Airport Retail Enterprises Pty Ltd v Alimentex Pty Ltd [2024] QCATA 122

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Airport Retail Enterprises Pty Ltd v Alimentex Pty Ltd [2024] QCATA 122 PARTIES: AIRPORT RETAIL ENTERPRISES PTY LTD (applicant/appellant) v ALIMENTEX PTY LTD (respondent) APPLICATION NO/S: APL222-23 ORIGINATING APPLICATION NO/S: MCDO876-22 (Brisbane) MATTER TYPE: Appeals HEARD ON: 30 October 2024 DELIVERED ON: 30 October 2024 HEARD AT: Brisbane DECISION OF: A/Senior Member Lember ORDERS: Leave to appeal the decision of 4 July 2023 (MCDO00876-22 – Brisbane) is refused. The stay of the decision granted 15 August 2023 is vacated. The application for leave to appeal is dismissed. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – application for minor civil dispute minor debt – where privity of contract in issue – whether evidence sufficient to support decision – where no error – leave to appeal refused Queensland Civil and Administrative Tribunal Act 2009 (Qld) s32, s143 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Cachia v Grech [2009] NSWCA 232 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 Hempel v Richardson & Wrench Hervey Bay [2018] QCATA 170 JM v QFG and KG [1998] QCA 228 -- 1 of 5 -- 2 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 APPEARANCES & REPRESENTATION: This application was determined on the papers pursuant to s32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). REASONS FOR DECISION What is this application about? [1] Airport Retail Enterprises Pty Ltd (ARE) seeks leave to appeal,1 and, if successful, to appeal a decision of the Tribunal below made on 4 July 2023 that ordered ARE to pay Alimentex Pty Ltd (Alimentex) the sum of $1,570.82 within 14 days (the decision). The decision was stayed by an order of the Appeal Tribunal made 15 August 2023, pending the outcome of this application. [2] In determining whether to grant leave to appeal, the Appeal Tribunal must be satisfied that, relevantly: (a) there is a reasonably arguable case of error in the primary decision;2 (b) there is a reasonable prospect that the appellant will obtain substantive relief;3 and (c) leave is needed to correct a substantial injustice caused by the error;4 or (d) there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.5 [3] The first hearing took place on 26 May 2023 and the final on 4 July 2023, after parties were directed to file a copy of any contacts or agreements relevant to their dispute. The Appeal Tribunal has reviewed transcripts of both hearings and all material filed to determine this application for leave to appeal. The first instance decision [4] Alimentex provides food safety and food quality inspection and audit services to retail food outlets. By its application filed 15 August 2022, Alimentex sought from ARE payment of Invoice No 594 dated 11 July 2019 in the sum of $1,190.64 issued for a quarterly audit of Aliminex’s Café Vue, situated at the Melbourne International Airport. The audit the subject of the invoice had been conducted on 10 June 2019. [5] It was not disputed that Alimentex had audited the café between 2017 and 2020, and had invoiced ARE for their audit services, receiving payments from ARE on 26 March 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 143(3). 2 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 3 Cachia v Grech [2009] NSWCA 232, 2. 4 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 5 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 577, 580. -- 2 of 5 -- 3 2018, 10 August 2018, 22 March 2019 and 2 February 2020 respectively. It was only the unpaid invoice dated 11 July 2019 that was in dispute. [6] ARE argued that there was no privity of contract between ARE and Alimentex and no agreement by ARE for Alimentex to provide the services. Rather, ARE said that their licensor (in a relationship akin to a franchise), Vue Group Pty Ltd (also known as European Cuisine) engaged Alimentex to provide the services and it was a term of the licence agreement that ARE pay. However, ARE ended the license relationship with Vue Group Pty Ltd around January 2019 and say that Alimentex were not authorised by ARE to provide the services after that date. When asked about payment of the February 2020 invoice, ARE said this a clerical error by their accounts department. [7] In allowing the claim, the learned Adjudicator found that: The agreement in place between European Cuisine and Airport Retail Enterprises Pty Ltd sets out various things, including audits, which must be undertaken in certain times. The respondent has not claimed that anything other than that, in the relationship between European Cuisine and Airport Retail Enterprises, …Alimentex was to be engaged to undertake various audits in – for… Airport Retail Enterprises Pty Ltd. At some stage, the relationship - or relationship with an individual at European Cuisine and Airport Retail Enterprises became untenable, and Airport Retail Enterprises no longer has any dealings with European Cuisine. On the ground, Alimentex, represented by Mr Malcolm, always organised these particular audits through the chef or other kitchen staff, at Cafe Vue at Melbourne Airport… Access was always arranged by Cafe Vue, and the invoice in question - the access for that audit was arranged in the same way. Mr Chapman advises that the people on the ground did not know anything about the fallout between Cafe Vue and Airport Retail Enterprises and European Cuisine. The people on the ground continued to engage Alimentex. Alimentex continued to perform audits, including one after the invoice in question, which was paid in error… It’s the view of the Tribunal that Alimentex was entitled to rely on the ostensible authority of the chef and kitchen staff at Cafe Vue, as that has - that was the way that the audits had always previously been arranged, the invoices submitted and paid. The breakdown in communication between Airport Retail Enterprises and its onsite cafe, in this instance, is the culprit. [8] In its application for leave to appeal or appeal ARE argue that: 6 (a) Alimentex’s statement of claim (application for a minor civil dispute) mistakenly described the Café Vue at the Melbourne Airport as a ‘joint venture business’ between Vue Group Pty Ltd and ARE, but it was a licensed business owned solely by ARE. (b) ARE was engaged by Vue Group Pty Ltd and not by ARE – “there were no interactions between Alimentex and ARE prior to coordinating access to our site” and “there is no contact between the original applicant and ARE”. “ARE’s only involvement was to facilitate access to the site and pay the proscribed invoice when it was supplied”. Vue Group Pty Ltd should have informed 6 Appeal submissions filed 14 August 2023. -- 3 of 5 -- 4 Alimentex that their services were no longer required after ARE ended its relationship with Vue Group Pty Ltd. (c) Staff of ARE only gave site access to facilitate the agreement between Vue Group Pty Ltd and Alimentex but staff of ARE (and particularly a chef whose only authority is to cook and prepare food) had no authority to give permission on behalf of ARE to directly engage Alimentex to provide the services. [9] An error of law may occur where a decision maker: (a) has made a finding of fact without probative evidence to support it or drawn an inference which was not reasonably open on the primary facts;7 or (b) has made a decision which is manifestly unreasonable by failing to give adequate weight to a relevant factor of great importance or given excessive weight to a relevant factor of no great importance.8 [10] In this regard, a factual conclusion is not infected by legal error unless there is no evidence to support it or unless it is clearly wrong.9 It is insufficient that the Appeal Tribunal merely disagree with a factual view of the Tribunal.10 [11] Importantly, the appeal process is not an opportunity for a party to have their case automatically reheard or a decision reconsidered.11 Is there a reasonably arguable case of error in the decision? [12] The learned Adjudicator’s decision turned on a finding that staff of ARE had ostensible authority to engage Alimentex to conduct the onsite audit. [13] An agency exists where one person is accepted by the law to represent another, the principal, in such a way as to be able to affect the principal’s legal position with respect to others. In true agency, the principal gives authority to the agent to bind the principal in transactions with others. The authority can be implied from the conduct of the principal and the agent making it reasonable to infer that authority has been given. No formality is required to give such authority. [14] Agency may also arise through the doctrine of estoppel to prevent a principal from denying an agent’s authority to bind the principal. By this doctrine the agent has ostensible or apparent authority to bind the principal, and this occurs when the principal by words or conduct represents to another that the agent has authority to bind the principal and the other relies on that representation in dealing with the agent. [15] Ostensible authority operates to prevent a person from reneging on an agreement instituted by someone who appeared to have authority to act for them, where it would be unconscionable to a third party to do so. [16] It was clearly open to the learned Adjudicator to make a finding that Mr Chapman had authority to bind ARE, and that Alimentex reasonably relied on that authority given the evidence before her of the prior course of dealing between the parties and that despite Café Vue Pty Ltd contracting with Alimentex, responsibility for permitting 7 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 356. 8 Ibid., 40-42. 9 JM v QFG and KG [1998] QCA 228, Pincus JA at 21. 10 Ibid; Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611, [131]. 11 Hempel v Richardson & Wrench Hervey Bay [2018] QCATA 170 [14]. -- 4 of 5 -- 5 the audits and payment for the audit invoices always rested with ARE. Alimentex was not notified by any party, including ARE, that their services were no longer required at Café Vue Melbourne Airport and they continued to supply them in good faith and with the complicity of ARE’s staff after ARE ended its relationship with the Vue Group Pty Ltd. ARE paid an invoice subsequent to the one in dispute, indicating that even after receiving the July 2019 invoice they accepted a further visit and paid for that service without complaint. [17] There is no error in the learned Adjudicator’s decision allowing the claim as it was reasonably supported by the evidence before her. Should leave to appeal be granted? [18] For the reasons given, there is no arguable case of legal error in the primary decision and ARE does not have a reasonable prospect of obtaining substantive relief with respect to the decision ordering payment of the outstanding invoice. Further, the claim is not one of general importance such as it would be in the public interest to have it determined on appeal. [19] In the circumstances, leave to appeal is refused and, therefore, the application for leave to appeal is dismissed and the stay of the decision is vacated. -- 5 of 5 --