Bradshaw v Henderson & Anor [2010] QCA 8

The applicant appeared on his own behalf with G S Trichon assisting

The applicant appeared on his own behalf with G S Trichon assisting

[1] HOLMES JA: By an application filed on 9 April 2009, the applicant, Mr Winstanley, seeks an extension of time within which to appeal against a District Court judgment given on 5 February 2009 and an associated costs order made on 27 February 2009. There is a further question as to whether Mr Winstanley also requires leave to appeal under s 118(3) of the District Court of Queensland Act 1967 (Qld).

The case at first instance and the proposed appeal grounds

[2] The claim at first instance was for specific performance of a contract for the sale by Mr Winstanley to the first respondent, Mr Bradshaw, of his interest in a sub-lease of a marina berth, with an alternative claim for damages for breach of contract. Mr Bradshaw brought his claim against both Mr Winstanley and the second respondent, Ms Henderson, because it was the latter with whom he had dealt in relation to the sale. Ms Henderson's evidence, which the learned trial judge accepted, was that she had acted as agent for Mr Winstanley, who was the sub-lessee of the marina berth. Mr Winstanley wishes to challenge that finding on the proposed appeal.

[3] Mr Bradshaw had responded to an advertisement for the sale of the berth which Ms Henderson had placed at the marina. They met and agreed on a purchase price of $30,000. Ms Henderson provided Mr Bradshaw with a receipt for the sum of $1,000 which was expressed to be for:

"Deposit on Marina Berth K12, Scarborough Marina. Balance due - $29,000."

The receipt was dated 3 January 2003. Ms Henderson made enquiries at the marina where the berth was located and established that it would be necessary for the parties to agree a settlement date and attend the marina, where, on payment of a small fee, the marina manager would provide the necessary paperwork for signature. She provided Mr Bradshaw, she said, with Mr Winstanley's telephone number so that the two men could set a settlement date.

[4] On Mr Bradshaw's evidence, which the learned trial judge accepted on this point, he made repeated unsuccessful attempts to contact Mr Winstanley. At the end of January or in early February, Ms Henderson said, Mr Bradshaw came to her house complaining that he was unable to contact Mr Winstanley. In April 2003, on Ms Henderson's evidence, accepted by the learned trial judge, Mr Winstanley told her to give up the transaction and send the deposit back. On 21 April, she wrote a letter to Mr Bradshaw enclosing a cheque in the amount of the deposit with the following explanation:

"The sale of the berth cannot be completed, as the owner is unavailable and I have been informed that I cannot act as agent."

[5] The learned trial judge found that there was a contract for the sale of the interest in the berth falling within the second of the categories described in Masters v Cameron:[1] the parties had agreed on all necessary terms, but performance of them was conditional upon the execution of a formal document, in this case the assignment of the sub-lease. The terms of the contract were certain as to the property bid to be sold, the price to be paid and the contracting parties. The parties regarded themselves as bound, subject to the formal step of execution of the necessary documents at the marina. This finding is the subject of a proposed appeal ground.

[6] Ms Henderson advanced an argument at first instance that the sub-lease for the berth was an "interest in land", attracting the application of s 11 and s 59 of the Property Law Act 1974 (Qld). The learned judge found it unnecessary to decide the question because, he said, the contract was evidenced in a written form by Mr Bradshaw's cheque for the deposit and the receipt for it which Ms Henderson completed, with the possible addition of her letter of 21 April 2003. He declined to exercise his discretion to order specific performance, but instead awarded Mr Bradshaw damages of $14,000 with $6,800 interest, and later ordered Mr Winstanley to pay the costs of both Mr Bradshaw and Ms Henderson.

[7] The proposed Notice of Appeal, on the premise that there was an interest in land concerned in the dealings, asserts that the learned judge should not have found that there was a sufficient memorandum in writing for the purposes of s 11 and s 59. In that regard, if leave to appeal were granted, Mr Bradshaw would seek to file a notice of contention to the effect that his Honour should have found that the sub-lease was not an interest in land. The final ground of appeal proposed is that the learned judge should have found the contract was duly terminated by the letter of 21 April 2003.

[8] Mr Winstanley has filed an affidavit in which he says that he saw and heard the pronouncing of judgment by video link. (He was by then back in New Zealand, where he is a resident.) He suffers from some unspecified medical conditions. A medical certificate dating from before the District Court trial refers to a "cardiac condition" which made it advisable that his stress levels were minimised. Another medical certificate from the same practitioner says that she saw Mr Winstanley on 17 February 2009 and considered him "medically unfit to attend from 11/02/2009", but "able to return on 26/02/2009". According to the certificate, after being examined, he was hospitalised. In an affidavit supporting his application for an extension of time, Mr Winstanley says that he was bed-ridden between 10 February 2009 and 24 February 2009, and spent "a few days" of that time in hospital. On 24 February, he telephoned a solicitor who had acted for him previously, who told him he had either 21 or 28 days in which to file a Notice of Appeal. In consequence of that conversation, he found for himself the relevant provisions of the Uniform Civil Procedure Rules 1999 (Qld) ("UCPR").

[9] There is then a gap in Mr Winstanley's account until 10 March 2009, when he says he contacted that solicitor and made an appointment to meet her in Brisbane. On 13 March 2009, he had a conference with her in which she informed him that he was out of time for appealing and that an appeal would not be productive in terms of costs. On 17 March 2009, a friend who had been assisting him, Mr Trichon, attempted by email to correspond with the Court of Appeal Registrar in order to seek an extension of time. The email was wrongly sent to the Magistrates Court registry, which advised him to that effect. On 22 March, Mr Trichon re-sent the email. It came to the attention of the Court of Appeal Registrar, who responded on 23 March 2009, advising that an application for extension of time with a supporting affidavit would be needed, and identifying the necessary forms. On 27 March 2009, Mr Winstanley contacted a firm of solicitors in Brisbane, resulting, one assumes, in the filing of the application for an extension of time.

[10] Counsel for Mr Bradshaw said that the timing of events should be regarded with some cynicism. Mr Winstanley had said in evidence at the trial that although he owned property in New Zealand, his only asset in Australia was the sub-lease of the marina berth. On 5 March 2009, Mr Bradshaw's solicitors had asked Mr Winstanley for an undertaking that he would not take any steps to sell the marina berth until he had the judgment and costs. That request went unanswered. Documents from the marina showed that on 6 March, Mr Winstanley advised the marina manager that he wished to sell the berth to Mr Trichon, with settlement to take place on 13 March. For that purpose he and Mr Trichon would fly to Australia and attend the marina berth. A staff member from the marina confirmed by email on 9 March that the necessary documents were being prepared and that settlement could take place on 13 March. However, on 11 March, Mr Bradshaw's solicitors obtained an injunction restraining Mr Winstanley from dealing with the sub-lease. It was that order, counsel for Mr Bradshaw submitted, that was the impetus for the lodging of the application for an extension of time; Mr Winstanley had found that he could not dispose of the only asset available in Australia to satisfy judgment.

[11] That course of events certainly explains the delay on Mr Winstanley's part between 24 February 2009 and 10 March 2009, and it is an explanation unfavourable to him. The inference I would draw is that he had decided against an appeal after considering the UCPR provisions, and changed that decision when it became apparent that he was not going to be able to dispose of the marina berth. That inference inclines one against an exercise of the discretion in his favour, but it is appropriate to go on to consider other relevant aspects: whether the appeal would require leave and the prospect of success.

[12] Section 118(2) of the District Court of Queensland Act provides as follows:

"(2) A party who is dissatisfied with a final judgment of the District Court in its original jurisdiction may appeal to the Court of Appeal if the judgment -

(a) is given for an amount equal to or more than the Magistrates Courts jurisdictional limit; or

(b) relates to a claim for, or relating to, property that has a value equal to or more than the Magistrates Courts jurisdictional limit."

[13] Counsel for Mr Bradshaw asserted that this was a case in which leave was required. He relied on three decisions, Morris v Australia Meat Holdings Pty Ltd,[2] Woodman v Maher[3] and Aldrick v E M Investments (Qld) Pty Ltd.[4] They were decided in relation to s 118(2) in an earlier form, giving the right of appeal if the judgment:

(i) for an amount equal to or more than the Magistrates Courts jurisdictional limit; or

(ii) in relation to a matter at issue with the value equal to or more than the Magistrates Courts jurisdictional limit; or

(b) involves directly or indirectly any claim, demand or question in relation to any property or right with a value equal to or more than the Magistrates Courts jurisdictional limit."

[14] The three cases concerned money claims in which there had been an assessment of damages. The position reached in Aldrick v E M Investments, and endorsed by Woodman v Maher, was that in money claims an appeal would lie as of right if the amount claimed in the plaint was $50,000 (the limit of the Magistrates Court's jurisdiction) or more and there was a live contention on the appeal that there should be a judgment for $50,000 or more. In each of those cases it was held that the unsuccessful defendant had no appeal as of right because the judgment given was for less than $50,000. In Australia Meat Holding v Morris, the plaint had not claimed any specific amount, the judgment was for less than $50,000, and since it was the defendant who sought to appeal, there was no contention that it should be increased. The three cases turned on the difficulty of assigning a value to the right of action under s 118(2)(b) as it then stood, and it was held in each that the potential result of the appeal in money terms was a relevant factor in assessing that value.

[15] The present case is a different one, because there was a claim for specific performance relating to the marina berth sub-lease which, according to valuation evidence given at trial, had a value of $110,500. Since the decisions I have referred to were decided, this Court has considered the effect of s 118(2) in the form in which it presently stands in Praxis Pty Ltd v Hewbridge Pty Ltd.[5] The case involved a claim for damages under the Trade Practices Act, concerning a misrepresentation in connection with the sale of land. The claim was for more than $50,000, but the judgment was for less than that sum. The Court held that the case did not fall within s 118(2)(a) because the judgment was not given for more than the Magistrates Court's jurisdictional limit. To be appellable as of right under s 118(2)(b), the judgment had to relate to a "claim for, or relating to, property having a value equal to or more than $50,000". The market value of the land in question appeared to be higher, but, the Court said:

"it was not the land that was being sued for, but the conduct or representation of the defendants' agent with respect to its characteristics or the use to which it could be put. In no sense was the land itself being claimed. It was not what the claim in the action was 'for', as might perhaps have been the case if, for example, the proceedings had been for recovery of the land from someone wrongly in possession of it, or possibly for specific performance of the contract for sale of the land."

The Court went on to observe that the criterion in s 118(2)(b) was not concerned with money claims measurable by the amount recovered by the judgment, but with

"claims for the recovery of land or other things in specie or their value in actions for detinue and the like."

[16] That case lends some support for the view that the focus in considering the application of s 118(2)(b) in a specific performance case should be on the claim in the action. Here, it is true, the formal judgment as pronounced gave damages and did not specifically deal with the claim for specific performance; but by implicitly rejecting (rather than expressly dismissing) the application, the judgment did, in my view, resolve the claim to the berth. My tentative view would be that Mr Winstanley had a right of appeal, but because the Court has not had the benefit of proper submissions (Mr Winstanley did not argue the point) and because of the view I take of the merits of any prospective appeal, I find it unnecessary to reach a concluded view on the matter.

[17] The proposed ground of appeal which takes issue with the finding that Ms Henderson acted as Mr Winstanley's agent has, in my view, no prospect of success. It was a finding made on an assessment of credibility of witnesses: it was made on the strength of Ms Henderson's evidence, which the appellant did not challenge by cross-examination.

[18] Mr Winstanley's argument that the learned judge erred in finding that a binding contract had been formed was based on what were said to be the lack of: any agreement as to the time for completion; identification of the interest to be sold; mention of the owner's name; and any reference to the sub-lease conditions, which required the sub-lessor's approval to assignment. Ms Henderson, it was said (somewhat inconsequentially), did not consider the arrangement was complete. Mr Winstanley referred the Court to this passage from G R Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd:[6]

"An agreement for the sale of property at a specified price does not necessarily indicate a legally binding contract. The magnitude, subject matter, or complexities of the transaction may indicate that the agreement was a limited one not intended to have legal effect."[7]

[19] Here, however, the transaction was a relatively straightforward one, for the assignment of the sub-lease to the marina berth for a comparatively small amount of money. It was not the type of property transaction for which there existed any common practice in accordance with which the parties might be expected to have intended to contract.[8] The parties had not engaged solicitors to act in the transaction so as to suggest that more formal arrangements were anticipated.[9] The receipt identified the property quite specifically, as well as the price to be paid, and the vendor, as the learned judge found, was known at least to be Ms Henderson's principal, whether or not Mr Winstanley's name was used. Nothing in Ms Henderson's evidence suggested that the agreement for sale of the interest in the sub-lease was subject to the approval of the sub-lessor or the signing of the assignment. The completion of the marina's requirements for assignment of the sub-lease were perceived (correctly, as the evidence of the marina manager confirmed) to be a formality. There was no settlement date, but that was not a necessary term, as his Honour found. There was no reason a binding contract could not have been entered on the basis that settlement would occur when the vendor, acting reasonably, had finalised the necessary arrangements.

[20] I do not think that Mr Winstanley can demonstrate any error in the learned judge's conclusion that the circumstances fell within the second of the three categories in Masters v Cameron,[10] the parties having agreed the necessary terms, but having made their performance conditional upon the execution of a formal document.

[21] Mr Winstanley's next proposed ground of appeal was that the learned judge should have found that the contract was unenforceable for failure to meet the requirements of s 11 and s 59 of the Property Law Act 1974, which respectively provide:

"s 11(1) Subject to this Act with respect to the creation of interests in land by parol -

(a) no interest in land can be created or disposed of except by writing signed by the person creating or conveying the same, or by the person's agent lawfully authorised in writing, or by will, or by operation of law..."

"s 59 No action may be brought upon any contract for the sale or other disposition of land or any interest in land unless the contract upon which such action is brought, or some memorandum or note of the contract, is in writing, and signed by the party to be charged, or by some person by the party lawfully authorised."

[22] The argument raises the question as to whether, if there were any interest in land, the contract was one for its sale or disposition, so as to attract the application of s 59, or one disposing of the interest,[11] so as to require compliance with s 11. For the purposes of s 59, Mr Winstanley would have difficulty in convincing the Court that the receipt was not a sufficient note of the contract; and Ms Henderson was, on the learned judge's finding, lawfully authorised to act on Mr Winstanley's behalf in signing it. Section 11 might provide a sounder basis for his argument, because it would require that Ms Henderson be "lawfully authorised in writing", and there is no evidence that she was given any written authority.

[23] The prospects of the appeal ground, however, depend first of all on whether the marina berth was an interest in land. Mr Winstanley referred us to some sections of the Transport Infrastructure Act 1994 (Qld), including one defining "land" for the purposes of that Act, which were not helpful as to what constituted an interest in land for the purposes of s 11 and s 59 of the Property Law Act. More relevantly, "land" is defined in s 36 of the Acts Interpretation Act 1954 (Qld) as including:

"...messuages, tenements and hereditaments, corporeal or incorporeal, of any tenure or description, and whatever may be the interest in the land."

Section 36 also defines "interest, in relation to land or other property" very broadly, as meaning:

"(a) a legal or equitable estate in the land or other property; or

(b) a right, power or privilege over, or in relation to, the land or other property."

However, the Acts Interpretation Act's application may be displaced, wholly or partly, by a contrary intention appearing in another Act; [12] and an examination of the contexts in which the term "interest in land" appears in the Property Law Act[13] suggests that it is used in the more restrictive sense of the first limb of the s 36 definition of "interest", and does not extend to the wider sense conveyed by the second limb.

[24] The head lease under which the sub-lease was given was between the Port of Brisbane and the company which had, as a condition of the lease, developed the marina. The head lease permitted sub-leases for the "sole purpose of use or occupation of a marina berth by a vessel". The sub-lease was expressed to entitle the sub-lessee to "exclusive use" of the berth, subject to the terms and conditions of the head lease and the sub-lease. Counsel for Mr Bradshaw argued that the sub-lease was, in reality, no more than a licence because it did not confer a right to exclusive possession.[14] He pointed to terms of the sub-lease qualifying the sub-lessee's entitlement to exclusive use of the berth: the sub-lessor was entitled to enter and inspect and could take possession of the berth to repair or rebuild it after damage or in order to meet any statutory requirement; the sub-lessor and any government officer were to be given free and unrestricted access to the berth to erect or do work in relation to navigation lights or marks; and in an emergency, the sub-lessor had a right to enter the berth and remove any vessel there. The sub-lease was also subject to rights under the head lease: the lessor's rights to enter, inspect, repair and do work, and the rights of governmental authorities to enter in order to perform any statutory duty.

[25] The preservation of those rights is not conclusive against the agreement in relation to the berth's being in truth a sub-lease; indeed,

"any express reservation to the landlord of limited rights to enter and view the state of the premises and to repair and maintain the premises only serves to emphasise the fact that the grantee is entitled to exclusive possession and is a tenant."[15]

But of more significance to the lease/licence argument is the fact that the sub-lease spoke in terms of exclusive use, not exclusive possession or occupancy. That use was restricted to the mooring of a single vessel of prescribed dimensions. And it is worth noting that the sub-lease contained a provision which prohibited any vessel in the berth from being used as a "place of permanent human habitation". There is certainly a strong argument that no right of exclusive possession could be implied from the terms of the sub-lease; if it could not, the sub-lease was, despite its name, merely a licence, and it is doubtful that it could be regarded as involving any interest of land so as to attract the operation of s 59 or s 11.

[26] There is, in any case, something of the counter-intuitive in the contention that a sub-lease of a marina berth could constitute an interest in land. But it is not beyond argument: in Auckland City Council v Ports of Auckland Ltd,[16] the New Zealand Court of Appeal had occasion to apply a definition of "land" similar to that in the Acts Interpretation Act:

"...all land, tenements, and hereditaments, whether corporeal or incorporeal..."

to marina facilities. The question was whether floating pontoons and a dock constituting a floating jetty were chattels or land. In deciding whether a chattel had become part of the realty of the land, the Court said, it was necessary to consider the degree and purpose of the chattel's annexation to the land. The Court held that on the facts in that case, the floating jetty, whose components included pontoons attached to piles driven into the seabed, was "a substantial structure and an enduring asset" annexed to land. Its object as part of a larger, fixed jetty structure was to give the respondent full enjoyment of its rights of occupation of the relevant waterspace. Accordingly, the floating jetties were "land".[17] Alternatively, because the respondent held, by virtue of a statutory permit and two lease agreements, a right of occupation, to the exclusion of others, of the airspace in which the pontoons moved, the right to that airspace was an incorporeal hereditament.[18]

[27] The difficulty here for Mr Winstanley is the paucity of evidence about the berth. Indeed the sub-lease itself was ambivalent as to what the berth consisted of, whether it was the pontoon or the adjacent water or both. Although "berth" was defined as meaning:

"the floating mooring berth the subject of this Sub-Lease more particularly described in Clause 3",

and Clause 3 said that the berth comprised the floating mooring berth "shown on the sketch plan marked Annexure 'A'", the annexure appeared to show, not the pontoon, but the adjacent water as the subject of demise. Other references to repair and to the berth structure, however, supported the view that it was both the physical structure and the associated area of waterway that was being let. More problematically, the only evidence given about the physical features of the relevant berth was that the schedule to the sub-lease showed it to be 13 metres in length with a 4.45 metre beam (or breadth), although the marina manager said that, in fact, it had the advantage of being next to a "finger" or pontoon which was 15 metres in length. Nothing was said about how, or to what, the pontoons were attached, or what else the marina comprised. In short, there was no evidence given at trial to permit a finding of fact of the sort made by the New Zealand Court of Appeal. I do not think Mr Winstanley has demonstrated any strong prospect of establishing that the sub-lease was an interest in land so as to require compliance with s 11 before the contract for the sale of his interest in it could be enforced.

[28] The applicant's final point, that the contract was duly terminated by the letter of 21 April 2003, is plainly without any substance, since no right to terminate was demonstrated.

[29] I would dismiss the application for an extension of time because no satisfactory explanation for the delay is shown and there are no prospects of success on any proposed ground, except that concerning whether the contract required signature by a person authorised in writing; and the prospects of success on that ground are at best doubtful. The applicant should pay the respondents' costs of the application.

[30] FRYBERG J: Assuming he has a right of appeal, Mr Winstanley requires an extension of time within which to do so. His explanation for his delay has been described in the reasons for judgment of Holmes JA. It is a feeble explanation, unsupported by convincing medical evidence and replete with suspicious gaps. Standing alone, it arouses scepticism. When one takes into account the evidence filed on behalf of Mr Bradshaw, the inference referred to by Holmes JA[19] is persuasive. When one realises that this evidence is unrebutted, it is irresistible.

[31] Mr Winstanley was not legally represented. He told us that he was too ill to speak on his own behalf and by a majority, the Court allowed Mr Trichon, the man who would have purchased the berth and frustrated the judgment, to speak on his behalf. He sought to rebut the inference from the bar table. In the course of doing so he revealed that Mr Winstanley owed him some money. In my judgment his submissions did not advance Mr Winstanley's position on the question of delay.

[32] In the circumstances I would refuse the application for an extension of time to appeal without having regard to the merits of the proposed appeal.

[33] On the question of leave to appeal, the judgment proposed to be appealed from was for $14,000 on the claim and $6,800 for interest.[20] I do not think it was necessary for him to make an order dismissing the alternative claim for specific performance. In any event he did not do so and there is no appeal against that omission. That inclines me to think that leave to appeal was required, but like Holmes JA, I find it unnecessary to reach a concluded view on the matter.

[34] The application for an extension of time should be dismissed with costs.

[35] ATKINSON J: I agree with the orders proposed by Holmes JA and with her Honour's reasons.

[1] [1954] HCA 72; (1954) 91 CLR 353 at 360-361.

[2] [1999] QCA 135; [2000] 2 Qd R 142.

[3] [2001] 1 Qd R 106.

[4] [2000] 2 Qd R 346.

[5] [2004] QCA 79; [2004] 2 Qd R 433.

[6] (1986) 40 NSWLR 631.

[8] Cf G R Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd at 364 and Carruthers v Whitaker & Anor [1975] 2 NZLR 667 at 671-672 also cited by Mr Winstanley. See also Marek v Australasian Conference Association Pty Ltd [1994] 2 Qd R 521 at 527.

[9] See Marek at p 528, Carruthers v Whittaker at 671.

[10] [1954] HCA 72; (1954) 91 CLR 353.

[11] For the difference between the sections' fields of operation, see Theodore v Mistford Pty Ltd (2005) 221 CLR 612 at 623 and Duff v Blinco (No 2) [2006] QCA 497; [2007] 1 Qd R 407 at 414.

[12] Section 4.

[13] See, eg, s 7, s 8 and s 30.

[14] Radaich v Smith [1959] HCA 45; (1959) 101 CLR 209.

[15] Street v Mountford [1985] UKHL 4; [1985] AC 809.

[16] [2000] NZCA 190; [2000] 3 NZLR 614.

[19] Paragraph [11].

[20] The primary judge also made an order for costs subsequent to delivering judgment; presumably that would also be caught up in any appeal.