Ruhi v Friskie[2009] QDC 128

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an appeal from the Emerald Magistrates Court dismissing an application for summary judgment by the appellant/plaintiff Hare Ruhi against the respondent/defendant Julie-Anne Friskie, arising out of a contract for the sale/purchase of a property at 14 Moody Street, Emerald.

BACKGROUND

1. [2]
   The summary judgment application was heard before the learned Magistrate at Emerald on 3 and 17 June 2008, and a decision was delivered on 18 July 2009.  Although there are transcripts on file for the appearances on 3 and 17 June 2008 (at which stage the appellant was legally represented and the respondent was self-represented) there is no transcript of the learned Magistrate’s decision.

1. [3]
   The file contains the following hand written notation, apparently under the hand of the Registrar of the Emerald Magistrates Court:

 “18 July 2008 at 9.00 a.m.

 For Plaintiff – N/A

 For Defendant – N/A

I dismiss the application for summary judgment by the plaintiff – I make no order as to costs”.

That notation is followed by a signature (which I assume is that of the Registrar).  Underneath is the handwritten word “Registrar”.

1. [4]
   A Notice of Appeal was filed on 30 July 2008, on the following grounds:

1. (1)
   The learned Magistrate was wrong in law in finding a triable issue and in dismissing the plaintiff’s application;

2. (2)
   The learned Magistrate failed to deliver any or adequate reasons for finding a triable issue.  The appellant seeks a hearing de novo of the proceedings the subject of the appeal.

1. [5]
   The appeal was heard before me on 14 May 2009 with the appellant legally represented and the respondent self-represented.

1. [6]
   The appellant seeks leave to appeal, and submits that the appeal should be allowed, the learned Magistrate’s decision set aside, and that summary judgment should be entered for the appellant’s claim, plus interest and costs.

APPEAL PROVISIONS

1. [7]
   An appeal lies to this Court pursuant to s 45 of the Magistrates Court Act 1921, and my powers are set out in s 47.  My powers of appeal include ordering judgment for any party (s 47 (c)) and making any order, on such terms as I think proper, to ensure the determination on the merits of the real question in controversy between the parties (s 47 (d)).^[1]

ABSENCE OF REASONS

1. [8]
   As set out above, an examination of the file indicates a complete absence of any reasons for the decision of the learned Magistrate.  As McGill DCJ stated, in similar circumstances, “Magistrates are quite busy when they are dealing with applications of this nature, but there is an obligation to give reasons in relation to decisions in contested matters”.^[2]

1. [9]
   As Justice Fryberg noted in Bawden v ACI Operations Pty Ltd^[3],

“It is well established that there is a duty on the part of judicial tribunals to give reasons for their decisions and that failure to give reasons which ought to be given amounts to an appealable error.  A number of reasons for this rule were identified by Meagher JA in Beale v Government Insurance Office of NSW [1997] 48 NSWLR 430. They were to avoid disabling the right of appeal, to prevent the "real sense of grievance" felt by a party who does not know or understand why the decision was made; to enhance judicial accountability, provide the educative effect resulting from the exposure of the trial judge or magistrate to review and criticism and encourage consistency in decisions; and to save time for appeal courts by reducing the number of appeals and the time taken in considering appeals. What is required to be included in the reasons varies, and depends upon the circumstances, but in the words of Gibbs CJ, "It has long been the traditional practice of judges to express the reasons for their conclusions by finding the facts and expounding the law." In Suncorp Insurance and Finance v Hill [1997] QCA 362, Williams J, with whom Fitzgerald P and Davies JA agreed, cited a passage from the judgment of the President in Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1995] QCA 187:

"The broad principle deducible from the cases is that the decisionmaker is required to give reasons which disclose what was taken into account and in what manner, and thus whether an error has been made…. There have been many attempts to elaborate; indicating for example, the need for findings of fact, usually related at least in broad terms to the evidence on which each finding is based, and an explanation of the reasoning process; vague general statements, or unexplained conclusions are not sufficient…."

The pressures on judges and magistrates to resolve cases quickly and their heavy caseloads cannot relieve them of this duty.”^[4]

1. [10]
   It is clear that the failure to give reasons in a contested proceeding such as this amounts to appealable error, there being no issue as to the adequacy of the reasons^[5].

1. [11]
   I am mindful of the admonition of the President of the Court of Appeal in Choi v Collansi & Anor^[6], namely that,

“An application for leave to appeal from an interlocutory judgment will usually be refused unless it appears that the decision from which it is sought to appeal is attended with sufficient doubt to warrant it being reconsidered and also that, supposing the decision below to be wrong, substantial injustice would result if leave were refused. Westpac Banking Corporation v. Klef Pty Ltd [1998] QCA 311, Appeal No 8204 of 1998, 16 October 1998.”^[7]

1. [12]
   However, in my view Judge McGill’s comments in Berry v Pinter are entirely apposite to the matter before me, namely,

“In these circumstances, the exercise of the discretion at first instance cannot be afforded the ordinary respect. In my opinion it would be inconsistent with the existence of an obligation to give reasons for decisions, including decisions of a discretionary nature, if in the absence of reasons the appropriate assumption is that the decision is free from error vitiating the discretion, rather than that it was not. Accordingly in the absence of reasons the appropriate approach is for me simply to apply the ordinary approach in relation to an appeal by way of rehearing, that is to say, I have to make up my own mind on the subject on the material before me, but the decision at first instance will be affirmed unless I am persuaded by the appellant that it was wrong.”^[8]

1. [13]
   I therefore find that the failure of the learned Magistrate to provide any reasons at all amounts to an error of law.

1. [14]
   In the circumstances, then, I set aside the learned Magistrate’s decision.  The appellant submits that I should proceed to hear the matter de novo.  In my view, the interests of expedition and finality clearly mandate such a course.  The relevant affidavits and transcript are on file, and I propose then to deal de novo with the substantive issue, which is the application by the appellant/plaintiff for summary judgment against the respondent/defendant.

SUMMARY JUDGMENT – THE LAW

1. [15]
   An application for summary judgment proceeds under the Uniform Civil Procedure Rules r. 292 which provides:

(1)A plaintiff may, at any time after a defendant files a notice of intention to defend, apply to the court under this part for judgment against the defendant.

(2) If the court is satisfied that--

(a)the defendant has no real prospect of successfully defending all or a part of the plaintiff's claim; and

(b)there is no need for a trial of the claim or the part of the claim;

the court may give judgment for the plaintiff against the defendant for all or the part of the plaintiff's claim and may make any other order the court considers appropriate. 

1. [16]
   It is now clear that “summary judgment will not be obtained as a matter of course and the judge determining such an application is essentially called upon to determine whether the respondent to the application has established some real prospect of succeeding at trial; if that is established then the matter must go to trial”^[9].

BACKGROUND TO SUMMARY JUDGMENT APPLICATION

1. [17]
   The appellant and respondent entered into a contract dated 25 June 2007 for the sale to the respondent of the appellant’s property at 14 Moody Street, Emerald for $290,000.00.  A deposit of $100 was paid.  The contract was subject to finance^[10] and settlement was nominated for 6 August 2007.

1. [18]
   On 20 July 2007 the respondent’s then solicitors faxed the appellant’s solicitors (relevantly) as follows:

“We advise that our client’s application for finance has now been approved pursuant to the contract.

We are also instructed that our client is satisfied with the pest and building report on the basis that your client tend to the redirection of the downpipes and remove the external firewood, and the contract is now unconditional in this respect”.^[11]

1. [19]
   By 3 August 2007 the respondent’s solicitors had faxed (relevantly) as follows:

“Our client’s financier requires further time to process our client’s finance documents.  Accordingly we request an extension of time for settlement to 20 August 2007 with time to remain of the essence of the contract in all respects”.^[12]

1. [20]
   By facsimile of 3 August 2007, the applicant’s solicitors agreed to the extension of time to 20 August 2007 “with time to remain of the essence”.^[13]

1. [21]
   On 10 August 2007, the respondent’s solicitors faxed (relevantly) as follows:

“Our client has advised that her financier has retracted their offer of finance to purchase the…property.  We therefore request that your client release our client from the contract forthwith and forfeit the deposit to the seller”.^[14]

1. [22]
   This request was refused^[15] and on 20 August 2007, the appellant’s solicitors wrote to the respondent’s solicitors confirming that the respondent had not completed the purchase, that the contract was terminated, the deposit forfeited, and that the appellant would be seeking damages for the respondent for any loss on resale.^[16]

1. [23]
   The applicant sold the property for $262,000.00 in a contract dated 7 October 2007 which settled on 19 November 2007.^[17] The appellant’s solicitor’s costs of the aborted sale to the respondent was $1,501.50.^[18]

1. [24]
   The respondent’s affidavit confirms that, despite not being advised that her finance had been approved, she chose to “let the contract go to unconditional”, from which it can be inferred that the letter from her solicitors to the appellant’s solicitors of 3 August 2007^[19] was sent on the respondent’s instructions.^[20]

APPEAL ISSUES

1. [25]
   Given the essentially uncontested facts sworn to by the appellant and the respondent, it is difficult, if not impossible, to understand how and why the learned Magistrate was not persuaded by the appellant’s application under r. 292 of the Uniform Civil Procedure Rules 1999 (Qld).

1. [26]
   The complete lack of reasons from the learned Magistrate means that neither party, but particularly the losing party, has any idea why the application lost.  This represents a failure to complete a critical component of the judicial function.

1. [27]
   I need, therefore, to decide the case on the material before me, but to affirm the decision at first instance unless I am persuaded it is wrong.^[21]

1. [28]
   Clearly, I consider that the application for leave should be granted even though this is an appeal from an interlocutory decision, the appeal allowed and the decision of the learned Magistrate set aside.  Given the delays which have occurred to date, it is my view that this matter should be treated as a hearing de novo, and a decision delivered.

1. [29]
   In my view, the respondent clearly has “no real prospect” of successfully defending the claim or any part of it.^[22] There is no need for a trial.  The respondent’s case will not improve in any way.  Any prospect the respondent may have of recovery of all or some of the loss engendered is through an action against her conveyancing solicitors.  In these circumstances, the appellant has clearly satisfied me (and in my view, the learned Magistrate at first instance should have been so satisfied) of the first and second limbs of Uniform Civil Procedure Rule r. 262(2).^[23]

1. [30]
   The appellant’s damages are clear and ascertainable.  The property resold shortly afterwards for $262,000.00 and the appellant is entitled to interest.  The damages are the sale price to the respondent ($290,000.00) less the resale price ($262,000.00) with credit for forfeiture of the respondent’s deposit ($100), plus legal costs of $1,501.00 and interest from 20 August 2007 to 19 November 2007 of $9,915.62 and interest at $9.21 per day from 19 November 2007 to 14 May 2009 amounting to $4,982.61.  In total, judgment is granted in the amount of $44,399.73.

ORDERS

[31]1.Leave to appeal granted.

2. Appeal granted.

3. Decision of learned Magistrate to dismiss the application for summary judgment set aside.

4. Application for summary judgment granted.

5. Order that Julie-Ann Friskie pay Hare Ruhi the sum of $44,399.73.

1. [32]
   I will hear the parties on costs.