Cello Court Pty Ltd v Body Corporate for Cello Court [2021] QCATA 62

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Cello Court Pty Ltd v Body Corporate for Cello Court CTS 42339 [2021] QCATA 62 PARTIES: CELLO COURT PTY LTD (appellant) V BODY CORPORATE FOR CELLO COURT CTS 42339 (respondent) APPLICATION NO: APL057-20 ORIGINATING APPLICATION NO: BCCM Ref: 0702-2019 MATTER TYPE: Appeals DELIVERED ON: 6 April 2021 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Howard ORDERS: The application for leave to be represented in the proceeding by Paul Wellsmore is refused. Leave is granted for both parties to be legally represented in the proceeding. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PARTIES AND REPRESENTATION – OTHER MATTERS – where both parties seek leave to be represented – whether proceeding is likely to involve complex questions of fact or law – whether leave to be legally represented should be granted to a party – whether the granting of leave to a party to be legally represented should be extended to another party to the proceeding in circumstances where that party has no income – where a corporation seeks leave to be represented by a non-legally qualified person – where a corporation seeks leave to be represented by a person who is not an officer or employee – where corporation seeks leave to be represented by a former director– whether person is an appropriate person to represent a party- Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 43, s 146 Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 54, r 55 -- 1 of 9 -- 2 Ainsworth v Body Corporate for Viridian Noosa Residences CTS 34034 [2014] QCATA 175 Cello Court [2020] QBCCMCmr 23 Cello Court Pty Ltd v Body Corporate for Cello Court [2020] QCATA 97 Ericson v Queensland Building Services Authority [2013] QCA 391 Harrison and Anor v Meehan [2016] QCATA 197 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] On 6 April 2021, I made orders refusing leave for Cello Court Pty Ltd (‘Cello Court’), to be represented by Paul Wellsmore. I granted leave to both parties in the proceeding to be legally represented. Cello Court has requested reasons for my decision. These are my reasons. Background [2] Cello Court appeals a decision of an Adjudicator of the Officer of the Commissioner for Body Corporate and Community Management (‘the BCCM’) dated 16 January 2020.1 [3] Cello Court had a contract to provide caretaking services for the Body Corporate for Cello Court CTS 42339 (‘the Body Corporate’), and was the owner of Lot 20 in the scheme. On the basis that a controller was appointed for certain assets of the appellant including Lot 20, the Body Corporate passed a motion to terminate the caretaking agreement between Cello Court and the Body Corporate. The Body Corporate then gave notice of termination to Cello Court under a clause in the caretaking contract which provided a right to terminate if the appellant became ‘subject to any form of external administration referred to in the Corporations Law’. [4] Cello Court applied to the BCCM seeking a declaration that the termination resolution was void and orders restraining further action by the Body Corporate in relation to the termination resolution. Cello Court argued that: the appointment of the controller, which it says does not constitute ‘external administration’, did not give rise to the termination clause; and that, prior to the termination resolution, Cello Court had given notice to the Body Corporate that it was not under external administration and was capable of fulfilling its contractual duties. Cello Court submitted the termination resolution was unreasonable. [5] A BCCM adjudicator refused Cello Court’s application. 1 Cello Court [2020] QBCCMCmr 23 (this case appears on the BCCM file with a [2019] citation; however, this is an apparent typographical error). -- 2 of 9 -- 3 [6] Cello Court filed an application for leave to appeal or appeal the decision in QCAT on 27 February 2020, and an application for an interim order on 2 March 2020. On 30 June 2020, the interim order application was dismissed by the Appeal Tribunal.2 [7] Various procedural directions have been issued in the proceeding. On 3 February 2021 at a Directions Hearing, I issued directions that applications for leave to be represented, and supporting submissions, be filed by the parties; for each party to file submissions in response; and for the applications to be determined on the papers. Applications and submissions of the parties [8] Both parties filed applications. The Body Corporate filed an application for leave to be legally represented on 10 February 2021, accompanied by submissions in support.3 Cello Court filed an application for leave to be represented, it appears signed by Paul Wellsmore, on 11 February 2021, seeking to be represented by Paul Wellsmore. An unsigned copy of a Certificate of Authority was enclosed. [9] Both parties were required to file and serve submissions in response by 24 February 2021. The Body Corporate filed submissions in response on 24 February 2021 which opposed Paul Wellsmore representing Cello Court. [10] On 3 March 2021, Cello Court filed an application for miscellaneous matters and a further application for leave to be represented, enclosing submissions in support of its application for leave to be represented. These applications were signed, it appears, by Edwin P Clarke-Wellsmore, director of Cello Court. A copy of a Deed of Agreement is enclosed (dated 20 January 2020) and which purports to grant authority to Paul Wellsmore to represent Cello Court in ‘all legal matters’ including before QCAT. Additionally, a new Certificate of Authority signed by Mr Clarke-Wellsmore is enclosed. [11] Subsequent to my decision of 6 April 2021, outside of the time directed for the filing of any submissions (and in the absence of any application for directions to provide for same) on 9 April 2021, Cello Court filed further submissions in reply to the Body Corporate’s submissions in response to its application for representation. As those submissions were not before me at the time of my decision, I do not address them. Principles for granting a party leave to be represented [12] Section 43 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) provides, subject to specified exceptions (which are not relevant here) for parties to represent themselves in proceedings,4 unless granted leave to be represented by the Tribunal.5 The purpose of the section ‘is to have parties represent themselves unless the interest of justice require otherwise’.6 2 Cello Court Pty Ltd v Body Corporate for Cello Court [2020] QCATA 97. 3 The submissions annexed to the application are erroneously dated 17 February 2021. 4 QCAT Act, s 43(2)(a). 5 Ibid, s 43(2)(b)(iv). Section 43(2)(b) sets out some exceptions which are irrelevant to the present matter. 6 Ibid, s 43(1). -- 3 of 9 -- 4 [13] Section 43, sub-section (3) of the QCAT Act sets out certain factors which may be considered as circumstances supporting a grant of leave. They are whether: (a) the party is a state agency; (b) the proceeding is likely to involve complex questions of fact or law; (c) another party to the proceeding is represented in the proceeding; (d) all of the parties have agreed to the party being represented in the proceeding.7 [14] The Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (‘the QCAT Rules’) specify arrangements for appearances in proceedings for parties who are not natural persons, such as a corporation or a body corporate. Corporations, and other entities, may be represented in a proceeding, as set out in the QCAT Rules at rules 54 and 55. Relevantly, in the case of either a corporation or other entity, it may appear through an officer authorised by it.8 [15] However, if a corporation or other entity does not appear as provided for in the QCAT Rules, a person who is not an Australian legal practitioner (or a government legal officer) may not represent the party, unless the tribunal grants leave. The tribunal must be satisfied the person is an ‘appropriate person to represent the party’.9 A certificate of authority must be provided by any person seeking to represent a corporation, who is not an Australian legal practitioner or government legal officer.10 Should leave be granted to the parties to be represented in the proceedings? [16] I turn now to consider whether the parties should be granted leave to be represented in the proceeding. Whether the proceeding is likely to involve complex questions of fact or law [17] The Body Corporate submits that the proceeding involves complex questions of law. It submits that complex questions of fact and law arise due to the nature of the dispute, including errors of law which Cello Court alleges were made by the BCCM Adjudicator regarding matters which include: • the construction of cl 9.1(d) of the relevant contract; • the application of the Corporations Act 2001 (Cth) (‘the Corporations Act’); • whether the appointment of a controller is a form of ‘external administration’ sufficient to enliven cl 9.1(d) of the contract; • which version of the Corporations Act 2001 should be applied; and 7 Ibid, s 43(3). 8 QCAT Rules, rr 54(1) & 55(1). An ‘officer’ is defined in each case to include an officer within the meaning of the Corporations Act, s9 and an employee. 9 QCAT Act, s 43(4)(b). 10 Ibid, s 43(5). -- 4 of 9 -- 5 • the disposition of the appeal and the orders which could or should be made to reinstate the Caretaking agreement.11 [18] Cello Court does not make any clear submission on this issue, but submits that the current sole director of the company has no legal knowledge or experience.12 From this submission, it is reasonable to infer that Cello Court considers there are legal complexities that the director considers he may not be able to address. Whether another party to the proceeding is represented in the proceeding [19] The Body Corporate submits that both it and Cello Court were legally represented in the BCCM adjudication.13 The BCCM file, a copy of which is held by the Tribunal, confirms this is so. It continues to seek legal assistance in the QCAT proceedings. [20] Cello Court does not make any clear submission on this issue either. However, both parties seek to be represented, the Body Corporate by a legal representative and Cello Court by Paul Wellsmore, a non-legally qualified representative. Whether all of the parties have agreed to the party being represented in the proceeding [21] The Body Corporate opposes the granting of leave for Paul Wellsmore to represent Cello Court, but does not oppose Cello Court being granted leave to be legally represented in the proceeding.14 Cello Court does not make any clear submission on this issue. However, both parties seek leave to be represented. Other matters relevant to the interests of justice [22] The Body Corporate submits, and I accept, that the factors set out in s 43 of the QCAT Act are not an exhaustive list of factors. Other matters which the Body Corporate submits are relevant in considering the interests of justice include: • that representation by solicitors would assist the Appeal Tribunal with receiving cogent submissions, given the complexity; • it would be disadvantaged if it is not represented, as its members are lay persons who are unlikely to provide helpful submissions; and • that the chairperson for the Body Corporate is a volunteer who at present lives in Victoria, the Body Corporate is located in Chinchilla and the current Body Corporate manager is located in Cairns, and for this reason representation by Mr Francis and Grace Lawyers, who are located in Brisbane, is ‘more convenient’. [23] As discussed earlier, Cello Court also makes submissions from which I infer that its sole director does not consider he is able to address the relevant issues in the appeal proceeding. 11 Body Corporate’s submissions in support of its application for leave to be represented filed on 10 February 2021, [9]-[10]. 12 Submissions of the appellant in support of its application for leave to be legally represented filed on 11 February 2021, Appendix B, [4]. 13 Body Corporate’s submissions in support of its application for leave to be represented filed on 10 February 2021, [18]. 14 Ibid. -- 5 of 9 -- 6 Discussion and Conclusions [24] I am satisfied that there are complexities to be considered in the appeal proceeding, as identified by the Body Corporate, and in particular, complex questions of law. Further, I accept that in the BCCM adjudication, both parties were legally represented. I am satisfied also that, as neither party is a natural person, they must either appear through an officer as provided for in the QCAT Rules or seek leave for legal or other representation in the tribunal. Both parties seek leave for representation. I am satisfied that, having regard to the questions of law to be considered by the Appeal Tribunal in determining the proceeding, it is in the interests of justice that it is assisted by submissions that address the relevant issues. Both parties lack confidence in their ability to provide them unless leave is granted. [25] In all of the circumstances, I am satisfied that it is in the interests of justice to grant leave for representation to both parties. Should Cello Court be granted leave to be represented by Mr Paul Wellsmore? [26] Cello Court seeks to have a non-legal representative, namely Paul Wellsmore, represent it. Cello Court’s submissions focus upon the suitability of Paul Wellsmore as a non-legal representative. I turn now to consider whether Paul Wellsmore is an appropriate person to represent Cello Court. [27] Paul Wellsmore submits that he has had wide-ranging responsibilities for the design, construction, and management of the Cello Court scheme, including establishing the Body Corporate and acting as inaugural Chairman and Secretary.15 Cello Court states Mr Wellsmore arranged for incorporation of Cello Court, and was involved in both caretaking and the letting of units in the scheme. It submits that he holds the ‘corporate memory’ of Cello Court, and that he was responsible for ‘management of all the day to day operations’ of it until 16 January 2020 (the date of the decision under appeal).16 [28] Cello Court submits that Paul Wellsmore has been responsible for instructing solicitors in relation to the dispute and drafting and editing of applications and responses in the dispute.17 It refers to and relies upon the Deed of Agreement authorising him to represent it, stating that it currently does not have any income as a result of the termination of the agreement and, as such, does not have any income from which to pay solicitors.18 Cello Court also submits that Mr Wellsmore is a shareholder and former director of Octave Capital Pty Ltd, which itself is a majority shareholder in Cello Court, and he therefore has an ‘undisturbed ongoing direct pecuniary interest’ in it. The Body Corporate’s opposition to Paul Wellsmore representing Cello Court [29] The Body Corporate submits leave should not be granted to Cello Court to be represented by Paul Wellsmore for reasons including: 15 Submissions of the appellant in support of its application for leave to be legally represented filed on 11 February 2021, Appendix A, [1]-[3]. 16 Ibid, Appendix A, [7], [10]. 17 Ibid, Appendix A, [8]; Appendix B, [3]-[6]. 18 Ibid, Appendix A, [11]. -- 6 of 9 -- 7 (a) Cello Court has not given a certificate of authority for Paul Wellsmore to represent it; (b) Mr Wellsmore became bankrupt on 20 March 2019 and ceased to be a director of Cello Court; (c) notification to ASIC that Mr Wellsmore had ceased to be a director of the appellant was not lodged until 21 October 2019; (d) Mr Wellsmore remains an undischarged bankrupt and disqualified from managing a corporation; (e) Mr Wellsmore ‘deliberately concealed’ his bankruptcy and that he had ceased to be a director until 3 February 2021; (f) Mr Wellsmore caused solicitors to file the application below knowing he was not a director and was an undischarged bankrupt, and the adjudication application included a company search which incorrectly recorded him as sole director of Cello Court; (g) there is no evidence Mr Wellsmore was authorised by Cello Court to bring the application below; (h) Mr Wellsmore is not an appropriate person to represent Cello Court, including allegations that Mr Wellsmore has acted dishonestly and evasively regarding: (i) his bankruptcy; (ii) the directorship of the appellant company; (iii) by indicating he is involved in the day to day management of the company at a time when he was disqualified from being a director of the company; (iv) misrepresenting the true minority shareholding of Octave Capital Pty Ltd in Cello Court; (i) Mr Wellsmore’s representation has wasted the time and resources of the Tribunal and Body Corporate by: (i) disregarding procedure; (ii) not complying with the directions of the Appeal Tribunal; (iii) making and then withdrawing shortly afterwards several misconceived applications; and (j) generally, that it is not in the interests of justice that Mr Wellsmore represent Cello Court.19 [30] The Body Corporate annexes several documents in its response, including ASIC searches dated 26 June 2019 and 10 February 2021, a bankruptcy search of Paul Raymond Wellsmore obtained on 12 February 2021, and emails between Paul Wellsmore and lawyers for the Body Corporate between 9 and 17 February 2021. 19 Body Corporate’s submissions opposing the application for Mr Wellsmore to represent the appellant filed on 24 February 2021. -- 7 of 9 -- 8 Consideration [31] Mr Paul Wellsmore is not an officer or employee of Cello Court. Leave is required if he is to represent it. [32] Among other reasons, the Body Corporate opposes Mr Wellsmore having leave to represent Cello Court on the basis that no Certificate of Authority signed by an authorised person was provided.20 The first application for leave to be represented filed by Cello Court on 11 February 2021 includes an unsigned certificate of authority. However, subsequently, a Certificate of Authority dated 2 March 2021 was provided. It was signed by Edwin P Clarke-Wellsmore as director of the appellant. Cello Court submits that the delay in filing a signed Certificate of Authority was due variously to some ambiguity in the application form and to Mr Clarke-Wellsmore being on leave. In any event, the requirement for a corporation to give the tribunal a Certificate of Authority in compliance with s 43(5) of the QCAT Act has now been met. [33] The tribunal must be satisfied as to the appropriateness of a proposed non-legal representative to represent the party. Appropriateness of the person proposed must be considered in the context of the particular proceedings themselves. [34] I am satisfied that Paul Wellsmore has detailed knowledge of matters relevant to the factual circumstances giving rise to the appeal. However, an appeal from a decision of a BCCM Adjudicator to the Appeal Tribunal is on a question of law only. Paul Wellsmore is not an Australian legal practitioner. Although he makes a somewhat vague claim to possessing some legal knowledge, the basis for this claim is not disclosed. Further, his actions in the appeal proceeding to date in, at times, failing to comply with directions on time and in providing submissions (for example, in relation to the application for representation which do not address all of the relevant issues), do not appear to support the claim. If leave is to be granted for a non-legal representative, the tribunal should reasonably be satisfied that the intended representative has the ability to advance the interests of the party in the relation to the relevant issues, and to act generally in the party’s interests in a timely manner as directed by the tribunal. Having regard to the material provided and the conduct of the proceedings so far, I am not satisfied that Paul Wellsmore has the legal knowledge claimed or that he would conduct the proceedings in an expeditious manner. [35] I also make the observations that the submissions appear to suggest some misconception on the part of Cello Court, and it seems Paul Wellsmore, as to the role of a representative in the appeal proceeding. A representative would comply with tribunal directions; and present and argue the appeal, as well as any interlocutory applications. On appeal, a representative for an appellant must present submissions as to: the alleged legal errors made by the decision-maker (in this case, the BCCM Adjudicator) in reaching their decision; what the law is; and how it applies here. On the other hand, a witness in proceedings provides evidence of factual matters. It is in respect of the latter in which it appears Paul Wellsmore has knowledge and 20 Body Corporate’s submissions opposing the application for Mr Wellsmore to represent the appellant filed on 24 February 2021, [3]-[15]. -- 8 of 9 -- 9 experience. An appeal on a question of law, even if successful, does not involve a rehearing.21 It is an appeal in the strict sense.22 [36] Also, Paul Wellsmore’s earlier lack of transparency in the BCCM as to his bankruptcy and resultant ending of his sole directorship is of concern in considering the current application. When the adjudication application was made Paul Wellsmore was already an undischarged bankrupt, as set out by the Body Corporate. The application filed was therefore misleading in attaching a search stating he is director. It seems from Cello Court’s submissions that Paul Wellsmore was responsible for instructing the lawyers in the BCCM matter. It is not apparent that Cello Court had in fact legitimately authorised the bringing of the application when it was lodged on 26 June 2019. On the material available to me, I accept that Paul Wellsmore’s actions, as outlined by the Body Corporate, led to misleading documents being filed in the BCCM in this regard. The tribunal is entitled to expect representatives to be scrupulous in their dealings with it, whether they are legal representatives or not. On the material currently available, I am not satisfied that Paul Wellsmore will act in the manner expected. [37] Cello Court advances an argument that it cannot afford legal representation because it has no income as a reason why Paul Wellsmore should represent it. That is, of itself, not a compelling factor in considering whether Paul Wellsmore is an appropriate person to represent it. Further, although it may not have an income, I am not aware of its overall financial position. In the absence of evidence about the latter, I am not satisfied that it does not have the resources, irrespective of income, to engage legal representation. [38] In all of the circumstances, I am not satisfied on the evidence before me that Paul Wellsmore is an appropriate person to represent Cello Court in the proceeding. What orders should be made? [39] For the reasons explained earlier, I am satisfied that it is in the interests of justice to make orders granting the parties leave for representation. However, I am not satisfied that Paul Wellsmore is an appropriate person to represent Cello Court. [40] In all of the circumstances, I am satisfied that it is appropriate to grant leave for legal representation in the proceedings to both parties. 21 QCAT Act, s 146; Ainsworth v Body Corporate for Viridian Noosa Residences CTS 34034 [2014] QCATA 175, [25]-[29]; Ericson v Queensland Building Services Authority [2013] QCA 391, [13] & [25]-[29]; Cf. Harrison and Anor v Meehan [2016] QCATA 197. 22 Ainsworth v Body Corporate for Viridian Noosa Residences CTS 34034 [2014] QCATA 175, [25]-[29]; Ericson v Queensland Building Services Authority [2013] QCA 391, [13] & [25]-[29]; Cf. Harrison and Anor v Meehan [2016] QCATA 197. -- 9 of 9 --