Hart v Brannelly

[2014] QCAT 45

CITATION: Hart v Brannelly [2014] QCAT 45

PARTIES:	Kaylene Debra Hart (Applicant)
v
Matthew James Brannelly (Respondent)

APPLICATION NUMBER: MCDO2171/13

MATTER TYPE: Other minor civil dispute matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Adjudicator Gordon

DELIVERED ON: 14 January 2014

DELIVERED AT: Brisbane

ORDERS MADE:	The application to dismiss or strike out the proceeding is refused.
CATCHWORDS:	Minor civil dispute – application to dismiss or strike out the proceedings

APPEARANCES and REPRESENTATION (if any):

The tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. By an application received on 17 December 2013 the Respondent applied on Form 40 for an order that ‘the application be set aside and deemed invalid because there is no contract between (the Respondent) and (the Applicant)’.

2. This application was accepted and dealt with as if it were an application to dismiss or strike out the proceedings.

3. In the application to strike out, the Respondent said that the contract was between Beetle 2 Pty Ltd ATF the BA Trust trading as Orbit Strategies and the Applicant.  The contract being referred to here is that upon which the Applicant brings the claim, that is a “Consulting Services Agreement” which is attachment 1 to the claim.

4. The Consulting Services Agreement is signed by the Respondent ‘for and on behalf of the Client’.  In the Schedule to the agreement there is a box where the Client is to be named.  However, it is blank.  On the face of the Consulting Services Agreement therefore, the Respondent did personally contract with the Applicant.

5. Evidence extraneous to the written contract may be admissible to show that objectively the intention of the parties was otherwise, and that the contracting party was Beetle 2 Pty Ltd as the Respondent says.  However, this is something which would normally be examined at a hearing rather than dealt with on paper.  This is because oral evidence and submissions may well be required for that issue properly to be determined.

6. Further, the evidence provided by the Respondent for saying that the contracting party was Beetle 2 Pty Ltd ATF the BA Trust trading as Orbit Strategies was a Certificate of the Registration of a Business Name given under the Business Names Act 1962 (Qld). That showed that in Queensland the business name “Orbit Strategies” was registered as a trading name of Beetle 2 Pty Ltd ATF the BA Trust. The Respondent’s point is that Orbit Strategies is referred to in the Applicant’s documents as the recipient of her services. However that certificate expired on 28 June 2012 and the Consulting Services Agreement was signed in June 2013. There is no evidence therefore showing what individual, partnership, or corporation carried on business in the name of Orbit Strategies at the time the contract was signed or at the time when services were provided under it.

7. The application to strike out the claim therefore fails.

8. Sometimes in the light of a reaction to the claim of this sort, an applicant applies to join as a party the person whom the Respondent says was the real contracting party.  The Applicant has not made that application.  Even in the absence of an application to do this, the Tribunal might do so of its own motion.  However, the Tribunal did not exercise its powers to add Beetle 2 Pty Ltd ATF the BA Trust trading as Orbit Strategies as a party because in her submissions in response to the Respondent’s strike out application, the Applicant stated that she had received legal advice only to sue the Respondent.  This was because Orbit Strategies was no longer registered as a business name.