Argo International Pty Ltd v Vubonic Pty Ltd & Ors [2014] QCAT 181

CITATION: Argo International Pty Ltd v Vubonic Pty Ltd & Ors [2014] QCAT 181 PARTIES: Argo International Pty Ltd (Applicant) v Vubonic Pty Ltd (First Respondent) Graham Douglas Favell (Second Respondent) Scott Martell Robinson (Third Respondent) APPLICATION NUMBER: MCD59/14 MATTER TYPE: Other minor civil dispute matters HEARING DATE: 24 February 2014 HEARD AT: Southport DECISION OF: Adjudicator Trueman DELIVERED ON: 9 May 2014 DELIVERED AT: Southport ORDERS MADE: 1. The Respondents pay to the Applicant the sum of $8209.60 within seven days. CATCHWORDS : Minor Civil Debt – alleged money loaned – where respondents disputed loan – whether money paid for licensing fee – whether funds should be repaid – whether sufficient service to proceed ex parte. Queensland Civil and Administrative Tribunal Act 2009 APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr Peter Rohan and Mrs Colleen Rohan (Directors of the Applicant Company) RESPONDENT: No appearance -- 1 of 7 -- 2 REASONS FOR DECISION [1] Mr and Mrs Rohan are Directors of the company Argo International Pty Ltd. On 15 January 2013 they allege they lent money to Mr Favell and Mr Robinson. They claim that the funds have not been repaid and they seek in their claim, the repayment of the loan funds which amount to $9,541.40 plus interest and costs. [2] Mr and Mrs Rohan allege that they originally loaned the respondents the sum of $8,011.40. They said this was lent to them conditional on it being repaid within 3 months. They allege that the funds were withdrawn from Argo’s account by way of cash withdrawal. They stated that the funds were then deposited into Mr Favell’s and Mr Robinson’s company account, Vubonic Pty Ltd. That account was held with the Heritage Bank at Robina. [3] Mr and Mrs Rohan stated that they had evidence of a bank statement and a receipt from the Heritage Bank to prove the banking transactions. [4] Mr and Mrs Rohan claim a further sum of $1,530.00 for other monies loaned to the respondents. They gave evidence that the respondents requested they pay particular accounts on their behalf and that they would repay those monies at the end of the loan period. [5] Mr and Mrs Rohan claimed that they paid a sum of $1,236.00 to Mr Favell and Mr Robinson for a share splitting arrangement. He said that arrangement has now been discovered by him ‘to be bogus’. Mr Rohan stated that he was also requested to pay $129.00 on behalf of Mr Favell and Mr Robinson for the registration of a business name for ‘Ozkind Assistance Dogs’. Mr and Mrs Rohan said that amount has also not been repaid. Mr and Mrs Rohan said that Mr Favell promised them that he would reimburse them for travel accommodation of $115.00 and pay them $50.00 for casual labour costs. They claim that none of those amounts have been paid to Mr and Mrs Rohan. Mr and Mrs Rohan stated that these further funds total $1,530.00 and were subject to a verbal agreement between the parties. Mr and Mrs Rohan provided proof of the payments for those expenses. [6] Mr Favell and Mr Robinson did not appear at the hearing. They filed a Response on 22 November 2013. They allege that the monies were not a loan to Vubonic Pty Ltd or the Directors of the company but that ‘the funds were paid to cover part costs of a licensing fee’. Mr Favell and Mr Robinson claim in their Response that in fact Mr and Mrs Rohan ‘still owes the amount of $23,470.00 being for the balance payable for the licence that was granted’. [7] Mr Favell and Mr Robinson deny any loaned funds and further claim in their response that they have no knowledge of any ‘matter of $129.00 for Ozkind Assistance Dogs, $115 for travel accommodation or $50 for casual labour’. -- 2 of 7 -- 3 [8] Mr Favell was served a copy of the claim at the given address of Bentley Park, Bridgman Drive at Reedy Creek and Mr Robinson was served at an address in Driver Court in Mermaid Waters. The Respondents were served and later filed Responses on behalf of the Company and each separately for them as both Directors. The responses were signed by Mr Favell and Mr Robinson. [9] Notices of Hearing1 were sent to all Respondents at those given addresses. I am satisfied that the respondents received the Notices of Hearing. The Respondents filed an interlocutory application seeking leave of the tribunal to dispense with mediation and stated that they had ‘attempted to resolve the matter’ obviously without success. That application appears to have been filed on behalf of all respondents and further states ‘as the applicant has claimed from all respondents and not apportioned the amounts when talking to him’ they sought orders to ‘bypass mediation’. The application also sought orders for a closed hearing and a non-publication order stating ‘evidence – may prejudice other other (sic) negotiations. Could affect international trade agreement’. The application was signed by Mr Favell, in person and as Director of Vubonic Pty Ltd and Mr Robinson on 29 November 2013. From the file it appears that these applications were not dealt with and an order was made on 3 December 2013 that the ‘application ……would be dealt with at hearing on 10 December 2013’. [10] From the court file it appears that on 6 December 2013 Mr Robinson emailed the court registry advising ‘I received letters from this court today advising me that hearings to dismiss the matter are set for the 10th December. I am writing to advise that I will be unable to attend on medical grounds’. [11] The claim proceeded to mediation on 10 December 2013. The respondents did not appear. The respondents requested that the claim be transferred from Coolangatta to the Southport registry. On 15 January 2014 the respondents wrote to the tribunal requesting that the claim be adjourned to a later date due to the fact that both Mr Robinson and Mr Favell would ‘be in China and Hong Kong between 19 January and 27 February 2014’. The Respondents did not provide evidence of their alleged overseas travel plans. [12] The claims were transferred from Coolangatta to Southport. Mr Favell and Mr Robinson had sought to have the claim transferred to Brisbane. The reasons stated in their application were that Mr Favell was to ‘be living in Brisbane and Mr Favell is disabled and wheelchair-bound it would be less stressful as travel causes pain’. [13] Mr Rohan gave evidence that he attended the offices of the company Vubonic Pty Ltd, where Mr Favell and Mr Robinson both work. He said the business address is 240 Scottsdale Road, in Reedy Creek and that the ASIC business name search provides a different address. He said that the 1 Pursuant to section 92 Queensland Civil and Administrative Tribunal Act 2009. -- 3 of 7 -- 4 address on the ASIC search is incorrect and that he principal place of business is an address noted as 510 Christine Avenue Robina, which is an address that does not exist. Mr Roan said he worked for Mr Favell and Mr Robinson and he was employed on a casual basis in their ‘printing and security systems business’. He says the ‘ASIC extract contains erroneous information’. THE EVIDENCE [14] Mr and Mrs Rohan, in their capacity as Directors of the Applicant Company Argo International Pty Ltd, provided to the tribunal various documents and evidence relevant to the claim. [15] Mr Rohan said that Mr Favell requested he pay for the business registration for his new business that was OzKind Assistance Dogs Inc. He said he paid it on the basis he would be repaid. He produced a document that was noted as a Request for an extract certificate for the registration of a charity. It was noted for the name “Ozkind Assistance Dogs Inc” and was for an application payment. It was in the name of Mr Peter Rohan as the lodging party and provided what appears to be his credit card details for payment of $129.00.The request was noted as ‘posted 19/11/12’. [16] Mr Rohan provided copes of tax invoices for accommodation costs at the Bendemeer Hotel in Bendemeer in New South Wales for $115.00. He said he incurred overnight accommodation costs caused by delay due to ‘office furniture move delayed the 6am departure to Sydney’. [17] Mr Rohan claims that Mr Favell said the monies loaned were for the purchase of stock for Vubonic to purchase ‘security systems’. He said it was for a business loan and would be paid back by the Directors of the company within three months. He said that on 15 January 2013 he withdrew a cash sum of $8,011.40 from his ANZ bank account. He provided a statement2 from his account to prove that allegation. He said he deposited the cash on the same day into the Vubonic business account at Heritage bank. A copy of the deposit and transaction record3 was provided to the tribunal. [18] Mr Rohan said he also paid $1,236.00 to Mr Favell for a share splitting arrangement. He said he transferred the money from his ANZ bank account to Mr Favell. He provided a copy of an ANZ bank statement4 to prove the transfer and support his contention. 2 ANZ Bank statement for ARGO account printed 15/3/2013 & attached to original claim. 3 Heritage Bank deposit re: acc 12785903 S1 Vubonic dated 15/1/13 attached to original claim. 4 ANZ Bank statement for period 17/1/-15/3/2013 in bundle of documents marked “Exhibit 1”. -- 4 of 7 -- 5 THE LAW [19] Schedule 3 of the QCAT Act describes a minor civil debt, amongst other things, as a ‘claim to recover a debt or liquidated demand of money, with or without interest, of up to the prescribed amount ($25,000.00)’. [20] A debt or liquidated demand has been described as a sum of money that can be calculated by reference to a formula schedule or some other yardstick by which the debt or sum payable can be readily calculated. FINDINGS [21] This is a minor civil debt as I find that the amount claimed by Mr and Mrs Rohan is a liquidated claim5 for the repayment of a debt. [22] I find that the Applicant is a Company, Argo International that provided the funds for the loan of $8,011.40 to the Respondents. [23] Mr Favell and Mr Robinson state in their response that the monies were not a loan. In their later application filed on 3 December 2013 they both refer to the monies allegedly owed in the context that Mr Rohan was claiming monies ‘from all respondents and not apportioned the amounts’. [24] In my view the respondents themselves have admitted liability in their response which supports the Rohans’ contention that the monies were loaned to the Directors and the company Vubonic Pty Ltd. The Directors of Vubonic have stated that they object to a claim for all monies to be paid by ‘all’ of the Respondents to the Applicant. Mr Favell and Mr Robinson seems to suggest that each of the three respondents should be ‘apportioned the amounts’ to be repaid and that they not be held jointly and severally liable. I find their response supports a finding that they are indebted to the Applicant Company and that the Mr Favell and Mr Robinson were aware that the funds deposited to their Company account was a loan and was to be repaid. I cannot make any findings as to the loan period and that it was for a 3 month period but I satisfied and find that the monies are required to be repaid by the Respondents to Argo International. [25] I find that the respondents contention that they were overseas at various times in various countries unsubstantiated and unlikely to be true. I find that the respondents used the excuse of transferring the claims from Coolangatta to Southport based on the fact that ‘Mr Favell is disabled and wheel chair bound and travel causes pain and requires administration of Pethadine (sic)’ yet his excuse for not attending court on another occasion was due to the fact that Mr Favell had travelled extensively and was ‘in China and Hong Kong’. I find that Mr Favell’s excuse to have the matter transferred from Coolangatta to Southport based on his inability to travel likely to be untrue, as it appears he was able to travel to China and Hong Kong in January and February this year. 5 Section 12(4)(a) Queensland Civil and Administrative Tribunal Act 2009. -- 5 of 7 -- 6 [26] I find it is more probable than not, that the excuse of having the claim transferred from Coolangatta to Southport, and later to have the matters adjourned, by stating that they were overseas and therefore unavailable to attend a hearing, merely attempts by the respondents to avoid the inevitability of this matter being heard, evidence given about the loan and findings made about Mr Favell and Mr Robinson’s dubious business dealings. [27] As the respondents did not appear at the hearing of this matter I must consider if it is appropriate for the matter to be heard ex parte. In light of the respondents communications to the tribunal, being emails and acknowledgement of having received hearing notices and requesting adjournments due to not being available, I am satisfied that the addresses on the claim for the respondents are correct. Upon being satisfied that the respondents all had notice of the hearing I determined to proceed in their absence. I have had regard to the matters the respondents raised in their responses and I have taken those matters into account. [28] Mr Favell and Mr Robinson stated in their responses that the monies were used by them to “cover part costs of a licensing fee”. I reject that statement and do not accept that as the truth. They did no provide any evidence whatsoever, either attached to their response or filed as submissions, to support that contention and I find that it is more likely that not to be a lie. [29] I find that the claim by Argo International for the sum of $1,530.00 has not been made out. The part of the claim for $1,236 for an alleged share splitting arrangement must be refused. The ANZ bank statement indicated the funds were paid to Mr Favell on 23 January 2013 and paid directly from Mr and Mrs Rohan’s personal account. The funds were transferred to Mr Favell and as it is a claim that appears to be from monies loaned by Mr and Mrs Rohan personally it cannot be included in a claim that commenced by their company, Argo International Pty Ltd. That is not to say that Mr and Mrs Rohan may have an entitlement to make a claim for reimbursement of those further funds, but that is a matter that I am not required to consider in the determination of this claim. In relation to the claim for the further sum of reimbursement for travel accommodation and costs in the sum of $294.00 I refuse that claim based on insufficient evidence. For these reasons I will refuse that part of the claim that is for $1,530.00. [30] On the evidence before me I am satisfied that I can make a finding that the respondents were loaned on 15 January 2013 the sum of $8,011.40 by the Applicant Company. Mr and Mrs Rohan are entitled to bring the claim as Directors of the Company and seek those funds be repaid to their company. For the reasons I have given I am satisfied that is the order that I should make. [31] In unravelling the evidence of this claim and the conduct of Mr Favell and Mr Robinson and their business dealings with their company Vubonic Pty Ltd, I find that the Respondents have misled Mr and Mrs Rohan and used -- 6 of 7 -- 7 whatever means of lies and deception they could to extract funds from them. The fact that it appears that Mr and Mrs Rohan were befriended and then embroiled in a web of lies and half truths, they were then conned from their savings with empty promises and inducement to loan money to directors and a company that were never going to use the funds for the so called stated business purchases. The success or otherwise of the Applicants case may not necessarily be reflected in any payment to them if the Respondents are without assets or income. [32] This case may be a timely lesson that naive and unsophisticated investors should be wary of engaging in sham share transactions or loaning money to business men for investment purposes without the necessary legal advice and paperwork in place. Trusting investors should take heed that unbelievable offers for business investments and loaning money on a short term basis with promises of high returns are often not what they seem. [33] In light of the evidence provided to the tribunal in this case and for the reasons given I propose to order the repayment of the loan amount, the filing fee and the bailiff service fee. The order I make is as follows: 1. THAT the Respondents pay to the Applicant the sum of $8,209.60 within seven days. -- 7 of 7 --