Dicken & Australis Premium Tours v Blanc Creations [2011] QCATA 41

CITATION: Dicken & Australis Premium Tours v Blanc Creations [2011] QCATA 41 PARTIES: Brook Dicken & Australis Premium Tours Pty Ltd (Applicant/Appellant) v Blanc Creations Pty Ltd (Respondent) APPLICATION NUMBER: APL289-10 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member DELIVERED ON: 1 March 2011 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal is refused. CATCHWORDS: LAW – FACT 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). REASONS FOR DECISION [1] On 7 July 2009 Blanc Creations Pty Ltd (“Blanc Creations”) commenced a proceeding for a minor debt in the Magistrates Court at Beaudesert against the applicant, Mr Picken, Sheree Picken and Australis Premium Tours Pty Ltd. -- 1 of 5 -- 2 [2] The claim was for $7,462.84 plus filing fee and bailiff’s fee giving a total of $7,634.34. The claim was for artwork and printing services provided by Blanc Creations to the named defendants. [3] A defence was filed which contained a narrative of events but did not challenge the joinder of each of the defendants as proper defendants. A counterclaim was made for $2,464.00. [4] Prior to the hearing, an agreement was reached between the named defendants and Blanc Creation’s Collection Agent, Safeguard Collection Services whereby it was agreed that the defendants would pay to Blanc Creations the sum of $5,000.00 in full satisfaction of the claim. The payment was to be made in 8 weekly instalments of $625.00 with the first such payment due on 21 September 2009. [5] It appears that the terms of settlement were not recorded and signed by the parties however, a letter was sent from Safeguard Collection Services to Brook Picken and Sheree Picken on 18 September 2009 which states: “We refer to the above matter and to the hearing that took place this morning at the Southport Magistrates Court. We confirm that the settlement amount of $5,000.00 is to be paid to this office by 8 weekly instalments of $625.00, the first payment being due on 21 September 2009 and the final payment being due on 9 October 2009. Once the total of $5,000.00 is received by our office the balance will be written off and your account will be considered settled. Should payment not be remitted in accordance with the terms as agreed at the court hearing today we will have no alternative but to proceed with further legal action to recover the outstanding debt. … Failing the remittance of the settlement amount by the due date will result in immediate action proceeding for the full amount outstanding plus resultant legal costs and interest.” [6] There is no written response to that record of the agreement reached, nor I might say, is there any challenge to it in the material filed by the applicants. [7] The applicants defaulted in payment and the matter was re listed for hearing in the Tribunal at Beaudesert on 8 July 2010. There was no appearance by the applicants. The learned Tribunal Member who conducted the hearing accepted that of the $5,000.00 there was $2,250.00 outstanding and that, together with the balance of the claim, -- 2 of 5 -- 3 resulted in a total amount outstanding of $3,493.50. The amount outstanding is made up as follows: Total original outstanding $6,072 Filing fee $ 85 Service fee $ 86 Less payments of $2,750 Balance $3,493 [8] From that decision the applicants have filed an application for leave to appeal and appeal. Leave to appeal is necessary. 1 It is noted that Sheree Picken is not one of the applicants to the appeal. That can probably be explained because it is her contention, and that of the current applicants she was not involved in the transaction and could not therefore be liable for the amount owing. In fact, prior to the hearing before the Tribunal member she filed a document in the Magistrates Court at Beaudesert stating that she was not employed nor an owner of Australis Premium Tours Pty Ltd and produced a company search to that effect. [9] This, it seems to me is of little consequences because, for the reasons set out below, leave to appeal will be refused. The grounds of appeal set out in the application are as follows: 1. “This was heard in the Southport court and processes put in place which included banning safeguard in no longer and or allowed to approach us which has been breached from day one, this was made at Southport court claim number 0002865/09. 2. entitled of this debt are Australis Premium Tours formerly Australian 4wd P/L 3. Named entities of Brook and Sheree Picken are incorrect. 4. Sheree does not work for and is not a director of the company. 5. Brook Picken should have been named as the director only not as entity. 6. We supplied paperwork prior to 28 days to Beaudesert Court which was lost. 7. Asic de registered Australis Premium Tours in April 2010. 8. Australis Premium Tour Pty Ltd has no funds.” [10] The only evidence of the terms of agreement are those contained in the letter from Safeguard Collection Services to the applicants on 18 September 2009. There was no challenge to what is asserted in that correspondence. Therefore, there is no evidence that there was any condition in the agreement that contended for by the applicants that “Safeguard could not approach them further”. [11] The fact that there is an allegation that Sheree Picken does not work for and is not a director of the company is an assertion of fact, which was not contested in the original proceeding. That fact is not challenged in the 1 QCAT Act section 142(3). -- 3 of 5 -- 4 response filed in the minor civil dispute proceeding. Although evidence was put before the learned Adjudicator that she was not a director that does not of itself dispose of the contention that she was not liable for the debt in the first place, as contended for by the respondent in the minor civil dispute proceeding. [12] The applicants contend that they supplied paperwork to the Beaudesert Court which was lost 28 days prior to the hearing. That again is not a ground of appeal which demonstrates error on the part of the learned Member. Further, it does not challenge that an agreement was reached as contended for in Safeguard’s correspondence. [13] The fact that Australis Premium Tours is deregistered and has no funds is irrelevant to whether or not leave to appeal ought be granted. [14] The terms of the agreement reached between the Pickens and Blanc Creations is that if they continued to meet the repayments, the debt would be limited to $5,000. If they did not, the balance would become due and payable by default. The learned Member gave consideration to the terms of the agreement as put before him by Blanc Creations and rightly, in my view, made an order that the balance owing pursuant to that agreement was $3,493.50. That excludes the collection costs charged by Safeguard Collection Services. [15] 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 [16] In the material filed by the applicant, there is an attempt to re litigate the minor civil dispute proceeding. Emails are attached to the submission raising complaints about the services provided by Blanc Creation. However, once the agreement was reached that the claim would be compromised on a payment of $5,000, the minor civil dispute proceedings merged into the compromised agreement. When the matter was brought back before the Tribunal pursuant to the default provisions, it was the compromised agreement which founded the obligation on the Pickens to pay the full amount of the claim by default. [17] In the circumstances, no error has been identified on the part of the learned Member in coming to the conclusion that he did, nor is any 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. -- 4 of 5 -- 5 demonstrated from a perusal of the documents filed and the transcript of evidence. There is no general question of importance that needs to be determined by the appeal and therefore, leave to appeal must be refused. -- 5 of 5 --