New South Wales Supreme Court CITATION : Simper & Anor v KvB Visual Concepts Pty Limited [2000] NSWSC 677 FILE NUMBER(S) : SC 011014/00 HEARING DATE(S) : 03/07/2000 JUDGMENT DATE : 13 July 2000 PARTIES : Kenneth James Simper and Samantha Simper - Plaintiffs KvB Visual Concepts Pty Limited - Defendant JUDGMENT OF : Bell J at 1 LOWER COURT Local Court JURISDICTION : LOWER COURT 13068/98 FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER : COUNSEL : A Gelbart - Plaintiffs A Ogborne - Defendant SOLICITORS : Peter C Prior & Co - Plaintiffs Foulsham & Geddes - Defendant DECISION : Appeal dismissed IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION BELL J Thursday 13 July, 2000 11014/00 - Kenneth James SIMPER & Anor v KvB Visual Concepts Pty Limited JUDGMENT 1 HER HONOUR: This is an appeal brought pursuant to s 69(2) of the Local Courts (Civil Claims) Act, 1970 from the whole of the decision of Mr Price, Magistrate, given on 29 February 2000 upon grounds set out in a document which forms an annexure to the plaintiffs' summons. 2 On 29 February 2000 the learned Magistrate entered a verdict in favour of the defendant (the plaintiff in the proceedings below) in the amount of $9,246.06 together with interest. 3 On or about 22 September 1994, the plaintiff, Samantha Simper, sought to enrol in a degree course offered by the defendant College. She completed an enrolment form on that day in respect of the Bachelor of Arts (Visual Communication) course. The course was a four year one. Ms Simper enrolled in that course upon an understanding that she might complete it at an accelerated rate. In fact she completed all requirements for admission to the degree in three years. 4 In a document annexed to the summons filed on behalf of the plaintiffs, eight grounds of appeal are set out. At the commencement of the hearing, Mr Gelbart informed me that the plaintiffs confined their appeal to grounds 1 and 3. Those grounds are as follows:- 1. By failing to find that the contract between the appellant and respondent of about September/October 1994 had been fully performed by the appellant and that thereby the appellant was discharged from any further obligation to the respondent. … 3. By finding that the contract of September/October 1994 between the appellants and the respondent contained a condition that the appellants would pay a fourth year of tuition. 5 Mr Gelbart, who appeared on behalf of the plaintiffs, submitted that the Magistrate erred in law in that he failed to construe the agreement between the plaintiffs and the defendant as being subject to an implied term that the tuition fees payable by the plaintiff, Samantha Simper ( and the subject of the guarantee given by the plaintiff Kenneth Simper), would be determined by reference to the number of years during which Ms Simper attended the College. It was submitted that upon a proper construction of the contract between the plaintiffs and the defendant no tuition fee was payable in respect of the fourth year. 6 Mr Ogborne, who appeared on behalf of the defendant, did not concede that the Magistrate made any error with respect to the construction of what was described as "the 1994 contract". To the fore in the way Mr Ogborne put the defendant's case was the submission that the construction of the 1994 contract was, in any event, not material because the Magistrate founded the verdict in favour of the defendant on a subsequent contract formed in 1997. 7 The Statement of Liquidated Claim upon which the proceedings were commenced in the Local Court pleads that the plaintiffs owed the defendant the sum of $9,246.06 for tuition fees rendered for the year 1997 pursuant to an agreement dated 6 February 1995. I was not directed to any evidence concerning an agreement bearing that date. The documents to which Mr Gelbart pointed as evidencing the original agreement between the parties comprised (i) a 1995 Enrolment Form - Bachelor of Arts (Visual Communication) signed by Samantha Simper on 22 September 94 & (ii) an undated 1995 Application for Part Payment of Tuition Fees signed by Kenneth Simper. 8 In support of his contention that the Magistrate gave judgment upon a 1997 agreement Mr Ogborne tendered a document titled "Statement of Agreed Facts". I note that the plaintiffs were unrepresented before the Local Court. The "Statement of Agreed Facts" is signed on behalf of the solicitor for the plaintiff alone. I was informed (without demur) that the statement was before the Magistrate upon the basis that it represented an agreed statement of facts as between the parties. Attached to the statement was an exchange of correspondence between Professor AG Shannon of the defendant and Kenneth Simper. That correspondence (dated 21 November 1997) was put forward as evidencing an agreement that Samantha Simper would pay to the defendant the amount of $9,246.00 (as stated on the original enrolment form for year 4) over three years in three equal payments of $1,027.34 per year and that Kenneth Simper would guarantee the making of those repayments. 9 Mr Ogborne also tendered the outline of submissions which had been handed up to the Magistrate on behalf of the plaintiffs. Under the heading "Item 2" (at p. 5) of that document there is an acknowledgment of the existence of a signed agreement to enter into a payment schedule to pay additional fees. The submissions proceed upon the basis that the agreement had been entered into under duress. A letter dated 7 February 2000, signed by KJ Simper addressed to Foulsham & Geddes, solicitors, was also tendered in the defendant's case on the hearing of this appeal. That purported to set out the "basis for our defence of this claim". In paragraph (b) of that document it is noted that the plaintiffs do not contest the existence of a signed agreement to enter into a payment schedule to pay additional fees and repeat the assertion that that agreement was entered into under duress. 10 The transcript of the proceedings before the Magistrate reveals that at the commencement of the hearing on 23 February 2000 Mr Ogborne, in the course of opening his client's case, said: "Your Worship, as we see the issues, there's no doubt that as at 21 November 1997, there was a dispute between KvB College and Miss Simper and her father as to what fees were owed at that stage. While that forms a sub-text to this case, it really isn't the focus of it for these reasons, that the correspondence that passes on 21 November clearly evidences an agreement that is reached between the parties to compromise that dispute on the basis that Miss Simper would pay the outstanding amount by instalments …" 11 Mr Simper opened his case and said: "There are two matters here which I believe are directly connected. One is the dispute that KvB entered into about the payment of additional fees which I believe is directly related to the second matter in relation to duress. (p 10) He went on to outline the plaintiffs' contention that they had entered the signed agreement as to part payment under duress. 12 It was the defendant's case that, against a background of a dispute between the parties as to the plaintiffs' liability with respect to the payment of further tuition fees, on or about 21 November 1997 the plaintiff's entered an agreement whereby Samantha Simper agreed to pay to the defendant the sum of $9,246 by 9 equal instalments over a period of three years and Kenneth Simper agreed to guarantee the repayment of those instalments. The plaintiffs entered into the agreement in order to obtain the benefit of paying the outstanding fees in instalments rather than immediately. They had not entered this compromise agreement under duress. The defendant's refusal to allow Samantha Simper to graduate unless outstanding fees were paid was lawful and did not constitute the sort of pressure which might be characterised as illegitimate; Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40. The plaintiffs had repudiated the contract by the failure to pay the instalments. The defendant was accordingly entitled to terminate the contract and to sue for damages which it had done. 13 The Magistrate observed in the course of his reasons: "There is a secondary issue so far as these proceedings are concerned, and that relates to the so called agreement arrived at on 21 November 1997 and specifically as to meeting the outstanding fees claimed albeit in a schedule of interest free repayments. The defendants assert this agreement was entered into under duress. Mr Simper makes no bones about the situation, and that is that he deliberately framed his offer to be misleading to the plaintiff and to mislead the plaintiff that the fees would be paid. He did so in the belief that the claimed fees would not be repaid. Indeed he agrees that it was a fraud on the college, a situation he says he had no alternative but to do. The defendants took the view, it was a situation of pay up or don't graduate." (p 2/3) 14 His Worship referred to the written submissions handed up by the defendant (the plaintiff before him) observing, in passing, that submissions in paragraph 5 (contending that the plaintiffs had not entered into the agreement as the result of any pressure applied by the defendant) were maintainable. His Worship went on to observe: "It's very difficult in the circumstances on the evidence in this case for either of the defendants to argue against the authority of Sergeant v ASL Developments (1974) 131 CLR at 634. The headnote to the High Court authority reads, further by their unequivocal conduct with knowledge of the facts giving the right to rescind the contract, the vendors had elected to treat the contract as subsisting and were precluded from exercising the right to rescind it. As a matter of law applied to the facts this court would have to hold that there has been no clear and unequivocal termination of this November contract, the repayment commitment. As a matter of law this court would be obliged to hold that the defendants have repudiated the contract, thereby arising as the plaintiff's entitlement to institute these proceedings." (p 3/4) 15 The Magistrate reviewed the authorities on duress. He concluded that as a matter of law a defence based upon duress was not sustainable. 16 The plaintiffs have not sought to contend that the Magistrate erred in law with respect to his findings as to the November 1997 agreement and his rejection of the defence of duress. Mr Gelbart concentrated his challenge upon the submission that the Magistrate had failed to construe the 1994 agreement so as to include an implied term that the plaintiffs were not liable to pay tuition fees in respect of the fourth year. I consider, in the light of the way the matter was presented before the Magistrate, that this challenge is misconceived. 17 Despite the particulars of claim pleaded in the Statement of Liquidated Claim I accept that the matter proceeded before the Magistrate upon the basis of the 1997 compromise agreement. I have regard to the observations of Hunt J (as he then was) in Cachia v Kelly (1987) 10 NSWLR 388 at 393: " That is not to say that the particulars supplied in a plaint in the Local Court must be read in a strict and technical fashion; it is sufficient if they furnish to the defendant in advance of the trial sufficient information as to the nature of the claim which the plaintiff wishes to make against him: Jamieson v Mutual Acceptance Co Ltd (1965) 83 WN (Pt 1) (NSW) 121 at 123." 18 At the commencement of his judgment the Magistrate noted that the parties were in agreement as to a number of factual matters which for completeness he set out. They included the exchange of correspondence dated 21 November 1997 to which I have referred in paragraph [8] above. It is clear that the proceedings were conducted upon the basis that on or about 21 November 1997 the plaintiffs had agreed to pay to the defendant by instalments of the sum of $9,246.00 albeit that they maintained that agreement had been entered under duress. 19 His Worship's judgment shows that he rejected the substantive defence raised by the plaintiffs to the 1997 agreement. I note that his Worship ordered that interest be paid in accordance with the submissions filed on behalf the defendant (the plaintiff before him). The transcript records his Worship referring to the "submissions in paragraph 9". This appears to be a typographical error. Submissions prepared by Mr Ogborne dated 23 February 2000 address the issue of interest in paragraph 19. By reference to the contents of that paragraph it is clear that his Worship's order as to interest was structured upon the 1997 agreement. 20 The plaintiffs have failed to establish that the learned Magistrate's decision was wrong in law. ORDERS: 1. The summons is dismissed. 2. The plaintiffs are to pay the defendant's costs as agreed or assessed. Last Modified: 09/26/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.