Aussie Build (Qld) Pty Ltd v Anderson [2014] QCAT 443

CITATION: Aussie Build (Qld) Pty Ltd v Anderson [2014] QCAT 443 PARTIES: Aussie Build (Qld) Pty Ltd (Applicant) v Errol Anderson Diana Anderson (Respondents) APPLICATION NUMBER: MCDO50362/14 MATTER TYPE: Other minor civil dispute matters HEARING DATE: 15 August 2014 HEARD AT: Southport DECISION OF: Adjudicator Trueman DELIVERED ON: 15 August 2014 DELIVERED AT: Southport ORDERS MADE: 1. The application for Miscellaneous matters filed by the Applicant to amend the name of the Applicant is refused. CATCHWORDS: Minor civil dispute – minor debt – application to change name of applicant – where assignment of debt by applicant to third party debt recovery agency – where assignment of debt occurred after claim commenced – where application refused - 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] Aussie Build (Qld) Pty Ltd (“Aussie Build”) filed an interlocutory miscellaneous application seeking leave of the tribunal to amend the name of the Applicant or in the alternative to add a party to the proceedings. The application seeks to add a company called Capital Options (Aust) Pty Ltd as assignee from BPGC Pty Ltd as assignee from Aussie Build. In the alternative Aussie Build seek to add Capital Options -- 1 of 3 -- 2 (Aust) Pty Ltd as Assignee from BPGC Pty Ltd as assignee from Aussie Build to be added as a party to the claim. [2] The application further seeks orders and directions that the Director of Capital Options (Aust) Pty Ltd to be entitled to represent the Applicant at all hearings before the tribunal. [3] The evidence provided with the application included an affidavit of Stephen Bax sworn on 25 July 2014 and affidavit of Harry Breslin sworn on 8 July 2014. [4] The evidence alleged is that Mr Breslin is a Director of Aussie Build and a Director of BPGC Pty Ltd (“BP”) and seeks to change the name of the claim to BP as assignee from Aussie Build based upon an assignment of the debt subject to these proceedings. [5] Mr Bax deposes that on or around 8 July 2014 Capital Options entered into an agreement with BP which provided for the benefit of this claim together with all of BP’s right, title and interest in and to the debt due by the Respondents to Capital Options. Capital Options is a company, which carried on the business of debt purchasing. A deed of assignment of debt dated 8 July 2014 was annexed to the affidavit. [6] Mr Bax deposes that a Notice in writing of Assignment of Debt dated 8 July 2014 was provided to the Respondents. [7] Mr Bax deposes that the assignment of the debt is effective in law and in equity against the Respondents in accordance with the provisions of section 199 and section 200 of the Property Law Act 1974 (Qld). [8] Mr Bax deposes that the Director of the Company met and resolved that as Director of Capital Options that he be appointed to represent Capital Options in any QCAT or Magistrates Court proceedings. Mr Bax alleges that he is a Director of Capital Options as is Roberto Ferretino Corleone and David Colin McGrath. [9] Mr Bax annexed to his affidavit an Australian Securities Investments Commission (ASIC) search for Capital Options. [10] Mr Breslin deposed in his affidavit that he was a Director of BP and that he entered into an agreement with Aussie Build, which “provided for the benefit of this tribunal claim.” [11] Mr Breslin deposed that he was appointed as a Director of BP to represent BP in tribunal and court proceedings. He deposed he was also a Director of Aussie Build. [12] Mr Breslin annexed to his affidavit a copy of an Australian Securities and Investment Commission (ASIC) extract for the company BP. -- 2 of 3 -- 3 FINDINGS [13] There are many anomalies with the evidence and the affidavit material is incomplete regarding the application. The affidavit material proposes that Mr Breslin deposed in his affidavit that his name was Harry Breslin. He alleges that he is a Director of BP. The ASIC search indicates that the two Directors are Nimnual Khamsuk and Howard Breslin. The search does not note Mr Harry Breslin as an Officeholder. The evidence of Mr Breslin is therefore confusing and unreliable. [14] The alleged assignment of debt by Aussie Build was evidenced by way of a copy of the agreement. The agreement notes Aussie Build assigning to BPGC and is signed by Mr H. Breslin as both Assignor and Assignee. There is no evidence as to who the Directors of Aussie Build are and in fact no proof that Mr Breslin is a Director of that company. The parties did not provide an ASIC search for Aussie Build and without proof as to who the Directors of that company are; the Deed of Assignment of the Debt is meaningless. [15] In the circumstances, the evidence is incomplete and there is insufficient evidence that would warrant a change of neither name nor a reason to add another party to the proceedings. Aussie Build initially commenced proceedings in the company name, the claim should continue with that party named as the only applicant. [16] As an aside, an assignment of debt can not be used as a “back door” method for a party to a claim to be represented by another company, debt recovery or otherwise, if leave to be represented has been refused. A party to a claim who wishes to be represented must prepare the necessary application and seek leave from the tribunal. The tribunal considers that parties should represent themselves unless the interests of justice requires otherwise.1 ORDER 1. The application for Miscellaneous matters filed by the Applicant to amend the name of the Applicant is refused. 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 43(1). -- 3 of 3 --