Wellcamp Properties Pty Ltd & Ors v Resnikoff
[2016] QDC 40
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- Unreported Judgment
- Wellcamp Properties Pty Ltd & Ors v Resnikoff[2016] QDC 40
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Wellcamp Properties Pty Ltd & Ors v Resnikoff[2016] QDC 40
Wellcamp Properties Pty Ltd & Ors v Resnikoff[2016] QDC 40
DISTRICT COURT OF QUEENSLAND
CITATION: | Wellcamp Properties Pty Ltd & Ors v Resnikoff [2016] QDC 40 |
PARTIES: | WELLCAMP PROPERTIES PTY LTD ACN 010 591 732 (First Appellant) and LESTER ROY GRAY (Second Appellant) and JOSEPHINE ANNA GRAY (Third Appellant) v NINA RESNIKOFF (Respondent) |
FILE NO/S: | 4198/15 |
DIVISION: | |
PROCEEDING: | Civil Appeal |
ORIGINATING COURT: | Magistrates Court, Beenleigh |
DELIVERED ON: | 7 March 2016 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 29 February 2016 |
JUDGE: | Searles DCJ |
ORDER: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – Appeal to District Court from Magistrates Court – where leave to appeal is sought under section 45 of the Magistrates Court Act 1921 (Qld) – whether an important principle of law or justice is involved – whether the Respondent abandoned an allegation by way of cross-examination upon a different issue which was not the subject of pleadings – whether the finding of the Magistrate failed to accord principles of natural justice – whether the finding of the Magistrate offended the objects of pleadings – whether leave to appeal should be granted Ramzy v Body Corporate for GC3CTS38396 & Anor [2012] QDC 397 – followed. Crusader Marine Holdings Pty Ltd (in liq) v Ballantyne [2011] QSC 152 – cited. |
COUNSEL: | Appellant – PG Jeffery Respondent – W Tolton |
SOLICITORS: | Appellant – Keller Nall and Brown Respondent – Jeff Horsey Solicitors |
Background
- [1]By Notice of Appeal filed 28 October 2015 the Appellants seek leave to appeal the decision of the Magistrates Court delivered extempore at the conclusion of a half day trial on 30 September 2015. The court ordered that judgment be entered for the Plaintiff against all three Defendants in the sum of $16,046.10 plus costs of $8,141.89.
- [2]The judgment represented outstanding rental payments due by the Appellants to the Respondent for the months of September 2012, February 2014 and March 2014 each of $5,348.70. The non-payments of the February and March 2014 payments were admitted on the pleading so the only issue in dispute related to the September 2012 rental.
Leave to Appeal
- [3]The Appellants appeal pursuant to s 45 of the Magistrates Court Act1921 (Qld). Section 45(2)(a) requires leave where the amount in dispute, in this case $5,348.70, is not more than the minor civil dispute limit under the Queensland Civil and Administrative Tribunal Act2009 (Qld). That figure is $25,000.
Principles Relating to the Grant of Leave to Appeal
- [4]Section 45(2) which I have referred to provides that a District Court or a judge thereof shall not grant leave to appeal unless the court or judge is satisfied that some important principle of law or justice is involved. In Ramzy v Body Corporate for GC3 CTS38396 & Anor,[1]Judge McGill reviewed the authorities dealing with the test to determine the existence of ‘some important principle of law or justice’. His Honour said:-[2]
“The leading authority on the application of this test is Wanstall v Burke [1925] St R Qd 295 a decision of the Full Court. MacNaughton J, with whom O'Sullivan J agreed, said that the effect of the test laid down by the statute was to adopt the practice applied by the High Court at that time under the Judiciary Act 1903 (Cth) s 35(1)(b) in relation to certain applications for special leave to appeal to that Court. He quoted a passage where Griffith CJ said:
‘The practice we have already laid down…[is] of not granting special leave to appeal unless we are of the opinion that the case is one of gravity, or involving some important question of law, or affecting property of considerable value; or unless it is a case which is otherwise of public importance, or is of a very substantial character.’
The approach of the majority has been frequently followed by the Full Court and more recently the Court of Appeal. In Johns v Johns [1988] 1 Qd R 138 Williams J with whom the other members of the Court agreed, noted that the test had been followed by the Full Court in Kavanagh v Loch [1930] St R Qd 317, and in Scagliotti v Boyd [1962] Qd R 481. His Honour noted that attention had been drawn to the use in the similar expression then contained in s 92 of the District Courts Act 1967, dealing with appeals to the Court of Appeal from the District Court, of the word ‘question’ rather than ‘principle’, which may have had a narrower connotation, but did not consider it necessary to decide that: p 141 – citing Laughlan v Hartley [1978] Qd R 1 at 9 per Kneipp J. It has also been said that an important principle of justice requires that there be a question going beyond the consequence of the decision for the immediate parties to the proceeding: American Express International Inc v Hewitt [1993] 2 Qd R 352. The Court of Appeal spoke in favourable terms of this approach in Doyle v James [1993] QCA 332.’
Appeal grounds relied upon
- [5]The Appellants rely upon the following grounds of appeal in the event leave is granted: -
- the learned magistrate erred by allowing the Respondent to advance a case at trial contrary to her own pleadings;
- The learned magistrate erred by finding that rent was not paid in advance from the commencement of the lease between the First Appellant and the Respondent until October 2012 and;
- the learned magistrate erred by finding the Appellants failed to pay rent under the said lease for the month of September 2012.
Grounds Relied Upon for Leave to Appeal
- [6]The Appellants rely on two grounds to found the granting of leave:-
- That the Magistrate failed to accord natural justice to them in finding that the September 2012 rent had not been paid, in circumstances where the Respondent had, by its cross-examination as to the July 2012 rental, effectively abandoned her allegation of non-payment of the September 2012 rental.
- The Magistrate’s finding of the non-payment of the September 2012 rental offends the objects of pleading.
Leave Ground 1 - Denial of Natural Justice
- [7]At trial, the Respondent gave evidence, as did the Second Appellant, a co-director with the Third Appellant of the First Appellant. The Respondent tendered her bank statements for the period 25 June 2012 to 28 June 2013 as Exhibit 2. In cross-examination of the Second Appellant in relation to Exhibit 2, the following exchange took place:-[3]
“QUESTION: Yeah. You say in there that on 29th of June 2012, I think it is, there’s an amount paid. Can you have a look on the 29th June 2012?
ANSWER: You don’t have the 29th June there. You don’t have the 29th June here.
QUESTION: First page?
ANSWER: No. First page is 25th.
QUESTION: Of what? 25th June 2012 the account’s opened. 25th June 2009 – 29th June 2012, is there any deposits as stated in your material?
ANSWER: For June?
QUESTION: For the – you said in this document here, the document which is Exhibit 2, you’ve said that in June 2012 – sorry July 2012 you’d paid – paid on 29th June 2012, $5,348.70?
ANSWER: Which is showed here on the statement on 30th of July. In June – sorry no. There’s nothing …
QUESTION: 29th June?
ANSWER: Yeah.
QUESTION: 2012. There is no deposit of $5,348.70 is there?
ANSWER: There’s nothing on the statement. No.
QUESTION: No?
ANSWER: No.
QUESTION: What I’m suggesting to you that that’s where the missing payment is.”
- [8]Earlier in the cross-examination[4]the Second Appellant had accepted that there were eleven deposits of the rental sum of $5,348.70 in the period 25/6/12-28/6/13 covered by Exhibit 2. That was the context in which Mr Tolton for the Respondent said:-
“Well I’m suggesting to you that’s where the missing payment is.”
Counsel was clearly referring to a 12thpayment for the (little over) 12 month period covered by the Exhibit 2 bank statements. Notwithstanding the absence of any payment recorded in the month of July in Exhibit 2, the Second Appellant did not accept that the July rental had not been paid.[5]
- [9]Objection was taken by counsel for the Appellants, Mr Bertrand, to cross-examination of the Second Appellant relating to the July 2012 rental when it was not an issue on the pleadings.[6]
- [10]The objection was overruled with the Magistrate saying:-
“I think that’s a fair question. We’re going – there’s 11 payments. Why is that? Let’s get to that – the real issue, please.”[7]
- [11]It is the contention of the Appellants that the cross-examination in relation to non-payment of the July rental represented an effective abandonment of the allegation pleaded, namely that the First Appellant had failed to pay the September 2012 rental.
- [12]Further, it is said, the Magistrate’s ultimate finding that the September 2012 rental had not been paid does not accord with the facts ultimately put forward by both parties given the abandonment by the Respondent of the allegation of failure to pay the September rental. They say the only conceivable basis upon which the Magistrate could have made the finding as to non-payment of the September rental was by effectively ‘transmogrifying’[8]the non-payment of the July rental, or a non-payment of rental for some other month other than September 2012, into non-payment of the September rental.
Leave Ground 2 – Decision Offends the Objects of Pleading
- [13]Relying upon the same facts as above outlined for ground 1, the Appellants say that the fact that they objected to the cross-examination relating to non-payment of the July 2012 rental, and again raised the issue in final submissions, would justify leave being granted. Again, they say the Magistrate thereby allowed the Respondent to advance a case, namely non-payment of July 2012 rental, which was not pleaded and then made a finding that the September 2012 rental had not been paid, when that allegation had been effectively abandoned by the Respondent. In support of that argument the Appellants pointed to a statement by Applegarth J in Crusader Marine Holdings Pty Ltd (in liq) v Ballantyne[9]where His Honour said:-
“Pleadings serve the interests of justice by ensuring that trials are conducted in a way that is procedurally fair. The rule that, in general, relief is confined to that available on the pleadings secures a party’s basic right to procedural fairness. A party is entitled to confine the opposing party to that party’s pleadings because the first party is entitled to come to trial to meet the issues raised on the pleadings. Accordingly, the circumstances in which a case may be decided on a basis different from that disclosed by the pleadings are limited to those in which the parties have deliberately chosen some different basis for the determination of their respective rights and liabilities.”
Consideration of grounds for leave to appeal
- [14]I am unpersuaded that either of the grounds relied upon for leave to appeal have been made out having regard to the above established principles relating to the grant of leave. True it is that limited cross-examination was allowed in relation to the July 2012 rental and that the Respondent’s counsel made a throwaway remark to the effect that the July non-payment was, in effect, the missing 12thpayment to make up 12 payments for the 12 month period in Exhibit 2. But to say that circumstance amounted to an abandonment by the Respondent of its allegations, as pleaded, that the September 2012 rental payment was that being sought, would in my view, require more. No application to amend pleadings was made, and more importantly, in the Respondent’s counsel’s closing address this unequivocal statement appears:-[10]
“The remaining $5,348.70 remains outstanding, in my respectful submission. It was no secret or no surprise that we were arguing that moneys were due and owing in September 2012. That’s set out in the pleading. We provided extensive bank records by way of disclosure, going back to 2002, right up to 2014. We needed to prove our case. We tendered to the Court clear and unequivocal banking records from 2012 to 2013 the relevant year. It’s a red herring, in my respectful submission, to argue whether it’s paid in advance or in arrears or whatever.” (emphasis added)
- [15]Nothing could be clearer to my mind, but that the Respondent was relying upon, and continued to rely upon, the September 2012 rental default. I am not satisfied that the criteria for the granting of leave has been satisfied and accordingly leave is denied.
- [16]Notwithstanding the denial of leave to appeal, I want to say something as to the issue of the Magistrate’s finding that rental payments for the period were not paid in advance[11]from the commencement of the lease on 1 April 2007 up to September 2012, and the finding of non-payment of September 2012 rental. These would be the remaining substantive grounds of the appeal.
Was the rental paid in advance? - Respondent’s evidence
- [17]Exhibit 2 shows the following rental payments.
Date | Payment |
| $5348.70 |
| $5348.70 |
| $5348.70 |
| $5348.70 |
| $5348.70 |
| $5348.70 |
| $5348.70 |
| $5348.70 |
| $5348.70 |
| $5348.70 |
| $5348.70 |
- [18]
“QUESTION: So you would have received from the Defendant rental income each month; is that correct?
ANSWER: Yes. Yes.
QUESTION: And that rental income is deposited into that…?
ANSWER: Yes.
QUESTION: ..Bank? And that’s deposited on a monthly basis?
ANSWER: On a monthly basis, but any time on the first – like, it should be the first of every month. It will deposit it anytime my tenant felt like he – I don’t know, anyway can different times of the months. It doesn’t matter to me, it was no matter to me.”
The Respondent later said[14]in a 12 month period she would receive 12 monthly payments. In re-examination, she said that from 2007 onwards there were only three missing payments, September 2012 and February and March 2014[15](the latter two both admitted by the Appellants).
- [19]In cross-examination, it was put to the Respondent that the Appellant’s rental was paid in advance from the beginning of the lease[16]and was likewise paid in advance in the 2012 year.[17]In short, the Respondent did not accept that the rent was so paid in advance. It is clear that her evidence[18]was that the rental payments were not made uniformly on the 1stday of every month as provided for in the lease or otherwise uniformly in advance.
Was the rental paid in advance?- Appellants’ Evidence
- [20]At the trial, the Appellants tendered Exhibit 4 being a Schedule of rental payments made between 30 March 2012 and 26 February 2013 for the months of April 2012 to March 2013. In other words, according to the Appellants, all payments in that period were paid in advance. The abovementioned Schedule shows the following rental payments which the Appellants say were made to the Respondent:-
Rental Period | Date of Payment | Cheque Number | Amount |
April 2012 | 30.03.2012 | 2441 | $5348.70 |
May 2012 | 30.04.2012 | 6908 | $5348.70 |
June 2012 | 22.05.2012 | 2470 | $5348.70 |
July 2012 | 29.06.2012 | 6911 | $5348.70 |
August 2012 | 30.07.2012 | 7051 | $5348.70 |
September 2012 | 31.11.2012 | 7111 | $5348.70 |
October 2012 | 12.10.2012 | 7161 | $5348.70 |
November 2012 | 05.11.2012 | 7196 | $5348.70 |
December 2012 | 03.12.2012 | 2569 | $5348.70 |
January 2013 | 07.01.2013 | 2548 | $5348.70 |
February 2013 | 30.01.2013 | 7253 | $5348.70 |
March 2013 | 26.02.2013 | 7214 | $5348.70 |
- [21]Attached to the Schedule in Exhibit 4 were bank statements of the First Appellant for the period 18 June 2012 to 9 November 2012. They showed the following payments:
Date | Cheque Number | Amount |
29.06.2012 | 006990 | $5384.70 |
30.07.2012 | 007051 | $5384.70 |
31.08.2012 | 007111 | $5384.70 |
12.10.2012 | 007161 | $5384.70 |
05.11.2012 | 007196 | $5384.70 |
- [22]On the issue of when rental was paid, the Second Appellant gave evidence[19]that the September 2012 rental was paid on 31 August 2012 by cheque number 7111 in accordance with the Schedule in Exhibit 4 and the above bank statements. He said there were 12 rental payments made in the financial year covered by the Respondent’s bank statements Exhibit 2. He said the only reason he could think as to why the July 2012 payment was not shown on Exhibit 2 was that it was paid on 29 June 2012.
- [23]For completeness, I should say that there was evidence from the Respondent that the account into which the rent was to be paid changed two or three times during the course of the lease. [20]But the only bank statements of the Respondent in evidence was Exhibit 2 relating to account number 21832489 with Bank of Queensland Limited. He said there was no default from September 2012 onwards apart from the admitted February 2014 and March 2014 defaults.[21]
- [24]It can be seen from the above that the evidence as to which payments in the relevant year were for which months was the subject of conflicting evidence, with the Appellants saying they were paid in advance in accordance with Schedule 4 and the Respondent’s evidence to the effect that rental payments were paid erratically. Neither the bank statements of the Appellant’s nor those of the Respondent resolve the issue of whether the payments were made in advance.
- [25]On the face of Exhibit 2, no payment was made in the month of September 2012. The Magistrate obviously accepted that evidence to show that no payment was made for the September 2012 rental. That finding involved the rejection of the evidence of the Second Appellant that the rents were paid in advance in accordance with Exhibit 4. That finding was open to the Magistrate.
Did the Magistrate conflate the July 2012 and September 2012 rentals?
- [26]It is said by the Appellants that the Magistrate conflated the non-payment of the July 2012 rental with that of September 2012 so as to make her finding of non-payment of the September rental payment unsound. I reject that. It is clear from the Magistrate’s decision that the default referred to was that of September 2012 and not of July 2012.[22]
- [27]For the above reasons not only do I consider that the grounds for the granting of leave have not been made out, but I also consider that, in the event leave was granted, the appeal would not be successful.
Orders
- Leave to appeal denied.
- Appellant to pay the Respondent’s costs of Appeal.
Footnotes
[1] [2012] QDC 397.
[2] Ibid [41].
[3] T1.41.10–30.
[4] T1.40.26-46; T1.41.1-5.
[5] T1.42.1-7.
[6] T1.41.36.
[7] T1.41.40-45.
[8] Appellants’ Outline paragraph 1.12.
[9] [2011] QSC 152 at [163].
[10] T1.49.4.
[11] Decision page 2, lines 17-33; page 4, lines 15-19.
[12] Schedule, Pt 3, para 3.1.1.
[13] T1.7.19–26.
[14] T1.8.17
[15] T1.24.19 – 25.
[16] T1.13.20 – T1.14.45.
[17] T1.15.1–15.
[18] T1.13.20 – T1.15.27.
[19] T1.27.12–45.
[20] T1.20.36-46.
[21] T1.27.29-41.
[22] See Decision page 2, line 16-34; page 3, lines 39-41; page 3 lines 1-3.