Borcan International Pty Ltd v Marker

CITATION: Borcan International Pty Ltd v Marker [2011] QCAT 296

PARTIES:	Borcan International Pty Ltd t/a Billie’s Prestige Selection (Appellant)
v
Jacqueline Marker (Respondent)

APPLICATION NUMBER:   APL202-11

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Judge Fleur Kingham, Deputy President

DELIVERED ON: 24 October 2011

DELIVERED AT: Brisbane

ORDERS MADE:      The application for leave to appeal is refused.1.   

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – whether hearing should have been adjourned to enable party to file a counterclaim to a minor debt claim – whether party given conflicting information – whether that was relied upon – whether the Member discriminated because of the nationality of a party’s representative – whether leave to appeal should be granted

Queensland Civil and Administrative Tribunal Act 2009, ss 83(1), (2)a), 142(3)(a)(i)
Queensland Civil and Administrative Tribunal Rules 2009, r 48

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. This is an application for leave to appeal brought by Borcan International Pty Ltd, a real estate agency.  The respondent, Ms Marker, is a real estate agent and a former employee of Borcan. 

2. Ms Marker brought an application against Borcan, in the QCAT Minor Civil Dispute jurisdiction for a minor debt: the payment of commission earned following the settlement of a property sold whilst she was an employee of the agency.  The matter was heard on 1 June 2011.  The learned Magistrate, acting in her capacity as a Member of QCAT, ordered Borcan to pay Ms Marker $9,420.53 plus the $92 filing fee.

3. Leave is required to appeal from a decision arising from a Minor Civil Dispute.[1]  Leave 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?

   [1]        Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(a)(i).

4. Borcan’s grounds for leave to appeal can be summarised as follows:

a)The learned Magistrate erred by refusing to allow Borcan an adjournment to obtain further material;

b)Borcan’s case was substantially damaged because it was given conflicting information by QCAT staff, upon which it relied; and

c)The learned Magistrate discriminated against Borcan because of the nationality of Mr Lekich, the employee who appeared for Borcan.

Should the learned Magistrate have adjourned the proceedings to allow Borcan time to submit a counter-claim?

1. At the hearing, Borcan submitted that when Ms Marker left its employ she had accrued debts that, in total, far exceeded the amount Ms Marker claimed against Borcan.  It did not produce documentary evidence to substantiate that claim.…