Galaxidis & Ors v CBFC Leasing Pty Ltd [2006] HCATrans 323 (16 June 2006)

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Galaxidis & Ors v CBFC Leasing Pty Ltd [2006] HCATrans 323 (16 June 2006)

Last Updated: 29 June 2006

[2006] HCATrans 323

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S547 of 2005

B e t w e e n -

MARIA GALAXIDIS

First Applicant

NIKOLAOS GALAXIDIS

Second Applicant

JOHN GALAXIDIS

Third Applicant

and

CBFC LEASING PTY LIMITED

Respondent

Application for special leave to appeal

GUMMOW ACJ
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 JUNE 2006, AT 2.50 PM

Copyright in the High Court of Australia

MR D.A. SMALLBONE: May it please your Honours, I appear with my learned friend, MR D.W. RAYMENT, for the applicants. (instructed by Danny Lagopodis Lawyers)

MR R.G. FORSTER, SC: May it please the Court, I appear with my learned friend, MR A.T.S. DAWSON, for the respondent. (instructed by Abbott Tout)

GUMMOW ACJ: Yes, Mr Smallbone.

MR SMALLBONE: Your Honours, the principal question is the legal limits on inquiry or process that a court makes to ascertain the existence of a contract by inference where there is not traditional offer and acceptance.

GUMMOW ACJ: Now, look, money was paid over, was it not?

MR SMALLBONE: Yes, it was.

GUMMOW ACJ: And what was received in exchange for it?

MR SMALLBONE: Well, the title was not passed.

GUMMOW ACJ: Why is there not an action of quasi contract to get back the money?

MR SMALLBONE: The money was paid on account of the purchaser, so whatever action there would be would lie in the mouth of the purchaser.

GUMMOW ACJ: This is some agency theory, is it?

MR SMALLBONE: Well, the purchaser was Spellman Corporation Pty Limited. The respondent’s case at trial was that Spellman was its agent by subsequent ratification and that argument was upheld by the trial judge but not upheld by the Court of Appeal which decided the matter on a different basis.

GUMMOW ACJ: I am merely directing you to paragraph 4 of Mr Forster’s submissions at page 60, and I do not think at the moment that your answer on page 71, paragraph 14, is very attractive at the level of special leave in this Court. We try and look at the realities of the litigation if we can.

MR SMALLBONE: Well, the short answer is, your Honour, the point was never run. It was made clear at all times at the trial that the case was run on the basis of contract between the plaintiff and the defendant. That is reflected in the page of transcript which was circulated. These points have never been investigated.

GUMMOW ACJ: All right. Where was Justice Basten in error, in what at first and second blush appears a very careful analysis and treatment of this case?

MR SMALLBONE: His Honour’s primary reasoning appears at application book 28 to 29, paragraphs 11 to 14, where his Honour identifies the factors in combination from which a contract is inferred, and the conclusion is really at paragraph 14 on page 29, and it is that prior to 16 June, on or about the 15th, a stage had been reached whereby it is inferred that a deal had been brokered by Spellman’s finance broker which would involve a sale of the motor car from the applicants to the respondent, and that in preparing the invoice of 15 June, which is in the application book at page 3, that is evidence that the third applicant knew of that arrangement and obviously the implication is was adopting it - - -

GUMMOW ACJ: It does not sound like a special leave point.

MR SMALLBONE: What we say about that is that what the Court of Appeal has done is selected some particular factors and assumed or inferred a contract from those, and thereby defined out of the sphere of relevance other objective factors which it was bound to consider, the principal ones being firstly the communication on 16 June of the terms of – communication to the respondent - - -

GUMMOW ACJ: I know that. You keep taking us to minutiae. In the High Court of Australia you have a special leave application. What is it about this case, among all the other special leave applications we receive, that stands out as indicating a grant of special leave that does not depend upon the minutiae of particular circumstances of this rather irregular arrangement?

MR SMALLBONE: A contract complete on its face dealing with the subject matter communicated to the respondent showing an intention to contract with a different party is essentially disregarded by the Court of Appeal. We say that the Court of Appeal was bound to start with that communication as the objective manifestation of intention and to consider all of the objective circumstances to see whether that expression of intention is displaced by those circumstances.

What it has done is selected a select range of circumstances, considered those, and in effect disregarded as irrelevant the others which it was bound to consider as the starting point. That exposes a risk of the use of the process of inferring contracts by inference from circumstances in a
way which is broad-brush or impressionistic and undercuts the basic concept of the bargain theory of contract that you have to start with a position which was communicated.

We have the communication of that contract document on 16 June which was found by the trial judge, and a subsequent document which is in application book page 4 of 16 June by which the respondent clearly indicates that it is not intending to be bound at that stage. It concedes itself at liberty to impose conditions and the like – clear at that time that Justice Basten says a contract had come into existence and neither party as between the applicants and the respondents considered themselves to be bound to the other. All that has been put to one side by focusing on an invoice without regard to those other primary matters.

GUMMOW ACJ: You need an extension of time. Is that opposed?

MR FORSTER: A matter for the Court from our point of view.

GUMMOW ACJ: Thank you. Yes, is there anything else you want to say?

MR SMALLBONE: Those are the submissions, your Honour.

GUMMOW ACJ: This application for special leave to appeal is made out of time. We have granted the extension of time. This application would involve us in the application of settled law. The appeal would enjoy insufficient prospects of success to warrant a grant of special leave and special leave is refused with costs.

We will adjourn to reconstitute.

AT 2.59 PM THE MATTER WAS CONCLUDED