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Liquor and Gaming Specialists Pty Ltd v Clarke QCATA 3
Liquor and Gaming Specialists Pty Ltd v Clarke  QCATA 3
Liquor and Gaming Specialists Pty Ltd
On the papers
Senior Member Stilgoe OAM
19 January 2017
APPEAL – LEAVE TO APPEAL – CONTRACTS - Interpretation - Admissibility of extrinsic evidence in relation to instruments - General rule – where appellant sent agreement for work to be done – where agreement not signed by respondent – where appellant commenced work – where appellant claimed payment of fees – where tribunal found no agreement with respondent – whether extrinsic evidence permissible – whether grounds for leave to appeal
Chambers v Jobling (1986) 7 NSWLR 1
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337
Dearman v Dearman (1908) 7 CLR 549
Empirnall Holdings Pty Ltd v Machon Paull Partners Ltd (1988) 14 NSWLR 523
Fox v Percy (2003) 214 CLR 118
Gordon v MacGregor (1909) 8 CLR 316 Pickering v McArthur
 QCA 294
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
- On 22 January 2012, Liquor and Gaming Specialists Pty Ltd sent a fee proposal to ‘Lindsay Clarke X-Stream Sports’ for the work required to apply for ‘subsidiary off premises’ liquor licences. On 2 February 2012, Mr Clarke sent an email to Matthew Jones of Liquor and Gaming advising that ‘the company’ was incorporated and asking for the initial fee account. On 3 February 2012, Mr Jones sent an email to Mr Rollo, an employee of Liquor and Gaming, telling him to contact Neil McCabe, who was the sole director, for details of the company, so that Liquor and Gaming could get the forms underway. On the same date, Liquor and Gaming sent a document headed ‘Instructions to Proceed’ to Liquor and Gaming Specialists (“the Company”).
- That document named Mr Clarke. The company was named as X-Stream Sports Global Pty Ltd. It contained a space for directors to sign ‘in their own capacity and on behalf of the company’. It contained a term imposing joint and several liability on the directors. It also purported to charge the directors interest in real property in relation to any debt.
- The document was never signed. In spite of this, Liquor and Gaming proceeded to do work in accordance with the fee proposal. It rendered invoices to Mr Clarke and X-Stream Sports but the invoices were not paid. Liquor and Gaming filed a minor debt claim against Mr Clarke. The tribunal dismissed the claim.
- Liquor and Gaming wants to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.
- Liquor and Gaming says that the question for the tribunal’s determination is whether Mr Clarke was bound by the terms of the written contract.
- The question before the tribunal below may have been whether Mr Clarke was bound by the terms of the written contract. The question for the appeal tribunal is whether there was an error in the tribunal’s decision. Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.
- Fortunately, Liquor and Gaming’s submissions do address the question of error. It says the tribunal erred in looking at extrinsic evidence rather than the contract to reach a conclusion about whether Mr Clark was liable to pay the invoices. It says the facts giving rise to the contract are transparent and unambiguous. It says the tribunal failed to find, as it should have, that Mr Clarke accepted the contract by his conduct in instructing Liquor and Gaming to apply for licences. It says the parties’ subjective intention was irrelevant. It says the extrinsic evidence the tribunal relied on was inadmissible.
Did the tribunal err in referring to extrinsic evidence/was the extrinsic evidence inadmissible?
- Liquor and Gaming says the tribunal erred in placing emphasis on extrinsic factors and assertions in its decision. It says that reference to matters such as the email address used by Mr Clarke, the entity who purportedly paid the invoices, and that Mr Clarke was not a shareholder in the company were irrelevant.
- Liquor and Gaming submits that there is a well-recognised rule of contract law that, where the terms of an agreement are recorded in writing, extrinsic evidence cannot be produced to show that there are other terms, or that the terms are different from those that have been recorded. Relying on Codelfa Construction Pty Ltd v State Rail Authority of NSW, Liquor and Gaming submits that, because the terms of the contract were not ambiguous or susceptible of more than one meaning, extrinsic evidence was not admissible.
- Codelfa was concerned with the addition of a term into a written contract. This case is concerned with whether there was a contract between Liquor and Gaming and Mr Clarke at all. Liquor and Gaming urged the tribunal to accept the extrinsic evidence that supports a finding that, by his conduct, Mr Clarke accepted the terms of the contract. However, if the tribunal is to look at evidence in support of that finding, it must also look at evidence that contradicts that finding. The tribunal was not in error in considering all of the evidence surrounding the dealings between the parties.
Were the facts giving rise to the contract clear and unambiguous?
- Liquor and Gaming says that this claim can be determined on the basis of four uncontested facts:
- Liquor and Gaming was engaged by Mr Clarke to prepare a number of liquor licence applications;
- The work was undertaken on the basis of a written contract Liquor and Gaming prepared which, on its face, imposes liability on Mr Clarke and X-Stream Sports jointly and severally;
- Mr Clarke was aware of the contract document but did not sign it;
- Although the contract was not signed, Mr Clarke continued to engage Liquor and Gaming and accept the benefit of its services.
- The email traffic of 2 and 3 February 2010, which was annexed to Liquor and Gaming’s claim, do not support a finding that there was a contract between Liquor and Gaming and Mr Clarke. Rather, it suggests that Mr Clarke made the initial contact and then referred Liquor and Gaming to Mr McCabe and his new company. The letter of 8 June 2010 from Liquor and Gaming to the Office of Liquor, Gaming and Racing states that it acted for Mr McCabe and Roadshow Catering Services. The Forms 13 Liquor and Gaming submitted refer to X-Stream Sports only as the entity running the event but not the licensee.
- I do not accept that these facts are uncontested. Mr Clarke denied that he entered into a contract. The written document, by itself, does not evidence a contract between Liquor and Gaming and Mr Clarke because Mr Clarke did not sign it, either in his own right or on behalf of X-Stream Sports.
- There is no error.
Did Mr Clarke, by his conduct, agree to be bound by the contract?
- Liquor and Gaming submits that the tribunal’s finding that Mr Clarke did not, by his conduct, accept the contract was contrary to law. It submits that it is recognised at Common Law that it is not necessary to establish the precise time of acceptance but that the fact of acceptance may clarify the terms that apply to the relationship.
- Liquor and Gaming refer to the decision of the New South Wales Court of Appeal in Empirnall Holdings Pty Ltd v Machon Paull Partners Ltd to support a proposition that Mr Clarke had a reasonable opportunity to reject the terms of the contract but work proceeded, so it was open for the tribunal to hold that the offer was accepted.
- The tribunal considered the application of Empirnall. It is clear from the tribunal’s reasons that the issue of whether Mr Clarke accepted the contact by conduct is a question of fact, not law.
- Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it. An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case.
- Liquor and Gaming submit that the contract in question is unambiguous. I agree that the document is clear on its face. It submits that ‘joint and several’ has a plain and obvious meaning. I agree.
- It says that the fact that only one director, Mr Clarke, is mentioned on the document is inconsequential. I do not necessarily agree. The document states ‘signed by each director’ and ‘Where the company is a client and the names of the directors are specified above…’ Liquor and Gaming knew that Mr McCabe was a director of the company and yet he was not included as a party to the document. Mr Clarke’s failure to sign the document, in that context, is an important consideration.
- I agree that there is no dispute Mr Clarke was aware of the document. Being aware of a document, and agreeing to be bound by it, are two different things.
- The tribunal found that Mr Clarke did not, by his conduct, agree to be bound by the contract. On the contrary, the tribunal found that the ‘acceptance’ of the contract, if any, was by X-Stream Sports. That finding can be supported by the evidence and I can find no compelling reason to come to a difference view.
- Liquor and Gaming did work on the strength of an unsigned contract, without regard to the instructions contained in emails of 2 and 3 February 2010 and without conducting any searches to confirm the identity of the client. It is seeking to recover debts that were incurred in 2010 in relation to activities by a company that was deregistered in 2012. There is no injustice in refusing leave to appeal.
- There is no reasonably arguable case that the tribunal was in error. Leave to appeal should be refused.
 QCAT Act, s 142(3)(a)(i).
 Pickering v McArthur  QCA 294 at .
 Gordon v MacGregor (1909) 8 CLR 316.
(1982) 149 CLR 337.
(1988) 14 NSWLR 523.
Transcript 28 April 2016 page 1-4, lines 13 – 37.
 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
Chambers v Jobling (1986) 7 NSWLR 1 at 10.
- Published Case Name:
Liquor and Gaming Specialists Pty Ltd v Lindsay Clarke
- Shortened Case Name:
Liquor and Gaming Specialists Pty Ltd v Clarke
 QCATA 3
Senior Member Stilgoe
19 Jan 2017