Dass Investments Pty Ltd & Anor v Kraatz & Anor [2024] QCATA 6

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Dass Investments Pty Ltd and anor v Kraatz and anor [2024] QCATA 6 PARTIES: DASS INVESTMENTS PTY LTD AS TRUSTEE FOR GAS INVESTMENTS TRUST AND SPECIALISED EQUIPMENT RENTAL PTY LTD (applicant/appellant) v LINDSAY ALLAN KRAATZ AND KYM FRANCES KRAATZ (respondent) APPLICATION NO/S: APL367-21 ORIGINATING APPLICATION NO/S: MCDO27/21 MATTER TYPE: Appeals DELIVERED ON: 8 February 2024 HEARING DATE: On-Papers Hearing HEARD AT: Brisbane DECISION OF: Judicial Member Reid ORDERS: The application for leave to appeal is dismissed. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – LEAVE TO APPEAL – INTERFERENCE WITH FINDINGS OF FACT – LEGAL ERROR – where the applicants filed an application for leave to appeal or appeal – where the applicants alleges error on the part of the Tribunal at first instance – where the applicants rely on several grounds of appeal – where the applicants complain that the Tribunal erred by failing to allow the applicants to be heard on the issue of late provision of affidavit material – where the applicants complain that they were improperly denied the opportunity to obtain an adjournment – where the applicants claim that the Tribunal placed too much weight on the material – where the applicant complains that the Tribunal otherwise erred in law and in making findings of fact – where the Appeal Tribunal accepts that the Tribunal hearing the matter at first instance failed to allow the applicants the opportunity to address the late provision of affidavit material – whether the failure of the Tribunal in its original jurisdiction to allow the applicants the opportunity to address the late provision of affidavit material gives rise to an error that would result in the granting of leave to appeal -- 1 of 9 -- 2 – whether the Tribunal otherwise erred in law or in making findings of fact APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION [1] This is an application for leave to appeal by two applicant companies (the applicants) which were the unsuccessful applicants in proceedings brought in QCAT’s Rockhampton registry against the respondents. The applicants sought the refund of money from the respondents alleging $24,875 was wrongly paid by them to the respondents. The learned magistrate who determined the matter accepted the evidence of the male respondent and rejected the evidence of the male director of each of the applicants, Mr Seemungal-Dass (hereinafter “Mr Dass”). He therefore dismissed the applications. Background [2] Mr Dass is a chartered accountant and for many years he and his wife, who I gather is also an accountant, were, through their corporate vehicles, the respondent’s accountants. In fact, it was Mr Dass’ wife who handled the Kraatz’s business. They had, over the years, become friendly. [3] In about 2019, Mr Dass and his wife separated, and in June 2019, she left the business. She had previously been a director of one of the applicant companies, but not the other. [4] In 2018, Mr Dass and his wife lived on Frenchville Road in Rockhampton. A property at 304 Frenchville Road which adjoined their home was also owned, though there is some uncertainty whether it was jointly owned by Mr and Mrs Dass or owned solely by her. [5] The male respondent says that in November 2018 he attended the property with Mr Dass and his wife and was asked to perform earthworks on the property at 304 Frenchville Road. [6] Subsequently, he said he had numerous conversations with Mr Dass, and some with his wife also, about work that was to be done there. He did extensive work at the request of Mr Dass and his wife. [7] Mr Kraatz says in an affidavit filed in the proceedings below on 17 November 2021 that in February 2019, he spoke on site with both Mr Dass and his wife. At that stage, he said the work done was already in excess of $30,000. He says they offered to pay that sum to the respondent and on 23 February 2019, the sum of $30,000 was deposited into the respondent’s business account. In fact, more work than that was subsequently done and in total some $53,651 was undertaken. All of that has been paid for. [8] In a way that I will explain later, it is that sum which Mr Dass says was wrongly paid to the respondent and is the subject of the action. Mr Kraatz subsequently deposes -- 2 of 9 -- 3 that on 27 March 2019, his wife received an email from Mr Dass’ wife. That email is exhibit LK1 to the affidavit of Mr Kraatz. It is relevantly in these terms: “As discussed with [Mr Kraatz] could you please invoice the following for the total amount of $48,511.00 Specialised Equipment Rental Pty Ltd [ABN and address omitted] Repairs to stacker, separator and forklift Amount 18,760.00 GST 1,876.00 20,636.00 Dass Investment Trust [ABN and address omitted] Repair to land at 53 Macquarie Street, Berserker 22,613.64 GST 2,161.36 24,875.00” [9] Mr Kraatz says on an occasion Mr Dass and his wife had explained to him that the invoice for the work needed to be made out “to a few different entities”. They said that they would discuss it and work out what entities would be paying their accounts. Mr Kraatz says that as they were his long time accountants, he trusted them and completed invoices as they requested. [10] Also exhibited to Mr Kraatz’s affidavit (exhibit LK4) are three invoices as follows: (a) Invoice 582, dated 29.12.2018, to Specialised Equipment Rental Pty Ltd -For repairs to stacker, separator and forklift $7,400 (b) Invoice 583, dated 1.4.2019, to Specialised Equipment Rental Pty Ltd -For repairs to stacker, separator and forklift $18,760 (c) Invoice 584, date 1.4.2019, to Dass Investment Trust -For repairs to land at 53 Macalee Street, Berserker $22,613.64 [11] Mr Kraatz says he finished the work on the property at 304 Frenchville Road, and was fully paid. He heard nothing more about the matter until 5 May 2021, some two years later, when he received a phone call from an office staff member of Dass Accounting and Business Consulting Pty Ltd and then received a letter on 10 May 2021. That letter is exhibit 7 to the application below (wrongly identified as exhibit A in Mr Kraatz’s affidavit). [12] The letter asserts an error with the invoices. In a subsequent letter of 26 May 2021, Mr Dass asserts the work identified in the invoices “was not actually performed” and was “issued to us in error or alternatively there was fraud involved”. [13] Mr Dass sought a refund of the sum of $24,875. -- 3 of 9 -- 4 [14] Before turning to the decision below, I note also attachment 1 to the Application filed in the Rockhampton registry. In it, the applicants referred to Mrs Dass as the “financial controller of the Dass Group” and asserted it was she, in that capacity, who paid the $30,000 to the respondents in April 2019 and a further $15,511 on 2 April 2019. [15] It is said in that attachment that “part of the payment of $30,000 to be treated as an advanced payment against invoice number 584. The amount allocated is $9,364. The remainder of the $30,000 paid ($20,636) was dealt with in another way not subject to this claim.” [16] The amount sought to be recovered in the claim is thus identified as the amounts underlined above, namely applicant one $15,511, applicant two $9,364 total $24,875. [17] I referred in paragraph 11 to the applicant’s correspondence of May 2021. In the material attached to the application, the applicants give no explanation for the passage of time between payment in May 2019 and this correspondence. They also make no explanation of the attachment to the respondents’ Response filed on 27 September 2021. In that document, signed by each of the respondents, they assert: (a) Mr Dass was well aware the respondents conducted an excavation heavy machinery business; (b) That Mr Dass discussed with the male respondent his performing work on the land at Frenchville Road and gave instructions of what was to be done; and (c) In total, the respondent issued three invoices to the respondents and have been paid in full the sum of $53,651 for work on the Frenchville Road property. Hearing below [18] It is in those circumstances that I turn to the hearing of the matter on 24 November 2021. Each of Mr Dass and the two respondents were sworn and attested to the truth of the contents of the application and responses filed in the Rockhampton registry. [19] Mr Dass said the claim was simple and referred to the invoices issued by the respondents. He said the work referred to in them had not been done (see T1-7, l 41). He said they were paid by the financial controller who “had authority to sign cheques without my involvement” (T1-8, l 12). He said, in what might be thought to be at best disingenuous, that if Mr Kraatz’s evidence about the director’s involvement in the transaction is accepted, as it was by the magistrate below, that he became aware of the payments in about July 2020. He said the Frenchville Road property “is” owned by his wife. He did not say whether it was always owned by her, when it was purchased, or anything else about it. [20] He said (T1-9, l 24) that he was aware some work was carried out on the Frenchville Road property but “[o]ther than that, I’m unable to confirm or deny anything else about work”. He specifically denied being there when work was carried out (T1-9, l 43-48). Later, (at T1-10, l 3) he said he did attend the premises, did see that some work was being done, but never gave any instruction about it. [21] This is contrasted with the evidence of Mr Kraatz that Mr Dass was there “and he virtually took over most of the decisions”. (T1-10, l 30). Most importantly, he said that later there was a discussion with both the Mr Dass and his wife about payment and “They said look we’ll let you know where to send those bills”. -- 4 of 9 -- 5 [22] When invited (T1-20, l 13) to question, the respondents, Mr Dass indicated he did not need to, but did subsequently ask a number of questions including putting to Mr Kraatz that he was not onsite as Mr Dass asserted. Mr Kraatz said he believed Mr Dass was onsite at least 10-12 times. (T1-26, l 10). Decision below [23] The learned magistrate delivered a judgment (set out at T1-30-32 of the Transcript). He set out a history of the matter, much as I have. He notes photographs attached to the respondents’ affidavit showing Mr Dass on the land at Frenchville standing in front of recently done earthworks. I have not referred to those in my summary of the facts, as the quality of the copies in the material provided to me is not good but it seems clear, and was uncontradicted, that Mr Dass was on the property at the time those photos were taken. [24] The learned magistrate found Mr Dass was not a reliable witness. In particular he was unimpressed by his early answer that he disputed what work the respondents had actually done. This was in contradiction to the clear evidence of Mr Kraatz and inconsistent with the photos, which I accept, are as the magistrate described. [25] The evidence of Mr Kraatz as to payment and subsequently the issuing of invoices in accordance with the email to Mrs Kraatz from Mr Dass’ wife were, the learned magistrate found, well known to Mr Dass. [26] The total value of the work namely $53,651 has been paid. The learned magistrate rejected the view that the financial controller was not authorised to make such payments. A letter tendered in the proceedings from Mr Dass to his wife cancelling her financial authority post-dated those payments to the respondents. The learned magistrate found, very strongly because he says he was satisfied beyond reasonable doubt, that the respondents were instructed to forward the invoices setting out work that had not been done or done elsewhere, even though the work had been done at Frenchville Road. He said: “The fact that they sent their accounts showing work at a different address does not detract from the matter or the point that the work was validly and legitimately done pursuant to a contractual arrangement at 304 Frenchville Road and that they are entitled to payment. I do find, on the balance of probabilities, that Ms Katherine Dass had ostensible authority as a director to make payments to accounts directed to Dass Investments Pty Ltd. I would be very confident in saying that the records of that company would clearly disclose Katherine Dass paying accounts. I believe she had the authority to do so direct or at least it is ostensible authority. Authority that Mr and Mrs Kraatz could expect her to have as a director of that company.” This application [27] The applicants filed an application for leave to appeal on 22 December 2021. The grounds for appeal are, in essence: (a) The magistrate; (i) failed to give an opportunity to the applicants to be heard on the late receipt of the respondents’ affidavit material; (ii) failed to permit the applicants to be heard on an application for an adjournment; -- 5 of 9 -- 6 (iii) placed excessive weight on the applicant’s affidavit material. (b) The magistrate erred in applying a quantum merit basis to the respondents’ work in the absence of evidence of the effect of the work on the value of the property; (c) The magistrate erred in making adverse credibility findings in respect of Mr Dass’ evidence based on evidence that is said to be contrary to the evidence before the tribunal. [28] The applicant in the recitation of those grounds says that if leave to appeal is given, the applicant proposes to rely on evidence of four persons to refute the respondents’ evidence. [29] The applicants have filed submissions in support of their application for leave to appeal on 4 May 2022 and submissions in response to those of the respondent on 30 June 2022. They have also filed four affidavits of Chloe Neuss, Karen Ramsay, Jonathan Ladewig and Michael Miller. [30] It is helpful if I summarise the contents of those affidavits. [31] Mr Miller is a real estate agent in Rockhampton. He attests to Mr Dass signing a contract to purchase a property at Neil Street, Frenchville on 15 November 2018. That contract fell through but a new contract on the same property was executed by Mr Dass on 17 November 2018. It seems that the purpose of that affidavit is to show that Mr Dass and his wife had determined to separate by that time and Mr Dass was buying a property for himself to live in. [32] Mr Ladewig is a chartered accountant employed at Dass Accounting Business Consulting since 2008. He says he first met Mr Kraatz on 17 October 2019. He says, consistent with the evidence given below in November 2021, that the director’s wife ceased working at the business in May 2019. [33] He says that when he first met Mr Kraatz in October 2019, Mr Kraatz made it clear he did not want direct involvement with Mr Dass because of his friendship with the director’s wife. He says in December 2020, Mr Kraatz changed accountants and says that this occurred with a number of clients who had been involved with Mrs Dass as their accountant. [34] I fail to see any relevance in this evidence. [35] Karen Ramsay is also an accountant at Dass Accounting and has been there since 2014. She says that in June 2020 the director’s wife spoke to her and asked her to explain the three payments made to Mr Kraatz in January, February and April 2019. She says she produced three invoices and explained that at the time Katherine Dass said that her supervisor at the time had approved the payment of those invoices. [36] Again, I fail to see any relevance in that uncontroversial evidence. It is entirely consistent with the evidence of Mr Kraatz and I have said it is clear that Katherine Dass had authorised those payments and had authority to do so. [37] None of those affidavits relates to the issue of whether Mr Dass gave Mr Kraatz instructions about performing the work at the Frenchville Road property or about requests that Mr Kraatz said he made for Mr Kraatz to issue invoices incorrectly, stating that work had been done as I have earlier set out. -- 6 of 9 -- 7 [38] The last affidavit of Cloe Neuss is a little different. She too is an employee of Dass Accounting and has been since February 2012. She says she was responsible, from 2013 to 2020, for managing Mr Dass’ diary. She said he, himself, never made any entry in that diary. She says she knew he had moved out of the family home in November 2018. She says that he had never requested that she contact either Mr or Mrs Kraatz and that Mr Dass had no business or professional meeting with Mr and Mrs Kraatz. [39] I interpose that in the hearing below, Mr Kraatz agreed that his professional relationship was with Mrs Dass and not Mr Dass and accepted that Mr Dass would not even have his mobile number. [40] Mr Kraatz said also that Mrs Dass was their accountant (T1-26, l 37) and that he had never, ever called Mr Dass’ mobile number or probably even received a call from Mr Dass (T1-27, l 5-13) [41] In such circumstances much of Ms Neuss’ affidavit is also uncontroversial. She also says that “Between November 2018 and March 2019 (Mr Dass) did not tell me that he was meeting Mr Kraatz at any time for any reason”. [42] Again, I do not see that evidence as being of any importance in relation to issues of credit in the case. Mr Kraatz said, as I have earlier stated, that he saw Mr Dass on the property on about 10-12 occasions over the period from early December 2018 and up to completion of the work a few months later. They were not business-related meetings. They would not have been expected to be in his work diary and it is very unlikely that the evidence of Mrs Neuss about the work diary would have had any influence on the learned magistrate’s assessment of credit in this matter. [43] The final issue is Ms Neuss’ statement that the affidavits of Mr and Mrs Kraatz which were filed in the proceedings below on 17 November, were delivered to Mr Dass’ office at 4:56pm on Tuesday, 23 November, the day before the hearing below. I will address that issue because of the nature of paragraphs 1(a) and (b) of the application filed for leave to appeal. [44] Whilst it is not clear from a reading of the transcript that Mr Dass had sought any adjournment of the proceedings, he did appear to raise issues about late service of the affidavits. I think it fair to say he was not given any real opportunity to articulate his concerns about that issue. [45] At the commencement of the hearing (see T1-2, l 35) Mr Dass said he had not seen the affidavits which Mr Kraatz said had been sent by his solicitor to Mr Dass “on Monday” (which would have been 22 November, a day before Ms Neuss says they were delivered). I act on the basis that her evidence about this issue should be accepted. Later, (at T1-7, l 22) Mr Dass indicated he wanted “to raise the issue of the affidavits” but was told by the learned magistrate “No you might want to … you haven’t given any evidence”. It seems this was sufficient to deter Mr Dass from continuing the discussion about the late service of the affidavit. [46] Judicial officers must always, and particularly when dealing with self-represented persons, be mindful of ensuring parties have a proper opportunity to articulate the party’s issues. Care must always be taken to ensure the opportunity is not lost due to the judicial officer’s search for a timely or expeditious resolution of the matter. It is important that people who may be unfamiliar with court proceedings not be overborne. -- 7 of 9 -- 8 [47] In this case it seems clear to me that Mr Dass wanted to raise an issue concerning the late service of the affidavits and was deterred from doing so by the conduct of the proceedings by the magistrate. He said he had not seen those affidavits. Although the magistrate said (at T1-2, l 44) that Mr Dass needed to see the affidavits, he was nevertheless given little opportunity to do so. Soon after the discussions, I have referred to the matter was adjourned at 2.21pm, but resumed at 2.27pm. This would have given him very little, if any time, to have perused affidavits which might have been provided by the magistrate’s clerk as the magistrate indicated. [48] Whilst the applicants make a legitimate complaint about the learned magistrate’s failure to allow Mr Dass to address issues about the late receipt of the two affidavits, and perhaps a possible application for an adjournment (though, as I have said, none was specifically foreshadowed) a number of matters are of importance in the assessment of this issue, namely: (a) The affidavits of the respondents are little different to the attachment A to the respondents’ response to the minor civil dispute filed in the proceedings in Rockhampton on 27 September 2021. The response was, I have said, signed by both Mr and Mrs Kraatz. The contents of the affidavits, served late, were therefore not a surprise and add comparatively little to that attachment; (b) The response of the applicants to the affidavits has been the filing of the four affidavits I have referred to. [49] In my assessment, none of those affidavits goes any way to undermining the credit findings of the learned magistrate about Mr Kraatz. They do not address the central factual issue namely whether Mr Dass knew of the work the respondent had done on the land, and had in fact given instructions about that work, consistent with the photo of him on the site. They also do not address whether he had given instructions as to the issuing of invoices falsely claiming the work was different in nature and that the payments were made by Mrs Dass, with authority to make such payments. Nothing in the affidavits undermines the learned magistrate’s approach to the assessment of credit. [50] In the circumstances, there is no reason to think the learned magistrate’s failure to hear the submission of Mr Dass about the late delivery of the affidavits of the respondent should result in the granting of leave to appeal. [51] So too the suggestion the learned magistrate placed excessive weight on the respondents’ affidavit is untenable. His accepting of the assertions in those affidavits and the sworn evidence of Mr Kraatz does not mean that he based excessive weight on those affidavits. Indeed, it is in on an assessment of the whole of the matter that he rejected the evidence of Mr Dass because of its own shortcomings. Mr Dass’ evidence was contradicted by the photos. He failed and still fails to address the assertion he took visitors at the firm’s Christmas party to view the work the respondent had done and spoke of it in positive terms. His assertion about there being no work done on machinery or at the company’s own land at Berserker was disingenuous at best. He did nothing to show that his wife, the financial controller for the business and with authority to pay the accounts, did so improperly. Mr Dass appeared to be inconsistent in his assertions about what work he observed had been done on the Frenchville Road property. [52] There is, in my view, no merit in the assertion that the magistrate applied a quantum merit to the respondents’ work. The work was not the subject of the claim, the -- 8 of 9 -- 9 respondent having already been paid. The claim was for a refund of monies paid by a person with authority to do so. The only reference to quantum merit was, so far as I can see, at T1-19, l 42, where the learned magistrate, during discussions with Mr Dass makes a reference to a “principle called quantum merit which says you or Katherine cannot be enriched by their work and not get paid for it”. It is unclear to me why the magistrate referred to quantum merit. Importantly, he determined the case on perusal of his reasons on a different issue namely, the resolution of credit contrary to Mr Dass’ evidence. [53] In my view, such an approach was both orthodox and appropriate. There is no basis for doubting the validity of the judgment below. There is no reason to question the findings and orders of the learned magistrate. [54] In circumstances where there is no realistic prospect of success with the appeal, the application for leave to appeal ought be rejected. I order the application for leave to appeal is dismissed. -- 9 of 9 --