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Rand v Simpson[2015] QDC 244

DISTRICT COURT OF QUEENSLAND

CITATION:

Rand v Simpson [2015] QDC 244

PARTIES:

CAROL ANN RAND

(Appellant)

v

PATRICIA GAY SIMPSON

(Respondent)

FILE NO/S:

968 of 2015

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

24 September 2015 ex tempore

DELIVERED AT:

Brisbane

HEARING DATE:

21 September 2015

JUDGE:

Burnett DCJ

ORDER:

  1. The appeal be allowed;
  2. The decision of the learned magistrate made on 12 February 2015 be set aside;
  3. Judgment be entered for the plaintiff in the sum of $5000.00;
  4. There be no order as to costs in respect of the proceedings before the learned magistrate;
  5. There be no order as to costs in respect of the appeal;  and
  6. The parties have liberty to apply.

CATCHWORDS:

CONTRACTS – GENERAL PRINCIPLES – construction and interpretation of contracts – implied terms – liquidated damages.

ANIMAL – Ownership of progeny – lease agreement for stud purposes – subsequent birth of kittens – where defendant desexed female progeny – whether contract breached.

PROCEDURE – COSTS – Conduct of parties – where proceedings more appropriately commenced in QCAT.

Queensland Civil and Administrative Tribunal Act 2009, ss 9, 13, 100.

Sale of Goods Act 1896, s 3.

AMEV-UDC Finance Ltd v Austin (1986) 162 CLR 170

BP Refinery (Westernport) Pty Ltd v Hastings Shire (1977) 180 CLR 266

Graf and Lingerel (1914) 27 WLR 707

Makita (Australia) Pty Ltd v Sprowles (2001) 25 NSWLR 705

Tucker v Farm & General Investment Trust Ltd (1966) 2 QB 421

Warren v Coombes (1979) 142 CLR 531

COUNSEL:

D Kelly for the appellant

The respondent appeared on her own behalf

SOLICITORS:

Biggs Fitzgerald Pike for the appellant

The respondent appeared on her own behalf

  1. [1]
    The appellant was an unsuccessful plaintiff in proceedings in the Brisbane Magistrates Court conducted in October 2014. Judgment dismissing her claim was delivered on the 12th of February 2015. The plaintiff’s originating cause of action commenced in the District Court. She sought relief by way of specific performance of a written agreement for the provision of a kitten together with damages for breach of contract in the liquidated sum of $5000. The claim was subsequently amended to abandon the claim for specific performance but allege, in the alternative, a claim for damages for “breach of duty and/or trespass to chattels”. Additionally she included a claim for “aggravated exemplary and punitive damages”.
  1. [2]
    The matter was subsequently remitted to the Magistrates Court for determination. The trial proceeded for two full days before her Honour, in the Magistrates Court, retired to consider the matter. Briefly, the plaintiff and the defendant had entered into an agreement referred to as a “lease agreement and notification form” whereby the plaintiff supplied her female Persian cat (“the dam”) to the defendant, who owned a male Persian cat, (“the sire”). The reason for the supply was for stud purposes. The written agreement purported to govern the arrangement, but as this dispute illustrates, the drafting of this agreement was poor and accordingly left the parties in dispute in its performance.
  1. [3]
    A number of features of the agreement warrant mention as they underlie the dispute. The agreement provided that the dam would be supplied to the sire. The defendant, as the owner of the sire, kept the dam for the period of breeding, a period of about five months from late November 2009 to about May 2010. During that time she incurred all the financial obligations associated with the upkeep of the dam including veterinary costs. The agreement did not make provision for the payment of any money for this arrangement;  however, the consideration appeared to be reflected in clause (G), headed “Special Conditions”. Relevantly it provided, inter alia, that:

‘Once the litter of kittens is raised and weaned off the girl, Vonderbren, Who’s Ya Daddy is to be desexed by the lessee and placed in a suitable pet indoor home which is approved by the lessor.

All progeny MUST NOT be sold, leased, or given as an entire with pedigree and registration papers in Queensland or back into Queensland unless the lessor gives her written permission.

The lessor is given first choice of the pick of any female kittens in the litter.’

  1. [4]
    The difficulty this clause occasioned for the defendant was belief, on her part, that the agreement meant to provide for some monetary consideration but failed to do so. The monetary consideration contended for was payment at a commercial rate for the female progeny selected by the plaintiff:  see [3](b) of the Defence. There was no disagreement between the parties that no payment was made by the plaintiff to the defendant for a female kitten selected by her. An additional issue arose in the amended statement of claim concerning the kitten provided. That was that the kitten was desexed before being given by the defendant to the plaintiff. This conduct was alleged to give rise to the tortious claims. Concerning the contractual claim, the learned magistrate correctly identified the agreement was silent as to price. In addressing this issue she stated:

‘On a plain interpretation of the contract, Ms Rand only has first pick of any female of the litter. It does not state that there was to be no purchase price for the kitten. As the agreement is unclear as to whether there was to be no payment for the kitten I am strictly interpreting it in view of the transaction having some commercial flavour. I therefore find that if Ms Rand exercised her right to have first choice of a female kitten that she would have to pay a commercial price for the kitten.

No commercial price was ever offered by Ms Rand for Dolce. In view of this finding, Ms Rand’s claim must fail in relation to breaching the contract by failing to provide Dolce in April 2010.’[1]

  1. [5]
    She therefore concluded that the plaintiff’s claim failed. Although not expressed, a number of matters followed from her judgment. Firstly, the learned magistrate must have concluded that the contract, by operation of an implied term, imported an obligation for the plaintiff to pay the defendant for the kitten. It appears that it was because the plaintiff refused to pay the defendant for the kitten that the learned magistrate concluded that the defendant had not breached the agreement and her cause of action in contract must fail. She also concluded the actions in tort must also fail. Her reasoning for this conclusion was not provided. Secondly, the implied term, although not expressed in the judgment, was one to the effect that upon the dam producing any progeny, ‘the lessor [the plaintiff] is given first choice of the pick (sic) of any female kitten in the litter’ but such selection would include a condition that the lessor (the plaintiff) would pay a commercial price for the kitten”.
  1. [6]
    It is unfortunate that the lengthy written submissions filed before the learned magistrate did not address either the term purported to be contended for the by defendant, by her Defence, or the principles to be applied in considering whether a term, if any, ought to be implied. If such submissions had been made orally I was not directed to them on the appeal. Such submissions would have been helpful in this instance to the learned magistrate. Undoubtedly, submissions directing the learned magistrate to the nature of the implied condition contended for by the defendant and any submission on the appropriate principles could possibly have averted this error in her judgment.
  1. [7]
    I accept the appellant counsel’s submission that the term sought to be implied would fail at the threshold in the circumstances of this case because the term sought to be implied in this case was not one necessary as being “a fair and equitable term”. Indeed, arguably the opposite was likely:  see BP Refinery (Westernport) Pty Ltd v Hastings Shire (1994) 180 CLR 266.
  1. [8]
    As the defendant accepted in argument, this agreement had both upside and downside for both parties. Each carried the equal risk of upside or downside dependent upon the number of live kittens surviving. Plainly, had the dam borne six surviving kittens the outcome for her would have been most favourable especially given the views each of the parties had concerning the worth of a kitten;  however, in the result, only two live kittens survived. One went to the plaintiff in accordance with the terms of the agreement and the defendant retained the other. No doubt an unhappy result for the defendant who had agreed by the agreement to pay for the keep of the dam together with all associated veterinary costs.
  1. [9]
    It was against that background that she decided to demand money of the plaintiff for the female kitten she was to receive in accordance with the agreement;  however, the justice and equity of the proposed implied term must be tested by reference to all outcomes including the best case as well as the worst case. Plainly on a worst case outcome the defendant would have ended up with nothing but the bills. Such an outcome would have followed no surviving kittens or if only one kitten survived and it was female;  however, if six kittens were born and survived she would have had five kittens for her trouble. Such an outcome would possibly have exceeded all her reasonable financial expectations. It follows that given the nature of the agreement I do not think that the term as to payment sought to be implied was just and equitable and thus the term cannot be implied. In purporting to imply such a term, I am satisfied that the learned magistrate was in error.
  1. [10]
    It was not in contest that the defendant demanded consideration. Such a demand was unlawful and gave rise to an anticipatory breach. The plaintiff, by her conduct, appears to have waived the breach;  however, it was also agreed that the plaintiff, as lessor, was to be “given first choice of the pick of any female kittens in the litter”. Only one female kitten survived and, arguably, no difficulties should have occurred concerning the plaintiff’s selection of that kitten;  however, the only female kitten of the litter was desexed by the defendant before being provided by the defendant to the plaintiff. The agreement did not address this issue, namely, whether the provision of a desexed or entire kitten would fulfil the “pick of the litter” provision.
  1. [11]
    Arguably, there was an implied term that what would be made available was an “entire kitten”. That is, one with its reproductive organs intact. The implication of such a term satisfies the principles expressed in BP Refinery (Westernport) Pty Ltd v Hastings Shire. Of particular relevance is the second consideration, namely, the term being necessary to give business efficacy to the contract. The agreement here was stated in clause (E) to be for breeding only. One provision in the agreement provided for the desexing of the dam. With her desexing, the line would only continue through her offspring. As the pick of the female kittens was to be provided to the plaintiff and the purpose of the agreement was breeding the provision of a desexed kitten could not be seen to be to advance that purpose. The business efficacy of the contract could only be satisfied by the provision of another female potentially capable of further reproduction because its reproductive organs remained intact. Although the defendant advances a reason for having the kitten desexed its failure to have an entire female available for selection when the kitten was originally part of the litter was, in my view, in breach of the agreement. It was agreed by the agreement that in the event of breach by clause I(7):

‘If this lease is breached the lessee agrees to pay all court costs if this lease is litigated, and that suit shall be tried in the Lessor’s district. There shall be an additional $5000 damages fee if this binding Lease is brought to court.’

  1. [12]
    The parties do no disagree that the sum of $5000 represented a genuine pre-estimate of damages. There is nothing to suggest it is so excessive as to constitute a penalty, and accordingly it caps the plaintiff’s damages and she cannot recover more for the breach of contract:  see AMEV-UDC Finance Ltd v Austin (1986) 162 CLR 170. However, the plaintiff also seeks aggravated exemplary and, in effect, punitive damages based upon a tortious action for breach of duty and/or trespass to chattels. The plaintiff’s claim in this regard was pleaded in the amended statement of claim as follows from paragraph 8(A):

‘8(B) At all material times the defendant:

  1. (i)
    knew the bloodline of Vonderbren had been the result of many years of selected breeding by the plaintiff,
  2. (ii)
    knew the bloodline of Vonderbren was unique,
  3. (iii)
    knew the bloodline of Vonderbren was valuable to the plaintiff,
  4. (iv)
    knew the progeny of Dolce was the sole female carrying that bloodline,
  5. (v)
    knew that terminating the bloodline by desexing Dolce would cause irreparable harm, hurt, affront, and outrage to the plaintiff,
  6. (vi)
    knew that the plaintiff had commenced proceedings for specific performance of the contract including the handing over of Dolce by the defendant to the plaintiff.

8(B) As a consequence of the matters pleaded in paragraph 8(A) the defendant owed the plaintiff a duty at law and/or in equity:

  1. (i)
    to ensure no harm came to the progeny, Dolce,
  2. (ii)
    to not interfere or act towards Dolce in a manner inconsistent with the plaintiff’s desire to breed from Dolce,
  3. (iii)
    to provide Dolce to the plaintiff as an entire,
  4. (iv)
    not to desex Dolce.

8(C) In contumelious disregard of the plaintiff’s rights and with knowledge of the matters pleaded in paragraph 8(A) hereof the defendant deliberately and maliciously desexed Dolce.

8(D) As a result of desexing Dolce, the plaintiff has been deprived of the benefit of her years of selective breeding to produce Dolce.’

  1. [13]
    The plaintiff proceeded then to allege damages, which it claimed in the sum of $10,000 by way of feeding of cats for 10 years calculated as a global sum and $50,000 in the same regard, together with a further claim of $100,000 for aggravated exemplary and punitive damages for the intentional desexing of Dolce in breach of the duty owed by the defendant to the plaintiff.
  1. [14]
    In her submissions at first instance, it was contended at paragraph 21 that once the defendant was in breach of the contract, there was a duty placed on her whilst in possession of the plaintiff’s property, namely, the kitten, not to act in a manner which was detrimental to the plaintiff’s ownership of that kitten or to impact on the plaintiff’s rights with regard to that kitten, namely, the rights to use it as she saw fit, including to breed from it. At [53], the plaintiff contended in support of its submission at paragraph [21] the observations included in Fleming’s the Law of Torts[2]with respect to trespass to goods:

‘Trespass may be committed by any act which directly brings the defendant into contact with a chattel such as destroying, damaging or merely using goods, beating or killing animals or birds.’ 

  1. [15]
    At the outset, the question arises as to who had property in the female kitten. The kitten was born whilst the dam was in the defendant’s possession pursuant to the lease. The plaintiff had a contractual right to select it but, until it was handed over, no prior possession to it. Did these facts give rise to a cause of action and trespass, as was pleaded, or conversion, as was orally submitted?
  1. [16]
    In Clerk & Lindsell on Torts[3] at [17-62], the learned authors observe, concerning a claimant’s right to action in conversion, the following:

‘A claimant’s right must be proprietary. For these purposes, it seems that the immediate right to possession on which the owner relies must be a proprietary right;  a mere contractual right to be given possession will not do…

Similarly, although a co-owner of part of an undivided bulk can sue, the claimant’s right must actual be proprietary. A mere contractual right to delivery of a stated proportion of goods in someone else’s hands will not suffice. On the other hand, where the property is delivered to A as agent for B or pursuant to some similar transaction, B does have a sufficient interest to sue in conversion.’

  1. [17]
    The author provides some authority in respect of those general propositions. It follows that the plaintiff had to have a proprietary right entitling it to possession at the time that the defendant had the kitten desexed in order to succeed in its cause of action for trespass to the chattel and/or conversion. In this case, the consideration for the agreement was the agreement by the parties to exchange the provision of stud services for an agreed share of the progeny following the successful provision of those stud services. In other words, the arrangement was a barter or exchange agreement. In Benjamin’s Sale of Goods[4]at [1-034], the authors observed generally concerning barter or exchange contracts that:

‘To constitute a sale, it is necessary that the consideration for the transfer of the property and goods should be in money. This must be either paid or promised. But if the consideration is something other than money, the contract is not, strictly speaking, one of sale in English law. Where the goods are supplied or promised in exchange for goods, the transaction is a barter or exchange.’

  1. [18]
    The author continues to note that none of these constitute a sale within the meaning of s 3 of the Sale of Goods Act 1896. In respect of any such breach, the claim is one in contract. It follows that the Sale of Goods Act does not assist in resolving the question of title in this instance, because the lease involved a barter and does not assist in dealing with the issue of title.
  1. [19]
    However, in the case of domestic animals, the position may be resolved by reference to common law. The position at common law appears to be that the offspring of the dam belong normally to the owner of the dam:  see Graf and Lingerel (1914) 27 WLR 707. However, that position does not prevail in circumstances where the offspring are the offspring of an animal on lease. In Tucker v Farm & General Investment Trust Ltd (1966) 2 QB 421, the Court of Appeal, constituting Denning MR and Harman and Diplock LJJ, considered this very point. While their Honours noted the general position at law, they continued there to consider the question concerning title of offspring of cattle in a context where consideration had not been given to that arrangement. In that case, like this case, the dam had been the subject of a lease and was in the possession of the owner of the sire at the time the progeny were produced. At page 428, Denning MR, after having referred earlier to some discussion concerning the position at common law and the rationale behind it explained in some earlier authorities arising from Lord Coke’s observations noted in Blackstone, continued:

‘In other words, if the progeny did not belong to the lessee, it would mean that the lessor would have the rent and the lease and the lessee would have no profit, which would be absurd. That seems to me to be a direct authority, now standing for nearly 400 years, which shows that in the case of a lease of livestock, if during the course of the lease the livestock has progeny, that progeny belongs to the lessee. If the lessor desires to claim them and to retain property in them, he must expressly stipulate for it in the lease by saying that the lease is of the livestock together with the progeny that may thereafter be born.’

In that regard, his Honour looking at the agreement before him noted:

‘I hold that on this hire-purchase agreement, nothing being said about progeny, any progeny that arose during the hiring belonged to the hirer.’

Likewise, Diplock LJ in his judgment noted:

‘When you come to a case like this, where there is a lease of livestock and where, accordingly, property and possession are divided, the English rule and the rule in the civil law is that the progeny and the produce of the livestock belong to the person entitled to the possession, that is to say, the lessee in English law.’

  1. [20]
    Here, the lease provided a term whereby the parties “agreed to grant and accept a lease of the cat specified”, being the dam. It did not stipulate that the lease was to be of the dam and the livestock born. In my view, the title was initially vested in the defendant and that the plaintiff’s entitlement to the kitten was contractual. That is, she had no proprietary interest in the kitten initially. The kitten was to pass to her in accordance with the agreement, and until possession of the kitten had passed, she had no basis to title in it. It follows that the plaintiff did not have title to the kitten and thus the requirement for a proprietary interest in the chattel, that is title in the kitten, remained with the defendant while it was in her possession. The remedies available to the plaintiff were purely contractual. As I’ve observed, a contractual interest in property is not sufficient to support a claim in conversion. From the evidence, it is plain that the kitten was desexed. In my view, while that constitutes a breach of contract, it does not, in my view, support the action in conversion. It follows that, while the learned Magistrate was in error in failing to make this finding, had she been directed to the law on this matter, should have done so. In any event, her ultimate finding was correct, that is, that the cause of action in conversion should fail.
  1. [21]
    Despite my finding against the plaintiff on the point of conversion, I should assess damages. Damages for conversion is assessed by their value together with any special loss that might flow. So far as the evidence concerning the value of the kitten was concerned, such as it was, it was highly unsatisfactory. A contest existed before the learned Magistrate about the value of the kitten. Each of the plaintiff and defendant gave evidence of their own views concerning the value of the dam’s offspring. Neither party addressed the relevant matters related to admission of expert evidence such that it satisfied the commonly accepted state of matters addressed in Makita (Australia) Pty Ltd v Sprowles (2001) 25 NSWLR 705, where Heydon JA (as he then was) stated:

‘[85] … if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of “specialised knowledge”; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be “wholly or substantially based on the witness's expert knowledge”; so far as the opinion is based on facts “observed” by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on “assumed” or “accepted” facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, and on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v The Queen (at 428 [41]), on “a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise”.’

  1. [22]
    The so-called valuation evidence failed woefully, in my view, to meet the criteria set out in Makita (Australia) Pty Ltd v Sprowles.  In my view, there was no error in the learned Magistrate’s conclusion that the insufficient evidence as to value as adduced was such that she could make no finding of the value of the cats. Fortunately, however, the evidence commonly indicated a value of the kitchen at significantly less than the liquidated damages sum, such that if that if that head was the only head sought, the Plaintiff’s failure to succeed in her cause of action in conversion would have yielded her no loss, a matter which is amplified by the agreement, although the kitten had some value for a use as a pet, despite being desexed.
  1. [23]
    In her notice of appeal, the Appellant-Plaintiff also sought other damages. In particular, in [3.3.3] she sought:

‘Damages for breach of contract being:

3.3.3.1: Lost expenses:  $6250.

3.3.3.2: Lost care:  $1000.

3.3.3.3: Expectation damages:  $10,000.

3.3.3.4: Exemplary damages:  $25,000.

3.3.3.5: Aggravated damages:  $5000.’

  1. [24]
    Some of those damages are not permissible under contract. However, such heads as are available in tort may be appropriate. In light of that, I now turn to consider whether in the circumstances, an award should be made under those heads, and if so, how much. Concerning this matter, this court, as an appeal court, hearing the appeal by way of re-hearing, has the duty to determine the facts of the case, as well as the law for itself. The judgment below is not to be treated as a verdict of a jury would be. However, in determining the issues of fact, this court must have regard to the advantages enjoyed by the learned Magistrate in trial in assessing the various witnesses’ credibility.
  1. [25]
    In addition, it is important that a distinction is made between drawing a factual conclusion from established facts and establishing the facts themselves. In the former, a court on appeal is in a much stronger position to draw its own the conclusions than in the latter. But having said that, an appellant Court is in as good a position as a trial judge to decide on the proper inference to be drawn from the facts which are undisputed, or which, having been disputed, are established by the findings of the trial Judge:  see generally Warren v Coombes (1979) 142 CLR 531. When a question of credibility arises, this Court on appeal is in as good a position as a trial Judge to decide questions of fact where they were otherwise undecided.
  1. [26]
    The claim by the Plaintiff was set out in her submissions before the learned Magistrate. She claimed $73,750. They broadly were broken down into five heads:  (1) liquidated damages, $5000;  (2) damages for tort, of conversion or trespass to chattels, $5000;  (3) damages for breach of contract, being loss of expenses, lost care and expectation damages, $21,250;  (4) exemplary damages, $25,000;  and (5) aggravated damages, $5000, and the balance is made up in interest.
  1. [27]
    The nature of damages in tort are compensatory. Accordingly, having an entitlement for damages under contract equating with compensation – if not greater, as is the case here – means that she has no entitlement to compensation for loss of the value of the kitten, a matter I observe she did not prove, in any event. But given that liquidated damages are agreed, the claim under paragraph 3 must fall away. Only paragraphs 4 and 5, that is, the matters of exemplary and aggravated damages, require assessment.
  1. [28]
    The nature of aggravated damages were discussed in Clerk and Lindsell.[5]So far as exemplary damages were concerned, at [28-137], the learned authors observed:

‘Where the manner of commission of a tort was such as to injure the claimant’s proper feelings of dignity and pride, higher damages than would otherwise have been justified may be awarded. Such aggravated damages, as they are known, have been awarded for several different types of tort, but they have featured most typically in defamation cases and have already been considered in that context. From the Defendant’s point of view, the award may appear to incorporate an element of punishment imposed by the Court for his bad conduct, but the intention is rather to compensate the claimant for injury to his feelings, and the amount payable should reflect this.’

So far as aggravated damages are concerned, at [17-106], the learned authors observed:

‘Aggravated damages may be awarded for the circumstances of a conversation if it is particularly high-handed or distressing. Exemplary damages have never been awarded hitherto for conversion, but this is no doubt because of the belief that persisted until 2001 that they were unavailable in respect to any tort where they had not been awarded prior to the decision in Rookes and Barnard.  It is now clear, however, that such damages are available for any tort. It follows that they are available in conversion as elsewhere and subject to the same conditions.’

  1. [29]
    No authority was placed before the Court to illustrate any instance where such heads were awarded in conversion cases, which leaves open some of the doubt addressed by the authors. In this case, the Defendant provided evidence that the kitten was, in essence, a sickly kitten and that she decided, for its own best welfare, that it be desexed. Although the emotion between these two women was high, there was nothing to suggest the Defendant’s conduct was motivated by malice, and in fact, she refuted that suggestion. I do not consider the evidence supports any basis for an award of exemplary or aggravated damages, and I would have dismissed any claim for such and assessed them at $0.
  1. [30]
    The final point that arises and concerns clause 7 of the agreement and that part of it which provided, as I’ve earlier noted, that ‘if the lease is breached, the lessee agrees to pay all the Court costs if the lease is litigated and that the suit shall be tried in the lessor’s district.’
  1. [31]
    The Plaintiff did have a right to recover its liquidated damages of $5000. In essence, that is a debt claim. It had no basis to make a claim in tort for unliquidated damages to be assessed. While the expression in clause 7 is open to argument, it is, in my view, tolerably clear, although what was contemplated is the payment of court-ordered costs upon success in litigation before a body that has the power to make such an order.
  1. [32]
    Disputes of the kind advanced here, at first instance, may be prosecuted in various jurisdictions, and while it was open to commence proceedings before the District Court and indeed, the Magistrates Court, it was also open to prosecute this cause of action before the Queensland Civil and Administrative Tribunal (QCAT). In that regard, I’m particularly mindful that QCAT has a jurisdiction for minor civil disputes, provided for at s 9 of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”). A minor civil dispute relevantly means any claim to recover a debt or liquidated demand of money, with or without interest, of up to the prescribed amount, which is $25,000.
  1. [33]
    The tribunal – that is, QCAT – may exercise its jurisdiction for a minor debt dispute if the relevant person has, under the QCAT Act, applied to the tribunal to deal with the dispute, and a relevant person for that purpose means someone who claims to recover a liquidated demand of money from a person whom the debt is claimed to be owed or payable. In a proceeding for a minor civil dispute, the tribunal is then invested with power to make such orders that it considers fair and equitable to the parties to the proceeding in order to resolve that dispute:  see s 13(1) QCAT Act.
  1. [34]
    Relevantly, QCAT can make the following orders to resolve a minor debt dispute. It can make an order requiring a party to the proceeding to pay the stated amount to a stated person, it can order a party to return goods that relate to the claim and that are in the party’s possession or control to a stated person, or it can make an order combining two or more of those orders:  see generally, s 13(2)(a)(1), (4) and (5) QCAT Act. It can also award interest in a minor civil debt dispute.
  1. [35]
    QCAT is ultimately a layman’s jurisdiction, and the Act expressly provides that in respect of these sorts of disputes, legal representation may only be granted in certain circumstances, such as where a complex question of law arises. In this case, the relief sought by the Plaintiff, principally, was for either the possession of a cat, at first instance, and ultimately for liquidated damages in breach of the contract. Both remedies were available to the Plaintiff in that jurisdiction.
  1. [36]
    The Plaintiff owed a duty to mitigate any loss that might have been occasioned by the Defendant’s breach of contract, including losses associated with that claim. In my view, it unreasonably elected the Rolls-Royce solution, when plainly the Commodore solution would’ve been acceptable. Respectfully, the submission made that the Defendant should pay the Plaintiff’s costs on the District Court scale and on an indemnity basis is, in my view, risible.
  1. [37]
    The submission reflects the disproportion that appears to have attended this particular dispute throughout. This is a matter that could have been and should’ve been prosecuted before QCAT. Given the quantum in dispute – that is, $5000 – and the issues involved, I do not consider a basis for legal representation would have been required or indeed have been permitted by the tribunal.
  1. [38]
    The bearing that has upon clause 7 is, in my view, that notwithstanding the Defendant’s breach of the lease, if the Plaintiff had acted reasonably, she would not have incurred any legal costs. Moreover, a process of appeal is specifically provided for in the QCAT Act in respect of appeals for minor civil disputes. They are resolved internally within QCAT and subject to the same rules as apply to minor civil disputes at first instance. That is, there are limited rights of representation on appeal, and costs are subject to the same cost regime. Had she been unhappy with the outcome at first instance, the Plaintiff could’ve exercised her rights of appeal to QCAT and again avoided the incurring of unnecessary costs. Its failure to commence and prosecute proceedings in QCAT is only amplified by the process it adopted.
  1. [39]
    It follows, in my view, that the Plaintiff is not entitled to any costs in furtherance of clause 7 of the agreement. That leaves only the costs of appeal. The Plaintiff seeks the costs of this appeal. The Appellant-Plaintiff has succeeded, at least insofar as it has been partially successful in having the Magistrate’s decision reversed on one point. However, despite the need for orders to be made to correct the error made below, in my view, having regard to the avenues that were available to the Plaintiff to pursue this remedy, as it ought to have, in QCAT, I do not think it is appropriate that it be awarded any costs in respect of this appeal. It ought to be entitled to the same costs it would’ve most likely have succeeded in obtaining, had the matter been prosecuted before the tribunal on appeal from the decision of an ordinary member of the tribunal. That is, that there would’ve been no order as to costs. Each party, in accordance with the presumption provided by s 100 QCAT Act, would have been required to incur and bear their own costs.
  1. [40]
    It follows my orders are these:  order 1, the appeal allowed;  order 2, that the orders of the Magistrate be substituted with an order that there be judgment for the Plaintiff against the Defendant in the sum of $5000;  order 3, that there be no order as to costs on the first of the proceedings before the Magistrate;  and then finally, order 4, that there be no order as to costs on the appeal. I’ll grant the parties liberty to apply, because the matter of interest is still at large, and I’d be assisted by a calculation in respect of that matter.

Footnotes

[1] Rand v Simpson (Unreported, Magistrates Court of Queensland, 12 February 2015) 4.

[2] Carolyn Sappideen and Prue Vines (eds), Fleming’s the Law of Torts, (Lawbook Co, 10th Ed, 2011).

[3] Anthony Dugdale and Michael Jones (eds), Clerk and Lindsell on Torts, (Sweet & Maxwell, 20th Ed., 2010).

[4] M. G. Bridge (ed), Benjamin’s Sale of Goods, (Sweet & Maxwell, 9th Ed., 2015).

[5] Dugdale and Jones, above n3.

Close

Editorial Notes

  • Published Case Name:

    Rand v Simpson

  • Shortened Case Name:

    Rand v Simpson

  • MNC:

    [2015] QDC 244

  • Court:

    QDC

  • Judge(s):

    Burnett DCJ

  • Date:

    24 Sep 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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