Bannick v Sunup Residential Direct & Ors [2014] QCATA 163

CITATION: Bannick v Sunup Residential Direct & Ors [2014] QCATA 163 PARTIES: Willem Johan Bannick (Applicant/Appellant) v Sunup Residential Direct Sunup Solar Pty Ltd Paul Drew aka Drew Mudgway Paul Drew aka Kelvyn Mudgway Paul Drew aka Kelven Alfred Drew Mudgway (Respondents) APPLICATION NUMBER: APL107-14 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Thomas, President DELIVERED ON: 24 June 2014 DELIVERED AT: Brisbane ORDER MADE: The application for leave to appeal is refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where agreement between applicant and third party – whether respondent bound by agreement – whether ostensible agency – whether agreement should have put applicant on inquiry – whether applicant inquired – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 142(3)(a)(i) Chambers v Jobling (1986) 7 NSWLR 1, cited Dearman v Dearman (1908) 7 CLR 549, applied Fox v Percy (2003) 214 CLR 118, applied Pickering v McArthur [2005] QCA 294, applied -- 1 of 4 -- 2 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] In early 2012, Mr Bannick met Mr McMullan and Mr Drew at the office of Sunup Solar Pty Ltd. Mr Bannick had known Mr Drew for a few months as the sales manager for Solar Corporation of Australia. Mr Drew introduced Mr McMullan as a person ‘working for Sunup’. The parties discussed Mr Bannick selling solar systems with Mr Drew. [2] On 19 March 2012, Mr Bannick signed an agreement with ‘Sunup Residential Direct’. Sunup Residential Direct was expressed to be a division of Sunup Solar and Lightenup. Mr Bannick signed on behalf of his company, Banesia International Pty Ltd. Banesia’s ABN was recorded on the agreement. Mr McMullan signed on behalf of Sunup Residential Direct. The agreement does not record an ABN or ACN for any of Sunup Residential Direct, Sunup Solar or Lightenup. [3] Mr Bannick invoiced customers on pre-printed invoices headed Sunup Solar Pty Ltd, with an ACN. The invoice also had a stamp ‘Sales Agent Kam Finance Group’ with an ABN for Kam. [4] Mr Bannick installed solar systems and rendered invoices to Sunup Solar Pty Ltd. He received commission. Mr Drew paid $5,000 cash on 18 June 2012. On 6 July 2012, Mr Bannick received a transfer of $3,250 from Kelvin Mudgway. Mr Bannick received no further commissions so, on 18 June 2013, he filed a claim against Mr Drew, in various names, claiming $7,421.28. On 2 October 2013, on Mr Bannick’s application, the tribunal added Sunup Solar Pty Ltd as a party to the claim. [5] On 5 February 2014, a Magistrate, sitting as a member of the tribunal, dismissed Mr Bannick’s claim. [6] Mr Bannick wants to appeal that decision. He repeats and relies on his submissions before the learned Magistrate. He points to the order of 2 October 2013 as evidence that the tribunal accepted Sunup Solar Pty Ltd was liable for the commission. Mr Bannick says the Magistrate made his decision without regard to the facts and evidence; that the Magistrate disregarded the fact that Mr Drew failed to appear, and that Sunup Solar Pty Ltd did not produce him to give evidence. He says that Sunup Solar Pty Ltd has a continuing relationship with Mr Drew and, therefore, should have explained how Mr Drew obtained Mr Bannick’s commissions. He says Sunup Solar Pty Ltd continued to pay Mr Drew commission, even though it knew Mr Drew did not pass that commission on to Mr Bannick. -- 2 of 4 -- 3 [7] Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.1 The principles the appeal tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as his Honour then was) in Pickering v McArthur: There are numerous authorities, in varying language but with unvarying emphasis, that 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 [8] The tribunal’s earlier decision: to allow Sunup Solar Pty Ltd to be joined as a party, is not an acknowledgment that the company is liable. It simply meant that there was enough evidence to satisfy the tribunal that Sunup Solar Pty Ltd should be a party to the claim. It does not follow that a person made party to proceedings is liable, simply because of that fact. This would render the task of the tribunal at the original hearing redundant. [9] The appeal tribunal will not usually disturb findings of fact on appeal if it considers the conclusions of the decision maker below were able to be made on the evidence then available,3 however may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.4 [10] Mr Wheeler gave evidence that Sunup Residential Direct was not a division of Sunup Solar Pty Ltd nor was he aware of any person called Mr Bannick who had authority to represent Sunup Solar Pty Ltd. Mr Wheeler denied having given any person authority on behalf of Sunup Solar Pty Ltd to enter into an agreement with Mr Bannick, or his company, Banesia International Pty Ltd. [11] Ms Baker gave evidence as to the arrangements which existed concerning payments by Sunup Solar Pty Ltd to its commission agents. [12] The learned Magistrate believed the evidence of Mr Wheeler and Ms Baker in relation to issues raised by Mr Bannick in finding that there was no contract between Sunup Solar Pty Ltd and either Mr Bannick or his company, Banesia International Pty Ltd. [13] The transcript of the hearing and evidence filed before the learned Magistrate can support the learned Magistrate’s finding that Sunup Solar Pty Ltd was not a party to the agreement. [14] Sunup Solar Pty Ltd had no obligation to produce Mr Drew as a witness at the hearing. As the learned Magistrate pointed out, Mr Bannick had to prove his case. If Mr Bannick wanted Mr Drew to give evidence, he 1 QCAT Act, s 142(3)(a)(i). 2 [2005] QCA 294 at [3]. 3 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125- 126. 4 Chambers v Jobling (1986) 7 NSWLR 1 at 10. -- 3 of 4 -- 4 should have secured Mr Drew’s attendance. Similarly, the fact that Sunup Solar Pty Ltd continues to do business with Mr Bannick is not relevant to this claim. [15] Finally, it should be noted that Mr Bannick is not the proper applicant. He signed the agreement on behalf of his company. The company rendered the invoices and therefore, it should be the applicant. [16] There is no reasonably arguable case that the learned Magistrate was in error. Leave to appeal should be refused. -- 4 of 4 --