Allardformwork Pty Ltd v Investrend Debt Solutions Pty Ltd [2011] QCATA 58

CITATION: Allardformwork Pty Ltd v Investrend Debt Solutions Pty Ltd [2011] QCATA 58 PARTIES: Allardformwork Pty Ltd (Applicant/Appellant) v Investrend Debt Solutions Pty Ltd (Respondent) APPLICATION NUMBER: APL010-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member DELIVERED ON: 22 March 2011 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal is refused. CATCHWORDS : Minor Civil Dispute – where appellant/ applicant not a party to the proceeding below and has no standing to bring the application – where no error identified in the Tribunal’s decision based on a fact finding exercise Queensland Civil and Administrative Tribunal Act 2009, s 142(3) QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Cachia v Grech [2009] NSWCA 232 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 APPEARANCES and REPRESENTATION (if any): This matter was heard on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). -- 1 of 3 -- 2 REASONS FOR DECISION [1] It is immediately apparent from a perusal of the minor civil dispute file and the application for leave to appeal or appeal that Allardformwork Pty Ltd has no standing to bring this appeal. It was not a party to the minor civil dispute proceeding from which this application originates. On that basis alone the application for leave to appeal should be refused. However, even if the proper applicant/appellant was substituted leave to appeal would still be refused for the reasons below. [2] Investrend commenced proceedings in the Magistrates Court at Southport to recover $2,611.24 from Steven Allard, now a director of Allardformwork, for debt collection services provided at, it is contended by the Investrend, Mr Allard’s request. At the time the retainer for the services was signed, 18 August 2008 Allardformwork had not been incorporated. [3] The application came on for hearing before a Tribunal Adjudicator on 14 December 2010. Prior to the hearing the history of the proceeding reveals that Investrend had obtained judgment by default in the Magistrates Court, judgment by default had been set aside and there had been bankruptcy proceedings commenced by Investrend in respect of the judgment debt. A sequestration order was made and set aside. The bankruptcy proceedings have also been resolved. [4] At the conclusion of the hearing on 14 December 2010 the learned Adjudicator made an order that Mr Allard pay to the respondent $4,403.30. The amount ordered to be paid included the tax costs of the bankruptcy proceedings ordered to be paid to the respondent by the applicant in the sum of $1,345.001 . [5] It was Mr Allard’s defence in the minor civil dispute proceeding that, at all material times, Investrend had contracted with Allardformwork Pty Ltd and not himself personally. This was the issue that was agitated before the Tribunal. [6] In her reasons, the learned Adjudicator dealt with the issue and gave reasons as to why she found that the contract was with Mr Allard. She said: “I note that the applicant states that at all times instructions for work were from Steven Allard personally, who traded as Allardformwork. The applicant also provided evidence to the Tribunal, as it was noted that the respondent’s main bone on contention, and he continued to repeat it during the hearing, was that the applicant had served the wrong party or had the claim in 1 Federal Magistrates Court certificate of taxation 10 December 2010: exhibit “F” to the affidavit of Andrew John Haberfield. -- 2 of 3 -- 3 the wrong name. The respondent purported to and gave evidence that in fact the entity that should be sued is in fact his company and not him personally.” [7] Although she accepted the evidence of Mr Haberfield, she also had regard to the documentary evidence relevant to the engagement of Investrend which clearly supports her finding. In fact no other finding is open on the evidence. The client retainer identifies the business name as Allardformwork and the sole trader being Steven Douglas Allard with Building Services Authority number 4500. That was the document which commenced the legal relationship and nothing subsequent to that changed the legal identity of the contracting parties. In addition, the learned Adjudicator was satisfied that the terms of the retainer for collection services was that which was set out in a letter to Mr Allard dated 17 December 2008. Furthermore Allardformwork Pty Ltd was incorporated on 24 September 2008 which was subsequent to the date the retainer agreement was signed on 18 August 2008. [8] Mr Allard is now asking this Tribunal to disturb the learned Adjudicator’s findings of fact. Findings of fact will only be interfered with if there is compelling evidence to establish that the findings were not supported by the evidence. That is clearly not the case here. As leave of the Tribunal is necessary for the appeal it is incumbent on Mr Allard to identify some error on the part of the learned Adjudicator. [9] The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision? 2 Is there a reasonable prospect that the applicant will obtain substantive relief? 3 Is leave necessary to correct a substantial injustice to the applicant caused by some error?4 Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage? 5 In this matter all of these questions must be answered in the negative. [10] The learned Adjudicator’s decision is based on findings of fact as to whom the respondent entered into the contract with, and which entity is responsible for that debt. No error has been identified in that fact finding process, nor has any error of law been identified. Therefore in the circumstances leave to appeal is refused. 2 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 3 Cachia v Grech [2009] NSWCA 232 at [13]. 4 QUYD Pty Ltd v Marvass Pty Ltd (supra). 5 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. -- 3 of 3 --