal.
[17] (2005) 80 ALJR 317.
[18] (1950) 81 CLR 418.
[19] (1988) 180 CLR 491.
[20] At [34].
[21] At 497.
[22] At para 11.
[23] T 1-18.
[24] Affidavit sworn 29 February 2012, para 12.
[25] Affidavit sworn 29 February 2012, para 2.
[26] Paras 15(i) and 16 of the respondent’s trial submissions.
[27] Appellant’s submissions, para 3.13A.
[28] Judgment [18].
[29] (2003) 77 ALJR 1598 at [51].
[30] (1997) 47 NSWLR 631, at 645 – 646.
[31] Multicon at p 646.
[32] (2008) 237 CLR 285.
[33] See Minister at [66]; and per Kirby J at [5]; see also Kennon v Spry (2008) 238 CLR 366 at [232] per Kiefel J.
[34] Suttor v Gundowda Pty Ltd (1950) 81 CLR 418, 438; Kennon at [232].
[35] See Basma v Weekes [1950] AC 441.
[36] AB 131.
[37] AB 24, 131.
[38] See AB 228, 233, 261.
[39] Compare Auerbach v Nelson [1919] 2 Ch 383, 386-387.
[40] Judgment at [19]-[27]; [32].
[41] [1999] 1 WLR 2042, at 2050.
[42] [2008] NSWCA 193 at [21]-[22].
[43] See Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 at [136]-[146], especially [139], [143]; [1], [272].
[44] Suttor at 437.
[45] At 438-439.
[46] Judgment at [52].
[47] Howe v Smith (1884) 27 Ch D 89, 101; cited with approval in Sprague v Booth [1909] AC 576, at 580. See also Wilson v Kingsgate Mining Industries [1973] 2 NSWLR 713, at 735.
[48] Compare Grime v Bartholomew [1972] 2 NSWLR 827, at 835 E.
[49] [1900] 1 Ch 613; this reasoning was cited with approval in Stokes v Whicher [1920] 1 Ch 411, 422.
[50] [2008] QSC 20.
[51] Rossiter v Miller (1878) 3 App. Cas. 1124, at 1153; Rosser v Austral Wine & Spirit Co Pty Ltd [1980] VR 313, at 316-318; Di Biase v Rezek [1971] 1 NSWLR 735, at 742, 744, 746; all referred to in Bennett v Stewart.
[52] See also the discussion in Bennett v Stewart at [8].
[53] Hall v Busst (1960) 104 CLR 206, at 222.
[54] Rossiter v Miller (1878) 3 App. Cas 1124, at 1151; Alford v Ebbage [2004] QCA 283 at [119].