Brisbane Prestige Property Developments Pty Ltd v Irwin

[2015] QCATA 14

CITATION: Brisbane Prestige Property Developments Pty Ltd v Irwin [2015] QCATA 14

PARTIES:	Brisbane Prestige Property Developments Pty Ltd (Applicant/Appellant)
v
Harper Irwin (Respondent)

APPLICATION NUMBER: APL452-14

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member Stilgoe OAM

DELIVERED ON: 2 February 2015

DELIVERED AT: Brisbane

ORDERS MADE:

1.    Leave to appeal granted.

2.    Appeal allowed.

3.    The decision of 1 October 2014 is set aside.

4.    Brisbane Prestige Property Developments Pty Ltd is removed as a respondent to the proceeding.

5.    Harper Irwin shall serve a copy of the claim, and all supporting material, on AGB Consolidated Pty Ltd ATF AGB Business Trust by 16 February 2015.

6.    Harper Irwin shall file an affidavit of service by 23 February 2015.

7.    If Harper Irwin does not serve AGB Consolidated Pty Ltd ATF AGB Business Trust by 16 February 2015 her claim is dismissed.

8.    If Harper Irwin does serve AGB Consolidated Pty Ltd ATF AGB Business Trust by 16 February 2015, the proceeding is returned to the tribunal in its minor civil disputes jurisdiction for hearing.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where agent appeared at hearing to correct respondent – where proper respondent added – where respondent had no notice of hearing and not represented – where orders made against agent and proper respondent – whether grounds for leave to appeal

Pickering v McArthur [2005] QCA 294

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 (Qld) (QCAT Act).

REASONS FOR DECISION

1. Ms Irwin rented a shop. Brisbane Prestige Property Developments Pty Ltd was the agent for the owner, AGB Consolidated Pty Ltd, a company which bought the property part way through Ms Irwin’s lease.

2. At the end of the lease, in May 2013, Ms Irwin wanted her bond of $8,250 returned. In July 2014, Ms Irwin still did not have the bond, so she filed proceedings against Brisbane Prestige Property. 

3. Brisbane Prestige Property appeared at the hearing for the sole purpose of informing the tribunal that it was not the proper respondent. The learned Adjudicator added the proper respondent – AGB – and then ordered that both Brisbane Prestige Property and AGB pay the bond plus a filing fee, a total of $8,355.

4. Brisbane Prestige Property wants to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]

   [1]QCAT Act s 142(3)(a)(i).

   [2]Pickering v McArthur [2005] QCA 294 at [3].

5. There are two grounds of appeal. The first ground is that Brisbane Prestige Property is not liable for the bond.

6. The learned Adjudicator made an order against Brisbane Prestige Property because it was the agent of AGB. Generally, an agent will only be personally liable for the acts of its principal if it fails to disclose the existence of the principal. That situation cannot apply here. In a letter of 21 May 2013 from H. Drakos & Company Pty Ltd, solicitors, the name of the lessor was disclosed as AGB Consolidated P/L ATF AGB Business Trust. Ms Irwin wrote to the solicitors on 19 June 2013. She should have been in no doubt about the identity of the lessor and the role of Brisbane Prestige Property. Ms Irwin named the wrong respondent. Her claim could have been dismissed without any further argument at that preliminary stage.

7. In residential tenancy situations, the agent is often named as a party and can be responsible for meeting the owner’s obligations. This was not a residential tenancy. The learned Adjudicator erred in making an order against Brisbane Prestige Property. Leave should be granted and, to that extent, the appeal allowed.

8. The second ground of appeal is that the learned Adjudicator did not hear argument from the lessor about its claims against Ms Irwin.

9. There was some evidence claims for deductions totalling $1,524[3] but Brisbane Prestige Property was not prepared to argue them.[4] If, as appears from the transcript, Brisbane Prestige Property was not appearing on behalf of AGB, then AGB had no notice of the hearing and no ability to present argument. Once the learned Adjudicator joined AGB as a party, the proper course was to adjourn the hearing to enable it to be served and, if it chose, appear at the hearing. The learned Adjudicator’s failure to do so was an error for which leave to appeal should be granted.

   [3]Email John Samios to Ms Irwin dated 8 July 2014.

   [4]Transcript page 1-7, lines 13 – 15; 4 – 35.

10. The decision of 1 October 2014 should be set aside. I direct that Brisbane Prestige Property Developments Pty Ltd be removed as a party to the proceeding. Because AGB is now a party but was not present at the hearing, I direct Ms Irwin to serve a copy of the claim, and all supporting material, on AGB by 16 February 2015. I further direct that she file an affidavit of service by 23 February 2015. If Ms Irwin fails to serve AGB by 16 February 2015, her claim will be dismissed. If Ms Irwin does serve AGB, the proceeding should be returned to the minor civil dispute jurisdiction for hearing.