Austin v RYB Industries Pty Ltd t/as Commercial Plumbing and Insulation Supplies [2013] QCATA 84

CITATION: Austin v RYB Industries Pty Ltd t/as Commercial Plumbing and Insulation Supplies [2013] QCATA 84 PARTIES: Jodie Austin (Applicant/Appellant) V RYB Industries Pty Ltd t/as Commercial Plumbing and Insulation Supplies (Respondent) APPLICATION NUMBER: APL371 -12 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Peta Stilgoe, Senior Member DELIVERED ON: 12 March 2013 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009, s137, s 138 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41, cited Cachia v Grech [2009] NSWCA 232, cited Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, cited McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, cited Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, applied Dearman v Dearman (1908) 7 CLR 549, cited Fox v Percy (2003) 214 CLR 118, cited Chambers v Jobling (1986) 7 NSWLR 1, cited -- 1 of 3 -- 2 APPEARANCES and REPRESENTATION (if any): The Appeal Tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009. REASONS FOR DECISION [1] Ms Austin and Mr Kelley signed an application for trading account credit with RYB Industries Pty Ltd t/as Commercial Plumbing and Insulation Supplies. RYB supplied goods to, and invoiced, G and JK Industries. It was not paid so it filed a claim against Ms Austin as guarantor. In a decision in default of a response, the Tribunal ordered that Ms Austin pay RYB $24,826.34. [2] Ms Austin wants to appeal that decision. She says that RYB did not give the Tribunal copies of important emails. She says there is no entity by the name of G and JK Industries. She says she never received the application and that the debt is not hers. [3] Because this is an appeal from a decision of the Tribunal in its Minor Civil Dispute jurisdiction, leave is necessary. Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error? [4] Ms Austin has filed new material with her application for leave to appeal. The Appeals Tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined.1 Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Ms Austin have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?2 [5] If I accept that Ms Austin was not served, then she does have a good reason for not providing this material to the Tribunal. She has provided a copy of a subcontract between FK Gardner & Sons Pty Ltd and Mr Kelley. She says that the supplies ordered from RYB were for this job and the subcontract proves that RYB was invoicing the wrong entity. She has also filed emails from Mr Kelley showing a different trading name. For reasons that I will give shortly, I do not consider that this material will have an important impact on the result of the case and I will not consider it when making my decision. 1 Queensland Civil and Administrative Tribunal Act 2009 ss 137, 138. 2 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408 -- 2 of 3 -- 3 [6] Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.3 [7] An appellate tribunal may interfere, however, if the conclusion at first instance is „contrary to compelling inferences‟ in the case.4 As the High Court said in Fox v Percy: In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.5 [8] The application for a trading account showed G and JK Industries as the trading name. The space for “individual/company name” was blank. Mr Kelley and Ms Austin were both named as “directors/proprietors”. The application defined “buyer” as the “person, firm or company having signed this document”. Ms Austin signed the document. It follows that she is a “buyer” and is responsible for the debt. A change in the trading name, or the trading entity, does not affect Ms Austin‟s liability for the debt. That is the purpose of a guarantee. [9] The Tribunal ordered that Ms Austin be served by sending the application to her last known postal address, a PO Box. Ms Austin says she relocated to Western Australia but she does not say when. The Tribunal was entitled to infer that Ms Austin had been served and Ms Austin has not given any cogent evidence to contradict that inference. [10] There is nothing in the file that persuades me the Tribunal should have taken a different view of the facts. [11] There is no question of general importance that should be determined by the appeals tribunal; there is no reasonably arguable case that the learned Adjudicator was in error; there is no reasonable prospect of substantive relief on appeal; and there is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused. 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. 5 Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ. -- 3 of 3 --