Buckingham v Satellite Accounting Pty Ltd [2016] QCATA 44

CITATION: Buckingham v Satellite Accounting Pty Ltd [2016] QCATA 44 PARTIES: Leon Buckingham (Applicant/Appellant) v Satellite Accounting Pty Ltd (Respondent) APPLICATION NUMBER: APL421 -15 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe OAM DELIVERED ON: 4 February 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused CATCHWORDS: APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – MINOR DEBT – where accountant rendered services – where accountant rendered invoices – where client disputed invoices - whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549 University of Wollongong v. Metwally (No. 2) [1985] HCA 28 Coulton v Holcombe [1986] HCA 33 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 Fox v Percy (2003) 214 CLR 118 Pickering v McArthur [2005] QCA 294 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 Chambers v Jobling (1986) 7 NSWLR 1 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). -- 1 of 9 -- 2 REASONS FOR DECISION [1] Satellite Accounting Pty Ltd set up two companies and a trust for a new business to be run by Leon Buckingham and Andrea Boirayon. Satellite rendered two invoices, totalling $2,970. The invoices were not paid so Satellite filed a minor debt claim. The tribunal ordered Mr Buckingham pay the invoices. [2] Mr Buckingham wants to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.1 Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.2 [3] Mr Buckingham has provided the appeal tribunal with a brief that includes fresh evidence, submissions about the appeal grounds and arguments that should have been ventilated at the hearing below. It is a pity that Mr Buckingham did not put this level of effort into his submissions to the tribunal below. Because he has now spent that time and effort, I will, briefly, consider each of his submissions. Fresh evidence [4] Mr Buckingham filed fresh evidence with his application for leave to appeal. The appeal tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could the parties have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?3 [5] An application for leave to appeal is not, and should not be, an attempt to shore up the deficiencies of a party’s case at the initial hearing. Mr Buckingham has not explained why this material was not available earlier. The tribunal had already issued a decision in default of appearance. It might be assumed, therefore, that Mr Buckingham would give the dispute some attention, given that his reason for ignoring the claim was the involvement of Mr Scott and Mr Buckingham’s belief that he had no responsibility for the debt. The fresh evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the tribunal below. 1 QCAT Act, s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294 at [3]. 3 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408. -- 2 of 9 -- 3 [6] The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.4 An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.5 To the extent that Mr Buckingham is arguing a mistake of fact, I will not overturn that finding unless the evidence before the tribunal cannot support that finding. New issues on appeal [7] The subject matter of the appeal is a matter for the exercise of the appeal tribunal’s discretion6, even though the appeal tribunal is not the final avenue of appeal7. In considering whether to exercise that discretion, the appeal tribunal starts from this proposition8: It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so. [8] I accept that Mr Buckingham did not have legal representation at the hearing but it is obvious that he could have had assistance from Mr Scott, who, although struck off, does have legal knowledge. The grab bag of complaints that form the basis of this application for leave to appeal could have been ventilated at the hearing. An application for leave to appeal is not a second chance of a hearing; a chance to get it right. To the extent that Mr Buckingham wants to raise fresh issues, I decline to deal with them. Mr Buckingham says he had no contract with Satellite [9] A contract for the provision of services does not need to be written to be enforceable. The tribunal was satisfied that Satellite had an agreement with Mr Buckingham. Satellite’s principal, Mr Iseppi, told the tribunal that he had a conversation with Mr Buckingham on 19 March 2014 about the scope of the work and the cost9. Although Mr Buckingham had a different version of events, the tribunal had two documents that confirmed Mr Iseppi’s version. Firstly, the tribunal had Mr Buckingham’s email of 14 March 2014 thanking Mr Iseppi for setting up the entities. Secondly, it had an email from Mr Scott to Mr Iseppi thanking him for the work he did for Mr Buckingham. 4 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125- 126. 5 Chambers v Jobling (1986) 7 NSWLR 1 at 10. 6 Coulton v Holcombe [1986] HCA 33 at [8] 7 Ibid at [9] 8 University of Wollongong v. Metwally (No. 2) [1985] HCA 28 at p 71 9 Transcript page 1-8, lines 16 - 33 -- 3 of 9 -- 4 [10] Mr Buckingham denies that the meeting of 19 March 2014 in fact occurred. The tribunal preferred Mr Iseppi’s evidence because he had a ‘clear recollection’ whereas Mr Buckingham’s recollection was ‘fuzzy’10. My sole duty is to determine whether there is an error in the primary decision. It is not my task to decide where the truth lay as between the competing versions given by the parties.11 The evidence can support the tribunal’s findings and I can find no compelling reason to come to a different view. I can find no error by the tribunal. [11] Mr Buckingham identified for me the eight elements required for a contract at Common Law. He says there was no agreement because there was none of the elements of a contract was present. [12] The evidence shows otherwise. There was an offer (by Mr Buckingham to do the work requested at the meeting) and acceptance (the doing of the work). There was consideration (the rendering of the fee). In the case of normal commercial transactions, it is not usually necessary to prove an intention to create legal relations. The onus is on Mr Buckingham to prove that there was no such intention and it is an objective test12. Viewed objectively, Mr Buckingham’s conduct, as found by the tribunal, did demonstrate an intention to be bound. Mr Buckingham says that Satellite did not give him a quote for the work. [13] I have already dealt with this point. Mr Iseppi told the tribunal that he did discuss the cost of the work and that the invoices were within scope. The tribunal accepted that evidence and I can see no reason to come to a different view. Mr Buckingham says there was no engagement letter. [14] Mr Buckingham is correct that there was no engagement letter for the work the subject of the invoices. [15] The tribunal did not rely on any engagement letter in finding that Mr Buckingham should pay Satellite for its work. Therefore, there was no error by the tribunal and it is not a ground of appeal. Mr Buckingham denies that he did anything to facilitate the “set up” of a company. [16] Mr Buckingham is taking issue with Mr Iseppi’s evidence that Mr Buckingham signed the documents necessary to set up the entities. Once again, the tribunal did not rely on that evidence. Once again, there was no error by the tribunal. 10 Transcript page 1-24, lines 1 - 3 11 Fox v Percy (2003) 214 CLR 118 at 129 per Gleeson CJ, Gummow and Kirby JJ. 12 Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95, -- 4 of 9 -- 5 Mr Buckingham says that Satellite’s agreement, if any, was with Karl Scott, who was acting as his agent. [17] Mr Buckingham relies on an email from Mr Scott dated 20 October 2014 as proof that the agreement, if any, was between Satellite and Mr Scott. As the tribunal observed13, that email was issued some months after the work was done. The email, in fact, confirms that Satellite did the work for Mr Buckingham. That Mr Scott was paid for the same work, which he failed to do, does not mean that there was an agreement between Satellite and Mr Scott. The tribunal was not in error. [18] Mr Buckingham also submits that, because the client agreement was directed to the entities that Satellite incorporated, it cannot bind him. It is true that Mr Iseppi relied on the client agreement as a basis for payment but the tribunal did not. The identity of the client in that agreement has no bearing on whether or not Mr Buckingham should pay Satellite’s fees. Mr Buckingham complains that, in breach of agreement, Mr Iseppi did not notify him of fraud, illegal acts or errors that came to his attention. [19] Mr Buckingham relies on the unsigned agreement (which he has already denied forms part of any agreement with Satellite) to assert that Satellite should have informed him that Mr Scott had been struck off as a legal practitioner. [20] It is difficult for Mr Buckingham to deny the existence of the agreement on one hand and then seek to rely on its terms. Assuming that he can rely on its terms, Mr Buckingham did not raise this issue with the tribunal below. I decline to deal with the submission on appeal. [21] Even so, I am not persuaded that Satellite was in breach. It is not clear from the material on file in what capacity Mr Scott was acting. He may have been acting as a lawyer; equally, he may have been acting as a business adviser. It seems, too, that Mr Scott introduced Mr Buckingham to Satellite, not vice versa. Further, the clause should be read in context. Satellite’s letter of engagement referred to corporate compliance, tax advice and fringe benefits tax. The clause is, in fact, a disclaimer about financial irregularities. Whether or not Mr Scott was able to practice as a lawyer is not within the scope of this clause. Mr Buckingham wants the appeals tribunal to consider whether there is a constructive trust created by the money he paid to Mr Scott. [22] I have to consider whether there is an error in the decision of the tribunal below. The dispute was between Satellite and Mr Buckingham. The tribunal is not required to consider the rights and liabilities between Mr Buckingham and Mr Scott and to do so in Mr Scott’s absence would be a lack of procedural fairness. 13 Transcript page 1-24, line 41 to page 1-25, line 5 -- 5 of 9 -- 6 [23] Mr Buckingham notes that the tribunal considered joining Mr Scott as a party to the proceeding14. The tribunal did not join Mr Scott because a quick search of the Queensland Law Society records revealed nothing for Mr Scott or Maven Partners, the name under which he was trading. [24] Even if the tribunal could have found a reference to Mr Scott, it should not have joined him as a party to the application without adjourning the hearing. The tribunal told Mr Buckingham it might have joined Mr Scott if it was convenient and easy to do so15. It was neither easy nor convenient. At that point, Mr Buckingham could have asked for an adjournment so that he could find and serve Mr Scott. Mr Buckingham did not do so. His rights against Mr Scott, if any, are not prejudiced by the tribunal’s decision to proceed. There is no error. Lucid Law [25] Mr Buckingham says he had an agreement that disbursements would be billed separately, and he referred me to “Lucid Law Appendix 3”. [26] Mr Buckingham did not raise this issue at the hearing, there is no Appendix 3 in the material and, even if there was an Appendix 3, it is likely to be fresh evidence. There is no substance to this submission. Documents not provided to the tribunal [27] Mr Buckingham submits that, when asked, Mr Iseppi did not produce copies of documents to the tribunal or to Mr Buckingham. In particular, Mr Buckingham submits that he did not receive a copy of the engagement letter. [28] I have already noted that the tribunal did not rely on an engagement letter in coming to its decision. The failure to provide the engagement letter does not, therefore, constitute an error by the tribunal. The parties involved in the action [29] Mr Iseppi filed this claim in his own name. The tribunal identified the error and substituted Satellite as the correct applicant. Mr Buckingham argues that Mr Iseppi also erred in filing the claim against him personally, and that the claim should have been against the new entities. [30] It is unfortunate that Mr Iseppi could not properly formulate his company’s claim, particularly in light of the fact that he is an accountant who should know the difference between a company and a natural person. It is clear, too, that Satellite was casual in its approach to paperwork. However, the tribunal found, and the evidence can support a finding, that Mr Buckingham requested the work. The entities Satellite created could not have engaged Mr Iseppi because, at the time of instruction, they did not exist. The tribunal did not err in finding that Mr Buckingham engaged Satellite. 14 Transcript page 1-22, lines 12 - 34 15 Transcript page 1-23, lines 4 - 7 -- 6 of 9 -- 7 Correspondence between Mr Iseppi and Mr Buckingham [31] Mr Buckingham says there are further inconsistencies in Mr Iseppi’s statements, the date on which one of the entities was established and who paid for a third invoice. [32] The alleged inconsistencies occur in correspondence between Mr Scott and Mr Iseppi some time after the events that gave rise to liability. I have already commented that the inconsistencies do not affect the validity of the tribunal’s decision that Mr Buckingham was liable for Satellite’s invoices. [33] Mr Buckingham’s submission about the date of incorporation relies on fresh evidence. I have already stated that I will not accept fresh evidence, as Mr Buckingham has not been able to give any reason why this evidence was not before the tribunal below. I note that Ms Boirayon offered to produce the necessary evidence on her phone16. The tribunal did not accept that evidence. There had already been a decision in default against Mr Buckingham. I have noted the fact that he should have been well prepared for this hearing. The tribunal was not in error. [34] Mr Buckingham’s submissions about the third invoice are, at best, speculation. He does not point to any particular error by the tribunal except that he disagrees with its finding of fact. It is not a valid ground of appeal. The trust does not legally exist [35] Mr Buckingham complains that he did not agree to Mr Iseppi being the settlor of the trust, nor did he pay the $10 required under the trust deed as settlor. [36] Mr Buckingham also complains that he is the appointer, rather than his mother, as per instructions. [37] Mr Buckingham did try to raise these issues at the hearing17. The tribunal decided, rightly, that complaints about the quality of the work gave rise to a different cause of action18. Mr Buckingham has not lost any right to take action. He will, however, have to demonstrate how these omissions caused him loss if he is to take the matter further. An accountant’s duty as a CPA/chartered accountant [38] Consideration of these submissions involves fresh evidence. Mr Buckingham did not argue these points before the tribunal. The arguments are simply another restatement of the point that there was no client agreement between Mr Buckingham and Satellite. There is no merit in this ground of appeal. 16 Transcript page 1-17, lines 21 - 28 17 Transcript page 1-19, lines 12 - 13 18 Transcript page 1-19, lines 15 - 25 -- 7 of 9 -- 8 Compliance with the ACCC [39] Mr Buckingham now says that Satellite did not comply with the requirements of the Australian Consumer Law. In particular, Mr Buckingham submits that Satellite’s conduct was misleading and deceptive and unconscionable. Mr Buckingham recites the law in relation to those matters but he does not provide details. [40] Mr Buckingham did not argue a breach of the Australian Consumer Law at the hearing. I do not propose to consider it now. An accountant’s duty as a tax agent [41] Mr Buckingham says that a tax agent must not disclose any client information to a third party without the client’s permission. He does not say why this is relevant to the tribunal’s decision. He did not raise it as an issue at the hearing. I do not propose to consider it now. [42] Mr Buckingham says that Mr Iseppi is his tax agent, even though Mr Buckingham did not agree to that appointment. [43] If Mr Buckingham doesn’t want Mr Iseppi as his tax agent, it is easy to change. For similar reasons, if Mr Buckingham doesn’t want his business mail going to Satellite, he should change the address. [44] Mr Buckingham did not raise these issues at the hearing. I will not deal with them now. Subcontracting to a third party [45] Mr Buckingham says that Satellite subcontracted the work the subject of the invoices to others, without his consent. He says that the subcontractor charged “300% more” than what he expected. [46] Mr Buckingham did not raise this issue at the hearing. I do not propose to consider it now. Bias [47] Mr Buckingham says that the tribunal showed bias against Ms Boirayon, his fellow director. [48] Bias is a very serious allegation. The test is19: … if a fair-minded lay bystander might reasonably apprehend that the decision-maker might not bring an impartial mind to the determination of the issues that he or she must decide. 19 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 -- 8 of 9 -- 9 [49] Mr Buckingham’s particulars of bias actually refer to the relationship between Mr Iseppi and Ms Boirayon. Ms Boirayon was not a party to the application; she was a witness. The tribunal heard from her before making its decision. I can see no evidence of bias against Ms Boirayon. [50] Mr Buckingham says he did not get a fair hearing in the tribunal because Mr Iseppi had more time to present his case than he was given. The transcript does not support that submission. Mr Iseppi gave his evidence through a question and answer process. It takes up five pages of transcript20. By contrast, Mr Buckingham and Ms Boirayon were able to talk uninterrupted21 and their evidence takes up seven pages of transcript. Costs [51] Mr Buckingham says that the costs Satellite charged were excessive. This is not a ground of appeal. Mr Buckingham’s submissions are not correct in any event. He says that the standard fee for a trust should be $285; Satellite charged $250. He says the standard fee for a company should be $493; Satellite charged $500. The balance of the fees were for consultation and advice. Mr Buckingham did not ask for the work to be done [52] Again, this is not a ground of appeal. Mr Iseppi told the tribunal he had a range of meetings with Mr Buckingham22. Mr Buckingham agreed that there was a meeting at which they discussed a number of things23. The tribunal preferred Mr Iseppi’s evidence, even though Ms Boirayon supported Mr Buckingham’s version of events. The test for an application for leave to appeal is not whether I might have come to a different conclusion. The test is whether the evidence can support the conclusion. The evidence does support the conclusion. I can find no compelling reason to come to a different view. Conclusion [53] The evidence can support the tribunal’s findings. There is nothing in the transcript to persuade me that the tribunal should have taken a different view of the facts. There is no reasonably arguable case that the tribunal was in error. Leave to appeal should be refused. 20 Pages 1-7 to 1-12 21 See, for example, transcript pages 1-13 to 1-15 22 Transcript page 1-11, lines 30 - 41 23 Transcript page 1-14, lines 1 – 5; page 1-15, lines 18 - 23 -- 9 of 9 --