Cougar Air Pty Ltd v Sankarayya [2015] QCATA 98

CITATION: Cougar Air Pty Ltd v Sankarayya [2015] QCATA 98 PARTIES: Cougar Air Pty Ltd (Applicant/Appellant) v Ash Sankarayya (Respondent) APPLICATION NUMBER: APL098 -15 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe OAM DELIVERED ON: 7 July 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal granted. 2. Leave to appeal allowed. 3. The decision of 25 February 2015 is set aside. 4. Ash Sankarayya shall pay Cougar Air Pty Ltd $2,332.86 by 4 August 2015. CATCHWORDS: APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – where tenant called in air conditioning repairer – where air conditioning repaired – where tenant refused to pay – where tribunal dismissed repairer claim for payment - whether grounds for leave to appeal APPEAL – LEAVE TO APPEAL – REPRESENTATION – where company appeared by “owner” – where mercantile agent sought leave to appear – where leave refused – where agent then sought leave to appear as support person – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 43, 91 -- 1 of 5 -- 2 Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 19 Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Pickering v McArthur [2005] QCA 294 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). REASONS FOR DECISION [1] Dr Ash Sankarayya operates the Cosmetic Studio in a building known as the Meriton. In January 2014, the air conditioning in the studio was faulty. An employee called Cougar Air Pty Ltd. Cougar sent subcontractors to the Cosmetic Studio. They fixed the air conditioning and sent Dr Sankarayya an invoice. He refused to pay; Cougar filed an application for minor debt. Two Justices of the Peace, sitting as the tribunal in its minor civil disputes jurisdiction, dismissed Cougar’s claim. [2] Cougar 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] The first four grounds of appeal relate to the tribunal’s decision to refuse a mercantile agent leave to appear at the hearing. Cougar Air also submits that the tribunal did not properly deal with an application to extend the time for service of the claim. Three grounds of appeal are alleged errors of fact; that the tribunal wrongly found that Dr Sankarayya was not liable for the costs. Three grounds of appeal are alleged errors of law; that that tribunal wrongly found that Meriton was responsible for the costs and not Dr Sankarayya. Did the tribunal err in refusing an agent leave to appear? [4] Cougar Air appeared through Mr Cross who told the tribunal he “was” Cougar Air3. David McGrath from Collection and Recovery also sought leave to appear on behalf of Cougar Air. The tribunal refused the application: “Not going to happen … Goodbye.”4 Mr McGrath then framed 1 QCAT Act s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294 at [3]. 3 Transcript page 1-3, line 11. 4 Transcript page 1-3, lines 17 – 21. -- 2 of 5 -- 3 his attendance as a support person5. The tribunal did not allow Mr McGrath to appear in that capacity either6. [5] Cougar Air submits that a person may apply to be represented by a mercantile agent or debt collector and that the decision to grant is a matter for the tribunal in each case. That is correct. However, Mr McGrath had not filed and served an application for leave to represent Cougar Air. Although the tribunal’s refusal to grant leave may have been peremptory, it was understandable given Mr McGrath’s failure to follow the appropriate procedure. [6] Cougar Air submits that representation by a commercial agent is different from being assisted by a non-legally qualified support person “in circumstances where the QCAT Act and Rules provide that parties do not need the tribunal’s permissions to get legal advice or assistance”. A party does not need the tribunal’s permission to get legal advice. Generally, though, a party does need permission to be represented at a hearing, whether by a lawyer or otherwise7. The tribunal must assess whether a non- legally qualified person is appropriate to represent a party8. A debt collector, with considerable experience in the jurisdiction, is not necessarily an appropriate person if the dispute is not likely to involve complex questions of fact or law and the other party is not represented. [7] Section 91 of the QCAT Act allows a support person if the hearing is to be held in private. The section did not apply in this case, which was a public hearing. The tribunal will allow a support person if a party is having difficulty understanding the tribunal process or the concepts involved in the hearing. There was no evidence that Cougar Air was suffering such disadvantage. The tribunal’s refusal to allow Cougar Air a support person was not a denial of natural justice. Did the tribunal err in not dealing with the application to extend time? [8] Cougar Air filed its claim on 23 October 2014. It had 28 days in which to give Dr Sankarayya notice of the claim9. Therefore, it should have served the claim on Dr Sankarayya by 20 November 2014. [9] The tribunal file does not disclose when Dr Sankarayya was served. However, Dr Sankarayya filed a response to the claim on 23 December 2014. [10] On 28 January 2015, Cougar Air filed an application to extend time for the service of the claim for a period of 56 days. The application to extend time does not make sense. In any event, Dr Sankarayya was before the tribunal, so it is logical to assume that any procedural defect in service was waived. 5 Transcript page 1-3, line 23, 32 – 33. 6 Transcript page 1-3, line 25. 7 QCAT Act s 43(2). 8 QCAT Act s 43(4)(b). 9 QCAT Rules r 19. -- 3 of 5 -- 4 Although the tribunal’s treatment of this application was superficial10, it is not a valid ground of appeal. Did the tribunal err in finding that Cougar Air was not responsible for the debt? [11] The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.11 An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.12 [12] Dr Sankarayya referred the tribunal to the terms of his lease with the building owner. He submitted, and the tribunal agreed, that the lessor was responsible for the cost of air conditioning maintenance. [13] A proper reading of the whole of the lease does not support the tribunal’s interpretation that the lessor is liable for the air conditioning cost. The tribunal was referred to clause 13, which allows the lessor to recoup its operating costs. “Outgoings” is defined to include: “any other amounts paid or payable … in connection with the operation, repair or maintenance of the Building which may include air conditioning repair and maintenance costs.” [14] But clause 30(4) states: … if there are any Facilities (including but not limited to any aid conditioning plant and equipment) that exclusively service the Premises, the Tenant must keep those facilities in good repair and working condition and must: (a) Enter into maintenance and service contracts …with specialist consultants or contractors nominated by the Landlord [15] The system in question was a split system. It was an individual unit inside the Cosmetic Studio13. Under clause 30(4) Dr Sankarayya was responsible for its maintenance. He was also required to use Cougar Air for the maintenance and repair. [16] The tribunal was in error. Leave to appeal should be granted, and the appeal allowed. The decision of 25 February 2015 is set aside. [17] Dr Sankarayya submitted a number of reasons why he was not liable for the debt. The first was that Cougar Air carried out the work without his approval. The evidence showed that Dr Sankarayya’s employee called Cougar Air, the company attended, did the work and received a sign off for the work. Dr Sankarayya may not personally have approved the work but it is clear that 10 Transcript page 1-6, lines 18 – 40. 11 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125- 126. 12 Chambers v Jobling (1986) 7 NSWLR 1 at 10. 13 Transcript page 1-8, lines 3. -- 4 of 5 -- 5 the person with whom Cougar Air dealt had ostensible authority to request the work and sign the form to signify the work was completed. [18] Dr Sankarayya then submitted that he did not receive a quote for the job. Mr Cross, for Cougar Air told the tribunal that it received a call for “look at the air conditioning and fix it”14. It did so. There is no evidence that Dr Sankarayya asked for a quote first. [19] Dr Sankarayya submitted that the lessor was responsible for the debt. As I have already indicated, a proper interpretation of the lease shows that submission is not correct. [20] Dr Sankarayya also submitted that he would not have chosen Cougar Air if he had to pay for the work. Instead, he would have used a contractor with whom he had an existing relationship. Clause 30(4) requires Dr Sankarayya use Cougar Air. He complied with the lease terms. He cannot suggest that the tribunal should accept a proposed breach of those terms as a reason for not paying Cougar Air. [21] Cougar Air is entitled to payment. I order that Ash Sankarayya pay Cougar Air Pty Ltd $1991.68, plus the filing fee of $105, plus a service fee of $43.90 plus a CITEC transaction fee of $14.59. I also order interest of $177.69 to 29 June 2015, based on the Supreme Court calculator. Therefore, I order Ash Sankarayya pay Cougar Air Pty Ltd a total of $2,332.86 by 4 August 2015. 14 Transcript page 1-7, lines 11 – 14. -- 5 of 5 --