Benton v Reajohns Pty Ltd t/a Boonah Mitre 10 [2013] QCATA 66

CITATION: Benton v Reajohns Pty Ltd t/a Boonah Mitre 10 [2013] QCATA 66 PARTIES: Christopher Benton (Appellant) v Reajohns Pty Ltd t/a Boonah Mitre 10 (Respondent) APPLICATION NUMBER: APL383-12 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Dr J R Forbes, Member DELIVERED ON: 4 March 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused. CATCHWORDS: MINOR CIVIL CLAIM – goods sold and delivered – judgment for vendor –– whether personal or corporate liability – whether material evidence disregarded – whether any or any sufficient evidence to support decision – Adjudicator’s function regarding questions of fact and credit - whether leave to appeal should be granted Queensland Civil and Administrative Tribunal Act 2009, s 3, s 20, s 32, s 53, s 84, s 142, Schedule 3 Queensland Civil and Administrative Tribunal Rules 2009, Schedule Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Cypressvale Pty Ltd v Retail Shop Lease Tribunal [1996] 2 Qd R 462 Re Knezevic; Ex parte Carter [2005] WASCA 139 Total Marine Services Pty Ltd v Kiely (1998) 51 ALD 635 -- 1 of 7 -- 2 Martin v Osborne (1936) 55 CLR 367 Re Van Beelen (1974) 9 SASR 163 Jones v Dunkel (1959) 101 CLR 298 Hewett v Medical Board of Western Australia [2004] WASCA 170 Go & MJT Nominees Pty Ltd v Hollywells Homewares Pty Ltd & Anor [2010] QCA 368 Robinson v Corr [2011] QCATA 302 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 257 Drew v Bundaberg Regional Council [2012] QPELR 350; [2011] QCA 359 Felton and Anor v Raine and Horne Real Estate [2011] QCATA 330 Fox v Percy (2003) 214 CLR 118 Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611 In Re W (an infant) [1971] AC 682 Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” (1976) 136 CLR 529 Police v Kyriacou (2009) 103 SASR 243 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). REASONS FOR DECISION [1] Christopher Benton (“Benton”) seeks leave to appeal1 against a decision of Mr LeMass, Adjudicator, ordering him to pay $15,766 to the Respondent (“Mitre”) for the price of goods sold and delivered, and for costs. The purchases alleged by Mitre were made between May 2006 and late September 2007. The proceedings were initiated in the Magistrates Court at Ipswich, and transferred2, by consent, to this Tribunal. [2] Benton seeks leave, alleging that the Adjudicator - a) failed to consider any indemnity [sic] provided by [Benton’s] company at the time; 1 QCAT Act ss 142(3)(a)(i), 142(3)(b). 2 QCAT Act s 53. -- 2 of 7 -- 3 b) did not consider or question any of the evidence provided in [Benton’s] original affidavit; c) contradicted statements made in that affidavit without exploration of the facts; d) accepted [Mitre’s] evidence without proof, but denied [Benton’s] due to lack of proof; and e) placed weight on presumption as fact [sic] rather than concrete evidence but denied [Benton] the same. [3] I shall consider the proposed grounds of appeal in the order set out above. Failure to consider any indemnity provided by Benton’s company? [4] The meaning of this ground is difficult to discern. It appears3 to be a reversion to one of Benton’s defences at first instance, namely, that the subject debts were not incurred by him personally, but by his company Astra Flightdeck Engineering Pty Ltd.4 There is no substance in that submission. Every one of the 17 monthly accounts in evidence was addressed to “Chris Benton”, and there is not the slightest indication, at any time during the relevant sixteen months, that he took issue with that address, or requested that the company’s name be substituted for his own. On one occasion outside that period, in February 2006, Benton sent Mitre a $5000 cheque drawn on the company’s account5, but when (as here) a company is effectively an individual’s alter ego, personal debts are not uncommonly paid with company cheques. Benton’s evidence does not exclude that possibility. If “B” chooses to pay “A’s” debt to creditor “C”, “B” does not ipso facto become the debtor. Besides, that single instance does not outweigh the substantial evidence of personal liability in the relevant May 2006-September 2007 period. As the Adjudicator remarked,6 Benton made little use of the “company defence” at the hearing; that is not surprising. Failure to consider evidence in Benton’s affidavit? [5] Benton complains that during the hearing he “was not asked to justify or reflect on any statements” therein, although it “presents a well rounded and unbiased account of ... the [case] I need to respond to ... I [assumed] that [it] would be my primary defence in the hearing”.7 [6] No particulars of the evidence “disregarded” are given. At the hearing Benton had every opportunity to refer to his affidavit, but did not do so. The substance of the affidavit is that Benton’s company, not Benton, is the debtor and proper defendant, and, furthermore, that most of the items charged for were never delivered. As noted above, there was little or no 3 Benton’s submissions on appeal, filed 3 December 2012, Item (1). 4 According to Benton, the company was a manufacturer of “flight simulators” (Transcript page 16) and the purchases from Mitre were for that purpose. It is, however, somewhat difficult to relate the acquisition of tanks and troughs to such an enterprise. 5 Annexure to affidavit of Christopher Neil Benton sworn 27 February 2012. 6 Transcript of hearing 9 October 2012 at [18]. 7 Benton’s submissions on appeal, filed 3 December 2012, Item (2). -- 3 of 7 -- 4 reliance on the first contention at the hearing, but the Adjudicator considered and rejected both defences. This ground is insubstantial. “Contradiction” of Benson’s affidavit without exploration of the facts? [7] In Benton’s brief elaboration of this ground8 he complains that the Adjudicator found “that there was no account or evidence that I had ever protested or questioned the invoices ... This is untrue ... I ... stated that I made a phone call and was told ... `you must have received the goods’”. [8] It is true that his affidavit makes that allegation. However, at the hearing, Mitre’s proprietor, Richardson, gave this sworn evidence: Adjudicator: You say that your drivers delivered these goods and there was no subsequent complaint about them being missing? Mr Richardson: That’s true, yes. Adjudicator: And where, for example, there are large items such as a generator or a tank or trough, you didn’t receive any complaint that these items were missing? Mr Richardson: No. Adjudicator: And so the first complaint that you received was when a defence was put into this action in the court? Mr Richardson: Yes. [9] The leading character of these questions notwithstanding, the Adjudicator had other opportunities to test the credit of the parties and the inherent probabilities or improbabilities of their stories. Benton did not revive his story of an earlier complaint at the hearing. It was Richardson, not the Adjudicator, who “contradicted” that story. The Adjudicator did not weigh the competing versions “without exploration of the facts”. On the contrary, having considered the evidence, the Adjudicator preferred the credit of Richardson to that of Benson, as the Adjudicator was entitled to do. [10] In an extempore judgment the Adjudicator was not required to produce an exhaustive list of every jot and tittle of evidence,9 but he clearly dealt with “the substantial issues on which the decision turn[ed]”.10 [11] I reject this ground of appeal. 8 Benton’s submissions on appeal, filed 3 December 2012, Item (3). 9 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259; Cypressvale Pty Ltd v Retail Shop Lease Tribunal [1996] 2 Qd R 462; Re Knezevic; Ex parte Carter [2005] WASCA 139 at [4]. 10 Total Marine Services Pty Ltd v Kiely (1998) 51 ALD 635 at 640 per Sackville J. -- 4 of 7 -- 5 Did the Adjudicator accept Mitre’s evidence without proof, but deny Benton’s due to lack of proof; and did he place weight on presumption as fact [sic] rather than concrete evidence but deny Benton the same? [12] It is convenient to deal with the fourth and fifth proposed grounds conjointly. Together they amount to a claim that the Adjudicator, in finding for Mitre, acted upon no, or no sufficient evidence, and erred in rejecting Benton’s defences. [13] It is true – indeed, it is common ground – that Mitre did not obtain receipted delivery dockets from Benton; as Richardson ruefully concedes, that was “slack” business practice.11 One readily accepts the Adjudicator’s surprise12 at the extent to which Mitre allowed rural informality and trust to dominate commercial efficiency. Nevertheless, Mitre did keep, and adduced in evidence, records upon which its numerous monthly accounts were based. Benton does not suggest that those documents were deliberately falsified; nor does he deny receiving them. He accepted Richardson’s evidence that he (Benton) visited Mitre’s shop four or five times a month during the period in question.13 He suggested that he made immediate payment for some of those purchases, but could not produce any documentary evidence of doing so.14 As the Adjudicator found, he made no complaint about the addressing of accounts to him personally, or about non-deliveries, until he filed a defence in the Magistrates Court on 21 October 2011, four years after the last purchase was made. [14] It is common ground that, on 18 February 2009, Benson emailed a “repayment schedule” to Mitre, proposing payment of $20,000 by instalments from April to October 2009. While that communication bears his company’s email address, it is expressed to be from “Chris Benton”, and by the time it was sent, Benton had had two years to consider the advantages of attributing the debt to the company. In token fulfilment of the plan, Benton paid Mitre two amounts of $2,000, in May and June 2009 respectively. [15] Benton told the Tribunal that when he prepared his “repayment plan” he was “under the hammer” and in the process of closing another business. At that time, said Benton, “I believed that I owed him the money”.15 It is reasonable to assume that those two appearances of the perpendicular pronoun were duly noted by the Adjudicator. [16] Benton asked the Adjudicator to accept, as more probable than not, that he received just five of the hundreds of items listed in the accounts. The Adjudicator declined to do so; that was his prerogative as judge of fact, credit, and “the common course of human affairs”.16 11 Transcript of hearing 9 October 2012 at [17]. 12 Transcript of hearing 9 October 2012 at [2]. 13 Transcript of hearing 9 October 2012 at [17] and [20]. 14 Ibid. 15 Ibid at [5]. 16 Martin v Osborne (1936) 55 CLR 367 at 375 per Dixon J; Re Van Beelen (1974) 9 -- 5 of 7 -- 6 [17] Confronted with Richardson’s evidence of seeing tanks and troughs supplied by Mitre on Benton’s property, Benton claimed that that his wife bought them from another supplier. However, he did not call his wife as witness, even when invited to do so,17 and he could not produce any documentary evidence of that claim.18 Asked who else provided him with hardware in the relevant period he replied: “Really just the Boonah Mitre 10 store.”19 [18] Questioned by the Adjudicator, Benton was sometimes markedly evasive; for example: Adjudicator: There are hundreds of items here. You received 16 pieces of paper and you didn’t complain ...? Benton: There had been a precedent set in the past where this had been done in my original affidavit. I said that I found it unusual that this should be done without documentation but I thought out in the country maybe that’s the way it’s done on an honesty basis ... Quite often I didn’t look at those invoices because they’d come in a huge ream of paper and I wouldn’t take the time to sit down and go through everything.20 [19] Benton’s contention that there is no evidence to support the Adjudicator’s findings, and no reasonable basis for preferring Mitre’s evidence to his, is simply unacceptable. The Application for Leave [20] There is no appeal as of right. The precondition of leave to appeal21 implies a legislative policy that, so far as justice permits, decisions in Minor Civil Disputes should be final. Leave, if granted, is not an opportunity for a retrial on the merits, or for reiteration of arguments that failed, or evidence that was rejected at first instance.22 It is not nearly enough for a party to express disappointment at the original decision, or a subjective feeling of injustice.23 It is necessary to examine the original proceedings to see whether there is a reasonably arguable case of error which, if uncorrected, will result in substantial injustice to the applicant.24 It is not appellable error to prefer one version of the facts to another, or to attribute more weight to the submissions of witness “A” than to those of witness “B”. Findings of fact will not usually be disturbed if they have SASR 163 at 193-194. 17 The rule in Jones v Dunkel (1959) 101 CLR 298 is applicable in tribunals: Hewett v Medical Board of Western Australia [2004] WASCA 170; Go & MJT Nominees Pty Ltd v Hollywells Homewares Pty Ltd & Anor [2010] QCA 368 at [61]. 18 Transcript of hearing 9 October 2012 at [11]. 19 Ibid at [16]. 20 Ibid. 21 QCAT Act ss 3(b), 142(3)(b). 22 Contrast QCAT Act s 20 (review jurisdiction). 23 Robinson v Corr [2011] QCATA 302 at [7]. 24 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 257 at [6]; Drew v Bundaberg Regional Council [2012] QPELR 350; [2011] QCA 359 at [18]; Felton and Anor v Raine and Horne Real Estate [2011] QCATA 330. -- 6 of 7 -- 7 rational, albeit debateable support in the evidence.25 Where reasonable minds may differ, a decision cannot properly be called erroneous, simply because one conclusion has been preferred to another possible view.26 [21] This is certainly not a case posing any question of general importance which should, in the public interest, be reconsidered on appeal.27 The primary decision is quintessentially one of fact and credit. The Adjudicator may have welcomed further and better evidence, but courts and tribunals must decide the probabilities of civil claims on such information as parties are willing or able to place before them.28 In this case the Adjudicator’s decision was not merely one reasonably open to him, but the only one, on the evidence, that could reasonably be made. It is not the function of this appeals tribunal to “second guess” or to interfere with findings that are the prerogative of the primary decision maker, even if it wished to do so. Leave to appeal must be refused. Costs [22] Mitre’s submissions include a claim for costs. No particulars in support of such an order, or of quantum, are given. The appeal is unmeritorious, but costs orders in minor debt claims are severely restricted.29 There will be no order for costs. ORDER Leave to appeal refused. 25 Fox v Percy (2003) 214 CLR 118 at 125-126. 26 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at [131]; In Re W (an infant) [1971] AC 682 at 700 per Lord Hailsham; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1025. 27 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580. 28 Oil (Australia) Pty Ltd v The Dredge “Willemstad” (1976) 136 CLR 529 at 582 per Stephen J; Police v Kyriacou (2009) 103 SASR 243 at [4]. 29 QCAT Act s 84, Schedule 3, “minor civil dispute”, “prescribed amount”; QCAT Rules, Schedule “minor debt claim”. -- 7 of 7 --