Australian Partners Pty Ltd v Kerr
[2018] QDC 148
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- Unreported Judgment
- Australian Partners Pty Ltd v Kerr[2018] QDC 148
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Australian Partners Pty Ltd v Kerr[2018] QDC 148
Australian Partners Pty Ltd v Kerr[2018] QDC 148
DISTRICT COURT OF QUEENSLAND
CITATION: | Australian Partners Pty Ltd v Kerr [2018] QDC 148 |
PARTIES: | AUSTRALIAN PARTNERS PTY LTD ACN 156 107 452 (plaintiff/appellant) v WENDY KERR (defendant/respondent) |
FILE NO/S: | Appeal No 4925 of 2017 MC No 50308 of 2016 |
DIVISION: | Civil |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court at Brisbane |
DELIVERED ON: | 7 August 2018 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 31 July 2018 |
JUDGE: | Rosengren DCJ |
ORDER: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDING OF FACT – FUNCTIONS OF APPELLATE COURT – WHERE FINDINGS BASED ON CREDIBILITY – where the plaintiff was unsuccessful in a claim for damages in relation to a Commodore which was damaged in a collision with the defendant’s vehicle for which liability was admitted – where the learned magistrate made adverse findings as to the credibility of the plaintiff and the plaintiff’s witnesses – where the learned magistrate relied upon primary facts to support the conclusions as to credibility – where the learned magistrate found that the plaintiff was not the owner of the Commodore at the relevant time – where the learned magistrate found that the Plaintiff did not have an entitlement to damages for replacement vehicle hire costs - whether the learned magistrate erred in fact and law Magistrates Court Act 1921 (Qld) s 45 Transport Operations (Road Use Management – Vehicle Registration) Regulation 2010, regulation 18(8)(b) Sales of Goods Act 1896 (Qld) s 20 JJ Richards & Sons Pty Ltd v Precast Concrete Pty Ltd [2010] QDC 272, cited Teelow v Commissioner of Police [2009] QCA 84, cited Guirguis Pty Ltd U Anor v Michel’s Patisserie System Pty Ltd & Ors [2017] QCA 83, cited Fox v Percy [2003] HCA 22, cited Munce v Vinidex [1974] 2 NSWLR 235, cited Johnson v Triple C Furniture & Electrical Pty Ltd [2012] 2 Qd R 337, cited |
COUNSEL: | D G Sushames (sol) for the appellant A S Kitchin for the respondent |
SOLICITORS: | Harris Sushames for the appellant ULR Lawyers for the respondent |
- [1]On 29 October 2015, a Commodore motor vehicle (‘the Commodore’) was damaged beyond economical repair in an accident. The plaintiff brought a claim in the Magistrates Court for damages comprised of the pre-market value of the car, towing and storage of it, costs of valuations, costs associated with a replacement hire car and legal costs incurred prior to the commencement of the proceedings.
- [2]The defendant admitted liability for the accident, but disputed that the plaintiff is entitled to damages on the basis that it was not the owner of the Commodore at the time.
- [3]The trial came on before a magistrate at Brisbane on 11 July 2017 and the learned magistrate delivered reasons for judgment on 11 December 2017.
- [4]This appeal is against that decision.
- [5]The plaintiff filed a supplementary outline of argument in the days prior to the hearing of the appeal. Reliance on this submission was abandoned by the solicitor for the plaintiff at the commencement of the oral submissions made on behalf of the plaintiff at the hearing of the appeal.
Nature of the appeal
- [6]Part 6 of the Magistrates Court Act 1921 (Qld) is entitled ‘Judgments, new trials, appeals and related matters’. Section 45 is the provision relevant to appeals. It provides that (subject to some qualifying provisions which are not relevant here) any party who is dissatisfied with the judgment or order of a Magistrates Court may appeal to the District Court “as prescribed by the rules”.
- [7]The jurisdiction of the District Court in relation to an appeal can be found in section 47. It provides as follows:
On the hearing of an appeal or special case, the District Court may do any of the following—
- (a)draw inferences of fact from facts found by the Magistrates Court, or from admitted facts or facts not disputed;
- (b)order a new trial on such terms as it thinks just;
- (c)order judgment to be entered for any party;
- (d)make any other order, on such terms as it thinks proper, to ensure the determination on the merits of the real questions in controversy between the parties;
- (e)as regards any special case, remit the matter to the Magistrates Court with the opinion of the District Court thereon;
- (f)make such order with respect to the costs of the appeal or special case as it thinks proper.
- [8]The nature of the appeal created by Part 6 of the Magistrates Court Act is by way of re-hearing.[1] It is well established that this court ought not to interfere with the orders made, unless satisfied they were vitiated by an error of principle, there has been a failure to appreciate a pertinent feature or there is otherwise a miscarriage of justice.
- [9]Subject to the powers to admit fresh evidence, the appellate court is required to rehear the matter on the record of the hearing in the Magistrates Court. Whilst this does not involve a rehearing of the evidence of witnesses, the court has the power to draw inferences from primary facts, including facts not disputed and findings of fact.[2]
- [10]The record includes:
- the oral evidence of Ms Albutt and Mr Gooley;
- a contract dated 8 February 2013 for purchasing/ordering a used car signed by Ms Albutt and witnessed by Mr Gooley showing the full purchase price as owing;[3]
- a tax invoice dated 8 February 2013 from Mr Gooley to the plaintiff showing the full price as owing;[4]
- an invoice dated 6 March 2013 from Caintech to the plaintiff to supply and install a Bluetooth hands-free kit. The invoice does not specify what the kit was installed in;[5]
- a statement of account dated 9 November 2015 from Mr Gooley to the plaintiff showing the full purchase price together with other amounts as owing.[6]
- [11]
“Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge‘s reasons. Appellate courts are not excused from the task of ‘weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect’.”
- [12]Their Honours went on to say at [28]:
“… the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge‘s conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.”
- [13]Other circumstances where intervention by an appellate court might be warranted are where the decision reached by the trial judge is ‘glaringly improbable’ or ‘contrary to compelling inferences.[9]
Grounds of appeal
- [14]The grounds of appeal are as follows:
- The learned magistrate erred in fact and law by finding that the plaintiff was not the owner of the motor vehicle the subject of the proceedings.
- The learned magistrate erred in fact and law in finding that the plaintiff had no entitlement to damages for replacement vehicle hire costs.
- The learned magistrate erred in failing to determine the pre-accident market value of the plaintiff's motor vehicle.
- The learned magistrate erred in failing to allow the plaintiff’s pre-claim legal costs as a component of damages.
- [15]I am not persuaded that either of grounds 1 and 2 of the appeal have been established for the reasons detailed below. In these circumstances, it is not necessary to make any findings in relation to grounds 3 and 4.
Ground 1 - ownership
- [16]It is the plaintiff’s assertion that the learned magistrate erred in finding the plaintiff had not purchased the Commodore, in circumstances where both Ms Albutt and Mr Gooley gave evidence that it had and that it was the owner of the Commodore.
- [17]The learned magistrate’s reasons for judgment were careful and comprehensive. It is apparent that she gave some considerable care to the assessment of the evidence of Ms Albutt and Mr Gooley. In cross-examination there was significant challenge to the evidence of both witnesses.
- [18]As to the reliability of Ms Albutt’s evidence, the learned magistrate concluded at paragraph [12] as follows:
“Ms Albutt struck me as an unreliable witness. I do not place any weight on her evidence save for where it is supported by objective documentary evidence. Ms Albutt was evasive during her evidence. She did not impress me as a person doing her best to answer the questions put to her under cross examination. Her answers were often selective and, sometimes off-topic, consequently making them non responsive. For example it is difficult to believe that an experienced business person, as Ms Albutt testified that she was, would not truly understand the distinction between an invoice and a receipt. Nor was her evidence about the meaning of the zero on the MYOB statement of accounts.”
- [19]In relation to the credibility of Mr Gooley, the learned magistrate concluded at paragraph [13]:
“I found the evidence of Mr Gooley to be far from impressive. He was vague in his recollections and often speculated about what might have been done at any given time. I accept and adopt the defendant's submissions on this point. On balance the evidence given by Mr Gooley, when viewed with the documents, is consistent with him being the owner of the car and having lent the car to either Ms Albutt or the plaintiff on the basis that they pay for its maintenance costs whilst they use it. There is absolutely no objective evidence of consideration having been paid by the plaintiff for the vehicle.”
- [20]Other remarks in the reasons for decision demonstrate further adverse findings as to Ms Albutt’s and Mr Gooley’s credibility. For example in paragraph [9], reference is made to Ms Albutt having given contradictory evidence as to how she sourced the cash payment for the Commodore. Another example can be found in paragraph [11], where reference is made to the evidence of Ms Albutt and Mr Gooley to the effect that it was an oversight that the Commodore remained registered in Mr Gooley’s name. Her Honour considered that this explanation defied logic, in the context where invoices had been issued and received directly related to the fact that the Commodore was still registered in Mr Gooley’s name.
- [21]It cannot be said that the learned magistrate’s findings in relation to either of these witnesses was glaringly improbable, contrary to compelling inferences or that the magistrate failed to use or palpably misused her advantage. There was no incontrovertible facts or uncontested testimony which demonstrate that the conclusions reached were erroneous. Nor has any other sufficient reason been proffered for being critical of the reasoning which led the learned magistrate to make the findings that she did regarding the credibility of Ms Albutt and Mr Gooley. On my review of the evidence, giving proper weight to the opportunity the learned magistrate had to observe and or hear the witnesses, I reach the same conclusion.
- [22]The learned magistrate considered that Mr Gooley’s evidence when viewed with the documentary exhibits, was consistent with him being the owner of the Commodore. There are no exhibits inconsistent with this conclusion.
- [23]Contrary to the plaintiff’s submissions, I am not satisfied the magistrate was led into error in her consideration of the registration of the Commodore as being evidence of ownership. Regulation 18(8)(b) of the Transport Operations (Road Use Management – Vehicle Registration) Regulation 2010 (‘the Regulation’) merely provides that the motor vehicle registration register is not intended to be a means by which the title to such vehicle may be conclusively established. The learned magistrate did not make a conclusive determination as to ownership of the Commodore based on whose name the Commodore was registered in. It was expressly stated by the learned magistrate in paragraph [15] of the reasons, to be but one of the factors which militated against the plaintiff’s claim that it was the owner of the Commodore.
- [24]It is further contended by the plaintiff that there was no requirement to prove that the plaintiff paid for the purchase of the Commodore. The reason for this is purported to be that the requisite test is not whether payment has been made, but rather the intention of the parties as to when the title would pass. This is in reliance on section 20(1) of the Sales of Goods Act 1896. Section 20(2) prescribes that for the purpose of ascertaining the intention of the parties, regard is to be had to the terms of the contract, the conduct of the parties and the circumstances of the case. As to the terms of contract, absent proof of payment, the property in the Commodore remained with Mr Gooley.[10]The other relevant circumstances militating against a finding that Ms Albutt and Mr Gooley had intended that the property in the Commodore be transferred to Ms Albutt can be found in paragraph [15] of the learned magistrate’s reasons.
- [25]In my view the abovementioned matters relied upon by the learned magistrate provided a firm foundation for her conclusion as to the ownership of the Commodore. The submissions of the plaintiff about this issue should be rejected.
Ground 2 – Entitlement to damages for replacement hire costs
- [26]As to this ground of appeal, the plaintiff contends the learned magistrate erred in finding that it had no entitlement to damages for replacement hire costs.
- [27]The issue of the need for a replacement vehicle and the costs of such a vehicle were disputed. The magistrate’s adverse view as to Ms Albutt’s credibility extended to the evidence that she gave on this issue. Having formed this view, the learned magistrate looked for some objective evidence to support the claim for replacement vehicle hire cost. There was no such evidence.
- [28]The learned magistrate noted the evidence which could have been but was not called as corroboration for Ms Albutt’s evidence about the rental agreement for the replacement vehicle. There was no reasonable explanation as to why the plaintiff failed to call such evidence. There was also no corroborative documentary evidence, such as receipts for payments made or received for the purported rental charges. This is in circumstances where the plaintiff had the evidentiary burden of proving to the requisite standard that the hire vehicle was required and that it was used for the plaintiff’s business. On this point, the learned magistrate further observed that there was no documentary evidence such as log books, diary records or other contemporaneous notes corroborating the ‘need’ or ‘usage’ aspects of the claim.
- [29]The learned magistrate also found that there was no evidence that either the plaintiff or Ms Albutt took reasonable steps to replace the vehicle or otherwise appropriately mitigate the plaintiff’s loss, apart from the purported rental agreements, which the learned magistrate found to be unsubstantiated.
- [30]The findings of the learned magistrate in this regard flow from the well-established principle that the plaintiff in making good its loss, cannot do it at the expense of the defendant. In other words, it cannot unload on the defendant the consequences of unreasonably taking steps to minimise its own loss. This means that if a portion of the plaintiff’s loss is considered to be its own responsibility, the damages awarded will not fully compensate it for the loss suffered.
- [31]The plaintiff makes the point that the burden is on the defendant to prove that the plaintiff’s failure to mitigate is unreasonable. This is undoubtedly correct.[11]Having said this, the evidence as a whole needs to be evaluated, “according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted”.[12]
- [32]It is contended for on behalf of the plaintiff that there was evidence on this issue and it came from Ms Albutt. Her evidence was to the effect that the plaintiff was unable to afford a replacement vehicle until it recovered the money from the defendant. The difficulty with this is that the learned magistrate specifically made a finding that Ms Albutt was not a reliable witness and that no weight would be placed on her evidence in the absence of objective documentary evidence. Of course, I have neither seen nor heard from Ms Albutt. However, the evidence on which the learned magistrate relied as detailed above, was in my view, sufficient to support the conclusion which she reached about Ms Albutt’s credibility.
- [33]Having made this finding, the learned magistrate observed that the evidence which the plaintiff could have produced but did not related to the lines of enquiry made concerning director’s loans or drawings with Ms Albutt’s various companies. This was in the context of a claim in the order of $14,000 for hire costs.
- [34]No real basis has been identified for criticising the learned magistrate’s reasoning in relation to the issues the subject of the second ground of appeal.
Grounds 3 and 4
- [35]The other errors contended for on behalf of the plaintiff are that the learned magistrate failed to determine the pre-accident market value of the Commodore and failed to allow the plaintiff’s pre-claim legal costs as a component of damages. It is not necessary to consider either of these two separate alleged errors given my findings above.
Conclusion
- [36]In the absence of the identification of any proper ground for interfering with the findings of the learned magistrate, I conclude that the plaintiff’s submissions should not be accepted.
Orders
- The appeal is dismissed.
- The plaintiff pay the defendant’s costs of the appeal. If an alternate order as to costs is sought, the parties are to provide written submissions by 4pm on 17 August 2018.
Footnotes
[1] I am persuaded by the reasoning of McGill DCJ in JJ Richards & Sons Pty Ltd v Precast Concrete Pty Ltd [2010] QDC 272.
[2] Teelow v Commissioner of Police [2009] QCA 84 at [3]-[4].
[3] Exhibit 1.
[4] Exhibit 2.
[5] Exhibit 5.
[6] Exhibit 4 – issued 10 days post-accident.
[7] Guirguis Pty Ltd U Anor v Michel’s Patisserie System Pty Ltd & Ors [2017] QCA 83.
[8] [2003] HCA 22.
[9] Ibid at [29].
[10] Exhibit 1, reverse side.
[11] Munce v Vinidex [1974] 2 NSWLR 235.
[12] Johnson v Triple C Furniture & Electrical Pty Ltd [2012] 2 Qd R 337.