Edland Investments Pty Ltd v S & S Properties Pty Ltd [2020] QCATA 158

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Edland Investments Pty Ltd v S & S Properties Pty Ltd [2020] QCATA 158 PARTIES: EDLAND INVESTMENTS PTY LTD (applicant/appellant) v S & S PROPERTIES PTY LTD (respondent) APPLICATION NO/S: APL027-20 ORIGINATING APPLICATION NO/S: MCDO79-19 Townsville MATTER TYPE: Appeals DELIVERED ON: 28 October 2020 HEARING DATE: On the Papers HEARD AT: Brisbane DECISION OF: Member Howe ORDERS: Leave to appeal refused. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where the respondent acted as real estate agent for the applicant – where the respondent engaged a contractor to do work at the applicant’s property – where the contractor sued the respondent for payment and was successful – where the respondent claimed the amount of the award against them from the applicant – where the applicant refused to pay – where further proceedings were commenced against the applicant by the respondent – where the applicant was ordered to reimburse the respondent – where the claim was brought against the applicant in its own right – where an application to adduce fresh evidence by the applicant was refused – where Justices of the Peace below were entitled to find that the applicant should reimburse the respondent for the award to the contractor Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 83(1), s 142(3)(a)(i) Pickering v McArthur [2005] QCA 294 PS Business Holdings Pty Ltd v Duncan & Anor [2010] QCATA 19 -- 1 of 5 -- 2 REPRESENTATION: Applicant: Self-represented by D Hartland Respondent: Self-represented by S Leaumont APPEARANCES: 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] In 2019 the respondent (‘S&S’) was engaged to act as real estate agent for the appellant (‘Edland’), the lessor of a residential property in Townsville. [2] S&S took instructions from Edland to have a contractor install an air-conditioner in the rental property. The contractor did so but only after someone from the lessor had spoken with the contractor. Edland subsequently discovered the wrong air-conditioner had been installed in the wrong room. [3] The contractor charged for his work but Edland refused to pay the entire account and the contractor commenced minor civil dispute – minor debt proceedings in the Tribunal naming S&S as respondent. [4] S&S appeared at the Tribunal opposing the application by the contractor. The Tribunal found in favour of the contractor and ordered S&S to pay the contractor the sum of $786.10. [5] S&S in turn charged Edland $400 for its time appearing in the Tribunal and additionally asked Edland to reimburse it for the amount of $786.10 that S & S had been ordered to pay the contractor. [6] Edland refused to pay S&S and the latter commenced proceedings in turn against Edland in the Tribunal. That claim was then heard by Justices of the Peace who generally found in favour of S & S. Edland was ordered to pay S&S $986.10 representing most of its claim plus allowable costs of $181.90. [7] Edland now seeks leave to appeal that decision. [8] Given this is an appeal from a decision made in the Tribunal’s minor civil dispute jurisdiction, leave to appeal must first be obtained. If leave is granted then the appeal may proceed.1 [9] Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.2 [10] The grounds of appeal are stated as follows in the application for leave to appeal: (a) The wrong entity was named as respondent below; (b) Evidence from a confidential Tribunal mediation was wrongly allowed at the hearing; 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294. -- 2 of 5 -- 3 (c) Evidence not led at the hearing shows S&S failed to act in the best interests of Edland. Wrong entity [11] Edland claims it acted as trustee for a trust which owns the residential premises. Effectively it says the trust should have been sued, not Edland. [12] A trustee is personally liable for its actions, regardless that it acts as trustee on behalf of a trust. Where a trustee engages trade creditors it can be sued in its own name by an unpaid creditor. The trade creditor cannot sue a trust because the trust is not an independent entity in the eyes of the law. [13] The remedy for the trustee is a right of indemnity against the assets of the trust if so sued, subject to the trustee having acted appropriately in engaging the trade creditor. [14] Edland cannot succeed on this ground of appeal. Evidence from mediation [15] Edland also seeks leave to appeal on the ground that matters raised in a confidential Tribunal mediation were wrongly allowed in at the hearing. The applicant makes no further submissions about this; it simply makes the assertion. [16] There were two relevant mediations. One was in the minor debt proceedings brought by the contractor, and the other a mediation between Edland and S & S in the claim by S & S for reimbursement and its costs in attending the first mediation and then the hearing brought by the contractor. [17] A perusal of the transcript in the matter at hand shows that it was in fact Mr Hartland for Edland who first raised the issue of mediations before the Justices of the Peace.3 He submitted that S & S was overcharging. S & S should not be charging for preparing for the hearing against the contractor because S & S had already prepared for the matter in the earlier mediation and charged for that. [18] Mr Leaumont for S & S then referred in the hearing to offers made and rejected in the earlier mediation with the contractor. Mr Hartland then raised the matter of an offer he made in the second mediation. Mr Hartland later clarified in the hearing before the Justices of the Peace that he and Mr Leaumont had been talking about different mediations.4 [19] Following that, the Justices of the Peace correctly stated that nothing said at the mediations could be taken into account by them. [20] By s 83(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) evidence of anything said or done during mediation for a proceeding is not admissible at any stage of the proceeding. [21] Mr Leaumont did not give evidence about matters raised in the mediation in matter Q79-19 which was subsequently being heard by the Justices of the Peace. When he referred to a mediation he in fact was referring back to the mediation in the earlier proceeding between S & S and the contractor. It was Mr Hartland for Edland that made reference to the mediation in Q79-19 when he should not have. 3 Transcript 1-10 Line 42. 4 T1-14 L14. -- 3 of 5 -- 4 [22] The Justices of the Peace make no reference to the mediations or what was said in the mediations in giving their reasons for decision. There is no suggestion in the reasons for decision that anything associated with the mediations was taken into account or considered by the Justices of the Peace in reaching their decision. [23] I see no reasonable prospect of success for Edland with respect to this ground of appeal. Fresh evidence [24] Edland says there is evidence which was not led at the hearing which shows S&S failed to act in Edland’s best interests. In support of that proposition, apparently, Edland has filed a statement and with the statement attempted to lead fresh evidence. [25] No formal application for fresh evidence has been filed as directed by the Appeal Tribunal.5 [26] New evidence will ordinarily only be allowed on appeal when it could not, by reasonable diligence, have been obtained for the original hearing, is credible, and might have produced an opposite result.6 [27] The fresh evidence is said to be found in the earlier minor debt matter between S & S and the contractor, matter Q167-18 Townsville. Why that was not able to be made available on request of Edland of the Justices of the Peace is unexplained. It is held in the same registry as matter Q79-19 which was the matter heard below and the subject of this application for leave to appeal. It was available if called for. [28] Mr Hartland says he was unaware of its existence because he regularly worked away from home and he understandably misses some correspondence. I do not understand his submission on this point. I do not comprehend how him working away from home or sometimes missing correspondence resulted in the file in matter Q167-18 held in the registry not being available at the hearing of Q79-19. [29] I reject the claim that this evidence is fresh in that it was not available at the hearing before the Justices of the Peace. [30] What is new is a copy of the first page of a contract of purchase of residential land which states the name of the purchaser as Edland Investments Pty Ltd as trustee for Ross River Trust. As explained above however, the appropriate party to be joined in an action is the trustee, not the trust itself which has no separate legal existence. [31] The contract is of no assistance to Edland in the application for leave to appeal. [32] In so far as there is an application to adduce fresh evidence, it is refused. [33] Generally the suggestion that S&S failed to act in the best interests of Edland and the Justices of the Peace erred in not making that finding is not supported by the evidence led below. [34] The Justices of the Peace found the error with respect to the contractor installing the wrong air-conditioner in the wrong room was caused by poor communication. 5 Direction 8 made 19 February 2020. 6 PS Business Holdings Pty Ltd v Duncan & Anor [2010] QCATA 19, [16], citing Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435. -- 4 of 5 -- 5 [35] The person who gave initially gave oral instructions to the contractor to install the air- conditioner at the property was Ms Edmunds, who at all material times was both an officer of Edland or a beneficiary of the trust concerned, and somewhat incomprehensibly, also a partner in S & S at the time. [36] A poorly drafted work order by S &S may also have been a problem but the Justices of the Peace found the work order sufficient.7 [37] The Justices of the Peace could, in my opinion, therefore conclude, that the award against S & S in the earlier matter was recoverable from Edland. Conclusion [38] There is no prospect of success on appeal. Leave to appeal is refused. 7 T1-16 L7. -- 5 of 5 --