Ballard (trading as Simpliciter Legal Solutions) v Smith (trading as Twenty20 Building Consultancy) [2021] QCATA 76

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Ballard (trading as Simpliciter Legal Solutions) v Smith (trading as Twenty20 Building Consultancy) [2021] QCATA 76 PARTIES: KAYNE ROY BALLARD (TRADING AS SIMPLICITER LEGAL SOLUTIONS) (applicant) v BRENT DONALD SMITH (TRADING AS TWENTY20 BUILDING CONSULTANCY) (respondent) APPLICATION NO: APL316-20 MATTER TYPE: Other minor civil dispute matters DELIVERED ON: 23 June 2021 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Dr J R Forbes ORDERS: The application for leave to appeal is dismissed. CATCHWORDS: APPEAL – APPLICATION FOR LEAVE TO APPEAL – minor civil claim – minor debt – where agreement to provide advisory services – whether proper defendant identified – whether award void for misnomer – whether recipient of services personally liable – whether inter-party dealings indicative of agreement between named parties as individuals – whether alleged debtor liable as purporting to act for non-existent principal – whether purported agent liable for breach of warranty of authority – whether debt claimed recoverable as costs – whether costs properly assessed – whether leave to appeal should be granted Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 32, s 102 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Fox v Percy (2003) 214 CLR 118 Gardiner v Headling [1928] 2 KB 284 -- 1 of 5 -- Herson v Bernett [1955] 1 QB 98 JM v QFG and KG [2000] 1 Qd R 373 MacMillan v Mumby & Anor [2006] NSWCA 74 Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611 Salomon v Salomon & Co Ltd [1897] AC 22 Summergreene v Parker (1950) 80 CLR 304; [1950] HCA 13 W (an infant, In re) [1971] AC 682 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 egregious case began as a claim for $4661.20 (costs included) for `inspection services and [preparation] of expert reports for use in ... building industry dispute matters’.1 The dispute is now reduced to a judgment debt of $591.20,2 but the contest continues with undiminished vigour and verbosity. [2] The applicant for leave, Kayne Roy Ballard (`Ballard’), is a solicitor, and the present respondent, Brent Smith (`Smith’) is a property consultant who, on this occasion, assisted Ballard in connection with District Court litigation. [3] The initiating process fills 32 pages, the response 12 pages, and the submissions pro and the award of $591.20, 18 and 7 pages respectively. An unsuccessful quest for a stay of execution produced a ten-page disquisition. The filing fee upon the application for leave to challenge the primary decision is $352. [4] It is unnecessary to reiterate the permutations and combinations of the proceedings in their original form. The principal of Smith’s initial claim, namely $4,070, was eventually paid, leaving in dispute the amount of $591.20, with which we are now concerned. That amount, as endorsed on the initial application3, comprises a filing fee of $123.20, plus $440 service fees, and $28 for an ASIC search. [5] The matter, as modified by the said payment of $4,070, became substantially an action by the consultant Smith to recover costs of $591.20.4 Prior to September 2020 no order for payment of that amount existed. [6] The matter came before the Tribunal on 8 September 2020, when Smith was awarded $591.5 That debt remains unpaid. 1 Application for minor civil dispute filed 14 May 2020, paragraph 1. 2 Order of the Tribunal, transcript of hearing 8 September 2020 (`T’) page 5 lines 22-23. 3 Application for minor civil dispute filed 14 May 2020 Part B page 2. 4 T page 2 lines 28-29 (Smith). -- 2 of 5 -- [7] Ballard now seeks leave to appeal on these grounds:6 (i) Smith commenced the action in the wrong name and against the wrong entity; (ii) The Tribunal erred in failing to observe that companies have separate assets and liabilities to those of the directors; (iii) The Tribunal was confused about the process of service; and (iv) The Tribunal applied the rules as to costs incorrectly. Ground (i) [8] No question of misnomer or personal liability seems to troubled Ballard when he paid Smith, albeit late, the amount of $4,070. [9] The action was commenced by `Brent Donald Smith trading as Twenty20 Building Consultancy’ against `Kayne Roy Ballard trading as Simpliciter Legal Solutions”.7 [10] The trading names, per se, denote no separate, artificial persons recognised at law. The only persons denoted are Smith and Ballard as individuals. It is a fundamental error to confuse an unincorporated business with a duly constituted body corporate. That is a misconception implied in the second ground of appeal. Twenty20 and Simpliciter have no legal existence of their own, and cannot be properly presented as principals for which Smith and Ballard are mere agents. [11] Indeed, the case may be categorised as one in which Ballard, purporting to act for a non- existent principal, incurred personal liability, either according to agency law8 or alternatively for breach of warranty of authority.9 It is true that the theory of the non- existent principal is not always applicable,10 but Where A, purporting to act as agent for a non-existent principal, purports to make a binding contract with B, and the circumstances are such that B would suppose that a contract had been made, there must be a strong presumption that A has meant to bind himself personally. Where ... the consideration on B’s part has been fully executed on B’s part in reliance on the existence of a contract binding on somebody, the presumption could ... only be rebutted in very exceptional circumstances.11 [12] In a busy Tribunal that is expected to favour simplicity and to minimise technicality, and dealing with quite a minor claim, the learned Adjudicator understandably left implicit the more recondite areas of agency law: The first of those issues is that the respondent is improperly named. And, Mr Ballard, I’m going to find against you on that because it’s not certain with respect to that document as 5 Transcript of hearing 3 September 2020 (`T’) page 5 lines 22-23. 6 Application for leave to appeal filed 13 October 2020. 7 Application filed 14 May 2020. 8 Bowstead on Agency 13th edn Art 126. 9 Gardiner v Headling [1928] 2 KB 284 at 290; Herson v Bernett [1955] 1 QB 98. 10 MacMillan v Mumby & Anor [2006] NSWCA 74 at [31]. 11 Summergreene v Parker (1950) 80 CLR 304; [1950] HCA 13 at [5] per Fullagar J. -- 3 of 5 -- to who’s dealing in the matter. No proprietary limited company is mentioned, and your name is mentioned directly.12 [13] Correspondence between the parties was personalised and informal, even at a stage when litigation was imminent. Smith’s emails were not addressed to `the manager’ or `accountant’ or `secretary of Ballard’s unincorporated business.13 It appears that the Tribunal inferred that, in the words of Fullagar J, above, `the circumstances as such that B would suppose that ... A has meant to bind himself personally”. [14] Smith deposes, and Ballard does not dispute that neither he nor Simpliciter Legal Solutions is known to the Queensland Law Society. It appears that Ballard is on the roll of solicitors in NSW, with no mention of Simpliciter. Several documents produced to the Tribunal carry the note: `Please be advised that Simpliciter Legal Solutions is in the process of being closed down ... All current matters will be transferred to Mr Ballard as a sole practitioner’. [15] On the evidence and in the circumstances that is a reasonable inference, and the consequence is that the first ground of proposed appeal fails. That is a finding of fact that was open to the Adjudicator as judge of fact and credit. As such, it is not a conclusion with which this appeal tribunal may interfere. The appeal Tribunal is limited to the question whether there are reasonable prospects of demonstrating appellable error that caused substantial injustice. [16] An application for leave to appeal is not an occasion for re-trying or `second guessing’ the primary findings of fact. This is precisely the sort of case that the legislature wishes to be resolved speedily, economically and with finality.14 The very point of the `leave to appeal’ hurdle is to curb attempts to misuse appeals as retrials or devices of delay. It is not appellable error to prefer one version of the facts to another, or to give more weight to the evidence of `A’ than to `B’. Findings of fact will not normally be disturbed if they have rational, albeit debateable support in the evidence, even where another reasonable view is available.15 Where reasonable minds may differ, a decision is not erroneous merely because one solution has been preferred to another possible view.16 If there is evidence ... no error of law occurs simply because the judge prefers one version to another. ... That is his function. ... Even if the evidence is strongly one way the appeal court may not intervene simply because it reaches a different conclusion.17 It appears to me that a factual conclusion cannot be treated as infected by legal error unless it is clear, beyond serious argument, that it is wrong. That this [appeal] court 12 T page 5 lines 4-7. 13 For examples: `Mr Brent Smith’ (23 February 2020); `I attach a copy of Brent’s outstanding invoice’ (email to `Mark’ undated); `Hello Kayne ... regards Brent Smith (email 15 April 2020); `Hello Kayne ... regards Brent Smith’ (final notice of action 1 May 2020; `Dear Brent ... kind regards Kayne Roy Ballard’ (offer on instalment payments 7 May 2020). 14 QCAT Act s 3(b). 15 Fox v Percy (2003) 214 CLR 118 at 125-126. 16 In re W (an infant) [1971] AC 682 at 700; Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611 at [131]. 17 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151 per Kirby P. -- 4 of 5 -- merely disagrees with a factual view ... does not show that a decision based upon it is legally erroneous.18 Ground (ii) [17] This plea is clearly misconceived. No incorporated entity is involved. The Salomon principle19 is irrelevant. Ground (iii) [18] The precise meaning of this assertion is unclear. Smith explained to the Tribunal why he resorted to personal service, and the judge of fact accepted his explanation.20 There is no substance in this ground. Ground (iv) [19] This is not a special costs order made under section 102 of the Act. Awards of costs to successful parties, limited to filing, service and search fees are standard practice. There is no substance in this ground. [20] In parting with this matter it may be said that Ballard’s present issues do not warrant the time, trouble and expense of the parties or the Tribunal. If Smith had made a section 102 application it would have merited serious consideration. However, as matters stand, there will be no further order for costs. Conclusion [21] I am unable to discern any appellable error in the subject decision. It follows that leave must be refused. 18 JM v QFG and KG [2000] 1 Qd R 373 at 391 per Pincus JA. 19 Salomon v Salomon & Co Ltd [1897] AC 22. 20 T page 5 lines 21-22. -- 5 of 5 --