Goldberg v The Graeme Cook Trust
[2018] QCATA 122
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- Unreported Judgment
- Goldberg v The Graeme Cook Trust[2018] QCATA 122
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Goldberg v The Graeme Cook Trust[2018] QCATA 122
Goldberg v The Graeme Cook Trust[2018] QCATA 122
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Goldberg v The Graeme Cook Trust (t/a Dynamo Realty [2018] QCATA 122 |
PARTIES: | STEVEN GOLDBERG (appellant) |
| v |
| THE GRAEME COOK TRUST (TRADING AS DYNAMO REALTY) (respondent) |
APPLICATION NO: | APL267-17 |
ORIGINATING APPLICATION NO: | MCDO1440-16 (Southport) |
MATTER TYPE: | Appeals |
DELIVERED ON: | 17 July 2018 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Dr J R Forbes, Member |
ORDERS: | The application for leave to appeal is dismissed. |
CATCHWORDS: | APPLICATION FOR LEAVE TO APPEAL – MINOR CIVIL DISPUTE – agreement that respondent would seek client for builder – builder to pay “finder’s fee” on execution of building agreement – whether builder to be liable for fee liable in own right or as body corporate – if as body corporate whether builder personally liable in lieu of undisclosed principal – whether unauthorised change of party attempted – whether evidence entitled primary tribunal to find personal liability – principles governing appeals from primary fact-finding – principles governing leave to appeal – leave to appeal refused Queensland Civil and Administrative Tribunal Act 2009, Brunskill v Sovereign Maine & General Insurance Co Ltd (1985) 59 ALJR 842; [1985] HCA 61 Chambers v Jobling (1986) 7 NSWLR 1 Devries v Australian National Railways Commission (1993) 177 CLR 472 Drew v Bundaberg Regional Council [2012] QPELR 350; [2011] QCA 359 Elder Smith Goldsborough Mort Ltd v McBride [1976] 2 NSWLR 631 Felton and Anor v Raine and Horne Real Estate [2011] QCATA 330 Fox v Percy (2003) 214 CLR 118 International Professional Services v Tritone Nominees Pty Ltd [2011] QCATA 332. Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 Montgomerie v United Kingdom Mutual Steamship Assn [1891] 1 QB 370 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 257 Robinson v Corr [2011] QCATA 302 Salomon v Salomon & Co [1897] AC 22 Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 Victoria Station Corporation Pty Ltd (admins apptd), Re [2018] VSC 163 W (an infant), In re [1971] AC 682 |
APPEARANCES & REPRESENTATION: | |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). | |
REASONS FOR DECISION
- [1]In a minor civil dispute the respondent (“Dynamo”) claimed the sum of $6,352.50 and costs against the appellant (“Goldberg”). Dynamo alleged that the moneys were due and owing as commission under an oral[1] agreement (“the finder’s agreement”)[2] that Dynamo would introduce to Goldberg a person who would engage Goldberg, a builder, to construct a house at Upper Coomera. Dynamo had already arranged a sale of the land from Goldberg and his wife to a Mr and Mrs Hanlen. Unlike a contract for sale of land or the appointment of an agent for that purpose, the finder’s agreement was not required by law to be in writing.
- [2]The land sale contract contained this special condition:
The [Hanlens] will enter into a Queensland Master Builders standard, fixed price building contract between Goldberg and [Hanlens] for the sum of $252,000 on such terms and conditions normally used with this type of contract in Queensland, within two days of the date of this [land sale] agreement.
- [3]The sale of land was concluded on 7 September 2015.
- [4]An unsigned copy of a building contract entered into by the Hanlens identified the builder as “Goldberg Construction Pty Ltd. Goldberg is secretary and sole director of that entity (“the company”).
- [5]However, Dynamo, as a non-party to the building agreement, says that at all material times it was unaware of the existence of the company, and believed that it was dealing with Goldberg personally, trading as an unincorporated entity, “Goldberg Construction”.[3] That evidence is uncontradicted. There is no evidence that, at any material time, Goldberg made it clear to Dynamo that the company existed, or that the company was party to the finder’s agreement. On 7 September 2015, as the tribunal found, Goldberg was trading under his registered firm name.[4]
- [6]Goldberg invokes the juristic metaphysics of Salomon v Salomon & Co[5], insisting that he is not personally liable for the finder’s fee, and that Dynamo’s agreement is with the company.
- [7]The finder’s agreement is unwritten. Apart from the special condition (above) which simply refers to “Goldberg”, and the oral evidence of its principal, Graeme Cook, who testified that “on all of my correspondence I’ve been dealing with Mr Goldberg as Goldberg Construction”[6]. Dynamo relies on circumstantial documents. An ASIC search report in evidence shows that, from 10 March 2010 to 29 May 2017 Goldberg was a “sole trader” under the business name Goldberg Construction, which held its own builder’s licence.
- [8]On 2 September 2015 Dynamo sought instructions on the disposal of part of Goldberg’s proceeds of the land sale, subject to deduction of the finder’s fee of $6352.50. On the same day “Steven Goldberg, Managing Director, Goldberg Construction” replied: “Please deposit $3,647 as directed on Thursday in to my bank account,[7] and the balance of your invoice being $6,352.50 is payable on receipt of the deposit from [Hanlens]’.[8] While this exchange could have been better expressed, it is plain enough, in context, that Goldberg recognises a debt that will accrue from him personally to Dynamo when the building contract is signed. There is no suggestion that the designated funds are the property of the company.
- [9]On 7 September 2015 Goldberg’s solicitors wrote to Dynamo requesting it to “account to our vendor client” for proceeds of the land sale, less the finder’s fee. The “vendor client” was Goldberg in person; the company is not mentioned. On the same day Dynamo ordered a cheque from the Bank of Queensland in favour of Goldberg Construction.
- [10]Indeed, in an endeavour to explain the lateral arabesque from personal to corporate responsibility, Goldberg did let slip that “originally [I] was supposed to be building it as Steven Goldberg”, quickly adding: “However, the clients have taken their time ... and at that stage I was no longer trading as Steven Goldberg, Goldberg Construction. I had to work for the company.”[9] But as noted above, Goldberg Construction (the firm) was still registered in May 2017.
- [11]The learned Member, with the benefit of seeing and hearing the witnesses, was singularly unimpressed by this explanation.[10] Not to put too fine a point on it, he observed:
I find it is much more probable that Mr Goldberg simply chose to change the identity of the contractor from himself, personally, to Goldberg Construction Proprietary Limited in an attempt relieve himself from the obligation to deny [Dynamo] ... their commission.[11]
- [12]Regardless of Goldberg’s motivation for the attempted change from personal to corporate liability, he was not at liberty to do so without the informed consent of Dynamo. It is trite law that a party to a contract may not unilaterally withdraw and insert another person in his stead.
- [13]However, in view of Goldberg’s defence, leave was given to join the company as a respondent. But no consideration was given to the possibility that, as a potential judgment debtor, the company, as distinct from Goldberg, might not be worth powder and shot. In the event, the precautionary addition of the company as a party to the action was immaterial.
- [14]Another unexplored possibility is that, if Goldberg’s defence were accepted, he might be hoist by his own petard. The company could only be involved by his agency, and as agent for an undisclosed principal, he would be exposed to personal liability.[12]
- [15]However, this case turns on the Member’s finding that the true parties to the finder’s agreement were Dynamo and Goldberg in person[13].
- [16]I am satisfied that there is ample evidence upon which the Member was entitled to reach that conclusion. In part, it consists of Cook’s testimony that he intended to deal with Goldberg personally. Clearly implicit in the primary decision is an acceptance of that evidence. As Brennan, Gaudron and McHugh JJ observed in Devries v Australian National Railways Commission :[14]
More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable'.
- [17]
- [18]It is not the function of this appeal tribunal to interfere with reasonable findings of fact made at first instance. An application for leave to appeal is not an occasion for “second guessing” questions of fact or credit that are the province of the primary decision-maker. Indeed, the requirement to obtain leave to appeal is to preclude attempts to retry cases on the merits, or to introduce evidence or arguments that might have been led in the first place, but were not. On an application of this kind the question is whether there is a reasonably arguable case of error which, if not corrected, will cause substantial injustice to the appellant.[18] It is not nearly enough to express disappointment, or to entertain a subjective feeling that justice has not been done.[19] It is not appellable error to prefer one version of the facts to another, or to give less weight to one party’s case than he thinks it should receive. Findings of fact will not normally be disturbed if they have rational support in the evidence, even if another reasonable view is available.[20] Where reasonable minds may differ, a decision cannot properly be called erroneous, simply because one conclusion has been preferred to another possible view.[21]
- [19]Leave to appeal will be refused.
ORDER
Leave to appeal is refused.
Footnotes
[1] Transcript 9 June 2017 page 4 line 3.
[2] Transcript 9 June 2017 page 5 line 22 “an additional fee for the introduction of a client” (Cook).
[3] Transcript 9 June 2017 page 4 lines 35-36; page 9 lines 26-27, 33-34; page 16 lines 10-12 (Cook).
[4] Transcript 28 July 2017 page 2 line 14.
[5] [1897] AC 22.
[6] Transcript 9 June 2017 page 9 line 33.
[7] Emphasis added.
[8] Attachment to originating process filed 9 November 2016; transcript 9 June 2017 page 6 lines 21-32.
[9] Transcript 9 June 2017 page 10 lines 12-17.
[10] Transcript 9 June 2017 page 9 lines 42-43; 28 July 2017 page 3 lines 28-31.
[11] Transcript 28 July 2017 page 4 lines 10-13.
[12] Montgomerie v United Kingdom Mutual Steamship Assn [1891] 1 QB 370 at 372; Elder Smith Goldsborough Mort Ltd v McBride [1976] 2 NSWLR 631 at 643-645; Re Victoria Station Corporation Pty Ltd (admins apptd) [2018] VSC 163 at [75].
[13] Transcript 28 July 2017 page 5 line 1.
[14] (1993) 177 CLR 472 at 479.
[15] Brunskill v Sovereign Maine & General Insurance Co Ltd (1985) 59 ALJR 842 at 844; [1985] HCA 61.
[16] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[17] Fox v Percy (2003) 214 CLR 118 at 130.
[18] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 257 at [6]; Drew v
Bundaberg Regional Council [2012] QPELR 350; [2011] QCA 359 at [18]; Felton and Anor v Raine and Horne Real Estate [2011] QCATA 330 at [19]; International Professional Services v Tritone Nominees Pty Ltd [2011] QCATA 332.
[19] Robinson v Corr [2011] QCATA 302 at [7].
[20] Fox v Percy (2003) 214 CLR 118 at 125-126.
[21] Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at
[131]; In Re W (an infant) [1971] AC 682 at 700; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1025.