Dundral Pty Ltd trading as Anchor Pumping Services v Orton [2013] QCAT 604

CITATION: Dundral Pty Ltd trading as Anchor Pumping Services v Orton [2013] QCAT 604 PARTIES: Dundral Pty Ltd trading as Anchor Pumping Services (Applicant) v Mr David Orton (Respondent) APPLICATION NUMBER: MCDO454-13 MATTER TYPE: Other minor civil dispute matters HEARING DATE: 4 September 2013 HEARD AT: Southport DECISION OF: Adjudicator Trueman DELIVERED ON: 4 September 2013 DELIVERED AT: Southport ORDERS MADE: 1. THAT the Respondents Application to dismiss/strike out the claim filed 12 August 2013 is refused. CATCHWORDS: APPLICATION FOR DISMISSAL- where respondent claims application misconceived and lacking in substance - whether proceeding should be struck out Queensland Civil & Administrative Tribunal Act 2009 Agar v Hyde [2000] HCA 41 Dey v Victorian Railways Commissioners [1949] HCA 1 General Steel Industries Inc v Commissioner for Railways (NSW)[1964] HCA 69 Goodson v Grierson [1908] 1 KB 761 Spencer v Commonwealth [2010] HCA 28 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 (QCAT Act). -- 1 of 4 -- 2 REASONS FOR DECISION [1] Mr Orton makes application under section 47 of the QCAT Act for the dismissal of the claim on the basis that it is misconceived and lacking of substance. [2] The application was served on Anchor Pumping Services. They provided written submissions in response to the strike out application. [3] Section 47 of the QCAT Act for Dismissing, striking out or deciding if unjustified proceeding or part, the section states: (1) This section applies if the tribunal considers a proceeding or a part of a proceeding is— (a) frivolous, vexatious or misconceived; or (b) lacking in substance; or (c) otherwise an abuse of process. (2) The tribunal may— (a) if the party who brought the proceeding or part before the tribunal is the applicant for the proceeding, order the proceeding or part be dismissed or struck out; or (b) for a part of a proceeding brought before the tribunal by a party other than the applicant for the proceeding— (i) make its final decision in the proceeding in the applicant's favour; or (ii) order that the party who brought the part before the tribunal be removed from the proceeding; or (c) make a costs order against the party who brought the proceeding or part before the tribunal to compensate another party for any reasonable costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding or part. [4] When considering a strike out application, the evidence should be weighed in order to reach a conclusion about whether or not a claimant has an arguable case.1 It does not require a determination on the merits. Striking out should be sparingly granted to prevent abuse of process when a claim is groundless or lacks merit. But if there is a real question of law or fact to be determined, then summary dismissal is not appropriate.2 [5] A lack of any cause of action must be very clear. The party seeking to strike out the claim must demonstrate a high level of certainty about the outcome of the proceeding if it were to continue.3 [6] A question of law may be determined on a strike out application but not if there may be an important or difficult question or law to be determined.4 [7] A question of fact may not be determined in summary proceedings and dismissal should not be granted merely because it appears that an applicant is unlikely to succeed on an issue of fact, in circumstances where there are factual issues in dispute and capable of dispute.5 1 Dey v Victorian Railways Commissioners [1949] HCA 1. 2 General Steel Industries Inc v Commissioner for Railways (NSW)[1964] HCA 69. 3 Agar v Hyde [2000] HCA 41; Platinum United II Pty Ltd & Anor v Secured Mortgage Management Ltd (in liq) [2011] QCA 162; Markan v Bar Association of Queensland [2013] QSC 146. 4 Goodson v Grierson [1908] 1 KB 761. 5 Spencer v Commonwealth [2010] HCA 28. -- 2 of 4 -- 3 [8] Dundral Pty Ltd trading as Anchor Pumping Services filed a claim against Mr Orton for unpaid invoices for works performed at the request of the business operating as Exclusive Pools and Spas. The business was operated in partnership with Mr Deegenaars. Anchor Pumping Services allege that Mr Deegenaars and Mr Orton operated in partnership during the relevant invoice period. [9] Mr Orton concedes that he carried on a partnership with Mr Deegenaars in a business known as Exclusive Pools and Spas between October 2008 and 30 June 2010. He claims that partnership was dissolved on or around 1 July 2010. Mr Orton claims that his interest in the business ceased at that time. [10] Mr Orton claims that his business partner Mr Deegenaars was to continue trading with the business name but using his own personal ABN. [11] Mr Orton claims that the application filed by Anchor Pumping Services on 7 June 2013 to recover a debt of $12,409.48 for a minor civil debt allegedly owed by him is unfounded as he was not part of the business at the time. [12] Mr Orton refers to the QCAT Act that the tribunal can strike out or dismiss a claim if the proceedings unnecessarily disadvantage a party to the proceedings.6 [13] Anchor Pumping Services seeks payment of invoices dated 5 November 2010 and 16 November 2010. Mr Orton claims that as the partnership was dissolved on 30 June 2010 he was not liable for the debts. Mr Orton provided evidence to the tribunal being Statutory Declarations of Mr Keith Deegenaars sworn 22 June 2013, of Mr Nathan Deegenaars sworn 22 June 2013 and Mr John Gabriel sworn 19 June 2013. Both affidavits of Mr Keith and Mr Nathan Deegenaars depose that Mr Orton was not a Partner in the business Exclusive Pools and Spas after 30 June 2010. Mr John Gabriel deposes that he was the Accountant for the partnership involving Mr Orton and Mr Keith Deegenaars. He deposes that “I was informed that as of the 30 June 2010 David would no longer have any interest in the business and had left the partnership.” [14] Mr Gabriel’s evidence was nothing more than hearsay. He states he was merely “informed” that Mr Orton had left the partnership. This is not evidence that would persuade me that in fact that was the actual situation. As this application was determined on the papers Mr Gabriel’s evidence was not able to be clarified or tested under cross examination. [15] Mr Orton’s position that he was not a party to the partnership during the relevant invoice periods of November 2010 and he is not therefore liable for the debts arising from the invoiced works performed by Anchor Pumping Services is not supported by the evidence he presented. [16] Anchor Pumping Services claim that a search of the Australian Government Business Name register indicates that the ABN of 95 900 591 429 indicates that Mr Orton and Mr Deegenaars were engaged in a partnership that was active from 24 October 2008 and was registered at the same time. He states that the search also lists the partnership of 6 QCAT Act s 48. -- 3 of 4 -- 4 Exclusive Pools and Spas as the trading name. A copy of the search was provided and attached to the submissions.7 [17] Anchor Pumping Services claim that the Sheriff of New South Wales had confirmed that the business of “Exclusive Pools & Spas belonged to entity KC Deegenaars and DJ Orton (including name Exclusive Pools & Spa) had an ABN 95 900 591 429”. A copy of a letter from the Sherriff of NSW dated 15 November 2012 addressed to Anchor Pumping Services was provided as evidence to support this contention.8 [18] In contrast Mr Orton did not produce any evidence to support his contention that the partnership had in fact been dissolved on 30 June 2010. [19] Having regard to the well-established principles set out earlier, I am not persuaded that on a summary application for striking out to determine real questions of fact, which must be done, in order to determine whether the partnership was dissolved or not at the time the invoiced works were performed and a liability for the debts arose and was incurred by Exclusive Pools & Spas. [20] It is clear that the only way to resolve this factual dispute is for the matter to proceed to a hearing where the relevant evidence can be presented, evidence in chief, witness evidence and cross examination can occur and testing of all the relevant evidence. For those reasons the application to strike out must fail and I make orders accordingly. ORDERS 1. THAT the Respondents Application to Dismiss/strike out the claim filed 12 August 2013 is refused. 7 Attachment “A”. 8 Attachment “B”. -- 4 of 4 --